EXECUTION VERSION
W/2841193v8
PURCHASE AND ASSUMPTION AGREEMENT
dated as of
December 30, 2016
between
FIRST NBC BANK
and
WHITNEY BANK
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ARTICLE 1
CERTAIN DEFINITIONS
1.1 Certain Definitions .................................................................................................................1
1.2 Accounting Terms ..................................................................................................................13
ARTICLE 2
THE P&A TRANSACTIONS
2.1 Purchase and Sale of Assets ...................................................................................................14
2.2 Assumption of Liabilities .......................................................................................................15
2.3 Subsequent Closing ................................................................................................................16
2.4 Purchase Price ........................................................................................................................17
2.5 Cash Payment Amount; Additional Loans ............................................................................17
2.6 Sale and Transfer of Servicing ...............................................................................................18
2.7 Real Estate Matters ................................................................................................................18
ARTICLE 3
CLOSING PROCEDURES; ADJUSTMENTS
3.1 Closings..................................................................................................................................20
3.2 Payment at Closings ...............................................................................................................21
3.3 Adjustment of Purchase Price ................................................................................................22
3.4 Proration; Other Closing Date Adjustments ..........................................................................22
3.5 Seller Deliveries .....................................................................................................................23
3.6 Purchaser Deliveries ..............................................................................................................24
3.7 Delivery of the Loan Documents ...........................................................................................25
3.8 Owned Real Property Filings .................................................................................................26
3.9 Allocation of Purchase Price ..................................................................................................26
ARTICLE 4
TRANSITIONAL MATTERS
4.1 Transitional Arrangements.....................................................................................................27
4.2 Customers ..............................................................................................................................27
4.3 ACH Debit or Credit Transactions ........................................................................................29
4.4 Wires ......................................................................................................................................30
4.5 Access to Records ..................................................................................................................30
4.6 Interest Reporting and Withholding.......................................................................................31
4.7 Negotiable Instruments ..........................................................................................................32
4.8 ATM and Debit Cards ............................................................................................................32
4.9 Data Processing Conversion for the Branches and Handling of Certain Items .....................32
4.10 Infrastructure Installation .......................................................................................................33
4.11 Employee Training.................................................................................................................35
4.12 Night Drop Equipment ...........................................................................................................36
4.13 Access to the Branches and Removal of Equipment on the Closing Date ............................36
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4.14 Customer Claims ....................................................................................................................37
4.15 Vendor Access .......................................................................................................................38
4.16 Transition Services.................................................................................................................38
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF SELLER
5.1 Corporate Organization and Authority ..................................................................................38
5.2 No Conflicts ...........................................................................................................................39
5.3 Approvals and Consents ........................................................................................................39
5.4 Leases .....................................................................................................................................39
5.5 Litigation and Undisclosed Liabilities ...................................................................................40
5.6 Regulatory Matters.................................................................................................................40
5.7 Compliance with Laws ..........................................................................................................40
5.8 Loans ......................................................................................................................................40
5.9 Records ..................................................................................................................................42
5.10 Title to Assets ........................................................................................................................42
5.11 Deposits..................................................................................................................................42
5.12 Environmental Laws; Hazardous Substances ........................................................................43
5.13 Brokers’ Fees .........................................................................................................................43
5.14 Property ..................................................................................................................................43
5.15 Employee Benefit Plans; Labor Matters ................................................................................44
5.16 Insurance ................................................................................................................................45
5.17 Limitations on Representations and Warranties ....................................................................45
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF PURCHASER
6.1 Corporate Organization and Authority ..................................................................................45
6.2 No Conflicts ...........................................................................................................................46
6.3 Approvals and Consents ........................................................................................................46
6.4 Regulatory Matters.................................................................................................................46
6.5 Litigation and Undisclosed Liabilities ...................................................................................47
6.6 Operation of the Branches .....................................................................................................47
6.7 Brokers’ Fees .........................................................................................................................47
6.8 Financing to Be Available .....................................................................................................47
6.9 Limitations on Representations and Warranties ....................................................................48
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ARTICLE 7
COVENANTS OF THE PARTIES
7.1 Activity in the Ordinary Course .............................................................................................48
7.2 Access and Confidentiality ....................................................................................................50
7.3 Regulatory Approvals ............................................................................................................51
7.4 Consents .................................................................................................................................51
7.5 Efforts to Consummate; Further Assurances .........................................................................52
7.6 Solicitation of Accounts; Non-Solicitation ............................................................................53
7.7 Insurance ................................................................................................................................53
7.8 Servicing Prior to Loan Purchase ..........................................................................................54
7.9 Repurchase of Excluded Loans ..............................................................................................54
7.10 Change of Name, Etc. ............................................................................................................54
7.11 Deactivation/Shut Down of Debit Cards ...............................................................................55
ARTICLE 8
TAXES AND EMPLOYEE BENEFITS
8.1 Tax Representations ...............................................................................................................55
8.2 Proration of Taxes ..................................................................................................................55
8.3 Sales and Transfer Taxes .......................................................................................................55
8.4 Information Returns ...............................................................................................................55
8.5 Payment of Amount Due under Article 8 ..............................................................................55
8.6 Assistance and Cooperation ...................................................................................................56
8.7 Transferred Employees ..........................................................................................................56
ARTICLE 9
CONDITIONS TO CLOSING
9.1 Conditions to Obligations of Purchaser .................................................................................59
9.2 Conditions to Obligations of Seller .......................................................................................61
ARTICLE 10
TERMINATION
10.1 Termination ............................................................................................................................62
10.2 Effect of Termination .............................................................................................................63
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ARTICLE 11
INDEMNIFICATION
11.1 Indemnification ......................................................................................................................63
11.2 Exclusivity .............................................................................................................................65
ARTICLE 12
MISCELLANEOUS
12.1 Survival ..................................................................................................................................66
12.2 Assignment ............................................................................................................................66
12.3 Binding Effect ........................................................................................................................66
12.4 Public Notice ..........................................................................................................................66
12.5 Notices ...................................................................................................................................67
12.6 Expenses ................................................................................................................................67
12.7 Governing Law; Consent to Jurisdiction ...............................................................................67
12.8 Waiver of Jury Trial ...............................................................................................................68
12.9 Entire Agreement; Amendment .............................................................................................68
12.10 Third Party Beneficiaries .......................................................................................................68
12.11 Counterparts ...........................................................................................................................68
12.12 Headings ................................................................................................................................69
12.13 Severability ............................................................................................................................69
12.14 Interpretation ..........................................................................................................................69
12.15 Specific Performance .............................................................................................................69
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List of Exhibits
Exhibit 1.1(a) Branches/Real Properties
Exhibit 1.1(b) Deposits
Exhibit 1.1(c) Excluded Brokered Deposits
Exhibit 1.1(d)(i) Loans
Exhibit 1.1(d)(ii) Initial Closing Loans
Exhibit 1.1(d)(iii) Subsequent Closing Loans
Exhibit 1.1(f) Personal Property
Exhibit 1.1(g) Seller’s Knowledge
Exhibit 3.5(a)(i) Form of Loan Document Assignment
Exhibit 3.5(b)(ii) Form of Bill of Sale
Exhibit 3.5(b)(iii) Form of Assignment and Assumption Agreement
Exhibit 3.5(b)(iv) Form of Assignment of Branch Lease and Assumption Agreement
Exhibit 4.9 Schedule of Processing Fees
Exhibit 7.4(b) Estoppel Certificate – Branch Lease
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This PURCHASE AND ASSUMPTION AGREEMENT, dated as of December 30,
2016, between First NBC Bank, a Louisiana state-chartered non-member bank with its principal
office located in New Orleans, Louisiana (“Seller”), and Whitney Bank, a Mississippi state-
chartered non-member bank, with its principal office located in Gulfport, Mississippi
(“Purchaser”).
RECITALS
WHEREAS, Purchaser desires to acquire from Seller, and Seller desires to transfer to
Purchaser, certain banking operations in the State of Louisiana, in accordance with and subject to
the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises and
obligations set forth herein, the parties agree as follows:
ARTICLE 1
CERTAIN DEFINITIONS
1.1 Certain Definitions. The terms set forth below are used in this Agreement with
the following meanings:
“Accrued Interest” means, as of any date, (a) with respect to a Deposit, interest which is
accrued on such Deposit to but excluding such date and not yet posted to the relevant deposit
account, (b) with respect to a Loan, interest which is accrued on such Loan to but excluding such
date and not yet paid and (c) with respect to FHLB Advances, interest which is accrued on such
FHLB Advances to but excluding such date and not yet paid.
“ACH” has the meaning set forth in Section 4.3(a).
“ACH Entries” has the meaning set forth in Section 4.3(a).
“ACH Entries Cut-Off Date” has the meaning set forth in Section 4.3(a).
“Adjusted Payment Amount” means (x) the aggregate balance (including Accrued
Interest) of the Deposits assumed by Purchaser pursuant to Section 2.2, minus (y) the Purchase
Price, each as set forth on the Final Closing Statement.
“Affiliate” means, with respect to any Person, any other Person directly or indirectly
controlling, controlled by or under common control with such Person. For this purpose, the term
“control” (including the terms “controlling,” “controlled by,” and “under common control with”)
means the possession, direct or indirect, of the power to direct or cause the direction of the
management and policies of a person, whether through the ownership of voting securities, by
contract, or otherwise.
“Agreement” means this Purchase and Assumption Agreement, including all schedules,
exhibits and addenda, each as amended from time to time in accordance with Section 12.9(b).
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“Appraiser” means a qualified real estate appraisal firm mutually agreed upon by
Purchaser and Seller, which shall be jointly retained and compensated equally by Purchaser and
Seller.
“Assets” has the meaning set forth in Section 2.1(b).
“Assignment and Assumption Agreement” has the meaning set forth in
Section 3.5(b)(iii).
“Assumed Liabilities” has the meaning set forth in Section 2.2(b).
“Benefit Plan” means each employee benefit plan, program or other arrangement that is
sponsored or maintained by Seller or any of its Affiliates or to which Seller or any of its
Affiliates contributes or is obligated to contribute, including any employee welfare benefit plan
within the meaning of Section 3(1) of ERISA, any employee pension benefit plan within the
meaning of Section 3(2) of ERISA (whether or not such plan is subject to ERISA) and any
bonus, incentive, compensation, deferred compensation, vacation, stock purchase, stock option,
severance, employment, consulting, retention, change of control or fringe benefit plan,
agreement, program or policy in which any of the Branch Employees or their dependents
participate.
“Branch Cash” means all petty cash, vault cash, teller cash, automated teller machine
cash, any other cash at, or held by third party banks for the account of, a Branch and cash in
transit to a Branch or from one Branch to another Branch.
“Branch Employees” means the employees of Seller or its Affiliates employed at the
Branches on the Closing Date who provide services directly relating to the operation of the
applicable Branch or Branches (including any employees who are Leave Recipients) and set
forth on the list provided by Seller in accordance with Section 5.15(a).
“Branch Lease Assignments” has the meaning set forth in Section 3.5(b)(iv).
“Branch Lease Security Deposit” means any security deposit held by the lessor under a
Branch Lease.
“Branch Leases” means the leases under which Seller leases land and/or buildings used
for the two Branches located on Veterans Memorial Boulevard in Metairie, Louisiana, including
ground leases, and the ground lease for the Branch located on St. Charles Avenue in New
Orleans, Louisiana.
“Branches” means the bank branches of Seller at the locations identified on Exhibit
1.1(a), and “Branch” refers to each such Branch or any one of the Branches.
“Business Day” means a day on which banks are generally open for business in New
York, New York and New Orleans, Louisiana, and which is not a Saturday or Sunday.
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“Closing” and “Closing Date” refer to the closing of the purchase and sale of the Closing
Assets and the Closing Assumed Liabilities, which is to be held on such date as provided in
Article 3 and which shall be deemed to be effective at 11:59 p.m., Central time, on such date.
“Closing Assets” has the meaning set forth in Section 2.1(b).
“Closing Assumed Liabilities” has the meaning set forth in Section 2.2(b).
“COBRA Continuation Coverage” shall mean the health care benefit continuation
coverage mandated by the Consolidated Omnibus Budget Reconciliation Act and similar
provisions of state law.
“Code” means the Internal Revenue Code of 1986, as amended.
“Commitments” has the meaning set forth in Section 2.7(a).
“Controlled Group Liability” means any and all liabilities (i) under Title IV of ERISA,
(ii) under Section 302 of ERISA, (iii) under Sections 412 and 4971 of the Code, and (iv) as a
result of a failure to comply with the continuation coverage requirements of Section 601 et seq.
of ERISA and Section 4980B of the Code.
“Controlling Party” has the meaning set forth in Section 11.1(f).
“Covered Period” has the meaning set forth in Section 4.4.
“CRA” has the meaning set forth in Section 6.4(f).
“Customer Claims Period” has the meaning set forth in Section 4.14(a).
“Deductible” has the meaning set forth in Section 11.1(e).
“Deposit(s)” means deposit liabilities with respect to deposit accounts that constitute
“deposits” for purposes of the Federal Deposit Insurance Act, 12 U.S.C. § 1813, including
Accrued Interest, that are allocated to the Branches in accordance with the trial balance schedule
set forth in Exhibit 1.1(b), but excluding any Excluded Deposits. Exhibit 1.1(b) shall be updated
by Seller as of 5:00 p.m., Central time, on (x) the date that is five (5) Business Days prior to the
Closing Date (and delivered to Purchaser on or before the date that is three (3) Business Days
prior to the Closing Date), (y) the date that is three (3) Business Days prior to the Closing Date
(and delivered to Purchaser on or before 5:00 p.m., Central time, on the Business Day prior to
the Closing Date), and (z) the Closing Date (and delivered to Purchaser on or before 5:00 p.m.,
Central time, on the first Business Day after the Closing), in each case to reflect deposit
liabilities associated with new deposit accounts opened after the date of this Agreement through
customer patronage of a Branch and any changes in deposit balances associated with deposit
accounts reflected in Exhibit 1.1(b) as of the date of this Agreement.
“Draft Allocation Statement” has the meaning set forth in Section 3.9(a).
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“Draft Closing Statement” means a draft closing statement, prepared by Seller and in a
form mutually agreed to by the parties, which shall be initially prepared as of the close of
business on the fifth (5th) Business Day preceding the Closing Date, and delivered to Purchaser
on the third (3rd) Business Day preceding the Closing Date and which shall be subsequently
updated as of the close of business on the third (3rd) Business Day preceding the Closing Date,
and delivered to Purchaser on the Business Day prior to the Closing Date, in each case setting
forth Seller’s reasonable estimated calculation of both the Purchase Price and the Estimated
Payment Amount.
“Encumbrances” means with respect to any Assets, all mortgages, claims, charges, liens,
pledges, encumbrances, easements, limitations, restrictions, adverse interests, commitments and
security interests affecting such Assets, all ordinances, restrictions, requirements, resolutions,
laws or orders of any governmental authority now or hereafter acquiring jurisdiction over the
Assets, all amendments or additions to any of the foregoing in force as of the date of this
Agreement or in force as of the Closing Date, and, as to any Real Property comprising or
included in such Assets, other matters now of public record relating to such Real Property,
except in each case for (i) statutory liens securing Taxes and/or other payments not yet due and
payable, and (ii) obligations pursuant to applicable escheat and unclaimed property laws relating
to the Escheat Deposits.
“Environmental Law” means any Federal, state, or local law, statute, rule, regulation,
code, order, judgment, decree, injunction or agreement with any Federal, state, or local
governmental authority, (a) relating to the protection, preservation or restoration of the
environment (including air, water vapor, surface water, groundwater, drinking water supply,
surface land, subsurface land, plant and animal life or any other natural resource) or to human
health or safety or (b) the exposure to, or the use, storage, recycling, treatment, generation,
transportation, processing, handling, labeling, production, release or disposal of Hazardous
Substances, in each case as amended and now in effect. Environmental Laws include the Clean
Air Act (42 U.S.C §7401 et seq.); the Comprehensive Environmental Response Compensation
and Liability Act (42 U.S.C §9601 et seq.); the Resource Conservation and Recovery Act (42
USC §6901 et seq.); the Federal Water Pollution Control Act (33 U.S.C §1251 et seq.); and the
Occupational Safety and Health Act (29 U.S.C §651 et seq.).
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended,
and the rules, regulations and class exemptions of the U.S. Department of Labor thereunder.
“ERISA Affiliate” means, with respect to any entity, trade or business, any other entity,
trade or business that is a member of a group described in Section 414(b), (c), (m) or (o) of the
Code or Section 4001(b)(1) of ERISA that includes the first entity, trade or business, or that is a
member of the same “controlled group” as the first entity, trade or business pursuant to Section
4001(a)(14) of ERISA.
“Escheat Deposits” means, as of any date, Deposits and safe deposit box contents, in each
case held on such date at the Branches which become subject to escheat, in the calendar year in
which the Closing occurs, to any governmental authority pursuant to applicable escheat and
unclaimed property laws.
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“Estimated Payment Amount” means (x) the aggregate balance (including Accrued
Interest) of the Deposits assumed by Purchaser pursuant to Section 2.2, minus (y) the Purchase
Price, each as set forth on the Draft Closing Statement as reasonably agreed upon prior to the
Closing by Seller and Purchaser.
“Excluded Assets” has the meaning set forth in Section 2.1(c).
“Excluded Branch” has the meaning set forth in Section 2.7(a).
“Excluded Deposits” means (t) IRA/Keogh Account Deposits, (u) Public Fund Deposits,
(v) those deposit liabilities that are or would be considered “brokered deposits” for purposes of
the rules and regulations of the FDIC, any of which, as of the date hereof, are listed on Exhibit
1.1(c), (w) Escheat Deposits, (x) those deposit liabilities that constitute security for loans that are
not to be transferred to Purchaser under the terms of this Agreement, (y) interest-bearing
Deposits with a specified date of maturity, including certificates of deposit, and (z) those deposit
liabilities that are owned by an employee (other than a Transferred Employee) or former
employee of Seller Parent.
“Excluded Liabilities” has the meaning set forth in Section 2.2(c).
“Excluded Loan” means, as of the Initial Closing Date, the Subsequent Closing Date, if
any, or as of the Closing Date, as applicable, any Loan with respect to which (i) any principal or
interest on such Loan shall be due and unpaid by the Obligor thereunder for sixty (60) days or
more, (ii) an Obligor has filed or has had filed against such Obligor proceedings in bankruptcy,
trusteeship or receivership, (iii) the balance of the Loan has been completely charged off, (iv) the
balance of the Loan is no longer owed whether or not as a result of a settlement agreement
between the Obligors and Seller, (v) in the case of a Mortgage Loan, the Loan has been
repurchased by Seller or any of its subsidiaries, and (vi) with respect to a commercial,
commercial real estate or “C&I” Loan, a Loan that as of the date of this Agreement, on the Initial
Closing Date, the Subsequent Closing Date, or the Closing Date, as applicable, is classified as
“special mention,” “substandard,” or “non-performing” by Seller.
“Excluded Taxes” means (i) any Taxes of Seller or any of its Affiliates for or applicable
to any period, (ii) any Taxes of, or relating to, the Assets, the Assumed Liabilities or the
operation of the Branches for, or applicable to, the Pre-Closing Tax Period, and (iii) any Transfer
Taxes for which Seller is responsible pursuant to Section 8.3.
“Fair Market Value” means, in respect of a parcel of Owned Real Property, the fair
market value of such Owned Real Property as determined by the Appraiser promptly following
the date of this Agreement, it being agreed that such fair market value shall take into account
matters customarily included in appraisals of real property (including the condition of such real
property and improvements thereupon).
“FDIC” means the Federal Deposit Insurance Corporation.
“Federal Funds Rate” on any day means the per annum rate of interest (rounded upward
to the nearest 1/100 of 1%) which is the weighted average of the rates on overnight federal funds
transactions arranged on such day or, if such day is not a Business Day, the previous Business
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Day, by federal funds brokers computed and released by the Federal Reserve Bank of New York
(or any successor) in substantially the same manner as such Federal Reserve Bank currently
computes and releases the weighted average it refers to as the “Federal Funds Effective Rate” at
the date of this Agreement.
“Federal Reserve Board” means the Board of Governors of the Federal Reserve System.
“FHLB” means the Federal Home Loan Bank of Dallas.
“FHLB Advances” means the borrowings of Seller from the FHLB set forth on Section
5.8(b) of the Seller Disclosure Schedule.
“Final Allocation Statement” has the meaning set forth in Section 3.9(a).
“Final Closing Statement” means a final closing statement, prepared by Seller in
accordance with the accounting policies used in preparing the Draft Closing Statement, on or
before the thirtieth (30th) calendar day following the Closing Date setting forth both the
Purchase Price, the Adjusted Payment Amount and the prorated Items of proration set forth in
Section 3.4, all determined and calculated as of the actual Closing Date.
“GAAP” has the meaning set forth in Section 1.2.
“Hazardous Substance” means any substance, whether liquid, solid or gas (a) listed,
identified or designated as hazardous or toxic; (b) which, applying criteria specified in any
Environmental Law, is hazardous or toxic; or (c) the use or disposal, or any manner or aspect of
management or handling, of which is regulated under Environmental Law.
“HELOC Account” means any home equity line of credit account at a Branch in respect
of which credits available therein are withdrawable in practice upon demand or upon which third
party drafts may be drawn by the borrower.
“Infrastructure Installation” has the meaning set forth in Section 4.10.
“Initial Closing” and “Initial Closing Date” refer to the closing of the purchase and sale
of the Initial Closing Assets and the Initial Closing Assumed Liabilities, which is to be held on
such date as provided in Article 3 and which shall be deemed to be effective at 11:59 p.m.,
Central time, on such date.
“Initial Closing Assets” has the meaning set forth in Section 2.1(a).
“Initial Closing Assumed Liabilities” has the meaning set forth in Section 2.2(a).
“Initial Closing Loans” means the Loans reflected on Exhibit 1.1(d)(ii) as of the Initial
Closing Date.
“Initial Closing Purchase Price” has the meaning set forth in Section 2.4(a).
“Installation Plans” has the meaning set forth in Section 4.10(iv).
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“IRA” means an “individual retirement account” or similar account created by a trust for
the exclusive benefit of any individual or his beneficiaries in accordance with the provisions of
Section 408 or 408A of the Code.
“IRA/Keogh Account Deposits” means Deposits in IRAs or Keogh Accounts.
“IRS” means the Internal Revenue Service.
“Item” means (a) drafts, including checks and negotiable orders of withdrawal and items
of a like kind which are drawn on or deposited and credited to the Deposit accounts, and
(b) payments, advances, disbursements, fees, reimbursements and items of a like kind which are
debited or credited to the Loans.
“Keogh Account” means an account created by a trust for the benefit of employees (some
or all of whom are owner-employees) and that complies with the provisions of Section 401(c) of
the Code.
“Labor Laws” has the meaning set forth in Section 5.15(c).
“Leased Real Property” means Real Property leased by Seller and used for Branches.
“Leave Recipients” has the meaning set forth in Section 8.7(a)(ii).
“Lien Defect” means any Encumbrance (except for matters reflected on the
Commitments and for Permitted Encumbrances) that is reflected on an updated Commitment and
any monetary lien.
“Loan Document Assignment” has the meaning set forth in Section 3.5(a)(i).
“Loan Documents” means the Loan files and all documents with respect to a Loan in
which Seller has any right, title, and interest, including loan applications, notes, security
agreements, deeds of trust, mortgages, collectors notes, appraisals, credit reports, disclosures,
titles to collateral (titles to cars, boats, etc.), all verifications (including employment verification,
deposit verification, etc.), financial statements of borrowers and guarantors, independently
prepared financial statements, internally prepared financial statements, commitment letters, loan
agreements including building and loan agreements, guarantees, pledge agreements, intercreditor
agreements, participation agreements, security and collateral agreements, sureties and insurance
policies (including title insurance policies) and all written modifications, waivers and consents
relating to any of the foregoing, and all credit approval packages, due diligence documentation
(including OFAC searches, flood-zone related due diligence material if applicable to collateral
and UCC filings and search results), loan review risk rating assessments, and a taxonomy of
Seller’s loan system codes, in each case in the possession or control of Seller.
“Loans” means the loans that are listed on Exhibit 1.1(d)(i) and any new loans originated
in respect of customers listed on Exhibit 1.1(d)(i) or added to such Exhibit pursuant to Section
2.5, the loans that are listed on Exhibit 1.1(d)(ii) and the loans that are listed on Exhibit
1.1(d)(iii); provided, however, that “Loans” do not include the interest of any participants in such
Loans or Loans that have been the subject of securitizations and loans not transferable pursuant
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to contract or applicable law or regulation. Exhibit 1.1(d)(i) shall be updated by Seller as of
5:00 p.m., Central time, on the date that is five (5) Business Days prior to the Closing Date (and
delivered to Purchaser on or before the date that is three (3) Business Days prior to the Closing
Date) and as of 5:00 p.m., Central time, on the date that is three (3) Business Days prior to the
Closing Date (and delivered to Purchaser on or before 5:00 p.m., Central time, on the Business
Day prior to the Closing Date), in each case to reflect new loans originated in respect of
customers listed on Exhibit 1.1(d)(i), any changes in loan balances of the loans reflected in
Exhibit 1.1(d)(i) as of the date of this Agreement, and any loans that have become Excluded
Loans. Exhibit 1.1(d)(ii) shall be updated by Seller as of 5:00 p.m., Central time, on the
Business Day prior to the Initial Closing Date (and promptly delivered to Purchaser), to reflect
any changes in loan balances of the loans reflected in Exhibit 1.1(d)(ii) as of the date of this
Agreement, and any loans that have become Excluded Loans. Exhibit 1.1(d)(iii) shall be
updated by Seller as of 5:00 p.m., Central time, on the Business Day prior to the Subsequent
Closing Date (and promptly delivered to Purchaser), if any, to reflect any changes in loan
balances of the loans reflected in Exhibit 1.1(d)(iii) as of the date of this Agreement, and any
loans that have become Excluded Loans For the avoidance of doubt, such updating shall be
conducted in accordance with Seller’s internal policies and procedures in effect as of the date
hereof. Also for the avoidance of doubt, Loans shall not include any Excluded Loans.
“Loss” means the amount of losses, liabilities, damages and reasonable expenses actually
incurred by the indemnified party or its Affiliates in connection with the matters described in
Section 11.1, less the amount of the economic benefit (if any) to the indemnified party or its
Affiliates obtained or to be obtained in connection with any such damage, loss, liability or
expense (including net Tax benefits actually realized under applicable law, amounts recovered
under insurance policies net of deductibles, recovery by setoffs or counterclaims, and other
economic benefits).
“Material Adverse Effect” means (a) with respect to Seller, a material adverse effect on
(i) the business or results of operations or financial condition of the Branches, the Assets and the
Assumed Liabilities, taken as a whole (excluding any effect to the extent arising out of or
resulting from (A) changes, after the date hereof, in GAAP or regulatory accounting
requirements applicable to banks or savings associations or their holding companies generally,
(B) changes, after the date hereof, in laws, rules or regulations of general applicability or
interpretations thereof by courts or governmental agencies or authorities, (C) changes, after the
date hereof, in global, national or regional political conditions or in general U.S. national or
regional or global economic or market conditions affecting banks or their holding companies
generally (including changes in interest or exchange rates or in credit availability and liquidity),
(D) announcement of this Agreement and the transactions contemplated hereby, including the
impact thereof on customers, suppliers, licensors, employees and others having business
relationships with the Branches, (E) the commencement, occurrence, continuation or
intensification of any war, sabotage, armed hostilities or acts of terrorism not directly involving
the Assets or the Assumed Liabilities, or (F) actions by Purchaser or Seller taken pursuant to the
express requirements of this Agreement), or (ii) the ability of Seller to timely consummate the
P&A Transactions as contemplated by this Agreement, and (b) with respect to Purchaser, a
material adverse effect on the ability of Purchaser to perform any of its financial or other
obligations under this Agreement, including the ability of Purchaser to timely consummate the
P&A Transactions as contemplated by this Agreement.
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“Material Defect” means (a) any “Recognized Environmental Condition” reported in a
Phase I or Phase II Environmental Assessment, as the term “Recognized Environmental
Condition” is defined in ASTM Standard 1527-05, or friable asbestos containing material
(“ACM”) that has not been properly controlled through the application of engineering controls or
an adequate operation and maintenance plan, and that Purchaser reasonably believes, based on
the advice of its environmental consultant/contractor, that the amount of expense or liability
which Purchaser would be reasonably likely to incur to correct such “Recognized Environmental
Condition” or ACM control problem will exceed $25,000 in the case of each affected Owned
Real Property or facility subject to a Branch Lease; or (b) with respect to the buildings on the
Real Property or facility subject to a Branch Lease, deficiencies in the plumbing, electrical,
HVAC, drive thru air transport system, roof, walls, or foundations adversely impacting the
current use of the applicable Owned Real Property or facility subject to a Branch Lease the cost
of any of which to repair or correct (other than any costs borne by the applicable lessor) is
reasonably likely to equal or exceed $25,000 in the case of each affected Owned Real Property
or facility subject to a Branch Lease.
“Mortgage Loan” means any loan secured by a one to four family residential property,
including home equity lines of credit.
“Negative Deposits” means Deposit account overdrafts.
“Net Book Value” means the carrying value of each of the Assets as reflected on the
books of Seller as of the Closing Date in accordance with GAAP and consistent with the
accounting policies and practices of Seller in effect as of the date of this Agreement.
“Non-Controlling Party” has the meaning set forth in Section 11.1(f).
“Obligor” has the meaning set forth in Section 5.8(a)(i).
“Order” has the meaning set forth in Section 9.1(b).
“Owned Real Property” means Real Property owned by Seller and used for Branches.
“P&A Transactions” means the purchase and sale of Assets and the assumption of
Assumed Liabilities described in Sections 2.1, 2.2 and 2.3.
“Permitted Encumbrances” means (i) liens for current Taxes that are not yet due or
delinquent or are being contested in good faith by appropriate proceedings and for which
adequate reserves have been taken on the financial statements for the Seller; (ii) statutory liens or
landlords’, carriers’, warehousemen’s, mechanics’, suppliers’, materialmen’s, repairmen’s liens
or other like liens arising in the ordinary course of business with respect to the applicable assets
for amounts not yet overdue; (iii) with respect to the Real Property, any Encumbrances or other
minor title defects or irregularities that do not, individually or in the aggregate, materially impair
the value or the use of such Real Property as a commercial bank branch office as currently used;
and (iv) as to any Branch Lease, any Encumbrance affecting solely the interest of the landlord
thereunder and not the interest of the tenant thereunder, which does not materially and adversely
affect the value of such Real Property or the use of such Real Property as a commercial bank
branch office as currently used.
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“Person” means any individual, corporation, company, partnership (limited or general),
limited liability company, joint venture, association, trust or other business entity.
“Personal Property” means the personal property owned by Seller located in the
Branches, and used or held for use in the business or operation of the Branches, consisting of the
trade fixtures, shelving, furniture, leasehold improvements, equipment, security systems
equipment, safe deposit boxes (exclusive of contents), vaults and sign structures, ATMs and
related property located at or appurtenant to a Branch. Exhibit 1.1(f) contains an overview of the
Personal Property as of December 30, 2016, and Exhibit 1.1(f) shall be updated by Seller to
include a complete and accurate list of the Personal Property as of 5:00 p.m., Central time, on (a)
the date that is five (5) Business Days prior to the Closing Date (and delivered to Purchaser on or
before the date that is three (3) Business Days prior to the Closing Date), (b) the date that is three
(3) Business Days prior to the Closing Date (and delivered to Purchaser on or before 5:00 p.m.,
Central time, on the Business Day prior to the Closing Date), and (c) the Closing Date (and
delivered to Purchaser on or before 5:00 p.m., Central time, on the first Business Day after the
Closing).
“Pre-Closing Tax Period” means a taxable period or portion thereof that ends on or prior
to the Initial Closing Date, the Subsequent Closing Date or the Closing Date, as applicable, and
the portion of the Straddle Period that ends on and includes the Initial Closing Date, the
Subsequent Closing Date or the Closing Date, as applicable, shall constitute the Pre-Closing Tax
Period.
“Premium” means an amount equal to $44 million; provided, however, that the Premium
shall be reduced by (i) an amount equal to 3.0% of the dollar amount by which the average daily
closing balances of the Deposits for the ten Business Day period ending on and including the
Closing Date is less than $500 million and (ii) an amount equal to (A) zero if the book value of
the Loans as of the Closing Date (which shall be deemed to include the book value of the Initial
Closing Loans as of the Initial Closing Date and, if any, the book value of the Subsequent
Closing Loans as of the Subsequent Closing Date) is equal to or greater than $1.2 billion and (B)
$27.5 million if the book value of the Loans as of the Closing Date (which shall be deemed to
include the book value of the Initial Closing Loans as of the Initial Closing Date and, if any, the
book value of the Subsequent Closing Loans as of the Subsequent Closing Date) is $900 million
or less and (C) if such book value is between $1.2 billion and $900 million, an amount
interpolated on a straight line basis between $0 and $27.5 million.
“Property Taxes” means real, personal, and intangible ad valorem property Taxes
(including special assessments to the extent accrued and payable in any particular calendar year
in question).
“Public Fund Deposits” means any deposit liabilities of public funds of a state,
municipality or other governmental authority or instrumentality.
“Public Notice” has the meaning set forth in Section 12.4.
“Purchase Price” has the meaning set forth in Section 2.4(b).
“Purchaser” has the meaning set forth in the Preamble.
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“Purchaser 401(k) Plan” has the meaning set forth in Section 8.7(h).
“Purchaser Benefit Plans” has the meaning set forth in Section 8.7(d).
“Purchaser Taxes” has the meaning set forth in Section 11.1(f).
“Real Property” means the parcels of real property on which the Branches listed on
Exhibit 1.1(a) are located, including any improvements and fixtures thereon and any all rights of
way, servitudes, easements, privileges and other similar interests appurtenant thereto, which
Exhibit indicates whether or not such real property is Owned Real Property or Leased Real
Property.
“Records” means (a) as to the Loans, the Loan Documents and (b) as to other Assets and
Assumed Liabilities, all records and original documents, or where reasonable and appropriate
copies thereof, that relate directly thereto and are retained in the Branches, or are in Seller’s
possession or control and pertain to and are necessary for the conduct of the business of the
Branches following the Closing (including signature cards that are in Seller’s possession or
control and transaction tickets through the Closing Date and all records for closed accounts
located in Branches and excluding any other transaction tickets and records for closed accounts);
provided, however, that Records shall not include (i) general books of account and books of
original entry that comprise Seller’s permanent tax records, (ii) the books and records that Seller
is required to retain pursuant to any applicable law or order and the books and records to the
extent related to the assets of Seller other than the Assets or the Excluded Liabilities, (iii) the
personnel files and records relating to Branch Employees or (iv) any other books and records of
Seller or any of its Affiliates that cannot, without unreasonable effort or expense, be separated
from books and records maintained by Seller or any of its Affiliates in connection with the
businesses of Seller and its Affiliates that are not being sold hereunder; provided that, with
respect to any books and records covered by this subclause (iv), Purchaser shall be permitted to
request copies of portions of such books and records to the extent information set forth therein
relates to the Assets or the Assumed Liabilities and is reasonably necessary in connection with
Purchaser’s operation or administration of its business relating thereto; and provided, further,
that Seller and its Affiliates shall have the right to retain a copy of all such records and
documents regarding the Assets and Assumed Liabilities to the extent necessary to comply with
applicable law or regulation or tax or accounting requirements, and such records and other
documents shall continue to be subject to the confidentiality provisions of this Agreement.
“Regulatory Approvals” means the approval of the FDIC, the Mississippi Department of
Banking and Consumer Finance and any other Regulatory Authority required to consummate the
P&A Transactions.
“Regulatory Authority” means any federal or state banking, other regulatory, self-
regulatory or enforcement authority or any court, administrative agency or commission or other
governmental authority or instrumentality.
“Removal Process” has the meaning set forth in Section 4.13(a).
“Returned Items” has the meaning set forth in Section 4.9(c).
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“Safe Deposit Agreements” means the agreements that are in Seller’s possession or
control relating to safe deposit boxes located in the Branches.
“Seller” has the meaning set forth in the Preamble.
“Seller 401(k) Plan” has the meaning set forth in Section 8.7(h).
“Seller Disclosure Schedule” means the disclosure schedule of Seller delivered to
Purchaser in connection with the execution and delivery of this Agreement.
“Seller Parent” means First NBC Bank Holding Company.
“Seller Taxes” has the meaning set forth in Section 11.1(f).
“Seller’s knowledge” or other similar phrases means information that is actually known,
after reasonable inquiry, to the Persons set forth on Exhibit 1.1(g).
“Straddle Period” means any taxable period beginning on or prior to and ending after the
Initial Closing Date, the Subsequent Closing Date or the Closing Date, as applicable.
“Subsequent Closing” and “Subsequent Closing Date” refer to the closing, if any, of the
purchase and sale of the Subsequent Closing Assets and the Subsequent Closing Assumed
Liabilities, which is to be held on such date as provided in Article 3 and which shall be deemed
to be effective at 11:59 p.m., Central time, on such date.
“Subsequent Closing Assets” has the meaning set forth in Section 2.3(a).
“Subsequent Closing Assumed Liabilities” has the meaning set forth in Section 2.3(b).
“Subsequent Closing Loans” means the Loans set forth on Exhibit 1.1(d)(i) as of the date
of this Agreement and reflected on Exhibit 1.1(d)(iii) as of the Subsequent Closing Date by
mutual agreement of the parties (the aggregate Net Book Value of which shall not exceed $130
million).
“Subsequent Closing Purchase Price” has the meaning set forth in Section 2.4(c).
“Survival Period” has the meaning set forth in Section 12.1(a).
“Tax Claim” has the meaning set forth in Section 11.1(f).
“Tax Returns” means any report, return, declaration, statement, claim for refund,
information return or statement relating to Taxes or other information or document required to be
supplied to a taxing authority in connection with Taxes, including any schedule or attachment
thereto, and including any amendment thereof.
“Taxes” means all taxes, including income, gross receipts, excise, real and personal and
intangible property, sales, use, transfer (including transfer gains taxes), withholding, license,
payroll, recording, ad valorem and franchise taxes, whether computed on a separate or
consolidated, unitary or combined basis or in any other manner, whether disputed or not and
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including any obligation to indemnify or otherwise assume or succeed to the tax liability of
another person, imposed by the United States, or any state, local or foreign government or
subdivision or agency thereof and such term shall include any interest, penalties or additions to
tax attributable to such assessments.
“Tenant Leases” means leases, subleases, licenses or other use agreements between
Seller, as lessor or sublessor, and tenants with respect to Real Property, if any.
“Title Insurance” has the meaning set forth in Section 2.7(e).
“Title Insurer” has the meaning set forth in Section 3.5(b)(viii).
“Title Policy” has the meaning set forth in Section 2.7(e).
“Transaction Account” means any account at a Branch in respect of which deposits
therein are withdrawable in practice upon demand or upon which third party drafts may be drawn
by the depositor, including checking accounts, negotiable order of withdrawal accounts and
money market deposit accounts.
“Transfer Date” means (i) with respect to Branch Employees who are not Leave
Recipients as of the Closing Date and who accept Purchaser’s offer of employment, the day after
the Closing Date, and (ii) with respect to Branch Employees who are Leave Recipients as of the
Closing Date and who accept Purchaser’s offer of employment, the date of active
commencement of a Branch Employee’s employment with Purchaser or one of its Affiliates, as
applicable, within the time period set forth in Section 8.7(a)(ii).
“Transfer Taxes” has the meaning set forth in Section 8.3.
“Transferred Employee” has the meaning set forth in Section 8.7(a)(i).
“Unauthorized ACH Entry” has the meaning set forth in Section 4.3(b).
“Warranty Amount” has the meaning set forth in Section 4.14(d).
“Warranty Claim” means any liability for any warranty (including any warranty
regarding altered items or forged or missing endorsements) of Seller to another financial
institution under applicable law, including the Uniform Commercial Code, Regulation CC of the
Federal Reserve Board, Regulation J of the Federal Reserve Board, any Operating Circular of the
Federal Reserve Board, the rules or policies of any clearinghouse, and any other warranty
provisions promulgated under state, federal or other applicable law, relating to any draft, image
deposit, check, negotiable order of withdrawal or similar item drawn on or deposited and
credited to a Deposit account.
“Welfare Benefits” shall mean the types of benefits described in Section 3(1) of ERISA
(whether or not covered by ERISA).
1.2 Accounting Terms. All accounting terms not otherwise defined herein shall have
the respective meanings assigned to them in accordance with consistently applied generally
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accepted accounting principles as in effect from time to time in the United States of America
(“GAAP”).
ARTICLE 2
THE P&A TRANSACTIONS
2.1 Purchase and Sale of Assets. (a) Subject to the terms and conditions set forth in
this Agreement, at the Initial Closing, Seller shall grant, sell, convey, assign, transfer and deliver
to Purchaser, and Purchaser shall purchase and accept from Seller, all of Seller’s right, title and
interest, as of the Initial Closing Date, in and to the following (collectively, the “Initial Closing
Assets”):
(i) the Initial Closing Loans, plus Accrued Interest through the Initial
Closing Date with respect to such Initial Closing Loans, as well as the collateral for the
Initial Closing Loans and any related escrows, the Loan Documents with respect to such
Initial Closing Loans and the servicing rights related thereto pursuant to Section 2.6;
(ii) any refunds, credits or other receivables, in each case, of, against
or relating to Taxes of, or relating to, the Initial Closing Assets, or the Initial Closing
Assumed Liabilities (other than Excluded Taxes);
(iii) all causes of actions and claims held by Seller to the extent related
to any of the Initial Closing Assets; and
(iv) the Records in respect of the Initial Closing Assets.
(b) Subject to the terms and conditions set forth in this Agreement, at the
Closing, Seller shall grant, sell, convey, assign, transfer and deliver to Purchaser, and Purchaser
shall purchase and accept from Seller, all of Seller’s right, title and interest, as of the Closing
Date, in and to the following (collectively, the “Closing Assets” and, together with the Initial
Closing Assets and the Subsequent Closing Assets, if any, the “Assets”):
(i) All Branch Cash;
(ii) the Owned Real Property;
(iii) the Personal Property;
(iv) the Branch Leases;
(v) the Branch Lease Security Deposits;
(vi) the Loans (other than the Initial Closing Loans and the Subsequent
Closing Loans, if any), plus Accrued Interest through the Closing Date with respect to
such Loans, as well as the collateral for such Loans and any related escrows, the Loan
Documents and the servicing rights related thereto pursuant to Section 2.6;
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(vii) the Negative Deposits;
(viii) the Safe Deposit Agreements and the keys to the safe deposit
boxes;
(ix) any refunds, credits or other receivables, in each case, of, against
or relating to Taxes of, or relating to, the Closing Assets, the Closing Assumed Liabilities
or the operation of the Branches (other than Excluded Taxes);
(x) the Records (other than in respect of the Initial Closing Assets and
the Subsequent Closing Assets, if any);
(xi) all local telephone, fax numbers and post office boxes associated
specifically with the Branches; and
(xii) all causes of actions and claims held by Seller to the extent related
to any of the Closing Assets.
(c) Purchaser understands and agrees that it is purchasing only the Assets
specified in this Agreement, and Purchaser has no interest in or right to any other assets,
properties or interests of Seller or any of its Affiliates, including any business relationship that
Seller or its Affiliates may have with any customer of Seller or its Affiliates (other than those
relationships solely in respect of such customers’ status as a holder of Deposits) (all assets,
properties or interests, other than the Assets, the “Excluded Assets”). For the avoidance of
doubt, except as contemplated by Section 7.10, no right to the use of any sign, trade name,
trademark or service mark, if any, of Seller or any of its Affiliates, is being sold, and any such
right shall be an Excluded Asset.
2.2 Assumption of Liabilities. (a) Subject to the terms and conditions set forth in this
Agreement, at the Initial Closing, Purchaser shall assume, pay, perform and discharge all duties,
responsibilities, obligations or liabilities of Seller to be discharged, performed, satisfied or paid
after the Initial Closing Date with respect to the following (collectively, the “Initial Closing
Assumed Liabilities”):
(i) Initial Closing Loans and the servicing of the Initial Closing Loans
pursuant to Section 2.6: and
(ii) liabilities for Taxes of, or relating to, the Initial Closing Assets or
the Initial Closing Assumed Liabilities (other than Excluded Taxes).
(b) Subject to the terms and conditions set forth in this Agreement, at the
Closing, Purchaser shall assume, pay, perform and discharge all duties, responsibilities,
obligations or liabilities of Seller to be discharged, performed, satisfied or paid after the Closing
Date (or the Transfer Date with respect to a Transferred Employee), with respect to the following
(collectively, the “Closing Assumed Liabilities” and, together with the Initial Closing Assumed
Liabilities and the Subsequent Closing Assumed Liabilities, if any, the “Assumed Liabilities”):
(i) the Deposits;
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(ii) the Personal Property, Branch Leases, and the Owned Real
Property;
(iii) the Safe Deposit Agreements;
(iv) the Loans (other than the Initial Closing Loans and the Subsequent
Closing Loans, if any) and the servicing of such Loans pursuant to Section 2.6;
(v) liabilities to any Transferred Employee in respect of his or her
employment with Purchaser on or after the Transfer Date, including as set forth in
Section 8.7;
(vi) the FHLB Advances (provided, that the aggregate amount thereof
assumed by Purchaser shall in no event exceed the amount set forth on Section 5.8(b) of
the Seller Disclosure Schedule) plus all Accrued Interest thereon through the Closing
Date; and
(vii) liabilities for Taxes of, or relating to, the Closing Assets, the
Closing Assumed Liabilities or the business or operation of the Branches (other than
Excluded Taxes).
(c) Notwithstanding anything to the contrary in this Agreement, Purchaser
shall not assume or be bound by any duties, responsibilities, obligations or liabilities, of any kind
or nature, known, unknown, contingent or otherwise, of Seller or any of its Affiliates, including
for avoidance of doubt any employment-related or other claims or litigation liabilities, other than
the Assumed Liabilities (all duties, responsibilities, obligations and liabilities of Seller or any of
its Affiliates, other than the Assumed Liabilities or other obligations expressly assumed
hereunder, the “Excluded Liabilities”).
2.3 Subsequent Closing.
(a) Subject to the terms and conditions set forth in this Agreement, during the
thirty (30) Business Day period following the date of this Agreement, Seller shall have the right,
but not the obligation, upon written notice to Purchaser, to grant, sell, convey, assign, transfer
and deliver to Purchaser, and Purchaser shall have the obligation to purchase and accept from
Seller, all of Seller’s right, title and interest, as of the Subsequent Closing Date, in and to the
following (collectively, the “Subsequent Closing Assets”):
(i) the Subsequent Closing Loans, plus Accrued Interest through the
Subsequent Closing Date with respect to such Subsequent Closing Loans, as well as the
collateral for the Subsequent Closing Loans and any related escrows, the Loan
Documents with respect to such Subsequent Closing Loans and the servicing rights
related thereto pursuant to Section 2.6;
(ii) any refunds, credits or other receivables, in each case, of, against
or relating to Taxes of, or relating to, the Subsequent Closing Assets, or the Subsequent
Closing Assumed Liabilities (other than Excluded Taxes);
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(iii) all causes of actions and claims held by Seller to the extent related
to any of the Subsequent Closing Assets; and
(iv) the Records in respect of the Subsequent Closing Assets.
(b) Subject to the terms and conditions set forth in this Agreement, in the
event Seller elects to effect the Subsequent Closing contemplated by Section 2.3(a), at the
Subsequent Closing, if any, Purchaser shall assume, pay, perform and discharge all duties,
responsibilities, obligations or liabilities of Seller to be discharged, performed, satisfied or paid
after the Subsequent Closing Date with respect to the following (collectively, the “Subsequent
Closing Assumed Liabilities”):
(i) Subsequent Closing Loans and the servicing of the Subsequent
Closing Loans pursuant to Section 2.6: and
(ii) liabilities for Taxes of, or relating to, the Subsequent Closing
Assets or the Subsequent Closing Assumed Liabilities (other than Excluded Taxes).
2.4 Purchase Price. (a) The purchase price (“Initial Closing Purchase Price”) for the
Initial Closing Assets shall be the aggregate Net Book Value of such Initial Closing Assets and
Accrued Interest through the Initial Closing Date with respect to the Initial Closing Loans.
(b) The purchase price (“Purchase Price”) for the Closing Assets shall be the
sum of the following U.S. dollar amounts:
(i) An amount in cash equal to the Premium;
(ii) The aggregate Net Book Value of all the Closing Assets (other
than the Owned Real Property, Negative Deposits and Branch Cash) minus the aggregate
amount of FHLB Advances (plus all Accrued Interest thereon through the Closing Date)
assumed by Purchaser pursuant to Section 2.2(b)(vi);
(iii) In respect of each parcel of Owned Real Property, the greater of
(x) Net Book Value and (y) Fair Market Value;
(iv) Accrued Interest through the Closing Date with respect to the
Loans (other than the Initial Closing Loans and the Subsequent Closing Loans, if any);
(v) The aggregate amount of Branch Cash; and
(vi) An amount equal to 85% of the Net Book Value of the Negative
Deposits.
(c) In the event Seller elects to effect the Subsequent Closing contemplated by
Section 2.3(a), the purchase price (“Subsequent Closing Purchase Price”) for the Subsequent
Closing Assets shall be the aggregate Net Book Value of such Subsequent Closing Assets and
Accrued Interest through the Subsequent Closing Date with respect to the Subsequent Closing
Loans.
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2.5 Cash Payment Amount; Additional Loans. The parties acknowledge and agree
that, based on current information available to the parties at the time of execution of this
Agreement, the aggregate Net Book Value of the Loans, Deposits and FHLB Advnaces to be
transferred to Purchaser at the Initial Closing, any Subsequent Closing and the Closing in
accordance with the terms of this Agreement would be approximately $178 million, and that it is
the parties' intention that at the Closing the aggregate Netbook Value of the Loans, Deposits and
FHLB Advances to be transferred to Purchaser at the Initial Closing, any Subsequent Closing
and the Closing in accordance with the terms of this Agreement shall be not less than $178
million. Accordingly, to the extent that, as a result of decreases in the amount of the Loans for
any reason (including one or more Loans becoming Excluded Loans) not involving a breach of
this Agreement by Seller or inaccuracies in the Schedules and Exhibits hereto, the aggregate
Netbook Value of the Loans, Deposits and FHLB Advances that otherwise would be transferred
to Purchaser pursuant to the terms of this Agreement (based on the aggregate Netbook Value of
Loans transferred at the Initial Closing and any Subsequent Closing and the Netbook Value of
the Loans, Deposits and FHLB Advances to be transferred to Purchaser at the Closing) would be
less than $178 million, the parties shall cooperate in good faith to (i) select mutually agreed upon
funded loans originated by Seller to be added to Exhibit 1.1(d)(i) and purchased by Purchaser
hereunder, (ii) reduce Assumed Liabilities to be assumed by Purchaser hereunder or (iii) take
actions contemplated by both clauses (i) and (ii) to the extent necessary such that the aggregate
Netbook Value of the Loans, Deposits and FHLB Advances to be transferred to Purchaser at the
Initial Closing, any Subsequent Closing and the Closing in accordance with the terms of this
Agreement shall be not less than $178 million, provided that in no event shall Purchaser be
required to acquire Loans having an aggregate principal amount in excess of $1.311 billion,
acquire Loans that it does not believe in good faith are consistent with the credit characteristics
and return profile of the Loans identified on the date hereof (and in no event shall any such
Loans include any energy loans, including those loans within its direct and indirect oil and gas
portfolio), agree to any reduction in deposits below $500 million or agree to any changes
provided for in this Section 2.5 that would require the consent or approval of any third party,
including any shareholders or other constituents of Seller Parent. All such additional loan assets
so added to the Loans to be transferred pursuant hereto shall constitute "Loans" for all purposes
of this Agreement, and any Assumed Liabilities so removed shall constituted “Excluded
Liabilities” for all purposes of this Agreement.
2.6 Sale and Transfer of Servicing. Seller is the sole servicer of the Loans and does
not contract with any subservicer. The Loans shall be sold on a servicing-released basis and any
related escrow deposits shall be transferred to Purchaser. As of the Initial Closing Date, all
rights, obligations, liabilities and responsibilities with respect to the servicing of the Initial
Closing Loans after the Initial Closing Date will be assumed by Purchaser. As of the Subsequent
Closing Date, if any, all rights, obligations, liabilities and responsibilities with respect to the
servicing of the Subsequent Closing Loans after the Subsequent Closing Date will be assumed by
Purchaser. As of the Closing Date, all rights, obligations, liabilities and responsibilities with
respect to the servicing of the Loans (other than the Initial Closing Loans and the Subsequent
Closing Loans, if any) after the Closing Date will be assumed by Purchaser. Seller shall be
discharged and indemnified by Purchaser from all liability with respect to servicing of the Loans
after the Initial Closing Date, the Subsequent Closing Date or the Closing Date, as applicable,
and Purchaser shall not assume and shall be discharged and indemnified by Seller from all
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liability with respect to servicing of the Loans on or prior to the Initial Closing Date, the
Subsequent Closing Date or the Closing Date, as applicable.
2.7 Real Estate Matters. (a) Not later than twenty (20) Business Days prior to the
Closing Date, Purchaser shall use reasonable efforts to deliver to Seller, with respect to each
parcel of Owned Real Property and each parcel of Leased Real Property for which there is a
memorandum of lease of record, a title commitment (including all documents, instruments or
agreements evidencing or creating the exceptions to, or Encumbrances on, title referenced in
such commitment) (the “Commitments”) issued by the Title Insurer. Purchaser shall not have
the right to object to any matters on such commitments if the Commitments reflect that Seller has
good and indefeasible title or leasehold interest in and to the Real Property, subject only to
Permitted Encumbrances. If any Commitment pursuant to Section 2.7(b) below identifies any
Lien Defect or any other matter that is not a Permitted Encumbrance, Purchaser shall have the
right to notify Seller of Purchaser’s objection to such Lien Defect or other matter and Seller shall
make a good faith effort to cure such Lien Defect or other matter to Purchaser’s reasonable
satisfaction (or otherwise cause the Title Insurer to insure over or delete such Lien Defect or
other matter in the Title Policy) on, or prior to, the Closing Date. If Seller (A) does not cure any
Lien Defect or other matter to Purchaser’s reasonable satisfaction (or otherwise cause the Title
Insurer to insure over or delete such Lien Defect or other matter in the Title Policy) prior to the
Closing, and Purchaser does not elect to waive any Lien Defect or other matter, or (B) is unable
to deliver insurable fee simple (in the case of each of the Owned Real Properties) or leasehold (in
the case of each Leased Real Property for which there is a memorandum of lease of record) title
subject only to Permitted Encumbrances, then in either such events, Purchaser may exclude such
Owned Real Property or Leased Real Property (each Branch associated with such Real Property,
an “Excluded Branch”) by giving Seller written notice. The costs of obtaining the Commitments
shall be borne equally by Seller and Purchaser.
(b) (i) Within thirty (30) calendar days after the date of this Agreement,
Purchaser may, at its sole cost and expense, undertake such physical inspections and
examinations of the Owned Real Property and the facilities subject to the Branch Leases,
including such inspections of the buildings thereon, as Purchaser reasonably deems necessary or
appropriate, which shall be conducted upon advance notice to and coordination with Seller and
in all instances in a manner and at times so as to not disrupt Seller’s business operations of the
Branches. The cost of any such inspections and examinations shall solely be the responsibility of
Purchaser. Notwithstanding the foregoing, Purchaser shall not conduct any invasive testing or
Phase II Environmental Site Assessment on any Owned Real Property or facilities subject to the
Branch Leases, without the prior written consent of Seller (which consent will not unreasonably
be withheld, conditioned or delayed) and coordinating the scope of such work with Seller or
Seller’s consultants, as applicable. If reasonably necessary for proper conduct and completion of
on-site sampling for a Phase II Environmental Site Assessment, this time period shall be subject
to reasonable extensions, not to exceed fifteen (15) calendar days following the expiration of the
initial thirty (30) calendar day period.
(ii) If Purchaser shall discover a Material Defect as a result of
Purchaser’s inspections and examinations undertaken in accordance with Section 2.7(b),
Purchaser shall give Seller written notice as soon as possible (but in no event later than
the expiration of the thirty (30) calendar day period, or the additional fifteen (15)
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calendar day period if subject to an extension for testing as provided in Section
2.7(b))describing, in reasonable detail, the facts or conditions constituting such Material
Defect and the measures which Purchaser reasonably believes are necessary to correct
such Material Defect (to be read for purposes of this clause (ii) without reference to the
$25,000 threshold). With regard to the facilities subject to the Branch Leases, Purchaser
and Seller understand that conducting the inspections and effecting the cure of a Material
Defect, if any, may require the action or the consent of the lessor and the parties shall use
their respective reasonable best efforts to cause such action to be taken or to obtain such
consent.
(iii) If Seller does not elect to cure any such Material Defect or is
unable to cure such Material Defect to Purchaser’s reasonable satisfaction at least ten
(10) calendar days prior to the Closing, and Purchaser does not elect to waive such
Material Defect, Seller shall be responsible for the reasonable costs and expenses
Purchaser may incur to repair and remediate the Material Defect in excess of the $25,000
threshold but not to exceed $100,000 in respect of any Branch, provided that if there is a
reasonable likelihood that the Material Defect could exceed such $100,000 limit,
Purchaser may elect to treat the affected Branch as an Excluded Branch.
(c) In the event that any portion of a Branch becomes an Excluded Branch in
accordance with Section 2.7(a), Section 2.7(b) or Section 7.4(a), unless Purchaser otherwise
agrees, any real property associated with the Excluded Branch shall no longer be deemed to be
“Owned Real Property” or “Leased Real Property”, and, at the sole option of Purchaser, who
shall notify Seller of such decision in the notice provided by Section 2.7(a), either:
(i) all other assets and liabilities associated with the Excluded Branch
shall no longer be deemed to be Assets and Assumed Liabilities, except that (i) all
deposits accounts associated with the Excluded Branch shall remain Deposits and be
included in the Assumed Liabilities and (ii) all Loans associated with the Excluded
Branch shall remain Loans and be included in the Assets, and the consideration to be paid
by Purchaser shall not include any value associated with any real property, lease, or other
asset associated with the Excluded Branch that would otherwise be included in the
calculation of the Purchase Price, or
(ii) unless Purchaser otherwise determines, Seller will lease the real
property and facilities associated with the Excluded Branch to Purchaser at a fair market
value rent for that location until such time as a new location has been acquired or leased
by Purchaser and operations associated with the Excluded Branch have been transferred
to such new location. In that event, (A) the assets specified in Section 2.1(b)(i) and (vi) -
(xii) associated with the Excluded Branch (but, in the case of Section 2.1(b)(ix), only to
the extent relating to Assets purchased or Assumed Liabilities assumed) shall continue to
be deemed Assets, (B) the liabilities specified in Section 2.1(b)(i), (iii), (iv), and (but only
to the extent related to the Assets associated with the Excluded Branch) Section
2.2(b)(vii), associated with the Excluded Branch shall continue to be deemed Assumed
Liabilities, (C) the assets specified in Section 2.2(b)(ii)-(iv) that are associated with the
Excluded Branch shall no longer be deemed to be Assets, and the liabilities specified in
Section 2.2(b)(ii) and (vii) that are associated with the Excluded Branch shall no longer
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be deemed to be Assumed Liabilities, and (D) the consideration to be paid by Purchaser
shall not include any value associated with any real property, personal property or other
asset associated with the Excluded Branch that would otherwise be included in the
calculation of the Purchase Price.
(d) Seller shall cause the Title Insurer to update the Commitments as of three
(3) Business Day prior to the Closing Date (which updates, due to any delays in the local
jurisdictions recordings, may reflect all matters that have been made of public record as of a
prior date).
(e) Seller and Purchaser shall cause the Title Insurer, as soon as practicable
after the Closing, to issue a standard form of American Land Title Association (ALTA) form of
policy or Leasehold Owner’s Policy of Title Insurance, as applicable (each, a “Title Policy” and
collectively, the “Title Insurance”), to Purchaser covering the Owned Real Property and each
Leased Real Property identified on Exhibit 1.1(a) as having a memorandum of lease of record in
the amount equal to the Net Book Value of the relevant Real Property as included in the
calculation of the Purchase Price. Such policies shall guarantee Purchaser’s title to the relevant
Real Property to be good and indefeasible, subject only to the Permitted Encumbrances. The
costs of obtaining the Title Insurance shall be borne equally by Seller and Purchaser.
ARTICLE 3
CLOSING PROCEDURES; ADJUSTMENTS
3.1 Closings. (a) The Initial Closing, the Subsequent Closing, if any, and the Closing
will be held at the offices of Wachtell, Lipton, Rosen & Katz, 51 West 52nd Street, New York,
New York 10019 or such other place as may be agreed to by the parties.
(b) Subject to the satisfaction or, where legally permitted, the waiver of the
conditions to the Initial Closing set forth in Article 9, the Initial Closing Date shall be no later
than January 4, 2017, unless the parties mutually agree otherwise.
(c) In the event Seller elects to effect the Subsequent Closing contemplated by
Section 2.3(a), subject to the satisfaction or, where legally permitted, the waiver of the conditions
to the Subsequent Closing set forth in Article 9, the Subsequent Closing Date shall be on a
mutually agreed date not later than five (5) Business Days following receipt of the written
election provided by Seller to Purchaser pursuant to Section 2.3(a).
(d) The Closing Date shall be on the first Friday that is at least three (3)
Business Days following the satisfaction or, where legally permitted, the waiver of the
conditions to the Closing set forth in Article 9 (other than conditions which relate to actions to be
taken, or documents to be delivered, at the Closing, but subject to the satisfaction or waiver
thereof at the Closing).
3.2 Payment at Closings. (a) At the Initial Closing, in consideration for the purchase
of the Initial Closing Assets, Purchaser will assume the Initial Closing Assumed Liabilities and
will pay to Purchaser an amount in U.S. dollars equal to the Initial Closing Purchase Price.
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In the event Seller elects to effect the Subsequent Closing contemplated by Section
2.3(a), at the Subsequent Closing, in consideration for the purchase of the Subsequent Closing
Assets, Purchaser will assume the Subsequent Closing Assumed Liabilities and will pay to
Purchaser an amount in U.S. dollars equal to the Subsequent Closing Purchase Price.
(b) At Closing, in consideration for the purchase of the Closing Assets,
Purchaser will assume the Closing Assumed Liabilities and the following payment will be made:
(i) if the Estimated Payment Amount is a positive amount, Seller shall pay to Purchaser an
amount in U.S. dollars equal to such positive amount, or (ii) if the Estimated Payment Amount is
a negative amount, Purchaser shall pay to Seller an amount in U.S. dollars equal to the absolute
value of such negative amount.
(c) All payments to be made hereunder by one party to the other shall be
made by wire transfer of immediately available funds (in all cases to an account specified in
writing by Seller or Purchaser, as the case may be, to the other not later than the third (3rd)
Business Day prior to the Initial Closing Date, the Subsequent Closing Date or Closing Date, as
applicable, or, with respect to payments to be made after the Closing Date, any different account
specified in writing by Seller or Purchaser not later than the third (3rd) Business Day before the
date of payment) on or before 12:00 noon, Central time, on the date of payment.
(d) If any instrument of transfer contemplated herein shall be recorded in any
public record before the Initial Closing, the Subsequent Closing or the Closing, as applicable,
and thereafter the Initial Closing, the Subsequent Closing or the Closing, as applicable, does not
occur, then at the request of such transferring party the other party will deliver (or execute and
deliver) such instruments and take such other action as such transferring party shall reasonably
request to revoke such purported transfer.
3.3 Adjustment of Purchase Price. (a) On or before 12:00 noon, Central time, on the
thirtieth (30th) calendar day following the Closing Date, Seller shall deliver to Purchaser the
Final Closing Statement and shall make available the work papers, schedules and other
supporting data used by Seller to calculate and prepare the Final Closing Statement to enable
Purchaser to verify the amounts set forth in the Final Closing Statement.
(b) The determination of the Adjusted Payment Amount shall be final and
binding on the parties hereto on the thirtieth (30th) calendar day after receipt by Purchaser of the
Final Closing Statement, unless Purchaser shall notify Seller in writing of its disagreement with
any amount included therein or omitted therefrom, in which case, if the parties are unable to
resolve the disputed items within ten (10) Business Days of the receipt by Seller of notice of
such disagreement, such items in dispute (and only such items) shall be determined by a
nationally recognized independent accounting firm selected by mutual agreement between Seller
and Purchaser, and such determination shall be final and binding. Such accounting firm shall be
instructed to resolve the disputed items within ten (10) Business Days of engagement, to the
extent reasonably practicable. The fees of any such accounting firm shall be divided equally
between Seller and Purchaser.
(c) On or before 12:00 noon, Central time, on the fifth (5th) Business Day
after the Adjusted Payment Amount shall have become final and binding or, in the case of a
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dispute, the date of the resolution of the dispute pursuant to Section 3.3(b), if the Adjusted
Payment Amount exceeds the Estimated Payment Amount, Seller shall pay to Purchaser an
amount in U.S. dollars equal to the amount of such excess, plus interest on such excess amount
from the Closing Date to but excluding the payment date, at the Federal Funds Rate or, if the
Estimated Payment Amount exceeds the Adjusted Payment Amount, Purchaser shall pay to
Seller an amount in U.S. dollars equal to the amount of such excess, plus interest on such excess
amount from the Closing Date to but excluding the payment date, at the Federal Funds Rate.
Any payments required by Section 3.4 shall be made contemporaneously with the foregoing
payment. In addition, if and to the extent that the parties shall have in good faith determined that
the amount of the Initial Closing Purchase Price paid at the Initial Closing was greater or less
than the actual aggregate Net Book Value of the Initial Closing Assets and Accrued Interest
through the Initial Closing Date with respect to the Initial Closing Loans, and/or that the amount
of the Subsequent Closing Purchase Price paid at the Subsequent Closing, if any, was greater or
less than the actual aggregate Net Book Value of the Subsequent Closing Assets and Accrued
Interest through the Subsequent Closing Date with respect to the Subsequent Closing Loans,
Seller (in the event of a net payment excess) or Purchaser (in the extent of a net payment
shortfall) shall contemporaneously pay to the other party an amount in U.S. dollars equal to the
amount of such excess or shortfall, as applicable, plus interest thereon from the Initial Closing
Date and/or the Subsequent Closing Date, as applicable, to but excluding the payment date, at the
Federal Funds Rate.
3.4 Proration; Other Closing Date Adjustments. (a) Except as otherwise specifically
provided in this Agreement, it is the intention of the parties that Seller will operate the Branches
for its own account until 11:59 p.m., Central time, on the Closing Date, and that Purchaser shall
operate the Branches, hold the Assets and assume the Assumed Liabilities for its own account
after the Closing Date. Thus, except as otherwise specifically provided in this Agreement,
certain items of income and expense that relate to the Assets, the Deposits and the Branches shall
be prorated as provided in Section 3.4(b) as of 11:59 p.m., Central time, on the Closing Date.
Those items being prorated Items of proration will be handled at the Closing as an adjustment to
the Purchase Price, or if not able to be calculated, in the Final Closing Statement, unless
otherwise agreed by the parties hereto.
(b) For purposes of this Agreement, items of proration and other adjustments
shall include: (i) base rental and additional rental payments under the Branch Leases; (ii) wages,
salaries and employee compensation, benefits and expenses of Transferred Employees; (iii) to
the extent relating to the Assets or the Assumed Liabilities, prepaid expenses and items and
accrued but unpaid liabilities, as of the close of business on the Closing Date; (iv) safe deposit
rental payments previously received by Seller; (v) Property Taxes either assessed, due or payable
as of the Closing Date (and calculated based upon the most current information available for the
counties in which each of the Real Properties are located); (vi) fees for customary annual or
periodic licenses or permits; and (vii) water, sewer, fuel and utility charges.
3.5 Seller Deliveries. (a) At the Initial Closing or the Subsequent Closing, as
applicable, Seller shall deliver to Purchaser:
(i) an executed global assignment of the Loan Documents in respect
of the Initial Closing Loans or the Subsequent Closing Loans, as applicable, in
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substantially the form of Exhibit 3.5(a)(i) (the “Loan Document Assignment”), assigning
all of the rights, benefits and title to each of the Initial Closing Loans or the Subsequent
Closing Loans, as applicable, and (ii) a power of attorney duly executed by Seller and
granting Purchaser the ability to take the following actions on Seller’s behalf: (A)
obtaining original executed copies of each promissory note evidencing an Initial Closing
Loan or Subsequent Closing Loan, as applicable, along with an allonge executed by the
current holder of such promissory note endorsing it over to Purchaser or Purchaser’s
designee, and (B) executing an assignment of mortgage, deed of trust or other real
property security instrument, as applicable, in recordable form (for the avoidance of
doubt, meaning in compliance with the recording requirements of the applicable parish
land records), for any existing mortgage, deed of trust or other real property security
instrument, as applicable, securing each such Initial Closing Loan or Subsequent Closing;
(ii) The certificate required to be delivered by Seller pursuant to
Section 9.1(e); and
(iii) The Records with respect to the Initial Closing Assets or
Subsequent Closing Assets, as applicable.
(b) At the Closing, Seller shall deliver to Purchaser:
(i) Deeds and other instruments of conveyance as may be necessary to
sell, transfer and convey all of Seller’s right, title and interest in and to the Owned Real
Property to Purchaser, free and clear of all Encumbrances (other than Permitted
Encumbrances), in forms to be reasonably agreed upon by Seller and Purchaser;
(ii) A bill of sale in substantially the form of Exhibit 3.5(b)(ii),
pursuant to which the Personal Property shall be transferred to Purchaser;
(iii) An assignment and assumption agreement in substantially the form
of Exhibit 3.5(b)(iii) with respect to the Assumed Liabilities, except for Loans as
contemplated by Section 3.5(b)(v) (the “Assignment and Assumption Agreement”) and
all third party consents obtained pursuant to Section 7.4;
(iv) Lease assignment and assumption agreements, in recordable form
with respect to each Branch Lease that has a memorandum of lease of public record, in
substantially the form of Exhibit 3.5(b)(iv), with respect to each of the Branch Leases
(the “Branch Lease Assignments”);
(v) an executed Loan Document Assignment assigning all of the
rights, benefits and title to each of the Loans (other than the Initial Closing Loans and the
Subsequent Closing Loans, if any), and (ii) a power of attorney duly executed by Seller
and granting Purchaser the ability to take the following actions on Seller’s behalf: (A)
obtaining original executed copies of each promissory note evidencing a Loan (other than
an Initial Closing Loan and a Subsequent Closing Loan, if any) along with an allonge
executed by the current holder of such promissory note endorsing it over to Purchaser or
Purchaser’s designee, and (B) executing an assignment of mortgage, deed of trust or
other real property security instrument, as applicable, in recordable form (for the
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avoidance of doubt, meaning in compliance with the recording requirements of the
applicable parish land records), for any existing mortgage, deed of trust or other real
property security instrument, as applicable, securing each of the Loans (other than the
Initial Closing Loans and the Subsequent Closing Loans, if any); and any other
documentation associated with the Loans acquired hereunder as Purchaser may
reasonably request;
(vi) The certificate required to be delivered by Seller pursuant to
Section 9.1(e);
(vii) A certificate of non-foreign status pursuant to Treasury Regulation
Section 1.1445-2(b)(2) from Seller, duly executed and acknowledged, substantially in the
form of the sample certificates set forth in Treasury Regulation 1.1445-2(b)(2)(iv)(B);
(viii) Affidavits and such other customary documentation as shall be
reasonably required by a title company selected by Purchaser (the “Title Insurer”) to
issue the Title Insurance with respect to the Real Property insuring Purchaser or its
designee as either owner of marketable fee simple title (in the case of each of the Owned
Real Properties) or holder of marketable leasehold interest (in the case of each of the
Leased Real Properties in respect of which a memorandum of lease is of public record),
subject only to Permitted Encumbrances;
(ix) A signed commitment by the Title Insurer to issue the Title
Insurance;
(x) The Safe Deposit Agreements and Seller’s keys to the safe deposit
boxes, as well as all other records as exist and are in Seller’s possession or control related
to the safe deposit box business at the Branches; and
(xi) The Records (other than in respect of the Initial Closing Assets and
the Subsequent Closing Assets, if any).
3.6 Purchaser Deliveries. (a) At the Initial Closing and the Subsequent Closing, if
any, Purchaser shall deliver to Seller:
(i) The Loan Documents Assignment in respect of the Initial Closing
Loans or the Subsequent Closing Loans, as applicable, and such other instruments and
documents as Seller may reasonably require as necessary or desirable for providing for
the assumption by Purchaser of the Loan Documents in respect of the Initial Closing
Loans or the Subsequent Closing Loans, as applicable, each such instrument and
document in form and substance reasonably satisfactory to the parties and dated as of the
Initial Closing Date or the Subsequent Closing Date, as applicable; and
(ii) The certificate required to be delivered by Purchaser pursuant to
Section 9.2(e).
(b) At the Closing, Purchaser shall deliver to Seller:
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(i) The Assignment and Assumption Agreement;
(ii) The Branch Lease Assignments and such other instruments and
documents as any landlord under a Branch Lease may reasonably require as necessary or
desirable for providing for the assumption by Purchaser of a Branch Lease, each such
instrument and document in form and substance reasonably satisfactory to the parties and
dated as of the Closing Date;
(iii) The Loan Documents Assignment in respect of the Loans (other
than the Initial Closing Loans and the Subsequent Closing Loans, if any) and such other
instruments and documents as Seller may reasonably require as necessary or desirable for
providing for the assumption by Purchaser of the Loan Documents in respect of the
Loans (other than the Initial Closing Loans and the Subsequent Closing Loans, if any),
each such instrument and document in form and substance reasonably satisfactory to the
parties and dated as of the Closing Date; and
(c) The certificate required to be delivered by Purchaser pursuant to Section
9.2(e).
3.7 Delivery of the Loan Documents. On the Initial Closing Date, the Subsequent
Closing Date and the Closing Date, respectively Seller shall deliver to Purchaser or its designee
the Loan Documents (reasonably organized and cataloged) with respect to the Loans acquired by
Purchaser, actually in the possession or control of Seller or any of its Affiliates, in whatever form
or medium (including imaged documents) then maintained by Seller or its Affiliates, and Seller
shall cause the delivery of any Loan Documents with respect to the Loans acquired by Purchaser
that are in the possession or control of the FHLB. Seller makes no representation or warranty to
Purchaser regarding the condition of the Loan Documents or any single document included
therein, or Seller’s interest in any collateral securing any Loan, except as specifically set forth
herein. If any Loan Documents are not in the possession or control of Seller on the Initial
Closing Date, the Subsequent Closing Date or the Closing Date, as applicable, Seller shall use
commercially reasonable efforts to obtain those Loan Documents and deliver them to Purchaser
as soon as practicable after the Initial Closing Date, the Subsequent Closing Date or the Closing
Date, as applicable. Except to the extent expressly provided for in this Agreement, Seller shall
have no responsibility or liability for the Loan Documents from and after the time such files are
delivered by Seller to Purchaser or to an independent third party designated by Purchaser for
shipment to Purchaser, the cost of which shall be the borne equally by Seller and Purchaser.
3.8 Owned Real Property Filings. On the Closing Date, Seller and Purchaser shall
cause the Title Insurer to file or record, or cause to be filed or recorded, any and all documents
necessary in order that the legal and equitable title to Owned Real Property (and to each parcel of
Leased Real Property with respect to which Purchaser shall choose to acquire Title Policies)
shall be duly vested in Purchaser. The Title Insurance and all escrow closing costs shall be borne
equally by Purchaser and Seller.
3.9 Allocation of Purchase Price. (a) No later than sixty (60) calendar days after the
final determination of the Adjusted Payment Amount in accordance with the procedures set forth
in Section 3.3, Purchaser shall prepare and deliver to Seller a draft of a statement (the “Draft
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Allocation Statement”) setting forth the allocation of the total consideration paid by Purchaser to
Seller pursuant to this Agreement among the Assets for purposes of Section 1060 of the Code.
If, within thirty (30) calendar days of the receipt of the Draft Allocation Statement, Seller shall
not have objected in writing to such draft, the Draft Allocation Statement shall become the Final
Allocation Statement, as defined below. If Seller objects to the Draft Allocation Statement in
writing within such thirty (30) calendar-day period, Purchaser and Seller shall negotiate in good
faith to resolve any disputed items. If, within ninety (90) calendar days after the final
determination of the Adjusted Payment Amount in accordance with the procedures set forth in
Section 3.3, Purchaser and Seller fail to agree on such allocation, any disputed aspects of such
allocation shall be resolved by a nationally recognized independent accounting firm mutually
acceptable to Purchaser and Seller. The allocation of the total consideration, as agreed upon by
Purchaser and Seller (as a result of either Seller’s failure to object to the Draft Allocation
Statement or of good faith negotiations between Purchaser and Seller) or determined by an
accounting firm under this Section 3.9(a) (the “Final Allocation Statement”), shall be final and
binding upon the parties. Each of Purchaser and Seller shall bear all fees and costs incurred by it
in connection with the determination of the allocation of the total consideration, except that the
parties shall each pay one-half (50%) of the fees and expenses of such accounting firm.
(b) Purchaser and Seller shall report the transaction contemplated by this
Agreement (including income Tax reporting requirements imposed pursuant to Section 1060 of
the Code) in accordance with the allocation specified in the Final Allocation Statement. Each of
Purchaser and Seller agrees to timely file, or cause to be timely filed, IRS Form 8594 (or any
comparable form under state or local Tax law) and any required attachment thereto in accordance
with the Final Allocation Statement. Except as otherwise required pursuant to a “determination”
under Section 1313 of the Code (or any comparable provision of state or local law), neither
Purchaser nor Seller shall take, or shall permit its Affiliates to take, a Tax position which is
inconsistent with the Final Allocation Statement. In the event any party hereto receives notice of
an audit in respect of the allocation of the consideration paid for the Assets, such party shall
immediately notify the other party in writing as to the date and subject of such audit. Any
adjustment to the Purchase Price pursuant to Section 3.3 shall be allocated among the Assets by
reference to the item or items to which such adjustment is attributable.
ARTICLE 4
TRANSITIONAL MATTERS
4.1 Transitional Arrangements. Seller and Purchaser agree to cooperate and to
proceed as follows to effect the transfer of account record responsibility for the Branches:
(a) Not later than five (5) calendar days after the date of this Agreement,
Seller will meet with Purchaser at Seller’s headquarters to investigate, confirm and agree upon
mutually acceptable transaction settlement procedures and specifications, files, procedures and
schedules, for the transfer of account record responsibility; provided, however, that Seller shall
not be obligated under this Agreement to provide Purchaser any information regarding Seller’s
relationship with the customers outside of the relevant Branch (e.g., other customer products,
householding information).
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(b) Seller shall deliver to Purchaser complete master test files, in a form
reasonably acceptable to Purchaser, no later than thirty (30) calendar days after the date of this
Agreement and shall use commercially reasonable efforts to deliver to Purchaser the
specifications and conversion sample files within ten (10) calendar days after the date of this
Agreement.
(c) From time to time prior to the Closing, after Purchaser has tested and
confirmed the conversion sample files, Purchaser may request and Seller shall provide
reasonable additional file-related information, including complete name and address, account
masterfile, ATM account number information, applicable transaction and stop/hold/caution
information, account-to-account relationship information and any other related information with
respect to the Deposits and the Loans. Without prejudice to Purchaser’s right to request
information at other times in accordance with the foregoing sentence, Seller shall provide
complete updated master test files, in a form reasonably acceptable to Purchaser, as of forty five
(45) calendar days prior to the anticipated Closing Date and as of ten (10) calendar days prior to
the anticipated Closing Date.
(d) Not later than ten (10) calendar days after the date of this Agreement,
Purchaser and Seller shall mutually agree upon (i) a calendar for all customer notifications to be
sent pursuant to and in accordance with Section 4.2 and (ii) the mailing file requirements of
Purchaser in connection with such customers notifications.
4.2 Customers.
(a) As soon as practicable after the date hereof, Seller shall provide to
Purchaser a mailing list in electronic form for all holders of Deposits and Obligors on Loans
sufficient to enable Purchaser to provide appropriate notifications, in form and substance
reasonably satisfactory to Purchaser and Seller, informing such holders and Obligors of the
transactions contemplated by this Agreement.
(b) Not later than thirty (30) calendar days nor earlier than ninety (90)
calendar days prior to the Closing Date (except as otherwise required by applicable law):
(i) Seller will notify the holders of Deposits to be transferred on the
Closing Date that, subject to the terms and conditions of this Agreement, Purchaser will
be assuming liability for such Deposits; and
(ii) each of Seller and Purchaser shall provide, or join in providing
where appropriate, all notices to customers of the Branches and other Persons that either
Seller or Purchaser, as the case may be, is required to give under applicable law or the
terms of any other agreement between Seller and any customer in connection with the
transactions contemplated hereby; provided that Seller and Purchaser agree that any joint
notices shall not include any dual-branded letters but instead shall include individual
bank inserts for each of Seller and Purchaser.
A party proposing to send or publish any notice or communication pursuant to this
Section 4.2 shall furnish to the other party a copy of the proposed form of such notice or
communication at least five (5) Business Days in advance of the proposed date of the first
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mailing, posting, or other dissemination thereof to customers, and shall not unreasonably refuse
to amend such notice to incorporate any changes that the other such party proposes as necessary
to comply with applicable law. Seller shall have the right to add customer transition information
to any customer notifications to be sent by Purchaser pursuant to this Section 4.2 and such
information may, at Seller’s option, be included either directly in Purchaser’s notification or in
an additional insert that shall accompany the applicable Purchaser notification. Any customer
notifications sent by Purchaser pursuant to this Section 4.2 shall only include the last four digits
of any account number of Seller. All costs and expenses of any notice or communication sent or
published by Purchaser or Seller shall be the responsibility of the party sending such notice or
communication and all costs and expenses of any joint notice or communication shall be shared
equally by Seller and Purchaser. As soon as reasonably practicable and in any event within
thirty (30) calendar days after the date hereof (or, (i) in the case of Initial Closing Loans, within
two (2) calendar days after the date hereof, and (ii) in the case of the Subsequent Closing Loans,
no later than two (2) calendar days prior to the Subsequent Closing Date), Seller shall provide to
Purchaser a report of the names and addresses of the owners of the Deposits, the borrowers on
the Loans and the lessees of the safe deposit boxes as of a recent date hereof in connection with
the mailing of such materials and Seller shall provide updates to such report at reasonable
intervals thereafter upon the reasonable request of Purchaser from time to time. No
communications by Purchaser, and no communications by Seller outside the ordinary course of
business, to any such owners, borrowers, customers or lessees as such shall be made prior to the
Closing Date except as provided in this Agreement or otherwise agreed to by the parties in
writing.
(c) Following the giving of any notice described in paragraph (a) above,
Purchaser and Seller shall deliver to each new customer at any of the Branches such notice or
notices as may be reasonably necessary to notify such new customers of Purchaser’s pending
assumption of liability for the Deposits and to comply with applicable law.
(d) Neither Purchaser nor Seller shall object to the use, by depositors of the
Deposits, of payment orders or cashier’s checks issued to or ordered by such depositors on or
prior to the Closing Date, which payment orders bear the name, or any logo, trademark, service
mark or the proprietary mark of Seller or any of its Affiliates.
(e) Purchaser shall notify Deposit account customers and Loan account
customers that, upon the expiration of a post-Closing processing period, which shall be sixty (60)
calendar days after the Closing Date (or, in the case of Initial Closing Loans or the Subsequent
Closing Loans, the Initial Closing Date and the Subsequent Closing Date, as applicable or, if the
conversion occurs after the Closing Date, sixty (60) calendar days after conversion), any Items
that are drawn on Seller shall not thereafter be honored by Seller. Such notice shall be given by
delivering written instructions to such effect to such Deposit account customers and Loan
account customers in accordance with this Section 4.2.
4.3 ACH Debit or Credit Transactions.
(a) Seller will provide to Purchaser on the Closing Date all of those automated
clearing house (“ACH”) originator arrangements related (by agreement or other standing
arrangement, if any) to the Deposits that are in Seller’s ACH systems and will use its reasonable
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best efforts to so transfer any other such arrangements. For a period of sixty (60) calendar days
following the Closing (or, if the conversion occurs after the Closing Date, sixty (60) calendar
days after conversion), in the case of ACH debit or credit transactions (“ACH Entries”) to
accounts constituting Deposits (the final Business Day of such period being the “ACH Entries
Cut-Off Date”), Seller shall transfer to Purchaser all received ACH Entries by 9:00 a.m., Central
time (or such other mutually agreed upon time), each Business Day. Such transfers shall contain
ACH Entries effective for that Business Day only. Purchaser shall be responsible for returning
ACH Entries to the originators through the ACH clearing house for ACH Entries that cannot be
posted for any reason, including as a result of insufficient funds in the applicable Deposit
account or the applicable Deposit account being closed. Purchaser shall provide an ACH Entries
test file to Seller for validation of format at least thirty (30) calendar days prior to the Closing
Date. Compensation for ACH Entries not forwarded to Purchaser on the same Business Day as
that on which Seller has received such deposits will be handled in accordance with the applicable
rules established by NACHA - The Electronic Payments Association. After the ACH Entries
Cut-Off Date, Seller may discontinue forwarding ACH Entries and funds and return such ACH
Entries to the originators marked “Account Closed.” Seller and its Affiliates shall not be liable
for any overdrafts that may thereby be created. Purchaser and Seller shall agree on a reasonable
period of time prior to the Closing during which Seller will no longer be obligated to accept new
ACH Entries arrangements related to the Branches. At the time of the ACH Entries Cut-Off
Date, Purchaser will provide ACH originators with account numbers relating to the Deposits.
(b) Purchaser agrees that in the event that it or any of its Affiliates receives
any ACH Entries related to the Deposits prior to the Closing (each, an “Unauthorized ACH
Entry”), Purchaser shall not accept such Unauthorized ACH Entry and return the related ACH
Entries to the originators through the ACH clearing house.
(c) As soon as practicable after the notice provided in Section 4.2(a),
Purchaser shall send appropriate notice to all customers having accounts constituting Deposits
the terms of which provide for ACH Entries of such accounts by third parties, instructing such
customers concerning the transfer of customer ACH Entries authorizations from Seller to
Purchaser. Beginning on the Closing Date, Purchaser shall provide, through the ACH clearing
house, electronic Notification of Change Entries to the ACH originators of such ACH Entries
with account numbers relating to the Deposits. Purchaser shall provide an ACH Notification of
Change test file to Seller for validation of format at least fourteen (14) calendar days prior to the
Closing Date.
(d) Purchaser shall establish ACH service prior to Closing Date for all ACH
originator accounts. As soon as practicable after the notice provided in Section 4.2(a), Purchaser
shall contact all ACH originator clients to (i) notify them of the change in service following the
Closing Date and (ii) establish ACH service prior to Closing Date including appropriate client
testing. Any ACH origination file received prior to Closing Date regardless of the effective date
will be processed by Seller. Seller will be responsible for creating client reporting for any ACH
return transactions that were originated prior to, but returned after, Closing Date. Seller may
create settlement transactions to ACH originators for returned or exception transactions received
for files originated prior to the Closing Date for a period of up to sixty (60) days following the
Closing Date or the effective date of the last file processed by the Seller prior to the Closing
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Date, whichever is later. These settlement transactions will be posted to the Purchaser’s DDA
account and Purchaser will be provided the details of these transactions to post.
4.4 Wires. After the Closing Date, Seller shall (a) no longer be obligated to process
or forward to Purchaser any incoming or outgoing wires received by Seller for credit to accounts
constituting Deposits, (b) return all wires received after the Closing Date to the originator as
unable to apply to the referenced account constituting a Deposit and (c) upon reasonable request
by Purchaser, provide Purchaser with historical incoming wire history information with respect
to the thirteen (13) month period prior to the Closing Date (the “Covered Period”) such that
Purchaser is able to provide current wire instructions to the originator from and after the Closing
Date. The wire history information provided under the terms of the previous sentence shall
include the beneficiary account number, beneficiary account name, cumulative value and total
number of wires received during the Covered Period. Purchaser shall provide a unique and
singular communication with specific new wire instructions to the receivers (beneficiaries) who
have received ten (10) or more wires during the Covered Period. Such specific instructions must
be provided in writing to the applicable receivers (beneficiaries) no less than thirty (30) calendar
days prior to the Closing Date. Seller shall provide reports to Purchaser for any customers who
have data resident on Seller’s wire transfer-specific application, including wire templates
(repetitive wire instructions), standing order transfers or PINs authorizing the sender to directly
contact the wire operation for the initiation of a wire transfer. At least five (5) Business Days
prior to the Closing Date, Purchaser shall contact these specific clients to provide such clients
with information regarding Purchaser’s services, capabilities and use instructions or reasonable
substitutions.
4.5 Access to Records. (a) From and after the Closing Date, each of the parties shall
permit the other, at such other party’s sole expense, reasonable access, subject to confidentiality
requirements, to any applicable Records in its possession or control relating to matters arising on
or before the Closing Date and reasonably necessary, solely in connection with (i) accounting
purposes, (ii) regulatory purposes, (iii) any claim, action, litigation or other proceeding involving
the party requesting access to such Records, (iv) any legal obligation owed by such party to any
present or former depositor or other customer, or (v) Tax purposes. Such party requesting such
access shall not use the Records or any information contained therein or derived therefrom for
any other purpose whatsoever. All Records, whether held by Purchaser or Seller, shall be
maintained for the greater of (x) such periods as prescribed by their respective record retention
policies and (y) such periods as are required by applicable law, unless the parties shall agree in
writing to a longer period.
(b) From and after the Closing Date, Seller agrees to promptly provide
Purchaser with copies of such records and documents not included with the Records but which
are reasonably requested by Purchaser to the extent necessary to allow Purchaser to assist
customers with customer inquiries or issues.
(c) Each party agrees that any records or documents that come into its
possession as a result of the transactions contemplated by this Agreement, to the extent relating
to the other party’s business and not relating solely to the Assets and Assumed Liabilities, shall
remain the property of the other party and shall, upon the other party’s request from time to time
and as it may elect in its sole discretion, be returned to the other party or destroyed, and each
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party agrees not to make any use of such records or documents and to keep such records and
documents confidential in accordance with Sections 7.2(b) and 7.2(c).
4.6 Interest Reporting and Withholding. (a) Unless otherwise agreed to by the
parties, Seller will report to applicable taxing authorities and holders of Deposits, with respect to
the period from January 1 of the year in which the Closing occurs through the Closing Date, all
interest (including dividends and other distributions with respect to money market accounts)
credited to, withheld from and any early withdrawal penalties imposed upon the Deposits.
Purchaser will report to the applicable taxing authorities and holders of Deposits, with respect to
all periods from the day after the Closing Date, all such interest (including dividends and other
distributions with respect to money market accounts) credited to, withheld from and any early
withdrawal penalties imposed upon the Deposits. Any amounts required by any governmental
agencies to be withheld from any of the Deposits through the Closing Date will be withheld by
Seller in accordance with applicable law or appropriate notice from any governmental agency
and will be remitted by Seller to the appropriate agency on or prior to the applicable due date.
Any such withholding required to be made subsequent to the Closing Date will be withheld by
Purchaser in accordance with applicable law or appropriate notice from any governmental
agency and will be remitted by Purchaser to the appropriate agency on or prior to the applicable
due date.
(b) Unless otherwise agreed to by the parties, Seller shall be responsible for
delivering to payees all IRS notices and forms with respect to information reporting and tax
identification numbers required to be delivered through the Closing Date with respect to the
Deposits, and Purchaser shall be responsible for delivering to payees all such notices required to
be delivered following the Closing Date with respect to the Deposits.
(c) Unless otherwise agreed to by the parties, Seller will make all required
reports to applicable taxing authorities and to obligors on Loans purchased on the Initial Closing
Date, the Subsequent Closing Date or the Closing Date, as applicable, with respect to the period
from January 1 of the year in which the Initial Closing, the Subsequent Closing or the Closing, as
applicable, occurs through the Initial Closing Date, the Subsequent Closing Date or the Closing
Date, as applicable, concerning all interest and points received by Seller. Purchaser will make all
required reports to applicable taxing authorities and to obligors on Loans purchased on the Initial
Closing Date, the Subsequent Closing Date or the Closing Date, as applicable, with respect to all
periods from the day after the Initial Closing Date, the Subsequent Closing Date or the Closing
Date, as applicable, concerning all such interest and points received.
4.7 Negotiable Instruments. Seller will remove any supply of Seller’s money orders,
official checks, gift checks, travelers’ checks or any other negotiable instruments located at each
of the Branches on the Closing Date.
4.8 ATM and Debit Cards. Seller will provide Purchaser with a list of ATM and debit
cards issued by Seller to depositors of any Deposits, and a record thereof in a format reasonably
agreed to by the parties containing all addresses therefor, no later than thirty (30) calendar days
after the date of this Agreement, and Seller will provide Purchaser with an updated record from
time to time prior to the Closing along with other conversion sample files. At or promptly after
the Closing, Seller will provide Purchaser with a revised record through the Closing. Seller will
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not be required to disclose to Purchaser customers’ PINs or algorithms or logic used to generate
PINs. Following the receipt of all Regulatory Approvals (except for the expiration of statutory
waiting periods), Purchaser shall reissue ATM access/debit cards to depositors of any Deposits
not earlier than forty-five (45) calendar days nor later than ten (10) calendar days prior to the
Closing Date, which cards shall be effective as of the day following the Closing Date. Purchaser
and Seller agree to settle any and all ATM transactions and debit card transactions effected on or
before the Closing Date, but processed after the Closing Date, as soon as practicable. In
addition, Purchaser assumes responsibility for and agrees to pay on presentation all Debit card
transactions initiated before or after the Closing with Debit cards issued by Seller to access
Transaction Accounts.
4.9 Data Processing Conversion for the Branches and Handling of Certain Items. (a)
The conversion of the data processing with respect to the Branches and the Assets and Assumed
Liabilities shall be completed on the calendar day immediately following the Closing Date or on
the earliest practicable date thereafter as reasonably agreed to by the parties. Seller and
Purchaser agree to cooperate to facilitate the orderly transfer of data processing information in
connection with the P&A Transactions.
(b) As soon as practicable and in no event more than three (3) Business Days
after the Closing Date, Purchaser shall mail to each depositor in respect of a Transaction Account
and to each borrower in respect of a HELOC Account (i) a letter approved by Seller in its
reasonable discretion requesting that such depositor or borrower promptly cease writing Seller’s
drafts against such Transaction Account or HELOC Account (as applicable) and (ii) new drafts
which such depositor or borrower may draw upon Purchaser against such Transaction Accounts
or HELOC Accounts (as applicable). Purchaser shall use its reasonable best efforts to cause
these depositors and borrowers to begin using such new drafts and cease using drafts bearing
Seller’s name. The parties hereto shall use their reasonable best efforts to develop procedures
that cause Seller’s drafts against Transaction Accounts and HELOC Accounts received after the
Closing Date to be cleared through Purchaser’s then-current clearing procedures. During the
sixty (60) calendar-day period after the Closing Date (or, if the conversion occurs after the
Closing Date, sixty (60) calendar days after conversion), if it is not possible to clear Transaction
Account or HELOC Account drafts through Purchaser’s then-current clearing procedures, Seller
shall make available to Purchaser as soon as practicable but in no event more than two (2)
Business Days after receipt of all Transaction Account or HELOC Account drafts drawn against
Transaction Accounts or HELOC Accounts (as applicable). Seller shall have no obligation to
pay such forwarded Transaction Account or HELOC Account drafts. Upon the expiration of
such sixty (60) calendar-day period, Seller shall cease forwarding drafts against Transaction
Accounts and HELOC Accounts. Seller shall be compensated for its processing of the drafts and
for other services rendered to Purchaser during such sixty (60) calendar-day period in accordance
with Exhibit 4.9.
(c) Any items that were credited for deposit to or cashed against a Deposit
prior to the Closing and are returned unpaid on or within sixty (60) calendar days after the
Closing Date (“Returned Items”) will be handled as set forth herein. Except as set forth below,
Returned Items shall be the responsibility of Seller. If depositor’s bank account at Seller is
charged for the Returned Item, Seller shall forward such Returned Item to Purchaser. If upon
Purchaser’s receipt of such Returned Item there are sufficient funds in the Deposit to which such
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Returned Item was credited or any other Deposit transferred at the Closing standing in the name
of the party liable for such Returned Item, Purchaser will debit any or all of such Deposits an
amount equal in the aggregate to the Returned Item, and shall repay that amount to Seller. If
there are not sufficient funds in the Deposit because of Purchaser’s failure to honor holds placed
on such Deposit by Seller and provided on the conversion file provided by Seller to Purchaser
pursuant to Section 4.9(a), Purchaser shall repay the amount of such Returned Item to Seller.
Any items that were credited for deposit to or cashed against an account at the Branches to be
transferred at the Closing prior to the Closing and are returned unpaid more than sixty (60)
calendar days after the Closing will be the responsibility of Seller.
(d) During the sixty (60) calendar-day period after the Closing Date, any
deposits or other payments received by Purchaser in error shall be returned to Seller within two
(2) Business Days of receipt by Purchaser. For sixty (60) calendar days after the Initial Closing,
the Subsequent Closing Date, the Closing, or, if later than the date of purchase pursuant to
Section 7.8, the cessation of servicing of any such Loan by Seller, as applicable, payments
received by Seller with respect to the applicable Loans shall be forwarded to Purchaser within
two (2) Business Days of receipt by Seller. Upon the expiration of such sixty (60) calendar-day
period following the Initial Closing Date, the Subsequent Closing Date, the Closing Date, or, if
later than the date of purchase pursuant to Section 7.8, the cessation of servicing of any such
Loan by Seller, as applicable, any payments received by Seller with respect to any Loans shall be
returned to the remitter of such payment within two (2) Business Days along with advice to the
remitter that such payment shall be properly made to Purchaser.
(e) Promptly following the date of this Agreement, Purchaser will open and
maintain a demand deposit account with Seller to be used for settlement activity for deposits and
loans/lines following the Initial Closing Date, the Subsequent Closing Date or the Closing Date,
as applicable. Seller will provide Purchaser with a daily statement for this account. Purchaser
will be responsible for initiating all funding and draw-down activity against this account.
Purchaser will ensure that all debit (negative) balances are funded no later than one day
following the day the account went into a negative status. Activity that will be settled through
this account will include items drawn on a Deposit but presented to Seller for payment, ACH
transactions, direct debit transactions, Returned Items and payments made to Seller for Loans.
4.10 Infrastructure Installation. Within ten (10) Business Days of the date of this
Agreement, Purchaser and/or its representatives shall be permitted reasonable access (subject to
the provisions of Section 7.2(a)) to review each Branch for the purpose of planning to install
automated equipment for use by Branch personnel. Following the receipt of the Regulatory
Approvals (except for the expiration of statutory waiting periods), Seller grants to Purchaser a
license at each of the Branches to (a) install voice and data circuits to the main point of entry at
each Branch, (b) install Purchaser’s network interface equipment (router/switches), and (c)
extend circuit demarcation points from the main point of entry at the applicable Branch to such
network interface equipment (collectively, the “Infrastructure Installation”); it being agreed that,
under no circumstance, shall the Infrastructure Installation include the installation or
modification of station cabling for equipment, including printers, phones, personal computers
and security cameras. All Infrastructure Installations shall be in accordance with the following
terms and conditions:
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(i) The Infrastructure Installation shall be at the sole cost and expense
of Purchaser, including the cost of obtaining all permits, licenses or other approvals, the
cost of moving Seller’s furniture, fixtures or equipment, and the cost of internal or
external utility relocation. Purchaser shall be solely responsible for repairing or replacing
any damage or destruction to its installed infrastructure. Additionally, Purchaser shall
repair any damage occurring at any Branch during the Infrastructure Installation process
as a result of the installation and shall restore any area altered to its pre-existing condition
if the Closing does not occur.
(ii) The Infrastructure Installation shall be completed in a
commercially reasonable and workmanlike manner and shall comply with the
requirements of all local, state, and federal governmental authorities and quasi-
governmental authorities, including with respect to materials and installation. Purchaser
shall be responsible for obtaining all permits, licenses, or other approvals necessary for
the Infrastructure Installation. Seller shall reasonably cooperate with Purchaser to obtain
the necessary permits, licenses, or other approvals. Purchaser shall provide proof of
receipt of approvals and permits to Seller upon request.
(iii) The Infrastructure Installation shall be performed in such a manner
that does not unreasonably interfere with the normal business activities and operations of
the Branches. The Infrastructure Installation that would reasonably be expected to
interfere with Seller’s normal business activities or with the business activities of other
users of the property at which the Branch is situated may be required to be scheduled
after regular business hours, at Purchaser’s sole cost and expense.
(iv) Prior to the commencement of any work, Purchaser shall submit to
Seller and such consultant as Seller may from time to time designate plans and
specifications for the Infrastructure Installation (“Installation Plans”), including drawings
and renderings providing the specifications of the infrastructure to be installed, locations
and any required changes to the existing physical building and current infrastructure.
Purchaser shall not proceed with any Infrastructure Installation until Seller’s written
approval has been obtained (such approval not to be unreasonably withheld, conditioned
or delayed). Purchaser shall provide at least three (3) Business Days’ advance written
notice of a proposed time or times for access, and Seller shall confirm in writing that the
proposed time is acceptable with Seller and Seller’s consultant or the parties shall agree
upon an alternative time. All Infrastructure Installation work shall be coordinated with
Seller and Seller’s consultant to allow Seller and/or its consultant to be present on site
during all such work. All Infrastructure Installation shall be subject to the on-site
direction of Seller and/or Seller’s consultant with respect to protecting Seller’s physical
and information security and live technology environment, which may include work
stoppage at the sole discretion of Seller and/or Seller’s consultant without any liability to
Seller or Seller’s consultant hereunder.
(v) If the Branch is located on Leased Real Property, the Infrastructure
Installation shall comply with the applicable Branch Lease, including obtaining the
landlord’s approval of any Infrastructure Installation if required. If the Branch is within a
building or center in which the landlord leases property to additional tenants, the
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Infrastructure Installation shall not unreasonably interfere with the business and
operations of the additional tenants. Where required under the applicable Branch Lease,
landlord approval of the Installation Plans shall be obtained prior to the commencement
of any Infrastructure Installation.
(vi) Prior to commencing any Infrastructure Installation, Purchaser
shall provide a certificate of insurance to Seller acceptable to Seller in its sole discretion,
evidencing (a) statutory workers’ compensation insurance coverage and (b) public
liability and property damage insurance coverage in the minimum amount of $2,000,000,
and evidence that such insurance is (i) issued by an insurance company reasonably
acceptable to Seller and admitted to engage in the business of insurance in the state in
which the Branch is situated, (ii) primary and noncontributing insurance for all claims,
and (iii) renewable, not cancelable, and not the subject of material change in coverage or
available limits of coverage, except on thirty (30) days’ prior written notice to Seller.
(vii) Purchaser agrees that the Infrastructure Installation by Purchaser or
its agents or contractors shall be at the risk of Purchaser, and Purchaser hereby assumes
all risk and responsibility for any loss, damage to, or theft of the Infrastructure
Installation and neither Seller nor its Affiliates or insurers shall be liable to Purchaser for
any injury or damage to the Infrastructure Installations arising from any act or omission
of any officer, director, shareholder, employee, agent, contractor or invitee of Seller or
any of its Affiliates or the act or omission of any other person whatsoever. Neither Seller
nor any of its Affiliates will be insuring, and shall have no obligation to insure, directly or
as part of any policy of insurance now or hereafter held by Seller or any of its Affiliates
in whole or in part with respect to the Branches, any of the Infrastructure Installations.
(viii) Purchaser will indemnify Seller and save it harmless from and
against any and all claims, actions, damages, liability and expense, including reasonable
attorneys’ fees, in connection with Purchaser’s access to the Branches and/or the
Infrastructure Installations at the Branches pursuant to this Agreement or occasioned
wholly or in part by act or omission of Purchaser, its employees, contractors, or agents
(including any liens that may arise from work being performed at Purchaser’s request at
the Branches). The provisions of this paragraph shall survive the termination or earlier
expiration of the term of this Agreement.
4.11 Employee Training. In accordance with the terms of this Agreement, within thirty
(30) calendar days of the date of this Agreement, Seller and Purchaser shall agree to mutually
acceptable terms and conditions under which Purchaser shall be permitted to provide training to
Seller’s employees at the Branches who are reasonably anticipated to become Transferred
Employees; it being agreed that, prior to, and on, the Closing Date, all Branch Employees shall
remain under Seller’s control. Any such training shall not occur until after receipt of Regulatory
Approvals (except for the expiration of statutory waiting periods) unless the parties agree
otherwise. All training shall be conducted in a manner that will not unreasonably interfere with
the business activities of the Branches. Purchaser shall reimburse Seller for the additional time
spent by, and all related, reasonable travel expenses incurred by, any such prospective
Transferred Employee in connection with such training activities to the extent such time and
expenses would not have been spent or incurred by such prospective Transferred Employee but
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for such training activities, and Purchaser shall reimburse Seller for reasonable costs and
expenses (including compensation related costs and expenses) incurred in connection with
replacement employees for such prospective Transferred Employees excused from their duties at
the Branches for such training activities for the periods during which such prospective
Transferred Employees are excused, where such replacement employees are reasonably
determined by Seller to be needed to maintain ongoing operations at the Branches without
disruption. As promptly as practicable following the date of this Agreement, Purchaser shall
provide Seller with Purchaser’s proposed plan for the training of all anticipated Transferred
Employees and, within ten (10) Business Days of Seller’s receipt of such plan, Seller shall
provide Purchaser with an estimate of the anticipated costs of implementing Purchaser’s
proposed training program. Notwithstanding the foregoing, Seller and Purchaser shall
reasonably cooperate in good faith to minimize the costs of such training program in a manner
consistent with achieving its intended purpose. In addition, from and after the date of this
Agreement until the Closing Date, Purchaser shall consult with Seller and obtain Seller’s consent
before communicating (directly or indirectly and whether in writing, verbally or otherwise) with
any Branch Employees.
4.12 Night Drop Equipment. Following the Closing and prior to the first Business Day
following the Closing Date, Purchaser, at its sole cost and expense, shall rekey all night drop
equipment located within the Branches in such a manner that, from and after the first Business
Day following the Closing Date, no Person who was had the ability to access such night drop
equipment prior to the Closing shall be able to continue to access such night drop equipment
with the same access key that such Person was using prior to the Closing. The parties hereby
acknowledge and agree that all of the night drop equipment located within the Branches shall be
emptied and sealed by Seller at approximately 8:00 a.m., Central time, on the Closing Date and,
from and after such time, Purchaser shall not unseal such night drop equipment until it has been
rekeyed in accordance with the preceding sentence.
4.13 Access to the Branches and Removal of Equipment on the Closing Date. (a)
Purchaser agrees that, with respect to each Branch, on the Closing Date neither it nor any of its
agents, Affiliates or representatives shall be permitted to access such Branch until Seller has
completed its decommissioning of such Branch, which shall include the disabling of Seller’s
information systems at the Branch and the removal of any personal property and other equipment
or assets located at the Branch that do not constitute Assets and are not necessary for the
provision of transition services as contemplated by Section 4.16 (the “Removal Process”); it
being agreed that, notwithstanding the foregoing, on the Closing Date, Purchaser shall be
permitted to have one representative present at each Branch in order to ensure that the actions
taken by Seller in connection with such decommissioning comply with the terms of this
Agreement.
(b) The Removal Process shall be at the sole cost and expense of Seller and
shall be done in such a manner as to minimize damage to the Branches. Seller shall be solely
responsible for repairing any damage occurring at any Branch or restoring any area damaged
during the Removal Process as a result of the removal of any personal property or other
equipment or assets. If the Branch is located on Leased Real Property, Seller shall insure that the
Removal Process complies with the applicable Branch Lease, including obtaining the applicable
landlord’s approval, if required.
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(c) Seller agrees that the Removal Process shall be at the risk of Seller, and
Seller hereby assumes all risk and responsibility for any loss, damage to, or theft occurring
during the Removal Process and neither Purchaser nor its Affiliates or insurers shall be liable to
Seller for any injury or damage arising from any act or omission of any officer, director,
shareholder, employee, agent, contractor or invitee of Seller or any of its Affiliates or the act or
omission of any other person whatsoever. Neither Purchaser nor any of its Affiliates will be
insuring, and shall have no obligation to insure, directly or as part of any policy of insurance now
or hereafter held by Purchaser or any of its Affiliates in whole or in part with respect to the
Branches, the Removal Process. Seller will indemnify Purchaser and save it harmless from and
against any and all claims, actions, damages, liability and expense, including reasonable
attorneys’ fees, occasioned wholly or in part by act or omission of Seller, its employees,
contractors, or agents during the Removal Process. The provisions of this paragraph shall
survive the termination or earlier expiration of the term of this Agreement.
4.14 Customer Claims. (a) In instances where a depositor of a Deposit made an
assertion of error regarding an account constituting a Deposit account pursuant to federal
regulations or Seller’s internal policies and procedures, and, prior to the Closing, Seller
recredited the disputed amount to the relevant account during the conduct of the error
investigation, during the one hundred and twenty (120) calendar days following the Closing (the
“Customer Claims Period”), Purchaser agrees to comply with a written request from Seller to
debit such account in an amount equal to the disputed amount and remit such amount to Seller
where the depositor is determined by Seller liable for such disputed amount.
(b) During the Customer Claims Period, in instances where (i) a depositor of a
Deposit makes, or prior to Closing has made, an assertion of error regarding an account
constituting a Deposit account pursuant to federal regulations or Seller’s internal policies and
procedures that was alleged to have occurred prior to Closing, and (ii) Seller determines in
accordance with its internal policies and procedures to recredit the disputed amount to such
depositor, Seller shall transfer to Purchaser the disputed amount and Purchaser shall credit the
relevant account of the depositor in an amount equal to the disputed amount. In instances where,
during the Customer Claims Period, Seller determines that the depositor is liable for such
disputed amount, Purchaser agrees to comply with a written request from Seller to debit such
account in an amount equal to the disputed amount and remit such amount to Seller.
(c) The parties agree that all transfers or remittances made between Seller and
Purchaser pursuant to Section 4.14(a) or 4.14(b) shall be made through the demand deposit
account established by Purchaser pursuant to Section 4.9(e).
(d) From the Closing Date through the third (3rd) anniversary thereof, Seller
shall promptly notify Purchaser upon learning of any Warranty Claim, and Seller and Purchaser
shall cooperate to resolve any Warranty Claims, including by Purchaser debiting such Deposit
account for the amount at issue in the applicable Warranty Claim (the “Warranty Amount”) or
otherwise using reasonable efforts to obtain the Warranty Amount from such Deposit
accountholder to the extent such accountholder remains an accountholder of a Deposit assumed
by Purchaser under this Agreement. Purchaser shall promptly remit to Seller the Warranty
Amount, or the maximum amount Purchaser is able to debit such account by or to otherwise
obtain from such Deposit accountholder, if less than the Warranty Amount.
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4.15 Vendor Access. From the date of this Agreement until the Closing Date, so as to
facilitate an orderly conversion and transition of the Assets and Assumed Liabilities to Purchaser
as contemplated hereby, to the extent so requested by Purchaser, Seller shall reasonably
cooperate to facilitate direct communication between Purchaser and third party providers of
goods and/or services in respect of the Assets and Assumed Liabilities.
4.16 Transition Services. In the event that the Closing occurs prior to the completion
of the conversion of the data processing with respect to the Branches and Closing Assumed
Liabilities, (i) Seller shall continue to provide or cause the uninterrupted provision of all services
and connectivity to the Branches, Branch Employees and customers of the Branches as currently
provided, at Seller’s actual cost (without allocation of corporate overhead but including a
proportionate share of any third party expenses), until such conversion occurs (but in no event
for more than six (6) months following the Closing Date), and (ii) all references to “Closing”
included in this Article 4 for purpose of establishing time periods for the continuation of
obligations following the Closing shall be deemed references to the date of completion of the
conversion of the data processing with respect to the Branches and Closing Assumed Liabilities.
In addition, during such period, Seller acknowledges and agrees that the Seller signage shall
remain in place at the Branches, Purchaser may continue to use all on-premises Seller materials
(e.g., deposit slips), and Purchaser acknowledges and agrees that it will install signs in the
lobbies of the Branches identifying the Branches as branches of Purchaser and will similarly
identify any Seller materials that are used by Purchaser as materials of Purchaser.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as follows, except as set forth in the Seller
Disclosure Schedule (it being agreed that disclosure in any section of the Seller Disclosure
Schedule shall apply only to the indicated section of this Agreement and to such other sections of
this Agreement to the extent it is reasonably apparent that such matter is relevant to such other
sections):
5.1 Corporate Organization and Authority. Seller is a state chartered non-member
bank, duly organized and validly existing under the laws of the State of Louisiana, and has the
requisite power and authority to conduct the business now being conducted at the Branches.
Seller and each of its Affiliates has the requisite corporate power and authority and has taken all
shareholder and corporate action necessary in order to execute and deliver this Agreement and
the other instruments and documents contemplated hereby and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and delivered by
Seller and (assuming due authorization, execution and delivery by Purchaser) is a valid and
binding agreement of Seller enforceable against Seller in accordance with its terms subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors’ rights and to general equity
principles.
5.2 No Conflicts. The execution, delivery and performance of this Agreement and the
other instruments and documents contemplated hereby by Seller does not, and will not, (i) violate
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any provision of its charter or by-laws, (ii) subject to Regulatory Approvals, violate or constitute
a breach of, or default under, any law, rule, regulation, judgment, decree, ruling or order of any
Regulatory Authority to which Seller is subject or any agreement or instrument of Seller, or to
which Seller is subject or by which Seller is otherwise bound, which violation, breach,
contravention or default referred to in this clause (ii), individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect (assuming the receipt of any required
third party consents under the Branch Leases in respect of the transactions herein contemplated)
or (iii) except as set forth in Section 5.2 of the Seller Disclosure Schedule, violate, conflict with,
result in a breach of any provision of or the loss of any benefit under, constitute a default (or an
event that with notice or lapse of time, or both, would constitute a default) under, result in the
termination of or a right of termination or cancellation under, accelerate the performance
required by, or result in the creation of any Encumbrance (other than a Permitted Encumbrance)
upon any of the Assets under, any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, deed of trust, license, lease, agreement or other instrument or obligation to
which Seller is a party, or by which it or any of its properties or assets may be bound or affected,
which breach, conflict, loss of benefit, termination, cancellation, acceleration, Encumbrance,
violation or default would materially impact the Assets and Assumed Liabilities or would
materially prevent or delay Seller from performing its obligations under this Agreement in all
material respects. Seller has all material licenses, franchises, permits, certificates of public
convenience, orders and other authorizations of all federal, state and local governments and
governmental authorities necessary for the lawful conduct of its business at each of the Branches
as now conducted in all material respects, and all such licenses, franchises, permits, certificates
of public convenience, orders and other authorizations, are valid and in good standing and, to
Seller’s knowledge, are not subject to any suspension, modification or revocation or proceedings
related thereto.
5.3 Approvals and Consents. Other than Regulatory Approvals, no notices, reports or
other filings are required to be made by Seller with, nor are any consents, registrations,
approvals, permits or authorizations required to be obtained by Seller from, any governmental or
regulatory authorities of the United States or the several States in connection with the execution
and delivery of this Agreement by Seller and the consummation of the transactions contemplated
hereby by Seller. Except as set forth on Section 5.3 of the Seller Disclosure Schedule, there are
no consents or approvals of any other third party required to be obtained in connection with the
execution and delivery of this Agreement by Seller and the consummation of the transactions
contemplated by this Agreement by Seller.
5.4 Leases. Purchaser has been provided with an accurate and complete copy of the
Branch Leases, including all amendments to such Branch Leases. Each Branch Lease is the
valid and binding obligation of Seller, and to Seller’s knowledge, of each other party thereto; and
there does not exist with respect to Seller’s material obligations thereunder, or, to Seller’s
knowledge, with respect to the material obligations of the lessor thereof, any default, or event or
condition that constitutes or, after notice or passage of time or both, would constitute a default on
the part of Seller or the lessor or sublessee, as applicable, under any such Branch Lease. As used
in this Section 5.4, the term “lessor” includes any sub-lessor of the property to Seller. Each
Branch Lease gives Seller the right to occupy the building and land comprising the related
Branch in accordance with the terms of such Branch Lease. There are no Tenant Leases or
subleases relating to any Branch created or suffered to exist by Seller.
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5.5 Litigation and Undisclosed Liabilities. Except as set forth in Section 5.5 of the
Seller Disclosure Schedule, there are no actions, complaints, petitions, suits or other proceedings
or any decree, injunction, judgment, order or ruling entered, promulgated or pending or, to
Seller’s knowledge, threatened against Seller and affecting or relating to in any manner the
Branches, the Assets or the Assumed Liabilities or against any of the Branches that, individually
or in the aggregate, would reasonably be expected to have a Material Adverse Effect. To Seller’s
knowledge, there are no facts or circumstances that would reasonably be expected to result in
any material claims, obligations or liabilities with respect to the Branches, the Assets or the
Assumed Liabilities other than as otherwise disclosed in this Agreement.
5.6 Regulatory Matters. (a) There are no pending or, to Seller’s knowledge,
threatened disputes or controversies between Seller and any federal, state or local governmental
agency or authority, or investigation or inquiry by any such agency or authority, materially
affecting or relating to the Branches, the Assets or the Assumed Liabilities.
(b) Neither Seller nor any of its Affiliates has received any indication from
any federal or state governmental agency or authority that such agency would oppose or refuse to
grant a Regulatory Approval and Seller knows of no reason relating to Seller or its Affiliates for
any such opposition or refusal.
(c) Neither Seller nor any of its Affiliates is a party to any written order,
decree, agreement or memorandum of understanding with, or commitment letter or similar
submission to, any federal or state regulatory agency or authority charged with the supervision or
regulation of depository institutions, nor has any of them been advised by any such agency or
authority that it is contemplating issuing or requesting any such order, decree, agreement,
memorandum of understanding, commitment letter or submission, in each case that would
materially affect Seller’s ability to consummate the transactions contemplated by this
Agreement.
5.7 Compliance with Laws. All business of the Branches or relating to the Assets and
the Assumed Liabilities has been conducted in compliance with all federal, state and local laws,
regulations, rules and ordinances applicable thereto, except non-compliance which would not
reasonably be expected to have a Material Adverse Effect.
5.8 Loans. The following representations and warranties are made as of the date of
this Agreement and as of the Initial Closing Date with respect to the Initial Closing Loans, as of
the date of this Agreement and as of the Subsequent Closing Date with respect to the Subsequent
Closing Loans, and as of the date of this Agreement and as of the Closing Date with respect to
the Loans other than the Initial Closing Loans and the Subsequent Closing Loans:
(a) Each Loan:
(i) represents the valid and legally binding obligation of the obligor,
maker, co-maker, guarantor, endorser or debtor (such person referred to as an “Obligor”)
thereunder, and is evidenced by legal, valid and binding instruments executed by the
Obligor. Seller has no knowledge that any such Obligor at the time of such execution
lacked capacity under applicable law to contract or that any signature on any of the Loan
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Documents is not the true original or facsimile signature of the Obligor on the Loan
involved;
(ii) is enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and to general equity principles;
(iii) (A) was originated and has been maintained by Seller in
conformity in all material respects with applicable laws and regulations and its principal
balance as shown on Seller’s books and records is true and correct as of the date indicated
therein, (B) has an assignable lien, to the extent indicated as secured on Exhibit 1.1(d)(i),
(ii) or (iii), as applicable, or otherwise on the Records, and has the priority reflected in the
Records and (C) contains enforceable provisions such that the rights and remedies of the
holder thereof shall be adequate for the execution against any collateral therefor;
(iv) (A) was underwritten in all material respects in accordance with
Seller’s underwriting guidelines in effect at the time of origination except as otherwise
noted in the applicable Loan Documents or (B) to the extent legally required, has
reasonable and documented compensating factors in the Loan file; and
(v) at the time it was made and, if subsequently modified, the effective
date of the modification, complied in all material respects with applicable law, including,
but not limited to, all applicable predatory and abusive lending laws.
(b) The Seller is the sole owner and holder of the Loans and the indebtedness
evidenced by the related Loan Documents. Except in respect of the obligations to the FHLB
described in Section 5.8(b) of the Seller Disclosure Schedule, the Loans and the Loan
Documents are not assigned or pledged by the Seller and the Seller has good and marketable title
thereto, and the Seller has full right to transfer and sell the Loans to the Purchaser free and clear
of any Encumbrance, except for Permitted Encumbrances, and has full right and authority
subject to no interest or participation in, or agreement with any other party to sell or otherwise
transfer the Loans. Section 5.8(b) of the Seller Disclosure Schedule sets forth with respect to
each FHLB Advance a true and correct statement of the dates of advancement, maturities, rates,
amounts and details regarding collateral (including discounts). Immediately following the sale
of the Loans to the Purchaser pursuant to this Agreement, the Purchaser will own each Loan free
and clear of any Encumbrance, except for Permitted Encumbrance.
(c) There is no default, breach, violation or event of acceleration existing
under Loan Documents and to Seller’s knowledge no event which, with the passage of time or
with notice and the expiration of any grace or cure period, would constitute a default, breach,
violation or event permitting acceleration, and the Seller has not waived any default, breach,
violation or event permitting acceleration. No foreclosure action is currently threatened or has
been commenced with respect to any collateral for the Loans.
(d) No Loan is subject to any right of rescission, set-off, counterclaim or
defense, including the defense of usury, nor will the operation of any of the terms of the Loan
Documents, or the exercise of any right thereunder, render any of the Loan Documents
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unenforceable, in whole or in part, or subject to any right of rescission, set-off, counterclaim or
defense, including the defense of usury, and no such right of rescission, set-off, counterclaim or
defense has been asserted with respect thereto.
(e) The information set forth on each of Exhibits 1.1(d)(i), (ii) and (iii) is
accurate and complete in all material respects and to Seller’s knowledge, as of the date hereof,
none of the Loans thereon is an Excluded Loan.
(f) The servicing practices of Seller used with respect to the Loan have been
consistent with Seller’s practices in all material respects and have been in compliance in all
material respects with all applicable requirements of federal, state and local laws and regulations
thereunder.
(g) Except as set forth in Section 5.8(a) above, Seller makes no representation
or warranty of any kind to Purchaser relating to the Loans, including with respect to (i) the
sufficiency, value or collectability of any collateral for the Loans or any documents, instrument
or agreement in the loan or credit file, including documents granting a security interest in any
collateral relating to a Loan, (ii) any representation, warranty or statement made by an Obligor or
other party in or in connection with any Loan, (iii) the financial condition or creditworthiness of
any primary or secondary Obligor under any Loan or any guarantor or surety or other Obligor
thereof, (iv) the performance of the Obligor or compliance with any of the terms or provisions of
any of the documents, instruments and agreements relating to any Loan, (v) inspecting any of the
property, books or records of any Obligor, or (vi) any of the warranties set forth in Section 3-417
of the Uniform Commercial Code.
5.9 Records. The Records accurately reflect in accordance with GAAP in all material
respects as of their respective dates the Net Book Value of the Assets and Assumed Liabilities
being transferred to Purchaser hereunder.
5.10 Title to Assets. Seller is the lawful owner of, or in the case of leased Assets, has a
valid leasehold interest in, each of the Assets, free and clear of all Encumbrances, other than
Permitted Encumbrances. Subject to the terms and conditions of this Agreement, on the Closing
Date, Purchaser will acquire valid title to, or in the case of leased Assets (subject to receipt of the
consents and approvals set forth in Section 5.3 of the Seller’s Disclosure Schedule), a valid
leasehold interest in, all of the material Assets, free and clear of any Encumbrances, other than
Permitted Encumbrances. Section 5.10 of the Seller Disclosure Schedule sets forth a true and
correct list as of the date of this Agreement of any liens for current Taxes in respect of any of the
Assets which are being contested by Seller.
5.11 Deposits. All of the Deposit accounts have been administered and originated in
compliance in all material respects with the documents governing the relevant type of Deposit
account and all applicable laws. The Deposit accounts are insured by the FDIC through the
Deposit Insurance Fund to the fullest extent permitted by law, and all premiums and assessments
required to be paid in connection therewith have been paid in full when due. All of the Deposits
are transferable at the Closing to Purchaser, and, to Seller’s knowledge, there are no Deposits
that are subject to any judgment, decree or order of any Regulatory Authority. Prior to the date
of this Agreement, Seller has made available to Purchaser forms of all deposit agreements related
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to the Deposits and all such forms contain all material terms of the Deposits. All agreements
relating to Deposits, other than certificates of deposit, legally permit Purchaser to unilaterally
terminate or modify such agreements within thirty (30) days after the Closing Date without the
consent of the depositor or depositors and without penalty, subject to applicable law, delivery of
any notice as may be specified in such agreements and any applicable provisions in such
agreements.
5.12 Environmental Laws; Hazardous Substances. Seller has provided copies of all
environmental reports and assessments in its possession or control related to each parcel of Real
Property. Except as set forth in Section 5.12 , each parcel of Real Property:
(i) is and has been operated by Seller in material compliance with all
applicable Environmental Laws;
(ii) is not the subject of any written notice received by Seller from any
governmental authority or other Person alleging the material violation of or liability
under, any applicable Environmental Laws;
(iii) to Seller’s knowledge, is not currently subject to any court order,
administrative order or decree arising under any Environmental Law;
(iv) has not been used by Seller or, to Seller’s knowledge, any other
Person for the disposal of Hazardous Substances and, to Seller’s knowledge, is not
contaminated with any Hazardous Substances requiring remediation or response under
any applicable Environmental Law;
(v) to Seller’s knowledge, with respect to any Hazardous Substances,
the only use of any such Hazardous Substances has been in such amounts and types as is
lawful under Environmental Law;
(vi) to Seller’s knowledge, has not had any releases, emissions, or
discharges of Hazardous Substances except as permitted under applicable Environmental
Laws; and
(vii) to Seller’s knowledge, there are no (a) active or abandoned
underground storage tanks, (b) gasoline or service stations, or (c) dry-cleaning facilities
or operations at, on, in or under any parcel of Real Property.
5.13 Brokers’ Fees. Seller has not employed any broker or finder or incurred any
liability for any brokerage fees, commissions or finders’ fees in connection with the transactions
contemplated by this Agreement, except for the fees and commissions of Sandler O’Neill +
Partners, L.P., for which Seller or its Affiliates shall be solely liable.
5.14 Property.
(a) Seller has, and will convey to Purchaser at the Closing, good and
marketable title, such as is insurable by any reputable title insurance company, to the Owned
Real Property, free and clear of all Encumbrances, other than Permitted Encumbrances. Seller
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and Purchaser agree that no lien, judgment or encumbrance which (A) does not specifically
pertain to the Real Property and (B) is insured by the title company insuring Purchaser’s title to
the Real Property, shall be deemed to render title to the Real Property unmarketable or
uninsurable.
(b) Seller has not received any written notice of any material uncured current
violations, citations, summonses, subpoenas, compliance orders, directives, suits, other legal
processes, or other written notice of potential liability under applicable zoning, building, fire and
other applicable laws and regulations relating to the Owned Real Property, and, except as would
not reasonably be expected, individually or in the aggregate, to materially affect Purchaser’s use
and enjoyment of the Owned Real Property, there is no action, suit, proceeding or investigation
pending or, to Seller’s knowledge, threatened before any governmental authority that relates to
Seller or the Owned Real Property.
(c) Seller has not received any written notice of any actual or pending
condemnation proceeding relating to the Branches, nor, to Seller’s knowledge, has any such
proceeding been threatened.
(d) Seller has received no written notice of any material default or breach by
Seller under any covenant, condition, restriction, right of way or easement affecting the Owned
Real Property or any portion thereof, and, to Seller’s knowledge, no such default or breach now
exists.
(e) Neither Seller nor any of its Affiliates has entered into any agreement to
sell or lease or otherwise grant any rights in respect of the Real Property (other than the Branch
Leases), and the Real Property is not subject to any claim, demand, suit, lien, proceeding or
litigation of any kind, pending or outstanding, or to Seller’s knowledge, threatened, that would
be binding upon Purchaser or its successors or assigns and 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.
(f) Seller has valid title to its Personal Property, free and clear of all
Encumbrances (other than Permitted Encumbrances), and has the right to sell, convey, transfer,
assign and deliver to Purchaser all of the Personal Property. The Personal Property is in working
order in all material respects (subject to ordinary wear and tear).
(g) There are no tenants or other parties that have a possessory right in and to
any of the Owned Real Property or any space in the Branches.
5.15 Employee Benefit Plans; Labor Matters.
(a) Seller provided to Purchaser on or prior to the date hereof, in writing,
complete and accurate lists of the Branch Employees as of no more than ten (10) Business Days
prior to the date of this Agreement, with such list indicating each Branch Employee’s job title,
status (active or on statutory or employer approved leave and full-time or part-time), annual
current salary or wage rate, incentive compensation for performance year 2016, business
location, exempt/non-exempt status under the Fair Labor Standards Act (as classified by Seller or
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its Affiliates), regularly scheduled hours, job band, annual vacation entitlement, applicable
incentive plan and date of hire (original and most recent as applicable). Such lists shall be
updated by Seller and provided to Purchaser on dates that are mutually agreed to by Purchaser
and Seller.
(b) Neither the Seller nor any of its ERISA Affiliates has ever sponsored or
maintained (i) a plan that is subject to Section 302 or Title IV of ERISA or Section 412, 430 or
4971 of the Code, (ii) a multiemployer plan within the meaning of Section 3(37) of ERISA or
(iii) a plan that has two or more contributing sponsors at least two of whom are not under
common control within the meaning of Section 4063 of ERISA. There does not now exist, nor
do any circumstances exist that could reasonably be expected to result in any Controlled Group
Liability that would be a liability of Purchaser following the Closing. Without limiting the
generality of the foregoing, neither the Seller nor any of its ERISA Affiliates have engaged in
any transaction described in Section 4069 or Section 4204 or 4212 of ERISA.
(c) There is no material claim, complaint, charge or investigation by or on
behalf of any Branch Employee pending or, to Seller’s Knowledge, threatened against the Seller
or any Benefit Plan in which Branch Employees participate under any applicable laws governing
or concerning labor relations, unions, collective bargaining, conditions of employment,
employment discrimination, harassment, employee and independent contractor misclassification,
wages, hours or occupational safety and health, or immigration (the “Labor Laws”) and the
Seller is, and has been, in compliance in all material respects with all Labor Laws, except as
would not reasonably be expected to result in any material liability to the Seller.
(d) No Branch Employee is a member of, represented by or otherwise subject
to any (i) labor union, labor organization or works council or (ii) collective bargaining
agreement, in each case with respect to such Branch Employee’s employment with Seller. With
respect to any Branch Employee, (i) Seller is not the subject of any proceeding seeking to
compel it to bargain with any labor organization as to wages and conditions of employment, nor
to Seller’s knowledge is any such proceeding threatened, and (ii) no strike or similar labor
dispute by the Branch Employees is pending or, to Seller’s knowledge, threatened.
5.16 Insurance. Seller maintains in full force and effect insurance on the Assets in such
amounts and against such risks and losses as are customary for comparable entities engaged in
the same business and industry.
5.17 Limitations on Representations and Warranties. Except for the representations
and warranties specifically set forth in this Agreement, neither Seller nor any of its agents,
Affiliates or representatives, nor any other Person, makes or shall be deemed to make any
representation or warranty to Purchaser, express or implied, at law or in equity, with respect to
the transactions contemplated hereby, and Seller hereby disclaims any such representation or
warranty whether by Seller or any of its officers, directors, employees, agents or representatives
or any other Person.
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ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as follows:
6.1 Corporate Organization and Authority. Purchaser is a state chartered non-
member bank, duly organized and validly existing under the laws of the State of Mississippi and
has the requisite power and authority to conduct the business conducted at the Branches
substantially as currently conducted by Seller. Purchaser has the requisite corporate power and
authority and has taken all corporate action necessary in order to execute and deliver this
Agreement and the other instruments and documents contemplated hereby and to consummate
the transactions contemplated hereby. Assuming due authorization, execution and delivery by
Seller, this Agreement is a valid and binding agreement of Purchaser enforceable against
Purchaser in accordance with its terms subject, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors’ rights and to general equity principles.
6.2 No Conflicts. The execution, delivery and performance of this Agreement and the
other instruments and documents contemplated hereby by Purchaser does not, and will not,
(i) violate any provision of its charter or by-laws or (ii) subject to Regulatory Approvals, violate
or constitute a breach of, or default under, any law, rule, regulation, judgment, decree, ruling or
order of any Regulatory Authority to which Purchaser is subject or any agreement or instrument
of Purchaser, or to which Purchaser is subject or by which Purchaser is otherwise bound, which
violation, breach, contravention or default referred to in this clause (ii), individually or in the
aggregate, would be reasonably expected to have a Material Adverse Effect.
6.3 Approvals and Consents. Other than the Regulatory Approvals, no notices,
reports or other filings are required to be made by Purchaser with, nor are any consents,
registrations, approvals, permits or authorizations required to be obtained by Purchaser from, any
governmental or regulatory authorities of the United States or the several States in connection
with the execution and delivery of this Agreement by Purchaser and the consummation of the
transactions contemplated hereby by Purchaser, the failure to make or obtain any or all of which,
individually or in the aggregate, would be reasonably expected to have a Material Adverse
Effect.
6.4 Regulatory Matters. (a) There are no pending or, to Purchaser’s knowledge,
threatened disputes or controversies between Purchaser and any federal, state or local
governmental agency or authority that, individually or in the aggregate, would be reasonably
expected to have a Material Adverse Effect.
(b) Neither Purchaser nor any of its Affiliates has received any indication
from any federal or state governmental agency or authority that such agency would oppose or
refuse to grant a Regulatory Approval and Purchaser knows of no reason that it will not timely
receive any necessary approval or authorization of all applicable bank Regulatory Authorities.
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(c) Neither Purchaser nor any of its Affiliates are a party to any written order,
decree, agreement or memorandum of understanding with, commitment letter or similar
submission to, or examination criticism by, any federal or state regulatory agency or authority
charged with the supervision or regulation of depository institutions, nor has Purchaser been
advised by any such agency or authority that such agency or authority is contemplating issuing
or requesting any such order, decree, agreement, memorandum of understanding, commitment
letter, submission or criticism, in each case which, individually or in the aggregate, would be
reasonably expected to have a Material Adverse Effect on Purchaser or to prevent or materially
delay the receipt of any Regulatory Approval.
(d) Purchaser is, and on a pro forma basis giving effect to the P&A
Transactions, will be, (i) at least “well capitalized” (as that term is defined at 12 C.F.R.
5.39(d)(11) or the relevant regulation of Purchaser’s primary federal bank regulator), and (ii) in
compliance with all capital requirements, standards and ratios required by each state or federal
bank regulator with jurisdiction over Purchaser, including any such higher requirement, standard
or ratio as shall apply to institutions engaging in the acquisition of insured institution deposits,
assets or branches, and no such regulator is likely to, or has indicated that it may, condition any
of the Regulatory Approvals upon an increase in Purchaser’s capital or compliance with any
capital requirement, standard or ratio.
(e) Purchaser has no reason to believe that, as of the date hereof, it will be
required to divest deposit liabilities, branches, loans or any business or line of business, or raise
capital or achieve increased regulatory capital ratios or otherwise modify its financial condition
or business at the request of any Regulatory Authority as a condition to the receipt of any of the
Regulatory Approvals.
(f) Purchaser was rated “Satisfactory” for performance under the Community
Reinvestment Act (the “CRA”) following its most recent CRA performance examination by a
Regulatory Authority. Purchaser has neither been informed that its current rating will or may be
lowered in connection with a pending or future examination for CRA performance nor does it
have knowledge of the existence of any fact or circumstance or set of facts or circumstances that
could reasonably be expected to result in Purchaser having its current rating lowered.
(g) Purchaser has received no notice of and has no knowledge of any planned
or threatened objection by any community group to the transactions contemplated hereby.
6.5 Litigation and Undisclosed Liabilities. There are no actions, suits or proceedings
pending or, to Purchaser’s knowledge, threatened against Purchaser, or obligations or liabilities
(whether or not accrued, contingent or otherwise) or, to Purchaser’s knowledge, facts or
circumstances that could reasonably be expected to result in any claims against or obligations or
liabilities of Purchaser that, individually or in the aggregate, would have a Material Adverse
Effect.
6.6 Operation of the Branches. Purchaser intends to continue to provide retail and
business banking services in the geographical area served by the Branches.
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6.7 Brokers’ Fees. Purchaser has not employed any broker or finder or incurred any
liability for any brokerage fees, commissions or finders’ fees in connection with the transactions
contemplated by this Agreement, except for fees and commissions for which Purchaser shall be
solely liable.
6.8 Financing to Be Available. (a) Purchaser’s ability to consummate the transactions
contemplated by this Agreement is not contingent on raising any equity capital, obtaining
financing therefor, consent of any lender or any other matter relating to funding the P&A
Transactions.
(b) As of the Initial Closing, Purchaser will have sufficient cash or cash
equivalents available, directly or through one or more Affiliates, to pay the Initial Closing
Purchase Price to the extent required to be paid by Purchaser to Seller, and there is no restriction
on the use of such cash or cash equivalents for such purpose.
(c) As of the Subsequent Closing, if any, Purchaser will have sufficient cash
or cash equivalents available, directly or through one or more Affiliates, to pay the Subsequent
Closing Purchase Price to the extent required to be paid by Purchaser to Seller, and there is no
restriction on the use of such cash or cash equivalents for such purpose.
(d) As of the Closing, Purchaser will have sufficient cash or cash equivalents
available, directly or through one or more Affiliates, to pay the Purchase Price to the extent
required to be paid by Purchaser to Seller, and there is no restriction on the use of such cash or
cash equivalents for such purpose.
6.9 Limitations on Representations and Warranties. Except for the representations
and warranties specifically set forth in this Agreement, neither Purchaser nor any of its agents,
Affiliates or representatives, nor any other Person, makes or shall be deemed to make any
representation or warranty to Seller, express or implied, at law or in equity, with respect to the
transactions contemplated hereby, and Purchaser hereby disclaims any such representation or
warranty whether by Purchaser or any of its officers, directors, employees, agents or
representatives or any other Person.
ARTICLE 7
COVENANTS OF THE PARTIES
7.1 Activity in the Ordinary Course. From the date hereof until the Closing Date,
except (i) as set forth on section 7.1 of the Seller Disclosure Schedule, (ii) as may be required by
a Regulatory Authority or applicable law or (iii) as contemplated hereby, Seller (a) will, with
respect to the Branches, the Assets and the Assumed Liabilities, use its reasonable best efforts to
preserve its business relationships with depositors, (b) will maintain the Branches in their current
condition, ordinary wear and tear excepted, and continue the construction at the Pearl River,
Louisiana Branch in accordance with the construction plan previously made available to
Purchaser, (c) use its reasonable best efforts to conduct the business of the Branches and preserve
the Assets and Assumed Liabilities in all material respects in the ordinary and usual course of
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business consistent with past practice, and (d) shall not, without the prior written consent of
Purchaser (such consent not to be unreasonably withheld, conditioned or delayed):
(i) increase or agree to increase the salary or wage rate and incentive
opportunity of any Branch Employee, other than normal salary or wage increases in the
ordinary course of business consistent with past practice (however, such increases shall,
in no event, increase the aggregate cash compensation for Branch Employees by more
than 3% on an annualized basis and for any individual Branch Employee by more than
5%);
(ii) establish, adopt, enter into or amend any plan, agreement or
arrangement that provides incentive compensation, bonus or commissions exclusively for
the benefit of the Branch Employees that would result in any material increase in liability
for Purchaser;
(iii) (A) transfer any Branch Employee to another branch, facility or
office of Seller or any of their respective Affiliates which is not a Branch, or (B) transfer
any employee of Seller or any of its Affiliates who, as of the date hereof, is not a Branch
Employee to any Branch;
(iv) hire any employee for any of the Branches other than in the
ordinary course and consistent with past practices, including, with respect to the type of
position filled and the compensation and benefit levels;
(v) terminate any Branch Employee, except in the ordinary course of
business in accordance with existing personnel policies and practices of Seller;
(vi) establish or price Deposits at any Branch other than in the ordinary
course of business consistent with Seller’s past practices (including deposit pricing
policies in effect for such Branch as of the date hereof), subject to the limitation in (vii)
below;
(vii) offer interest rates or terms on any category of Deposits at any
Branch in a manner inconsistent with Seller’s past practice or, without limiting the
generality of the foregoing, accept any brokered deposits at the Branches;
(viii) transfer to or from any Branch to or from any of Seller’s other
operations or branches any material Assets or any Deposits, except (A) pursuant to an
unsolicited customer request or (B) if such Deposit is pledged as security for a loan or
other obligation that is not a Loan;
(ix) amend, modify or extend any Loan, except (a) in the ordinary
course of business consistent with Seller’s approved lending policies, (b) as required by
law or the terms of any Loan Document or (c) in the manner provided in Section 7.8;
(x) sell, transfer, assign, encumber or otherwise dispose of or enter
into any contract, agreement or understanding to sell, transfer, assign, encumber or
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dispose of any of the Assets or Deposits existing on the date hereof, except in the
ordinary course of business consistent with past practice;
(xi) make or agree to make any material improvements to the Owned
Real Property or the leased property subject to a Branch Lease, except normal
maintenance or refurbishing purchased or made in the ordinary course of business;
(xii) close, sell, consolidate, relocate or materially alter any Branch or
otherwise file any application or give any notice to relocate or close any Branch;
(xiii) amend, terminate or extend any Branch Lease; provided, however,
Seller may extend any Branch Lease if, in its reasonable business judgment, Seller
determines such extension is necessary to deliver the Branch on the Closing Date as a
fully operative branch banking operation or to avoid the deemed waiver of any right to
extend the term of a Branch Lease;
(xiv) release, compromise or waive any material claim or right that is
part of the Assets or the Assumed Liabilities; or
(xv) agree with, or commit to, any person to do any of the things
described in clauses (i) through (xiv) except as contemplated hereby.
7.2 Access and Confidentiality. (a) Until the earlier of the Closing Date and the date
on which the Agreement is terminated pursuant to Article 10, Seller shall afford to Purchaser and
its officers and authorized agents and representatives reasonable access during normal business
hours to the properties, books, records, contracts, documents, files and other information of or
relating to the Assets and the Assumed Liabilities; provided, however, that nothing herein shall
afford Purchaser the right to review any information to the extent relating to Excluded Assets.
Seller shall identify to Purchaser, within fifteen (15) calendar days after the date hereof, a group
of its salaried personnel (with the necessary expertise and experience to assist Purchaser) that
shall constitute a “transition group” who will be available to Purchaser at reasonable times
during normal business hours to provide information and assistance in connection with
Purchaser’s investigation of matters relating to the Assets, the Assumed Liabilities, the Branch
Employees and transition matters. Such transition group will also work cooperatively to identify
and resolve issues arising from any commingling of Records with Seller’s records for its other
branches, assets and operations not subject to this Agreement. Seller shall furnish Purchaser
with such additional financial and operating data and other information about its business
operations at the Branches as may be reasonably necessary for the orderly transfer of the
business operations of the Branches; provided, however, that nothing herein shall afford
Purchaser the right to review any information relating to Excluded Assets or confidential
supervisory information. Any investigation pursuant to this Section 7.2(a) shall be conducted in
such manner as not to unreasonably interfere with the conduct of Seller’s business.
Notwithstanding the foregoing, Seller shall not be required to provide access to or disclose
information where such access or disclosure would impose an unreasonable burden on Seller, or
any employee of Seller, or would violate or prejudice the rights of customers, jeopardize any
attorney-client privilege or contravene any law, rule, regulation, order, judgment, decree,
fiduciary duty or binding agreement entered into and disclosed to Purchaser prior to the date of
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this Agreement. Seller and Purchaser shall use commercially reasonable efforts to make
appropriate substitute disclosure arrangements under circumstances in which the restrictions of
the preceding sentence apply.
(b) From and after the date of this Agreement, Seller shall keep confidential
non-public information in its possession (other than information which was or becomes available
to Seller on a non-confidential basis from a source other than Purchaser or any of its Affiliates)
relating to Purchaser, its Affiliates, the Branches, the Branch Employees, the Assets and the
Assumed Liabilities; provided, however, that Seller shall not be liable hereunder with respect to
any disclosure to the extent such disclosure is required pursuant to legal process (including
pursuant to the assertion of Seller’s rights under this Agreement) (by interrogatories, subpoena,
civil investigative demand or similar process), regulatory process or request, or to the extent such
disclosure is reasonably necessary for purposes of compliance by Seller or its Affiliates with tax
or regulatory reporting requirements; provided that in the event of any disclosure pursuant to
legal process Seller exercises reasonable best efforts to preserve the confidentiality of the non-
public information disclosed, including by cooperating with Purchaser to obtain an appropriate
protective order or other reliable assurance that confidential treatment will be accorded the non-
public information required to be disclosed.
(c) From and after the Closing, Purchaser shall keep confidential non-public
information in its possession (other than information which was or becomes available to
Purchaser on a non-confidential basis from a source other than Seller or any of its Affiliates)
relating to Seller and its Affiliates other than the Branches, the Branch Employees (with respect
to their employment with Purchaser following the applicable Transfer Date), the Assets and the
Assumed Liabilities; provided, however, that Purchaser shall not be liable hereunder with respect
to any disclosure to the extent such disclosure is required pursuant to legal process (including
pursuant to the assertion of Purchaser’s rights under this Agreement) (by interrogatories,
subpoena, civil investigative demand or similar process) or regulatory process or request;
provided that in the event of any disclosure pursuant to legal process Purchaser exercises
commercially reasonable efforts to preserve the confidentiality of the non-public information
disclosed, including by cooperating with Seller to obtain an appropriate protective order or other
reliable assurance that confidential treatment will be accorded the non-public information
required to be disclosed.
7.3 Regulatory Approvals. (a) As soon as practicable and in no event later than five
(5) Business Days after the date of this Agreement, Purchaser shall prepare and file any
applications, notices and filings required in order to obtain the Regulatory Approvals. Purchaser
shall take all necessary actions to obtain each such approval as promptly as reasonably
practicable and Purchaser shall not, and shall cause its Affiliates not to, knowingly take any
action that would be expected to have the effect of denying or materially delaying or
conditioning such approval. Seller will cooperate in connection therewith (including the
furnishing of any information and any reasonable undertaking or commitments that may be
required to obtain the Regulatory Approvals). Each party will provide the other with copies of
any applications and all correspondence relating thereto prior to filing, other than material filed
in connection therewith under a claim of confidentiality.
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(b) The parties shall promptly advise each other upon receiving any
communication from any Regulatory Authority whose consent or approval is required for
consummation of the transactions contemplated by this Agreement that causes such party to
believe that there is a reasonable likelihood that the Regulatory Approvals or any other consent
or approval required hereunder will not be obtained or that the receipt of any such approval will
be materially delayed.
(c) Purchaser shall not, and shall cause its Affiliates to not, knowingly take
any action that would reasonably be expected to result in a Material Adverse Effect.
7.4 Consents. (a) Seller agrees to use reasonable best efforts to obtain from the
lessors under the Branch Leases and any other parties the consent of which is required in order to
assign or transfer any Asset or Deposit to Purchaser on the Closing Date, any required consents
to such assignment or transfer to Purchaser on the Closing Date; provided that, in the case of any
Branch Lease, if any consent set forth in this Section 7.4(a) is not obtained notwithstanding
Seller’s use of reasonable efforts as required hereunder, the parties shall negotiate in good faith
and Seller and Purchaser shall use reasonable efforts to enter into a sublease on substantially the
same terms (if permitted by the applicable Branch Lease) or make alternative arrangements
reasonably satisfactory to Purchaser that provide Purchaser, to the extent reasonably possible, the
benefits and burdens of the properties subject to Branch Leases in a manner that does not violate
the applicable Branch Lease (for the same cost as would have applied if the relevant consent had
been obtained). If any alternative arrangement is implemented between Seller and Purchaser at
or prior to the Closing, the parties shall continue after the Closing to exercise reasonable efforts
to obtain the related consents that could not be obtained prior to the Closing, and, if such a
consent is obtained, Seller shall assign to Purchaser the applicable Branch Lease pursuant to the
terms of this Agreement applicable to leases assigned at Closing, and the parties shall restructure
the applicable alternative arrangement. If a required consent to assign a Branch Lease is not
obtained and no alternative arrangement is implemented, the Branch associated with such Branch
Lease shall, at Purchaser’s option, be an Excluded Branch for all purposes hereunder.
(b) Unless otherwise directed by Purchaser, Seller shall use reasonable efforts
to procure estoppel certificates substantially in the form of Exhibit 7.4(b) attached hereto, from
each lessor under Branch Leases, which certificates shall be at the expense of Purchaser;
provided that in the case of any Branch Lease, if any estoppel certificate as set forth in this
Section 7.4(b) is not obtained, notwithstanding Seller’s use of reasonable efforts as required
hereunder, the Assets and Assumed Liabilities associated with the subject Branch shall be
transferred to Purchaser and the parties shall negotiate in good faith and Seller shall use
reasonable efforts to make alternative arrangements reasonably satisfactory to Purchaser with
respect to such Branch Lease.
7.5 Efforts to Consummate; Further Assurances. (a) Purchaser and Seller agree to
use reasonable best efforts to satisfy or cause to be satisfied as soon as practicable their
respective obligations hereunder and the conditions precedent to the Initial Closing, the
Subsequent Closing and the Closing.
(b) From time to time following the Initial Closing (in respect of Initial
Closing Assets and Initial Closing Assumed Liabilities) and the Subsequent Closing (in respect
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of Subsequent Closing Assets and Subsequent Closing Assumed Liabilities), and from time to
time following the Closing, at Purchaser’s request and sole expense, Seller will duly execute and
deliver such assignments, bills of sale, deeds, acknowledgments and other instruments of
conveyance and transfer as shall be necessary or appropriate to vest in Purchaser the full legal
and equitable title to the Assets and the Assumed Liabilities.
(c) Subject to Section 4.3, on and after the Initial Closing Date, the
Subsequent Closing Date and the Closing Date, or, if later than the date of purchase pursuant to
Section 7.8 the cessation of servicing of a Loan by Seller, as and to the extent applicable, each
party will promptly deliver to the other, at such other party’s expense, all mail and other
communications properly addressable or deliverable to the other as a consequence of the P&A
Transactions; and without limitation of the foregoing, on and after the Initial Closing Date, the
Subsequent Closing Date and the Closing Date or date of cessation of servicing of a Loan by
Seller, as applicable, Seller shall promptly forward any mail, communications or other material
relating to the Deposits or the Assets transferred on the Initial Closing Date, the Subsequent
Closing Date, the Closing Date, or date of cessation of servicing of a Loan by Seller, as
applicable, including that portion of any IRS “B” tapes that relates to such Deposits, to such
employees of Purchaser at such addresses as may from time to time be specified by Purchaser in
writing.
(d) Prior to the Closing Date, Seller shall provide notice to Purchaser to the
extent that Seller has knowledge of any facts or circumstances that exist that would provide for a
basis for termination of any Branch Employee under existing personnel policies and practices of
Seller then in effect.
(e) Seller shall cooperate with Purchaser (including, as applicable, by entering
into a triparty agreement in form and substance reasonably satisfactory to Purchaser among
Purchaser, Seller and FHLB) to effect the release of any Encumbrances in respect of Loans not
later than the Initial Closing (with respect to the Initial Closing Loans), the Subsequent Closing
(with respect to the Subsequent Closing Loans) and the Closing (with respect to all other Loans).
7.6 Solicitation of Accounts; Non-Solicitation. (a) For a one (1) year period
following the Closing Date, Seller agrees that it will not, and it will cause its Affiliates not to,
use or disclose confidential information contained in Branch customer information files or
Records that relate to the Assets and Assumed Liabilities for any purpose, including to solicit
financial services business, including deposits, loans and other financial products, of the type
offered through the Branches as of the date hereof. Except as set forth in the foregoing sentence,
nothing in this Agreement shall be construed to at any time prohibit or otherwise limit Seller or
any of its Affiliates from soliciting financial services or any other businesses, including deposits,
loans and other financial products.
(b) For a period of one (1) year following the Closing Date, Seller will not,
and shall cause its Affiliates not to, without the written consent of Purchaser, solicit for
employment any Transferred Employee; provided, however, that nothing in this Section 7.6(b)
shall be deemed to prohibit Seller or its Affiliates from (i) making general solicitations not
targeted at Transferred Employees (including job announcements in newspapers and industry
publications or on the Internet), (ii) soliciting any Transferred Employee whose employment is
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terminated by Purchaser prior to Seller, or any of its Affiliates, soliciting such Transferred
Employee, (iii) soliciting any Transferred Employee who has not been employed by Purchaser or
its Affiliates during the six (6) month period prior to the solicitation not otherwise permitted
hereunder or (iv) using employee search firms, so long as such employee search firms are not
instructed to and do not engage in targeted solicitations of Transferred Employees.
(c) If any provision or part of this Section 7.6 is held by a court or other
authority of competent jurisdiction to be invalid or unenforceable, the parties agree that the court
or authority making such determination will have the power to reduce the duration or scope of
such provision or to delete specific words or phrases as necessary (but only to the minimum
extent necessary) to cause such provision or part to be valid and enforceable. If such court or
authority does not have the legal authority to take the actions described in the preceding
sentence, the parties agree to negotiate in good faith a modified provision that would, in so far as
possible, reflect the original intent of this Section 7.6 without violating applicable law.
7.7 Insurance. Seller will use reasonable best efforts to maintain in effect until the
Closing Date all casualty and public liability policies relating to the Branches and maintained by
Seller on the date hereof or to procure comparable replacement coverage and maintain such
policies or replacement coverage in effect until the Closing. Purchaser shall provide all casualty
and public liability insurance for the Branches after the Closing. In the event of any material
damage, destruction or condemnation affecting Real Property between the date hereof and the
time of the Closing, Purchaser shall have the right to exclude any Real Property so affected from
the Assets to be acquired, require Seller to take reasonable steps to repair or replace the damaged
or destroyed property, or require Seller to deliver to Purchaser any insurance proceeds and other
payments, to the extent of the fair market value or the replacement cost of the Real Property,
received by Seller as a result thereof unless, in the case of damage or destruction, Seller has
repaired or replaced the damaged or destroyed property.
7.8 Servicing Prior to Loan Purchase. With respect to each of the Loans, from the
date hereof until the Initial Closing Date, the Subsequent Closing Date or the Closing Date, as
applicable, Seller shall service such Loans in a manner that is in compliance with applicable law
in all material respects and is consistent with the servicing provided by Seller with respect to its
loans that are not to be transferred to Purchaser under the terms of this Agreement. If Purchaser
so requests in writing to Seller, in order to timely consummate the transactions on the Initial
Closing Date or the Subsequent Closing Date, if any, or to facilitate the orderly transition of
customer accounts, Seller shall continue to service such Loans following the applicable sale until
a date not later than the forty fifth (45th) day following the Closing Date, provided that in any
such case Seller shall service such loans in the manner provided in the foregoing sentence and
shall provide Purchaser with a daily summary of all monetary and non-monetary transactions
impacting the serviced Loans.
7.9 Repurchase of Excluded Loans. If Purchaser determines that any Initial Closing
Loan included on Exhibit 1.1(d)(ii) as of the Initial Closing Date, any Subsequent Closing Loan
included on Exhibit 1.1(d)(iii) as of the Subsequent Closing Date or any Loan included on
Exhibit 1.1(d)(i) as of the Closing Date was, as of the Initial Closing Date, the Subsequent
Closing Date or the Closing Date, as applicable, an Excluded Loan, Purchaser shall so notify
Seller, and Seller shall, within ten (10) Business Days of notice repurchase the Excluded Loan at
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a cash purchase price equal to the amount of the Initial Closing Purchase Price, the Subsequent
Purchase Price or the Purchase Price, as applicable, attributable to the Excluded Loan minus the
amount of any payments received by Purchaser in respect of such Loan.
7.10 Change of Name, Etc. Immediately after the Closing (or, (i) in the case of Initial
Closing Loans, the Initial Closing or (ii) the Subsequent Closing Loans, the Subsequent Closing),
and except as provided in Section 4.16, Purchaser will (a) change the name and logo on all
documents, Branches and other facilities relating to the Assets and the Assumed Liabilities to
Purchaser’s name and logo, (b) notify all persons whose Loans, Deposits or Safe Deposit
Agreements are transferred under this Agreement of the consummation of the transactions
contemplated by this Agreement, and (c) provide all appropriate notices to the FDIC and any
other Regulatory Authorities required as a result of the consummation of such transactions.
Seller shall cooperate with any commercially reasonable request of Purchaser directed to
accomplish the removal of Seller’s signage (or the removal of signage of an Affiliate of Seller, if
applicable) by Purchaser and the installation of Purchaser’s signage by Purchaser; provided,
however, that (i) all such removals and all such installations shall be at the expense of Purchaser,
(ii) such removals and installations shall be performed in such a manner that does not
unreasonably interfere with the normal business activities and operations of the Branches and
Purchaser shall repair any damage to the area altered to its pre-existing condition, (iii) such
installed signage shall comply with the applicable Branch Lease and all applicable zoning and
permitting laws and regulations, (iv) such installed signage shall have, if necessary, received the
prior approval of the owner or landlord of the facility, and such installed signage shall be
covered in such a way as to make Purchaser signage unreadable at all times prior to the Closing,
but such cover shall display the name and/or logo of Seller (or of its Affiliates) in a manner
reasonably acceptable to Seller and (v) if this Agreement is terminated prior to the Closing,
Purchaser shall immediately and at its sole expense restore such signage and any other area
altered in connection therewith to its pre-existing condition. During the ten (10) calendar day
period following the Closing, Purchaser shall afford to Seller and its authorized agents and
representatives reasonable access during normal business hours to the Branches to allow Seller
the opportunity to confirm Purchaser’s compliance with the terms of this Section 7.10.
7.11 Deactivation/Shut Down of Debit Cards. Seller shall deactivate all debit cards
issued with respect to all Deposit accounts (and electronically block access of those cards to the
Deposit accounts), beginning at 10:30 p.m., Central time, on the Closing Date. Seller and
Purchaser shall reasonably cooperate in good faith to undertake the deactivation of such cards in
a manner that is the least disruptive to customers as reasonably practicable. Point-of-sale
transactions shall be settled between Purchaser and Seller for a period of forty-five (45) days
after the Closing Date.
ARTICLE 8
TAXES AND EMPLOYEE BENEFITS
8.1 Tax Representations. Except as set forth in section 8.1 of the Seller Disclosure
Schedule, Seller represents and warrants to Purchaser that all material Tax Returns with respect
to the Assets, the Assumed Liabilities or the operation of the Branches, that are required to be
filed (taking into account any extension of time within which to file) before the Initial Closing
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Date, the Subsequent Closing Date or Closing Date, as applicable, have been or will be duly
filed, such Tax Returns are materially correct and complete, and all material Taxes shown to be
due on such Tax Returns have been or will be paid in full. For all completed Tax years, Seller
has sent to each account holder, to the extent required by applicable Tax law, with respect to the
Deposits all IRS Forms required by law (or a substitute form permitted by law) relating to the
interest, earnings, or dividends paid on the Deposits for those periods.
8.2 Proration of Taxes. For purposes of this Agreement, in the case of any Straddle
Period, (a) Property Taxes for the Pre-Closing Tax Period shall be equal to the amount of such
Property Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is
the number of days during the Straddle Period that are in the Pre-Closing Tax Period and the
denominator of which is the number of days in the entire Straddle Period, and (b) Taxes (other
than Property Taxes) for the Pre-Closing Tax Period shall be computed as if such taxable period
ended as of the close of business on the Closing Date.
8.3 Sales and Transfer Taxes. Seller and Purchaser shall be equally responsible for
the payment of all transfer, recording, documentary, stamp, sales, use (including all bulk sales
Taxes, if any) and other similar Taxes and fees (collectively, the “Transfer Taxes”), that are
payable or that arise as a result of the P&A Transactions, when due. Seller shall file any Tax
Return that is required to be filed in respect of Transfer Taxes described in this Section 8.3 when
due, and Purchaser shall cooperate with respect thereto as necessary.
8.4 Information Returns. At the Closing or as soon thereafter as is practicable, Seller
shall provide Purchaser with a list of all Deposits on which Seller is back-up withholding and a
list of IRA accounts with scheduled distributions including those that have pension withholding
(including state withholding) coded as of the Closing Date.
8.5 Payment of Amount Due under Article 8. Any payment by Seller to Purchaser, or
to Seller from Purchaser, under this Article 8 (other than payments required by Section 8.3,
which shall be paid when determined) to the extent due at the Initial Closing, the Subsequent
Closing or the Closing, as applicable, may be offset against any payment due the other party at
the Initial Closing, the Subsequent Closing or the Closing, as applicable. All subsequent
payments under this Article 8 shall be made as soon as determinable and shall be made as
provided in Section 3.2(b) and bear interest from the date due to the date of payment at the
Federal Funds Rate.
8.6 Assistance and Cooperation. After the Initial Closing Date, the Subsequent
Closing Date or the Closing Date, as applicable, each of Seller and Purchaser shall:
(a) Make available to the other and to any taxing authority as reasonably
requested all relevant information, records, and documents relating to Taxes with respect to the
Assets, the Assumed Liabilities, or the operation of the Branches;
(b) Provide timely notice to the other in writing of any pending or proposed
Tax audits (with copies of all relevant correspondence received from any taxing authority in
connection with any Tax audit or information request) or Tax assessments with respect to the
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Assets, the Assumed Liabilities, or the operation of the Branches for taxable periods for which
the other may have a liability under this Agreement; and
(c) The party requesting assistance or cooperation shall bear the other party’s
reasonable out-of-pocket expenses in complying with such request to the extent that those
expenses are attributable to fees and other costs of unaffiliated third party service providers.
8.7 Transferred Employees.
(a) Offers of Employment.
(i) General. At least thirty (30) calendar days prior to the Closing
Date, and effective as of the Closing Date, Purchaser agrees that it shall, or shall cause
one of its Affiliates to, offer employment to each Branch Employee who is actively
employed by Seller as of the Closing Date and, subject to Section 8.7(a)(ii) below, to
each Leave Recipient, and, effective as of the applicable Transfer Date, Purchaser will,
subject to such Branch Employee or Leave Recipient satisfying Purchaser’s pre-
employment screening requirements, employ each such employee who has accepted the
offer. Following the Closing Date, each Branch Employee employed by Purchaser shall,
from and after the Transfer Date, be defined as a “Transferred Employee” for purposes of
this Agreement. Subject to the provisions of this Section 8.7, Transferred Employees
shall, if applicable, be subject to the employment terms, conditions and rules applicable
to other similarly situated employees of Purchaser. Nothing contained in this Agreement
shall be construed as an employment contract between Purchaser and any Branch
Employee or Transferred Employee.
(ii) Special Provisions for Leave Recipients. With respect to any
Branch Employee who is not actively at work on the Closing Date as a result of an
approved leave of absence (including military leave with reemployment rights under
federal law and leave under the Family and Medical Leave Act of 1993) (collectively, the
“Leave Recipients”), Purchaser shall make an offer of employment in the manner
required by Section 8.7(a)(i), contingent on such Leave Recipient’s return to active status
within six (6) months following the Closing Date or such longer period as may be
required by applicable law. When a Leave Recipient who has (A) accepted the offer and
(B) satisfied Purchaser’s pre-employment screening requirements returns to active status
pursuant to the terms hereof, such Leave Recipient shall be considered a Transferred
Employee.
(b) Terms of Offer. Each Branch Employee shall be offered employment
subject to the following terms and conditions:
(i) Each Branch Employee’s base salary shall be at least equivalent to
the rate of annual base salary or regular hourly wage rate, as applicable, paid by Seller to
such Branch Employee as of the Business Day prior to the Closing Date;
(ii) Each Branch Employee shall have an incentive compensation
opportunity substantially comparable to those available to other similarly situated
employees of Purchaser, as in effect from time to time;
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(iii) Each Branch Employee shall be eligible to receive employee
benefits substantially comparable to those available to other similarly situated employees
of Purchaser, as in effect from time to time;
(iv) Each Branch Employee shall be offered employment at a job
location that is no more than twenty-five (25) miles from such Branch Employee’s
primary workplace immediately prior to the Closing Date; and
(v) Transferred Employees shall become employees-at-will of
Purchaser.
(c) Severance Payments. With respect to any Transferred Employee whose
employment is terminated by Purchaser for any reason other than cause (as determined by
Purchaser in its sole discretion consistent with Purchaser’s customary standards and procedures
with respect to similarly situated employees of Purchaser) on or before the first anniversary of
the applicable Transfer Date, Purchaser shall (subject to such Transferred Employee’s execution
and non-revocation of a release of claims in a form reasonably satisfactory to Purchaser) pay to
such Transferred Employee the greater of (i) the amount of cash severance pay such Transferred
Employee would have received if he or she separated from Seller under Seller’s severance policy
as described in Section 8.7(c) of the Seller Disclosure Schedule, and (ii) the amount of cash
severance payable to such Transferred Employee under any applicable severance plan of
Purchaser in effect at the time of such termination; provided, however, in each case that such
Transferred Employee shall be credited for service with Seller as described in Section 8.7(d) of
the Agreement. In addition and notwithstanding any provision herein to the contrary, if a Branch
Employee does not receive an offer from Purchaser in compliance with Section 8.7(b) of this
Agreement and such Branch Employee’s employment with Seller is terminated by Seller in
connection with the transactions contemplated by this Agreement (and in no event later than
three (3) months following the end of the Closing Date), then Purchaser shall reimburse Seller,
within thirty (30) days of receipt of an invoice from Seller, for the costs of any severance
benefits (including the costs incurred during any notice period or pay in lieu of notice) payable
by Seller to such Branch Employee as provided in this Section 8.7(c).
(d) Credit for Service. Purchaser shall cause each benefit plan, severance plan
and time-off program maintained, sponsored, adopted or contributed to by Purchaser or its
Affiliates in which Transferred Employees are eligible to participate (collectively, the “Purchaser
Benefit Plans”), to take into account for all purposes under Purchaser Benefit Plans (but not for
purposes of defined benefit pension accruals under any defined benefit plan) the service of such
employees with Seller or its Affiliates prior to the Transfer Date to the same extent as such
service was credited for the applicable purpose by Seller or the applicable Affiliate. In addition,
Purchaser shall cause each Transferred Employee to be immediately eligible to participate,
without any waiting time, in all applicable Purchaser Benefit Plans.
(e) Pre-Existing Conditions. Purchaser shall, and shall cause its Affiliates to,
(i) waive limitations on benefits relating to any pre-existing conditions of the Transferred
Employees and their eligible dependents to the extent that such limitations were waived under
the applicable employee benefit or welfare plan in which such Transferred Employee
participated prior to the Transfer Date, and (ii) use commercially reasonable efforts to recognize
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for purposes of annual deductible and out-of-pocket limits under their health plans applicable to
Transferred Employees, deductible and out-of-pocket expenses paid by Transferred Employees
and their respective dependents under Seller’s or any of its Affiliates’ health or welfare plans in
the calendar year in which the Transfer Date occurs.
(f) Vacation. Seller shall pay to the Transferred Employees all accrued but
unpaid vacation for periods prior to the Transfer Date as soon as administratively practicable
after the Transfer Date or as required by applicable law, but in no event later than thirty (30)
Business Days after the Transfer Date.
(g) Bonus Payments. Seller shall retain (and be liable for the payment of) all
amounts earned by a Transferred Employee under the Benefit Plans that provide incentive
compensation in which such Transferred Employee is eligible to participate (determined as of
immediately prior to the applicable Transfer Date) for periods of service through the day
immediately prior to the applicable Transfer Date. From and after the Closing Date, Purchaser
shall be liable for the payment of incentive compensation to the Transferred Employees for
service with Purchaser from and after the applicable Transfer Date in accordance with the
Purchaser’s Benefit Plans.
(h) Rollover of 401(k) Plan Accounts and Loans. Prior to the Closing Date
and thereafter (as applicable), Seller and Purchaser shall take any and all action as may be
required, including, if necessary, amendments to the tax qualified defined contribution plan of
Seller in which Transferred Employees participate (the “Seller 401(k) Plan”) and/or the tax
qualified defined contribution plan of Purchaser (the “Purchaser 401(k) Plan”), to permit each
Transferred Employee to make rollover contributions of “eligible rollover distributions” (within
the meaning of Section 401(a)(31) of the Code, including of loans) in cash or notes (in the case
of loans) in an amount equal to the eligible rollover distribution portion of the account balance
distributable to such Transferred Employee from the Seller 401(k) Plan to the Purchaser 401(k)
Plan.
(i) Welfare Benefits Generally. (i) Seller and its Affiliates shall be solely
responsible for (A) claims for Welfare Benefits and for workers’ compensation, in each case that
are incurred by or with respect to any Transferred Employee (and his or her spouse, dependents
or beneficiaries) before his or her Transfer Date, and (B) claims relating to COBRA
Continuation Coverage (and for providing any notices related thereto) attributable to “qualifying
events” with respect to any Branch Employee who does not become a Transferred Employee and
his or her beneficiaries and dependents, whether occurring before, on or after the Closing Date;
and (ii) Purchaser and its Affiliates shall be solely responsible for (A) claims for Welfare
Benefits and for workers compensation, in each case that are incurred by or with respect to any
Transferred Employee on or after his or her Transfer Date, and (B) claims relating to COBRA
Continuation Coverage attributable to “qualifying events” with respect to any Transferred
Employee and his or her beneficiaries and dependents that occur on or after such Transferred
Employee’s Transfer Date. For purposes of the foregoing, a medical/dental claim shall be
considered incurred when the services are rendered, the supplies are provided or prescription is
actually filled, and not when the condition arose. A disability claim shall be considered incurred
when the date of disability occurs and a workers’ compensation claim shall be considered
incurred on the date of the occurrence as determined under the applicable state regulations.
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(j) Unvested Benefits. Prior to the Closing Date, Seller shall (a) fully vest
each equity-based compensation award held by the Transferred Employees and (b) fully vest any
Transferred Employee’s unvested allocations in the Seller’s employee stock ownership plan.
(k) Liabilities under Benefit Plans; Controlled Group Liability. Except as
expressly provided in this Section 8.7, (i) Seller shall remain solely responsible for any and all
liabilities and obligations arising under the Benefit Plans, and Purchaser shall not assume or
otherwise acquire any of the Benefit Plans, (ii) Seller shall remain solely responsible for any
Controlled Group Liability and (iii) for purposes of this Agreement, liabilities under the Benefit
Plans shall be considered Excluded Liabilities.
(l) No Third Party Rights or Amendment to Benefit Plans. Nothing in this
Agreement shall be construed to grant any Branch Employee or Transferred Employee a right to
continued employment by, or to receive any payments or benefits from, Purchaser or Seller or
their respective Affiliates or through any employee benefit plan. This Agreement shall not limit
Purchaser’s or Purchaser’s Affiliate’s ability or right to amend or terminate any benefit or
compensation plan or program of Purchaser or its Affiliates and nothing contained herein shall
be construed as an amendment to or modification of any such plan. This Section 8.7 shall be
binding upon and inure solely to the benefit of each party to this Agreement, and nothing in this
Section 8.7, express or implied, is intended to confer upon any other Person, including, any
current or former director, officer or employee of Seller or any of its Affiliates, any rights or
remedies of any nature whatsoever under or by reason of this Section 8.7.
ARTICLE 9
CONDITIONS TO CLOSING
9.1 Conditions to Obligations of Purchaser. Unless waived in writing by Purchaser,
the obligation of Purchaser to consummate the applicable P&A Transactions as set forth in
Article 9 at the Initial Closing, the Subsequent Closing and the Closing, respectively, is
conditioned upon satisfaction as of the Initial Closing, the Subsequent Closing or the Closing, as
applicable, of each of the following conditions:
(a) Regulatory Approvals. In respect of the P&A Transactions to be effected
at the Closing, the Regulatory Approvals shall have been made or obtained, and shall remain in
full force and effect, and all waiting periods applicable to the consummation of the P&A
Transactions shall have expired or been terminated. For avoidance of doubt, Purchaser’s
obligation to consummate the P&A Transactions to be effected at the Initial Closing or the
Subsequent Closing shall not be subject to the foregoing condition.
(b) Orders; Legal Proceedings. No court or governmental authority of
competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute,
rule, regulation, judgment, decree, injunction or other order (whether temporary, preliminary or
permanent) (any of the foregoing, an “Order”) that is in effect and that prohibits or makes illegal
the consummation of any of the P&A Transactions.
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(c) Representations and Warranties. (i) The representations and warranties of
Seller contained in Sections 5.1, 5.2(i) and 5.13 shall be true and correct in all respects as of the
date of this Agreement and as of the Initial Closing Date, the Subsequent Closing Date or the
Closing Date, as applicable, as though such representations and warranties were made at and as
of such time (except that representations and warranties as of a specified date need only be true
on and as of such date) and (ii) the other representations and warranties of Seller contained in
this Agreement shall be true in all respects in each case as of the date of this Agreement and as of
the Initial Closing Date, the Subsequent Closing Date or the Closing Date, as applicable (except
that representations and warranties as of a specified date need only be true on and as of such
date); provided, however, that for purposes of determining the satisfaction of the condition set
forth in this Section 9.1(c), such representations and warranties shall be deemed to be so true and
correct if the failure or failures of such representations and warranties to be true and correct
(such representations and warranties to be read for this purpose without reference to any
qualification set forth therein relating to “materiality” or “Material Adverse Effect”) do not
constitute, individually or in the aggregate, a Material Adverse Effect.
(d) Covenants and Other Agreements. Seller shall have performed its
covenants and agreements herein on or prior to the Initial Closing Date, the Subsequent Closing
Date or the Closing Date, as applicable, in all material respects.
(e) Seller Officers’ Certificate. Purchaser shall have received at the Initial
Closing, the Subsequent Closing Date or the Closing, as applicable, a certificate dated as of the
Initial Closing Date, the Subsequent Closing Date or the Closing Date, as applicable, and
executed by the Chief Executive Officer, the Chief Financial Officer, the President or any
Executive Vice President or Senior Vice President of Seller to the effect that each of the
conditions specified above in Sections 9.1(c) and (d) are satisfied in all respects.
(f) Seller Closing Deliverables. Seller shall have delivered to Purchaser each
of the certificates, instruments, agreements, documents and other items required to be delivered
pursuant to Section 3.5 at or prior to the Initial Closing Date, the Subsequent Closing Date or the
Closing Date, as applicable.
(g) Absence of Encumbrances. The Loans to be acquired by Purchaser at the
Initial Closing, the Subsequent Closing or the Closing, as applicable, shall be free and clear of all
Encumbrances (including any interest in favor of FHLB), as evidenced by documentation in
form and substance reasonably acceptable to Purchaser (including, as applicable, a triparty
agreement among Purchaser, Seller and FHLB).
(h) Certain Approvals. Seller shall have obtained the consents and approvals
set forth in Section 9.1 of the Seller Disclosure Schedule.
9.2 Conditions to Obligations of Seller. Unless waived in writing by Seller, the
obligation of Seller to consummate the applicable P&A Transactions at the Initial Closing, the
Subsequent Closing and the Closing, respectively, is conditioned upon satisfaction as of the
Initial Closing, the Subsequent Closing or the Closing, as applicable, of each of the following
conditions:
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(a) Regulatory Approvals. In respect of the P&A Transactions as set forth in
Article 2 to be effected at the Closing, the Regulatory Approvals shall have been made or
obtained, and shall remain in full force and effect, and all waiting periods applicable to the
consummation of the P&A Transactions shall have expired or been terminated. For avoidance of
doubt, Seller’s obligation to consummate the P&A Transactions to be effected at the Initial
Closing or the Subsequent Closing shall not be subject to the foregoing condition.
(b) Orders. No Order shall be in effect that prohibits or makes illegal the
consummation of any of the P&A Transactions.
(c) Representations and Warranties. (i) The representations and warranties of
Purchaser contained in Sections 6.1, 6.2(i), 6.7 and 6.8 shall be true and correct in all respects as
of the date of this Agreement and as of the Initial Closing Date, the Subsequent Closing Date or
the Closing Date, as applicable, as though such representations and warranties were made at and
as of such time (except that representations and warranties as of a specified date need only be
true on and as of such date) and (ii) the other representations and warranties of Purchaser
contained in this Agreement shall be true in all respects in each case as of the date of this
Agreement and as of the Initial Closing Date, the Subsequent Closing Date or the Closing Date,
as applicable, as though such representations and warranties were made at and as of such time
(except that representations and warranties as of a specific date need to be true only as of such
date); provided, however, that for purposes of determining the satisfaction of the condition set
forth in this Section 9.2(c), such representations and warranties shall be deemed to be so true and
correct if the failure or failures of such representations and warranties to be true and correct
(such representations and warranties to be read for this purpose without reference to any
qualification set forth therein relating to “materiality” or “Material Adverse Effect”) do not
constitute, individually or in the aggregate, a Material Adverse Effect.
(d) Covenants and Other Agreements. Purchaser shall have performed its
covenants and agreements herein on or prior to the Initial Closing Date, the Subsequent Closing
Date or the Closing Date, as applicable, in all material respects.
(e) Purchaser Officers’ Certificate. Seller shall have received at the Initial
Closing, the Subsequent Closing or the Closing, as applicable, a certificate dated as of the Initial
Closing Date, the Subsequent Closing Date or the Closing Date, as applicable, and executed by
the Chief Executive Officer, the Chief Financial Officer, the President or any Executive Vice
President or Senior Vice President of Purchaser to the effect that each of the conditions specified
above in Sections 9.2(c) and (d) are satisfied in all respects.
(f) Purchaser Closing Deliverables. Purchaser shall have delivered to Seller
each of the certificates, instruments, agreements, documents and other items required to be
delivered pursuant to Section 3.6 (in the case of any assignment contemplated thereby, subject to
delivery by Seller of any related requisite third-party consent) at or prior to the Initial Closing
Date, the Subsequent Closing Date or the Closing Date, as applicable.
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ARTICLE 10
TERMINATION
10.1 Termination. This Agreement may be terminated at any time prior to the Closing
Date:
(a) by the mutual written agreement of Purchaser and Seller;
(b) by Purchaser if (i) at the time of such termination any of the
representations and warranties of Seller contained in this Agreement shall not be true and correct
to the extent that the condition set forth in Section 9.1(c) cannot be satisfied, or (ii) there shall
have been any material breach of any covenant, agreement or obligation of Seller hereunder to
the extent that the condition set forth in Section 9.1(d) cannot be satisfied, and, in the case of (i)
or (ii), such breach or failure is not or cannot be remedied by Seller within thirty (30) calendar
days after receipt of notice in writing from Purchaser specifying the nature of such breach or
failure and requesting that it be remedied; provided that Purchaser may not terminate this
Agreement based upon the failure of the conditions set forth in Section 9.1(c) or Section 9.1(d) to
be satisfied if such failure was caused by Purchaser’s breach of this Agreement or failure to act
in good faith or Purchaser’s or any of its representative’s failure to use reasonable best efforts to
cause the Initial Closing, the Subsequent Closing or the Closing, as applicable, to occur;
(c) by Seller, if (i) at the time of such termination any of the representations
and warranties of Purchaser contained in this Agreement shall not be true and correct to the
extent that the condition set forth in Section 9.2(c) cannot be satisfied, or (ii) there shall have
been any breach of any covenant, agreement or obligation of Purchaser hereunder to the extent
that the condition set forth in Section 9.2(d) cannot be satisfied, and, in the case of (i) or (ii),
such breach or failure is not or cannot be remedied by Purchaser within thirty (30) calendar days
after receipt of notice in writing from Seller specifying the nature of such breach or failure and
requesting that it be remedied; provided that Seller may not terminate this Agreement based upon
the failure of the conditions set forth in Section 9.2(c) or Section 9.2(d) to be satisfied if such
failure was caused by Seller’s or any of its representatives’ failure to act in good faith or Seller’s
breach of this Agreement or failure to use reasonable best efforts to cause the Closing, the
Subsequent Closing or the Initial Closing, as applicable, to occur;
(d) by Seller or Purchaser, in the event the Closing has not occurred within
seventy-five (75) days after the date of this Agreement, unless the failure to so consummate is
due to a breach of this Agreement by the party seeking to terminate; or
(e) by either Seller or Purchaser, if any governmental agencies or authorities
that must grant a Regulatory Approval has denied approval of the P&A Transactions and such
denial has become final and nonappealable or any governmental agency or authority of
competent jurisdiction shall have issued a final and nonappealable order permanently enjoining
or otherwise prohibiting the consummation of the P&A Transactions.
10.2 Effect of Termination. In the event of termination of this Agreement and
abandonment of any of the P&A Transactions contemplated hereby pursuant to Section 10.1,
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except as set forth in this Agreement, no party hereto (or any of its directors, officers, employees,
agents or Affiliates) shall have any liability or further obligation to any other party, except that
neither Seller nor Purchaser shall be relieved or released from any liabilities or damages arising
out of any knowing, intentional and material breach of this Agreement. Notwithstanding the
foregoing, in the event of termination of this Agreement following consummation of the Initial
Closing but prior to the consummation of the Subsequent Closing, if any, or the Closing, such
termination will terminate the obligations to consummate the Subsequent Closing and/or Closing
only, and the remaining provisions of this Agreement shall continue to apply, mutatis mutandis,
and neither Seller nor Purchaser shall be relieved from any liability or obligation to each other in
respect of the Initial Closing Assets and the Initial Closing Assumed Liabilities.
Notwithstanding the foregoing, in the event of termination of this Agreement following
consummation of the Subsequent Closing but prior to the consummation of the Closing, such
termination will terminate the obligations to consummate the Closing only, and the remaining
provisions of this Agreement shall continue to apply, mutatis mutandis, and neither Seller nor
Purchaser shall be relieved from any liability or obligation to each other in respect of the Initial
Closing Assets and the Initial Closing Assumed Liabilities or the Subsequent Closing Assets and
the Subsequent Closing Assumed Liabilities.
ARTICLE 11
INDEMNIFICATION
11.1 Indemnification. (a) Subject to Section 12.1, after the Initial Closing (in respect
of the P&A Transactions consummated thereat), after the Subsequent Closing (in respect of the
P&A Transactions consummated thereat) and after the Closing (in respect of the P&A
Transactions consummated thereat), Seller shall indemnify and hold harmless Purchaser and its
Affiliates and their respective directors, officers, employees and agents, from and against any
and all Losses asserted against or incurred by Purchaser to the extent arising out of or resulting
from the following:
(i) any breach of any representation or warranty made by Seller in this
Agreement (disregarding any qualification on any such representation or warranty as to
“materiality,” “in all material respects,” “Material Adverse Effect” or similar materiality
qualifications);
(ii) any breach of any covenant or agreement to be performed by Seller
pursuant to this Agreement;
(iii) any Excluded Taxes; or
(iv) any Excluded Liability.
(b) Subject to Section 12.1, after the Initial Closing (in respect of the P&A
Transactions consummated thereat), after the Subsequent Closing (in respect of the P&A
Transactions consummated thereat) and after the Closing (in respect of the P&A Transactions
consummated thereat), Purchaser shall indemnify and hold harmless Seller and its Affiliates and
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their respective directors, officers, employees and agents, from and against any and all Losses
asserted against or incurred by Seller to the extent arising out of or resulting from the following:
(i) any breach of any representation or warranty made by Purchaser in
this Agreement (disregarding any qualification on any such representation or warranty as
to “materiality,” “in all material respects,” “Material Adverse Effect” or similar
materiality qualifications);
(ii) any breach of any covenant or agreement to be performed by
Purchaser pursuant to this Agreement; or
(iii) the Assumed Liabilities or any responsibility, obligation, duty,
legal action, administrative or judicial proceeding, claim, penalty or liability arising out
of Purchaser’s ownership or operation after the Closing Date of the business represented
by the Branches, the Assets or the Assumed Liabilities.
(c) To exercise its indemnification rights under this Section 11.1 as a result of
the assertion against it of any claim or potential liability for which indemnification is provided,
the indemnified party shall promptly notify the indemnifying party of the assertion of such claim,
discovery of any such potential liability or the commencement of any action or proceeding in
respect of which indemnity may be sought hereunder (including, with respect to claims arising
from a breach of representation or warranty made in Article 8, the commencement of an audit,
administrative investigation or judicial proceeding by any governmental authority); provided,
however, that, subject to the Survival Periods set forth in Section 12.1(a), any delay or failure by
the indemnified party to give notice shall not relieve the indemnifying party of its obligations
hereunder except to the extent, if at all, that the indemnifying party is actually and materially
prejudiced by reason of such delay or failure. The indemnified party shall advise the
indemnifying party of all material facts relating to such assertion within the knowledge of the
indemnified party, and shall afford the indemnifying party the opportunity, at the indemnifying
party’s sole cost and expense, to defend against such claims for liability. In any such action or
proceeding, the indemnified party shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at its own expense unless (i) the indemnifying party and the
indemnified party mutually agree to the retention of such counsel or (ii) the named parties to any
such suit, action, or proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party, and in the reasonable judgment of the indemnified party,
representation of the indemnifying party and the indemnified party by the same counsel would be
inadvisable due to actual or potential differing defenses or conflicts of interests between them.
(d) Neither party to this Agreement shall settle, compromise, discharge or
consent to an entry of judgment with respect to a claim or liability subject to indemnification
under this Article 11 without the other party’s prior written consent (which consent shall not be
unreasonably withheld, conditioned or delayed); provided that the indemnifying party may agree
without the prior written consent of the indemnified party to any settlement, compromise,
discharge or consent to an entry of judgment in each case that by its terms (i) obligates the
indemnifying party to pay the full amount of the liability in connection with such claim and that
unconditionally releases the indemnified party and its Affiliates from all liability or obligation in
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connection with such claim and (ii) does not impose injunctive or other non-monetary equitable
relief against the indemnified party or its Affiliates, or their respective businesses.
(e) Notwithstanding anything to the contrary contained in this Agreement, an
indemnifying party shall not be liable under Section 11.1(a)(i), except with respect to the
representations and warranties of Seller contained in Sections 5.1, 5.2(i) and 5.13, or Section
11.1(b)(i), except with respect to the representations and warranties of Purchaser contained in
Sections 6.1, 6.2(i), and 6.7, for any Losses sustained by the indemnified party unless and until
the aggregate amount of all indemnifiable Losses sustained by the indemnified party shall exceed
$2,000,000 (the “Deductible”), in which event the indemnifying party shall provide
indemnification hereunder in respect of all such indemnifiable Losses in excess of the
Deductible; provided, however, that the maximum aggregate amount of indemnification
payments payable by Seller pursuant to Section 11.1(a)(i), except with respect to the
representations and warranties of Seller contained in Sections 5.1, 5.2(i) and 5.13, or by
Purchaser pursuant to Section 11.1(b)(i), except with respect to the representations and
warranties of Purchaser contained in Sections 6.1, 6.2(i), and 6.7, as applicable, shall be
$30,000,000.
(f) Notwithstanding the foregoing, if a third party claim includes or would
reasonably be expected to include both a claim for Taxes that are Assumed Liabilities pursuant
to Section 2.2(b)(vii) (“Purchaser Taxes”) and a claim for Taxes that are not Assumed Liabilities
pursuant to Section 2.2(b)(vii) (“Seller Taxes”), and such claim for Seller Taxes is not separable
from such a claim for Purchaser Taxes, Purchaser (if the claim for Purchaser Taxes exceeds or
reasonably would be expected to exceed in amount the claim for Seller Taxes) or otherwise
Seller (Seller or Purchaser, as the case may be, the “Controlling Party”) shall be entitled to
control the defense of such third party claim (such third party claim, a “Tax Claim”). In such
case, the other party (Seller or Purchaser, as the case may be, the “Non-Controlling Party”) shall
be entitled to participate fully (at the Non-Controlling Party’s sole expense) in the conduct of
such Tax Claim and the Controlling Party shall not settle such Tax Claim without the consent of
such Non-Controlling Party (which consent shall not be unreasonably withheld, conditioned or
delayed). The costs and expenses of conducting the defense of such Tax Claim shall be
reasonably apportioned based on the relative amounts of the Tax Claim that are Seller Taxes and
that are Purchaser Taxes.
(g) Except as otherwise required pursuant to a “determination” within the
meaning of Section 1313(a) of the Code (or any comparable provision of state, local or foreign
Law), Seller, Purchaser, and their respective Affiliates shall treat any and all payments under this
Article 11 as an adjustment to the Purchase Price for all Tax purposes.
11.2 Exclusivity. After the Closing, except as expressly set forth in Sections 4.3(b),
4.8 and 8.3, and except in the case of fraud, this Article 11 will provide the exclusive remedy for
any misrepresentation, breach of warranty, covenant or other agreement or other claim arising
out of this Agreement or the transactions contemplated hereby (including any ancillary
agreements and deeds and other closing deliverables); provided that it is understood and agreed
that the foregoing shall not prevent a party from obtaining specific performance, injunctive relief
or any other available non-monetary equitable remedy.
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ARTICLE 12
MISCELLANEOUS
12.1 Survival. (a) The parties’ respective representations and warranties contained in
this Agreement shall survive until the first (1st) anniversary of the Closing Date; provided,
however, that (i) each of the representations and warranties of parties set forth in Sections 5.1
and 5.10 (other than as such representations relate to Real Property to the extent that one or more
Commitments provide insurance coverage in respect of the same), and 6.1 shall survive until the
third (3rd) anniversary of the Closing Date, and (ii) the representations and warranties set forth in
Section 5.12 shall survive until the second (2nd) anniversary of the Closing Date, and, in each
case, thereafter neither party may claim any Loss in relation to a breach thereof (each such
specified period, a “Survival Period”); provided, however, that the claims set forth in any claim
for indemnity made by an indemnified party on or prior to the applicable Survival Period shall
survive until such claim is finally resolved. The agreements and covenants contained in this
Agreement shall survive the Initial Closing, the Subsequent Closing or the Closing, as
applicable, until performed in full or the obligation to so perform shall have expired.
(b) No claim based on any breach of any representation or warranty shall be
valid or made unless notice with respect thereto is given to the indemnifying party in accordance
with this Agreement.
12.2 Assignment. Neither this Agreement nor any of the rights, interests or obligations
of either party may be assigned by either party hereto without the prior written consent of the
other party, and any purported assignment in contravention of this Section 12.2 shall be void.
12.3 Binding Effect. This Agreement and all of the provisions hereof shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and permitted
assigns.
12.4 Public Notice. Prior to the Initial Closing Date and prior to the Closing Date
(except, following the Initial Closing Date, in respect of the P&A Transactions consummated at
the Initial Closing), neither Purchaser nor Seller shall make or cause to be made any press release
for general circulation, public announcement or disclosure or issue any notice or general
communication to employees or customers with respect to any of the transactions contemplated
hereby (each, a “Public Notice”) without the prior written consent of the other party (which
consent shall not be unreasonably withheld, conditioned or delayed). Purchaser and Seller each
agree that, without the other party’s prior written consent, it shall not release or disclose any of
the terms or conditions of the transactions contemplated herein to any other Person (other than
any Regulatory Authority). Notwithstanding the foregoing, each party may make a Public
Notice as, based on the advice of its counsel, may be required by law or as necessary to obtain
the Regulatory Approvals, in which case the party proposing to issue such press release or make
such public statement or disclosure shall consult with the other party before issuing such press
release or making such public statement or disclosure. Except with respect to a Public Notice
issued by Purchaser or any of its Affiliates in compliance with the terms of this Section 12.4 that
announces the execution of this Agreement or the consummation of the transactions
contemplated hereby, no Public Notice issued by Purchaser or any of its Affiliates shall reference
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the name of Seller or any of its Affiliates without the prior written consent of Seller (which
consent Seller may withhold, condition or delay in its sole discretion).
12.5 Notices. All notices, requests, demands, consents and other communications
given or required to be given under this Agreement and under the related documents shall be in
writing and delivered to the applicable party at the address indicated below:
If to Seller: First NBC Bank
c/o First NBC Bank Holding Company
210 Baronne Street
New Orleans, Louisiana 70112
Attention: Marsha Crowle, Senior Executive Vice President
Facsimile: (504) 252-4440
With a copy to: Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Attention: David C. Ingles
Fax: (917) 777-2697
If to Purchaser: Whitney Bank
c/o Hancock Holding Company
One Hancock Plaza
Gulfport, Mississippi 39502
Attention: Joy Lambert Phillips, EVP & General Counsel
Fax: (228) 563-5759
With a copy to: Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: Nicholas G. Demmo
Fax: (212) 403-2000
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 12.5. Any notices shall
be in writing, including telegraphic or facsimile communication, and may be sent by registered
or certified mail, return receipt requested, postage prepaid, or by fax, or by overnight delivery
service. Notice shall be effective upon actual receipt thereof.
12.6 Expenses. Except as expressly provided otherwise in this Agreement, each party
shall bear any and all costs and expenses that it incurs, or that may be incurred on its behalf, in
connection with the preparation of this Agreement and consummation of the transactions
described herein, and the expenses, fees, and costs necessary for any approvals of the appropriate
Regulatory Authorities.
12.7 Governing Law; Consent to Jurisdiction. This Agreement shall be governed by
and interpreted in accordance with the laws of the State of Louisiana applicable to agreements
made and entirely to be performed in such state and without regard to its principles of conflict of
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laws. The parties hereto agree that any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this Agreement or the
transactions contemplated hereby shall be brought in any federal or state court sitting in the State
of Louisiana. Each of the parties hereto submits to the jurisdiction of any such court in any suit,
action or proceeding seeking to enforce any provision of, or based on any matter arising out of,
or in connection with, this Agreement or the transactions contemplated hereby and hereby
irrevocably waives the benefit of jurisdiction derived from present or future domicile or
otherwise in such action or proceeding. Each party hereto irrevocably waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to the laying of the
venue of any such suit, action or proceeding in any such court or that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
12.8 Waiver of Jury Trial. The parties hereby waive, to the fullest extent permitted by
law, any right to trial by jury of any claim, demand, action, or cause of action (i) arising under
this Agreement or (ii) in any way connected with or related or incidental to the dealings of the
parties in respect of this Agreement or any of the transactions contemplated hereby, in each case,
whether now existing or hereafter arising, and whether in contract, tort, equity, or otherwise.
The parties hereby further agree and consent that any such claim, demand, action, or cause of
action shall be decided by court trial without a jury and that the parties may file a copy of this
Agreement with any court as written evidence of the consent of the parties to the waiver of their
right to trial by jury.
12.9 Entire Agreement; Amendment. (a) This Agreement contains the entire
understanding of and all agreements between the parties hereto with respect to the subject matter
hereof and supersedes any prior or contemporaneous agreement or understanding, oral or written,
pertaining to any such matters, which agreements or understandings shall be of no force or effect
for any purpose; provided, however, that the terms of any confidentiality agreement the parties
hereto previously entered into shall, to the extent not inconsistent with any provisions of this
Agreement, continue to apply until the Closing.
(b) This Agreement may not be amended or supplemented in any manner
except by mutual agreement of the parties and as set forth in a writing signed by the parties
hereto or their respective successors in interest. The waiver of any breach of any provision under
this Agreement by any party shall not be deemed to be waiver of any preceding or subsequent
breach under this Agreement. No such waiver shall be effective unless in writing.
12.10 Third Party Beneficiaries. Except as expressly provided in Section 11.1, this
Agreement shall not benefit or create any right or cause of action in or on behalf of any person
other than Seller and Purchaser.
12.11 Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument. A facsimile copy or electronic transmission of a signature page shall be
deemed to be an original signature page.
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12.12 Headings. The headings used in this Agreement are inserted for purposes of
convenience of reference only and shall not limit or define the meaning of any provisions of this
Agreement.
12.13 Severability. If any provision of this Agreement, as applied to any party or
circumstance, shall be judged by a court of competent jurisdiction to be void, invalid or
unenforceable, the same shall in no way affect any other provision of this Agreement, the
application of any such provision and any other circumstances or the validity or enforceability of
the other provisions of this Agreement.
12.14 Interpretation. When a reference is made in this Agreement to Articles, Sections
or Exhibits, such reference shall be to an Article, Section of or Exhibit to this Agreement unless
otherwise indicated. The Recitals hereto constitute an integral part of this Agreement.
References to Sections include subsections, which are part of the related Section (e.g., a section
numbered “Section 5.13(a)” would be part of “Section 5.13” and references to “Section 5.13”
would also refer to material contained in the subsection described as “Section 5.13(a)”). The
table of contents, index and headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever
the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed
to be followed by the words “without limitation.” The phrases “the date of this Agreement,” “the
date hereof” and terms of similar import, unless the context otherwise requires, shall be deemed
to refer to the date set forth in the Preamble to this Agreement. Notwithstanding any other
provision of this Agreement, nothing in this Agreement shall require, or be deemed, interpreted
or construed to require, Seller, Purchaser or any of their respective Affiliates or directors to take,
or fail to take, any action which would violate applicable law (whether statutory or common
law), rule or regulation.
12.15 Specific Performance. The parties hereto agree that irreparable damage would
occur if any provision of this Agreement were not performed in accordance with the terms hereof
(and, more specifically, that irreparable damage would likewise occur if the P&A Transactions
were not consummated), and, accordingly, that the parties shall be entitled, without the necessity
of posting a bond or other security, to an injunction or injunctions to prevent breaches of this
Agreement or to enforce specifically the performance of the terms and provisions hereof
(including the parties’ obligation to consummate the P&A Transactions, subject to the terms and
conditions of this Agreement).
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