Exhibit 1.1

 

 

 

 

 

 

PURCHASE AND ASSUMPTION AGREEMENT

 

dated as of

 

December 30, 2016

 

between

 

 

FIRST NBC BANK

 

and

 

WHITNEY BANK

 

 

 

 

 

 

 

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

 

 

 

 

 

 

ARTICLE 6

REPRESENTATIONS AND WARRANTIES OF PURCHASER

ARTICLE 7

COVENANTS OF THE PARTIES

 

 

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

 

 

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

 

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

 

 

 

"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).

"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.

"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).

"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.

"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 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).

"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 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.

    "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.

"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.

"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).

"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 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).

 

ARTICLE 2

THE P&A TRANSACTIONS

 

 

(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.

 

 

(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;

(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.

 

 

 

(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).

 

(i)	the Deposits;

(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).

 

 

 

 

(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);

(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.

 

 

(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).

 

 

 

(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.

 

 

 

 

(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) 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.

 

 

(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 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.

 

 

ARTICLE 3

CLOSING PROCEDURES; ADJUSTMENTS

 

 

 

 

 

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.

 

 

 

 

 

 

 

 

 

(i)

an executed global assignment of the Loan Documents in respect of the Initial Closing Loans or the Subsequent Closing Loans, as applicable, in 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.

 

 

(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 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).

 

 

(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).

 

(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

 

 

 

 

ARTICLE 4

TRANSITIONAL MATTERS

 

 

 

 

 

 

 

 

 

(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

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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(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 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.

 

 

 

 

 

 

 

 

 

 

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):

 

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.

 

 

 

 

 

 

 

 

 

(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 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.

 

 

 

 

 

 

 

 

 

(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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ARTICLE 6

REPRESENTATIONS AND WARRANTIES OF PURCHASER

 

Purchaser represents and warrants to Seller as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ARTICLE 7

COVENANTS OF THE PARTIES

 

(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 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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ARTICLE 8

TAXES AND EMPLOYEE BENEFITS

 

 

 

 

 

 

 

 

 

 

(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.

 

(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;

(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.

 

 

 

 

 

 

 

 

ARTICLE 9

CONDITIONS TO CLOSING

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ARTICLE 10

TERMINATION

 

 

 

 

 

 

 

ARTICLE 11


INDEMNIFICATION

 

 

(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.

(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.

 

 

 

 

 

ARTICLE 12

MISCELLANEOUS

 

 

 

 

 

 

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.

 

 

 

 

 

 

 

 

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers as of the date and year first above written.

 

FIRST NBC BANK

By:

/s/ Marsha S. Crowle Name: Marsha S. Crowle Title: Sr. Exec. Vice President

WHITNEY BANK

By:

/s/ Michael M. Achary Name: Michael M. Achary  Title: EVP/CFO