PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
PREMIER BANK, F.S.B.
AS SELLER
AND
FIRST ALLIANCE BANK
AS PURCHASER
PURCHASE AND ASSUMPTION AGREEMENT
TABLE OF CONTENTS
Page
----
SECTION 1
DEFINED TERMS
1.1 Defined Terms ........................................................ 1
SECTION 2
TRANSFER OF ASSETS
2.1 Assets Sold............................................................ 2
2.2 Documents of Transfer ................................................. 2
2.3 Breaches with Third Parties ........................................... 3
2.4 Payments Accepted After the Closing.................................... 3
SECTION 3
ASSUMPTION OF ACQUIRED DEPOSITS AND LIABILITIES
3.1 Acquired Deposits...................................................... 3
3.2 Overdrafts ............................................................ 3
3.3 Documentation of Assumption............................................ 3
3.4 Assumption Subject to Certain Terms ................................... 4
3.5 Payment of Items by the Seller After Closing .......................... 4
3.6 Payment of Items by the Purchaser After Closing........................ 4
3.7 Transfer of Credits by the Seller ..................................... 4
3.8 The Seller Not Liable to Pay........................................... 4
3.9 The Purchaser Responsible for Returned Items........................... 4
3.10 Acquired Liabilities................................................... 4
SECTION 4
ASSUMPTION OF RISKS
4.1 Insurance Policies..................................................... 4
4.2 Persons and Property................................................... 4
SECTION 4
PURCHASE PRICE AND SETTLEMENT
5.1 Purchase Price ........................................................ 5
5.2 Payment of Acquired Deposits and Assumption
of Acquired Liabilities by the Seller.................................. 5
5.3 Preliminary Settlement................................................. 5
5.4 Final Settlement....................................................... 5
5.5 Interest Paid and Earned as of the Closing Date ....................... 5
i
SECTION 6
ACCESS TO THE BRANCHES' PROPERTIES AND RECORDS AND DUE DILIGENCE
6.1 Access and Confidential Treatment ..................................... 6
6.2 The Purchaser's Due Diligence ......................................... 6
6.3 Recordkeeping and Access Following the Closing......................... 6
SECTION 7
REPRESENTATIONS AND WARRANTIES OF SELLER
7.1 Corporate Organization ................................................ 6
7.2 Corporate Authority to Carry On Business .............................. 6
7.3 Corporate Authority to Enter into this Agreement ...................... 6
7.4 Execution and Delivery; Enforceability ............................... 6
7.5 Status of the Acquired Deposits ....................................... 7
7.6 Status of the Purchased Loans ......................................... 7
7.7 Status of the Purchased Securities .................................... 7
7.8 No Violations ......................................................... 7
7.9 No Adverse Litigation.................................................. 7
7.10 Limitations of Warranties.............................................. 8
SECTION 8
REPRESENTATIONS AND WARRANTIES OF PURCHASER
8.1 Corporate Organization ................................................ 8
8.2 Corporate Authority to Carry On Business............................... 8
8.3 Corporate Authority to Enter this Agreement ........................... 8
8.4 Execution and Delivery; Enforceability................................. 8
8.5 No Violations ......................................................... 8
8.6 No Adverse Litigation ................................................. 8
SECTION 9
ADDITIONAL UNDERTAKINGS OF THE SELLER
9.1 Conduct of Business Pending Closing ................................... 9
9.2 Documentation at the Closing and Further Assurances.................... 9
SECTION 10
ADDITIONAL UNDERTAKINGS OF THE PURCHASER
10.1 The Purchaser's Contact with Customers ............................... 9
10.2 Regulatory Filings ................................................... 10
SECTION 11
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PURCHASER
11.1 Representations and Warranties True................................... 10
11.2 Obligations Performed ................................................ 10
ii
11.3 Certificate of Compliance ............................................ 10
11.4 No Adverse Litigation ................................................ 10
11.5 Regulatory Approvals ................................................. 10
SECTION 12
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE SELLER
12.1 Representations and Warranties True .................................. 10
12.2 Obligations Performed ................................................ 11
12.3 Certificate of Compliance ........................................... 11
12.4 No Adverse Litigation ................................................ 11
12.5 Regulatory Approvals ................................................ 11
SECTION 13
THE CLOSING
13.1 Time and Place ....................................................... 11
SECTION 14
TERMINATION
14.1 Methods of Termination .............................................. 11
14.2 Procedure Upon Termination ........................................... 12
14.3 Automatic Termination ................................................ 12
SECTION 15
MISCELLANEOUS
15.1 Entire Agreement ..................................................... 12
15.2 Modifications and Waivers ............................................ 12
15.3 No Broker or Finder .................................................. 12
15.4 No Survival of Representations and Warranties......................... 12
15.5 Binding Effect........................................................ 12
15.6 Counterparts.......................................................... 12
15.7 Expenses.............................................................. 12
15.8 Notices............................................................... 12
15.9 Time of the Essence .................................................. 13
15.10 Governing Law ........................................................ 13
15.11 Headings.............................................................. 13
15.12 Severability.......................................................... 13
15.13 Public Announcements ................................................. 13
15.14 Assignability ........................................................ 13
iii
Schedule A - Loans to be Acquired by Net.B@nk (Whereas Clause)
Schedule B - Other Assets to be Acquired by Net.B@nk (Whereas Clause)
Schedule C - Deposits and Other Liabilities to be Acquired by
Net.B@nk (Whereas Clause)
Exhibit A - Assumption of Liabilities (Section 3.3)
Exhibit B-1 - Preliminary Settlement Statements (Section 5.3)
Exhibit B-2 - Final Settlement Statement (Section 5.4)
Exhibit C - Seller's Compliance Certificate (Section 11.3)
Exhibit D - Purchaser's Compliance Certificate (Section 12.3)
Exhibit E - Notices (Section 15.8)
iv
PURCHASE AND ASSUMPTION AGREEMENT
This Purchase and Assumption Agreement (the "Agreement") is made and
entered into as of the 19th day of December, 1996 between PREMIER BANK, F.S.B.
(the "Seller" or "Premier"), a federal savings bank organized under the laws of
the United States, and FIRST ALLIANCE BANK (the "Purchaser" or the "Bank"), a
commercial bank organized under the laws of the State of Georgia:
WHEREAS, pursuant to that certain Amended and Restated Stock Purchase
Agreement, of even date herewith, between Net.B@nk, Inc. ("Net.B@nk") and First
Alliance/Premier Bancshares, Inc. ("Bancshares"), the sole shareholder of the
Seller, Net.B@nk has agreed to purchase all of the outstanding common stock of
Seller now owned by Bancshares;
WHEREAS, the (a) loans, (b) other assets and (c) deposits and other
liabilities which will be owned by Seller when it is acquired by Net.B@nk are
set forth on Schedules A, B and C, respectively;
--------------------
WHEREAS, the Bank, as Purchaser, has agreed to purchase and assume,
and the Seller has agreed to sell, all of Premier's assets and liabilities which
are not being acquired by Net.B@nk as a result of its acquisition of the stock
of Premier;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, covenants and provisions herein contained, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1
DEFINED TERMS
1.1 DEFINED TERMS. The following terms used in this Agreement shall
have the meanings specified below:
(a) "Acquired Deposits" means all of the deposit liabilities of Seller
which are not to be acquired by Net.B@nk and which the Purchaser shall assume at
the Closing and shall also include Seller's routing and transit number which is
#000000000.
(b) "Acquired Liabilities" means all of the liabilities, contingent or
otherwise, of Seller, however created or arising, other than the Acquired
Deposits and the liabilities to be owned by Net.B@nk which are set forth on
Exhibit C.
(c) "Branches" shall mean the offices of Seller.
(d) "Closing" means the closing of the purchase of the assets and
assumption of liabilities of the Branches, and "Closing Date" means the date on
which the Closing takes place.
(e) "Fixed Assets" means the Furniture, Fixtures and Equipment (as
defined below) and the Real Property (as defined below) which the Purchaser
shall purchase at Closing.
(f) "Furniture, Fixtures and Equipment" means the furniture, fixtures
and equipment in the Branches and elsewhere (including safe deposit boxes),
together with any manufacturers' warranties which are assignable and are in
effect, none of which are to be acquired by Net.B@nk, and all of which the
Purchaser shall purchase at the Closing.
(g) "Purchased Assets" shall have the meaning set forth in Section 2.
1.
(h) "Purchased Loans" means all of the loans of Seller which are not
to be acquired by Net.B@nk and which the Purchaser shall purchase at the
Closing.
(i) "Purchased Securities" means all of the securities of Seller,
which are not to be acquired by Net.B@nk and which the Purchaser shall purchase
at the Closing.
(j) "Real Property" means the real property and improvements located
thereon at the Branches, together with all easements and appurtenances belonging
thereto, and all intangible rights, licenses and permits pertaining thereto or
to the use thereof, which the Purchaser shall purchase at the Closing.
(k) "Schedules" referenced herein shall mean the Schedules so marked,
each of which has been initialed for identification by an officer of the
Purchaser, the Seller and Net.B@nk, and bound sets of which have been delivered
to the Seller, the Purchaser and Net.B@nk. Such Schedules are hereby
incorporated by reference herein and made a part hereof, and may be referred to
in this Agreement and in any other related instrument or document without being
attached hereto.
SECTION 2
TRANSFER OF ASSETS
2.1 ASSETS SOLD. On the terms and subject to the conditions of this
Agreement, at the Closing, the Seller shall transfer, convey, assign and deliver
to the Purchaser (without recourse, except as specifically provided in Section 3
and otherwise herein) the following assets (the Purchased Assets):
(a) The Purchased Loans and the Purchased Securities;
(b) All of the Seller's right, title and interest in the Fixed Assets;
(c) All of the cash on hand at the Branches as of the Closing Date;
and
(d) All intangible assets, including, without limitation, all rights
to the name "Premier" and to the Premier Bank routing and transit number.
2.2 DOCUMENTS OF TRANSFER. The sale, transfer, assignment and
delivery of the Purchased Assets shall be effected by the execution and delivery
by the Seller to the Purchaser of general warranty deeds, bills of sale,
endorsements, assignments and other instruments of transfer and conveyance
reasonably satisfactory in form and substance to counsel for the Seller and the
Purchaser. At the Closing, the Seller shall take steps necessary to put the
Purchaser in possession and operating control of the Purchased Assets, and shall
deliver keys, combinations, codes and other necessary access devices and
information relating to the Branches. Good and marketable fee simple title to
2
the Real Property shall be conveyed. The Seller shall cause all deeds to secure
debt and other liens encumbering title to the Real Property to be paid in full
and cancelled of record at or before the Closing; in the event the Seller fails
to do so, the Purchaser may, at its option (without obligation) cause the same
to be paid and released of record, and the Purchaser shall receive a credit
against the Purchase Price for all amounts expended in connection therewith.
2.3 BREACHES WITH THIRD PARTIES. Nothing in this Agreement shall
constitute an agreement to assign any claim, contract, license, lease,
commitment, sales order or purchase order or any claim or right or any benefit
arising thereunder or resulting therefrom if an attempted assignment thereof,
without the consent of a third party thereto, would constitute a breach thereof
or in any way affect the rights of the Purchaser or the Seller thereunder. If
such consent is not obtained, or if an attempted assignment thereof would be
ineffective or would affect the rights of the Seller thereunder so that the
Purchaser would not in fact receive all such rights, the Seller shall cooperate
with the Purchaser in any arrangement desired to provide for the benefits under
any such claims, contracts, licenses, leases, commitments, sales orders or
purchase orders, including enforcement at the cost and for the benefit of the
Purchaser of any and all rights of the Seller against a third party thereto
arising out of the breach or cancellation by such third party or otherwise. Any
transfer or assignment to the Purchaser or the Seller of any property or
property rights or any contract or agreement which shall require the consent or
approval of any third party, shall be made subject to such consent or approval
being obtained.
2.4 PAYMENTS ACCEPTED AFTER THE CLOSING. The Seller shall forward
promptly to the Purchaser:
(a) Any payments (properly endorsed without recourse as necessary)
which are accepted by it on or after the Closing Date that relate in any way to
the Purchased Loans and to provide sufficient information so that any such
payments may be properly applied; and
(b) Any notices or other correspondence which are received on or after
the Closing Date that relate in any way to the Purchased Loans.
SECTION 3
ASSUMPTION OF ACQUIRED DEPOSITS AND LIABILITIES
3.1 ACQUIRED DEPOSITS. At the Closing, the Purchaser shall assume
and agree to pay and discharge the Acquired Deposits. No assurance can be given
by the Seller that the present deposit customers of the Branches shall become or
continue to be customers of the Purchaser, the same being at the sole discretion
of the customers.
3.2 OVERDRAFTS. If any of the accounts which comprise the Acquired
Deposits are overdrawn as of the Closing, the Purchaser shall assume such
accounts without recourse to the Seller and shall pay the Seller the amount of
the overdrafts for those overdrawn accounts assumed.
3
3.3 DOCUMENTATION OF ASSUMPTION. At the Closing, the Purchaser shall
deliver to the Seller an undertaking substantially in the form of Exhibit A,
---------
attached hereto and made a part hereof, under which the Purchaser shall assume
and agree to discharge and pay the Acquired Deposits and the Acquired
Liabilities.
3.4 ASSUMPTION SUBJECT TO CERTAIN TERMS. The Acquired Deposits being
assumed by the Purchaser pursuant to this Section shall be assumed in accordance
with the terms and conditions of the contracts of deposit and the laws, rules
and regulations applicable thereto.
3.5 PAYMENT OF ITEMS BY THE SELLER AFTER CLOSING. If, subsequent to
the assumption of Acquired Deposits pursuant to this Section, the Seller shall
honor any properly drawn check or withdrawal from a transferred account, the
Purchaser shall pay to the Seller any moneys so paid by the Seller to or for the
benefit or account of the said depositor but not in excess of collected funds in
the depositor's account.
3.6 PAYMENT OF ITEMS BY THE PURCHASER AFTER CLOSING. The Purchaser
agrees that it shall pay all properly drawn checks, drafts and withdrawal orders
drawn by the account holders of the depository accounts of customers of the
Seller assumed hereunder, to the extent that the collected balance of the
account is sufficient to permit payment thereof. The Purchaser will promptly
forward to the Seller (or its successor) any checks received by the Purchaser
drawn by the account holders of the depository accounts of customers of the
Seller not assumed hereunder for a period of 30 days following the Closing.
3.7 TRANSFER OF CREDITS BY THE SELLER. The Seller agrees that it
shall transfer to the Purchaser any deposits accepted by it after the Closing
Date for credit to transferred accounts, but the Seller shall be under no
obligation to accept such deposits.
3.8 THE SELLER NOT LIABLE TO PAY. In the event any deposit customer
(whose account has been transferred from the Seller to the Purchaser with the
Branches) instead of accepting the obligation of the Purchaser to pay the
deposit liabilities assumed, shall demand payment for all or any part of any
such assumed deposit liabilities, the Purchaser shall be liable or responsible
for making such payment.
3.9 THE PURCHASER RESPONSIBLE FOR RETURNED ITEMS. The Purchaser
shall pay promptly to the Seller an amount equal to the amount of any checks,
drafts or withdrawal orders credited to an assumed account as of the Closing
Date which are returned to the Seller after the Closing Date.
3.10 ACQUIRED LIABILITIES. At the Closing, the Purchaser shall
assume and agree to pay and discharge the Acquired Liabilities.
SECTION 4
ASSUMPTION OF RISKS
4.1 INSURANCE POLICIES. Effective on the Closing Date, the Seller
shall discontinue its insurance coverage currently maintained in connection with
the Branches. The Purchaser shall be responsible for all casualty and liability
insurance protection for the Branches' premises and the activities conducted
there as of the Closing Date.
4
4.2 PERSONS AND PROPERTY. As of the Closing Date, the Seller shall
discontinue providing the security for persons and property in and around the
Branches' premises it may have provided previous to the Closing Date.
SECTION 5
PURCHASE PRICE AND SETTLEMENT
5.1 PURCHASE PRICE. The purchase price to be paid by the Purchaser
to the Seller at the Closing for the Purchased Assets shall be (a) an amount
equal to the outstanding principal balance of the Purchased Loans plus the
accrued and unpaid interest on the Purchased Loans, (b) the fair market value of
the Purchased Securities as of the day immediately preceding the Closing Date,
(c) the book value of the Fixed Assets, and (d) any cash on hand at the Branches
(the "Purchase Price").
5.2 PAYMENT OF ACQUIRED DEPOSITS AND ASSUMPTION OF ACQUIRED
LIABILITIES BY THE SELLER.
(a) The deposit liabilities to be paid by the Seller to the Purchaser
at the Closing shall be an amount equal to the aggregate principal balance of
the Acquired Deposits and accrued interest thereon less the aggregate amount of
overdrafts for any overdrawn accounts assumed by the Purchaser at the Closing
pursuant to Section 3.2 of this Agreement.
(b) The Acquired Liabilities to be assumed by the Purchaser at the
Closing shall be valued at an amount equal to the amount of the Acquired
Liabilities shown on the Premier balance sheet on the Closing Date.
(c) The Seller shall deduct the Purchase Price to be paid to it by the
Purchaser pursuant to Section 5.1 of this Agreement from the amount provided for
in Section 5.2(a) hereof and shall pay such net amount by wire transfer of funds
to the Purchaser. Such wire transfer of funds shall be received by the
Purchaser by noon of the next business day following the Closing Date.
5.3 PRELIMINARY SETTLEMENT. The amount of cash to be received by and
from the Purchaser at the Closing shall be calculated in accordance with Section
5.1 and Section 5.2 of this Agreement and the Preliminary Settlement Statement
attached hereto and made a part hereof as Exhibit B-1. At the Closing, the
-----------
Seller shall deliver to the Purchaser a copy of the Preliminary Settlement
Statement set forth as Exhibit B-1 hereto which shall set forth the computation
-----------
of the cash due to or from the Seller.
5.4 FINAL SETTLEMENT. Not more than thirty (30) calendar days
following the Closing Date, the parties shall make a final settlement by making
any pro rata adjustments provided for in Section 5.5 of this Agreement. Such
calculations shall be set forth on the Final Settlement Statement attached
hereto and made a part hereof as Exhibit B-2.
-----------
5.5 INTEREST PAID AND EARNED AS OF THE CLOSING DATE. All of the
accrued but unpaid interest earned on the Purchased Loans on the Closing Date
shall be paid by the Purchaser to the Seller and all of the accrued but unpaid
interest earned on the Acquired Deposits or owing on any of the Acquired
Liabilities on the Closing Date shall be paid by the Seller to the Purchaser.
5
Following the Closing Date, all of the interest earned on the Purchased Loans
shall be paid to the Purchaser and all of the interest paid on the Acquired
Deposits shall be the obligation of the Purchaser.
SECTION 6
ACCESS TO THE BRANCHES' PROPERTIES AND RECORDS AND DUE DILIGENCE
6.1 ACCESS AND CONFIDENTIAL TREATMENT. From and after the date of
this Agreement until the Closing, the Seller shall afford to the agents and
representatives of the Purchaser full access, during normal business hours and
upon reasonable notice, to all assets, properties, books, records, information
and materials (including market surveys) relating to the Branches, the Purchased
Loans and the Acquired Deposits, and the Seller shall furnish representatives of
the Purchaser during such period with all such information concerning the
affairs of the Branches as the Purchaser may reasonably request.
6.2 THE PURCHASER'S DUE DILIGENCE. The Purchaser shall have the
right to conduct in good faith a due diligence investigation concerning the
Branches, the Acquired Deposits and the Purchased Assets and to satisfy itself
that such matters are not materially and adversely different from the facts and
conditions represented by the Seller.
6.3 RECORDKEEPING AND ACCESS FOLLOWING THE CLOSING. The Purchaser
shall preserve and safely keep, for as long as may be required by applicable
law, all of the files, books of account and records delivered to the Purchaser
at the Closing with the Branches for the joint benefit of itself and the Seller,
and it shall permit the Seller or its representatives, at any reasonable time
and at the Seller's expense to inspect, make extracts from or copies of, any
such files, books of account or records as the Seller shall deem reasonably
necessary. Following the Closing, the Seller shall permit the Purchaser or its
representatives, at any reasonable time and at the Purchaser's expense to
inspect, make extracts from or copies of any nonconfidential files, books of
account or records in the Seller's possession containing information concerning
the Branches, the Acquired Deposits and the Purchased Loans.
SECTION 7
REPRESENTATIONS AND WARRANTIES OF SELLER
Except as disclosed in writing by the Seller to the Purchaser and
acceptable to the Purchaser, the Seller represents and warrants to the Purchaser
as follows:
7.1 CORPORATE ORGANIZATION. The Seller is a federal savings bank
duly organized, validly existing and in good standing under the laws of the
United States.
7.2 CORPORATE AUTHORITY TO CARRY ON BUSINESS. The Seller has the
requisite corporate power and authority to carry on its business as the same is
now being conducted.
7.3 CORPORATE AUTHORITY TO ENTER INTO THIS AGREEMENT. The Seller has
the requisite corporate power and authority to enter into and to perform this
Agreement and the transactions contemplated by this Agreement, and to sell,
transfer, assign and deliver the Purchased Assets to the Purchaser and to vest
in the Purchaser good and marketable title to the Purchased Assets.
6
7.4 EXECUTION AND DELIVERY; ENFORCEABILITY. The execution, delivery
and performance of this Agreement and the transactions contemplated by this
Agreement by the Seller have been duly and validly authorized by all requisite
corporate action, and this Agreement is binding and enforceable against the
Seller in accordance with its terms.
7.5 STATUS OF THE ACQUIRED DEPOSITS. All of the Acquired Deposits
were obtained and remain in material compliance with all applicable laws and
regulations, and are properly documented in a manner materially consistent with
such laws and regulations and with good banking practices.
7.6 STATUS OF THE PURCHASED LOANS.
(a) The Seller is the sole owner of each Purchased Loan except for
those Purchased Loans in which participation interests have been sold. No
Purchased Loan has been pledged or encumbered, except as collateral for Acquired
Liabilities to be assumed by Purchaser. The principal balance of each Purchased
Loan as shown on the Seller's books and records is true and correct as of the
last date shown thereon.
(b) To the best knowledge of the Seller: (i) each Purchased Loan is a
valid loan and was made and remains in compliance in all material respects with
all applicable laws and regulations, (ii) each Purchased Loan is properly
documented in a manner consistent with applicable laws and regulations and with
good working practice and all purported signatures on and executions of any
document in connection with such loan are genuine and (iii) all loan
documentation has been actually signed or executed by all necessary parties, and
the Seller has custody of all documents or microfilm records thereof related to
such loan.
(c) All Purchased Loans (and any notes, other evidences of
indebtedness or security agreements associated therewith) transferred at the
Closing by the Seller to the Purchaser shall be transferred without recourse and
without any warranties or representations as to the collectability of any such
loans, the value of the collateral securing same or the creditworthiness of any
of the obligors.
7.7 STATUS OF THE PURCHASED SECURITIES. All of the Purchased
Securities were acquired and remain in material compliance with all applicable
laws and regulations, and are properly documented in a manner materially
consistent with such laws and regulations and with good banking practices.
7.8 NO VIOLATIONS. The execution, delivery and performance of this
Agreement and the transactions contemplated by this Agreement do not and shall
not violate any provision of law to which the Seller is subject and do not and
shall not conflict with or result in the violation or breach of any condition or
provision of, or constitute a default under, any contract, right, lease (except
as previously disclosed to the Purchaser and with respect to which the Seller
shall obtain the necessary consents), pledge, lien, security interest,
instrument, indenture, mortgage, charge, encumbrance, agreement, order, writ,
injunction, decree or judgment to which the Seller is a party or which is
binding on the Seller or to which any of the property or assets of the Seller is
subject. No consent, license, approval or authorization of or designation,
declaration or filing with any governmental authority or other person or entity
is required on the part of the Seller (other than as provided for or
contemplated hereby) in connection with the execution, delivery or performance
7
of this Agreement or the consummation of the transactions contemplated by this
Agreement. The Seller is not in default under any lease, agreement, contract,
commitment or other obligation which the Purchaser is assuming or which affects
the property rights being transferred to the Purchaser.
7.9 NO ADVERSE LITIGATION. Except as previously disclosed to the
Purchaser, there is no investigation, action, arbitration, suit, proceeding or
claim pending or threatened against the Seller with respect to, or adversely
affecting, the Branches or the Purchased Assets or the Acquired Deposits or the
consummation of the transactions contemplated by this Agreement before or by any
federal, state, municipal or other governmental department, commission, board,
agency or instrumentality, domestic or foreign, nor does there exist any basis
or grounds for any such investigation, action, arbitration, suit, proceeding or
claim.
7.10 LIMITATIONS OF WARRANTIES. Except as may be expressly
represented or warranted in this Agreement by the Seller, the Seller makes no
representations or warranties whatsoever, express or implied, with regard to any
Purchased Asset, any Acquired Deposits or any other liability or obligation
being assumed by the Purchaser, and all Fixed Assets are sold and conveyed in
"AS IS" condition, with no warranties by the Seller as to their future
performance or condition.
SECTION 8
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Except as disclosed in writing by the Purchaser to the Seller and
acceptable to the Seller, the Purchaser represents and warrants to the Seller as
follows:
8.1 CORPORATE ORGANIZATION. The Purchaser is a commercial bank
validly existing and in good standing under the laws of the State of Georgia.
8.2 CORPORATE AUTHORITY TO CARRY ON BUSINESS. The Purchaser has the
requisite corporate power and authority to carry on its business as the same is
now being conducted.
8.3 CORPORATE AUTHORITY TO ENTER THIS AGREEMENT. The Purchaser has
full corporate power and authority to enter into and to perform this Agreement
and the transactions contemplated by this Agreement.
8.4 EXECUTION AND DELIVERY; ENFORCEABILITY. The execution, delivery
and performance of this Agreement by the Purchaser have been duly and validly
authorized by all requisite corporate action, and this Agreement is binding and
enforceable against the Purchaser in accordance with its terms.
8
8.5 NO VIOLATIONS. The execution, delivery and performance of this
Agreement and the transactions contemplated by this Agreement do not and shall
not violate any provision of law to which the Purchaser is subject and do not
and shall not conflict with or result in the violation or breach of any
condition or provision of, or constitute a default under, any contract, right,
lease, pledge, lien, security interest, instrument, indenture, mortgage, charge,
encumbrance, agreement, order, writ, injunction, decree or judgment to which the
Purchaser is a party or which is binding on the Purchaser or to which any of the
property or assets of the Purchaser is subject. No consent, license, approval
or authorization of or designation, declaration or filing with any governmental
authority or other person or entity is required on the part of the Purchaser
(other than as provided by or contemplated hereby) in connection with execution,
delivery or performance of this Agreement or the consummation of the
transactions contemplated by this Agreement.
8.6 NO ADVERSE LITIGATION. There is no investigation, action,
arbitration, suit, proceeding or claim pending or threatened against or
affecting the Purchaser that might materially and adversely affect or might
impair the consummation of the transactions contemplated by this Agreement
before or by any federal, state, municipal or other governmental department,
commission, board, agency or instrumentality, domestic or foreign, nor does
there exist any basis or grounds for any such investigation, action,
arbitration, suit, proceeding or claim.
SECTION 9
ADDITIONAL UNDERTAKINGS OF THE SELLER
9.1 CONDUCT OF BUSINESS PENDING CLOSING. From the date of this
Agreement to the Closing Date, the Seller shall:
(a) Use its best efforts to promote the successful operations of the
Branches and avoid any act that would materially and adversely affect the value
of the Purchased Assets;
(b) Operate the business of the Branches only in an ordinary and usual
businesslike manner consistent with safe and sound banking practices and the
Seller's ordinary course of business;
(c) Not discriminate against the Branches with respect to advertising,
products offered, or staffing and operations support;
(d) Seek the concurrence of the Purchaser prior to hiring or replacing
any manager of the Branches; and
(e) Not take any action which would cause any representation or
warranty to be untrue as if made at the Closing Date.
9.2 DOCUMENTATION AT THE CLOSING AND FURTHER ASSURANCES. At the
Closing, the Seller shall transfer, assign and deliver to the Purchaser all
existing records, books, papers, collateral and agreements of the Seller
relating to the Purchased Assets and the Acquired Deposits including but not
limited to signature cards, orders, contracts, deposit slips, cancelled checks,
withdrawal orders and records of accounts. The Seller agrees that it shall, at
9
the Closing and at any time and from time to time after the Closing, upon
request of the Purchaser do, execute, acknowledge and deliver, or cause to be
done, executed, acknowledged and delivered, all such further acts, deeds,
assignments, transfers, conveyances, powers of attorney and assurances as may be
required for the better assigning, transferring, granting, conveying, assuring
and confirming to the Purchaser, or to its successors and assigns, or for aiding
and assisting in collecting and reducing to possession, any or all of the
Purchased Assets and the Acquired Deposits and the performance of any or all
obligations of the Seller hereunder.
SECTION 10
ADDITIONAL UNDERTAKINGS OF THE PURCHASER
10.1 THE PURCHASER'S CONTACT WITH CUSTOMERS. Prior to the Closing,
the Purchaser at its expense may notify the customers of the Branches of the
pending transfer of his, her or its deposit account or loan. The Purchaser
agrees to use its best efforts to work with deposit customers of the Branches in
securing new checks, deposit slips and other items with the routing and code
numbers of the Purchaser prior to the Closing Date.
10.2 REGULATORY FILINGS. The Purchaser shall file all necessary
filings, applications and notices concerning the transactions contemplated by
this Agreement with the appropriate regulatory authorities by February 15, 1997.
SECTION 11
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PURCHASER
The obligation of the Purchaser to close under this Agreement shall be
subject to the following conditions (all or any of which may be waived, in whole
or in part, by the Purchaser).
11.1 REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties made by the Seller in this Agreement shall have been true and correct
when made and shall be true and correct on and as of the Closing Date with the
same force and effect as though such representations and warranties had been
made on and as of such date.
11.2 OBLIGATIONS PERFORMED. The Seller shall have performed all
covenants and obligations and complied with all conditions required by this
Agreement to be performed or complied with by it on or before the Closing Date.
11.3 CERTIFICATE OF COMPLIANCE. The Seller shall have executed and
delivered to the Purchaser a certificate of compliance substantially in the form
and substance of Exhibit C attached hereto and made a part hereof, dated as of
--------
the Closing Date.
11.4 NO ADVERSE LITIGATION. No action, suit or proceeding shall have
been instituted or threatened against the Seller or the Purchaser by or before
any court or governmental agency to restrain or prohibit, or to obtain damages
in respect of, or which is related to or arises out of, this Agreement or the
consummation of the transactions contemplated hereby which in the opinion of the
Purchaser makes it inadvisable to proceed to the Closing under this Agreement.
10
11.5 REGULATORY APPROVALS. The Purchaser shall have obtained, from
all necessary governmental and regulatory authorities, all necessary consents to
and authorizations and approvals of this Agreement and the transactions
contemplated by this Agreement and the related transfer of ownership and control
of all licenses, permits or other governmental authorizations necessary to carry
on all aspects of the business of the Branches.
SECTION 12
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE SELLER
The obligation of the Seller to close under this Agreement shall be
subject to the following conditions (all or any of which may be waived, in whole
or in part, by the Seller except Section 12.5):
12.1 REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties made by the Purchaser in this Agreement shall have been true and
correct when made and shall be true and correct on and as of the Closing Date
with the same force and effect as though such representations and warranties had
been made on and as of such date.
12.2 OBLIGATIONS PERFORMED. The Purchaser shall have performed all
covenants and obligations and complied with all conditions required by this
Agreement to be performed or complied with by it on or before the Closing Date.
12.3 CERTIFICATE OF COMPLIANCE. The Purchaser shall have executed
and delivered to the Seller a certificate in substantially the form and
substance of Exhibit D attached hereto and made a part hereof, dated as of the
---------
Closing Date.
12.4 NO ADVERSE LITIGATION. No action, suit or proceeding shall have
been instituted or threatened against the Seller or the Purchaser by or before
any court or governmental agency to restrain or prohibit, or to obtain damages
in respect of, or which is related to or arises out of, this Agreement or the
consummation of the transactions contemplated hereby which in the opinion of the
Seller makes it inadvisable to proceed to the Closing under this Agreement.
12.5 REGULATORY APPROVALS. The Seller shall have obtained, from all
necessary governmental and regulatory authorities, all necessary consents to and
authorizations and approvals of this Agreement and the transactions contemplated
by this Agreement and the related transfers of ownership and control of all
licenses, permits or other governmental authorizations necessary to carry on all
aspects of the business of the Branches.
SECTION 13
THE CLOSING
13.1 TIME AND PLACE. The Closing of this Agreement shall take place
as soon as practicable after the parties have received all required approvals
from their respective regulatory authorities, but not later than as of March 31,
1997. The Closing shall be held at an hour and location to be agreed upon by
the parties hereto prior to the date set for the Closing.
11
SECTION 14
TERMINATION
14.1 METHODS OF TERMINATION. This Agreement may be terminated in
any of the following ways:
(a) At or prior to the Closing, by the mutual consent in writing of
the Purchaser and the Seller;
(b) At the Closing, by the Purchaser in writing, if the conditions set
forth in Section 11 of this Agreement shall not have been met by the Seller or
waived in writing by the Purchaser;
(c) At the Closing, by the Seller in writing, if the conditions set
forth in Section 12 of this Agreement shall not have been met by the Purchaser
or waived in writing by the Seller; or
(d) By the Seller or the Purchaser in writing at any time after any of
the regulatory authorities has denied or has indicated its intent to deny any
application of the Purchaser for approval of the transaction(s) contemplated
herein.
14.2 PROCEDURE UPON TERMINATION. In the event of termination
pursuant to Section 14.1 hereof, written notice thereof shall forthwith be given
to the other party, and this Agreement shall terminate upon receipt of such
notice immediately unless an extension is consented to by the party having the
right to terminate.
14.3 AUTOMATIC TERMINATION. Unless mutually extended by the Board of
Directors (or any duly authorized Committee of the Board) of the Purchaser and
the Seller, and any provision of this Agreement to the contrary notwithstanding,
this Agreement shall terminate, and the purchase, sale, and assumption
contemplated hereby shall be abandoned, automatically and without action on the
part of either party, and without liability of either party to the other party,
unless the purchase, sale and assumption contemplated hereby is consummated as
of or before March 31, 1997.
SECTION 15
MISCELLANEOUS
15.1 ENTIRE AGREEMENT. This Agreement, including any exhibits and
schedules hereto, represents the entire agreement of the parties relating to the
subject matter hereof. All prior negotiations between the parties are merged
into this Agreement and there are no understandings or agreements other than
those incorporated herein.
15.2 MODIFICATIONS AND WAIVERS. This Agreement may not be modified
except by an instrument in writing duly executed by the parties. Any waiver
must be in writing.
15.3 NO BROKER OR FINDER. The Purchaser and the Seller each
represents and warrants to the other that no broker or finder has acted for it
in connection with this Agreement or the transactions contemplated hereby.
12
15.4 NO SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties set forth in this Agreement shall not survive the
Closing Date.
15.5 BINDING EFFECT. All terms of this Agreement shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and permitted assigns.
15.6 COUNTERPARTS. This Agreement may be executed simultaneously in
one or more counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one and the same instrument.
15.7 EXPENSES. Each party shall bear its own out-of-pocket expenses
incurred in connection with this Agreement and all transactions contemplated
hereunder.
15.8 NOTICES. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered or mailed, certified, return receipt requested, with
postage prepaid, to the other party at its respective address reflected on
Exhibit E attached hereto, and shall be effective when delivered or when the
---------
first attempt is made to deliver the same by mail, whichever is earlier.
15.9 TIME OF THE ESSENCE. The parties hereto acknowledge that time
is of the essence with respect to the performance of this Agreement.
15.10 GOVERNING LAW. Except to the extent governed by federal law,
this Agreement shall be construed in accordance with the laws of the State of
Georgia applicable to agreements made and to be performed in Georgia.
15.11 HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation
hereof. The use of the singular in this Agreement shall be deemed to be or
include the plural (and vice versa), whenever appropriate.
15.12 SEVERABILITY. If any provision of this Agreement is invalid or
unenforceable, the balance of this Agreement shall remain in effect.
15.13 PUBLIC ANNOUNCEMENTS. The parties hereto agree that all public
announcements relating to this Agreement or to the transactions contemplated
hereby, including announcements to employees, shall be made only as may be
agreed upon in advance by the parties hereto.
15.14 ASSIGNABILITY. The rights of the Purchaser in and to this
Agreement and the transactions contemplated hereunder shall be assignable by the
Purchaser only with the Seller's prior consent.
[Remainder of this page intentionally left blank]
13
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this
Agreement to be executed by their duly authorized officers and their corporate
seals to be affixed hereto as of the day and year first above written.
SELLER:
ATTEST: PREMIER BANK, F.S.B.
-----------------
Secretary By:
--------------------------
[SEAL] Name:
------------------------
Title:
-----------------------
PURCHASER:;
ATTEST: FIRST ALLIANCE BANK
-----------------
Secretary By:
--------------------------
[SEAL] Name:
------------------------
Title:
-----------------------
14
EXHIBIT A
ASSUMPTION OF LIABILITIES
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is
hereby acknowledged, First Alliance Bank (the "Purchaser"), pursuant to Section
-------
3.3 of the Purchase and Assumption Agreement , between the Purchaser and Premier
----
Bank, FSB (the "Seller"), dated December 19, 1996 (the "Agreement"), has
executed and delivered this Assumption of Liabilities. Unless otherwise defined
herein, all capitalized terms used in this Assumption of Liabilities shall have
the meanings attributed to them in the Agreement.
From and after the close of business on the Closing Date, the
Purchaser hereby assumes and agrees to pay and discharge the following
liabilities of the Seller originated at or otherwise attributable to the
Branches.
(a) The Acquired Deposits being transferred by the Seller, with
accrued interest, as of the date shown below; and
(b) All Acquired Liabilities, including, without limiting the
generality of the foregoing, all leases of personal property, assigned, sold,
transferred and delivered to Purchaser.
This Assumption of Liabilities shall not create in any third parties
(including, but not limited to, holders of the Acquired Deposits or the Acquired
Liabilities) (a) any rights or remedies against the Purchaser which such parties
did not have against the Seller prior to the execution and delivery of this
Assumption of Liabilities with respect to the Acquired Deposits or the Acquired
Liabilities other than for payment of principal and accrued interest as of the
date hereof, and interest hereafter accrued in accordance with the terms of the
Acquired Deposits.
IN WITNESS WHEREOF, the Purchaser acting through its duly authorized
officers has executed this Assumption of Liabilities in accordance with . of the
Agreement, this _____ day of __________, 1997.
ATTEST: FIRST ALLIANCE BANK
By:
-------------------------------------- -------------------------------
Name:
Secretary -----------------------------
Title:
----------------------------
[SEAL]
Accepted this _____ day of __________, 1997.
PREMIER BANK, F.S.B.
By:
--------------------------
Name:
-------------------------
Title:
------------------------
EXHIBIT B-1
PRELIMINARY SETTLEMENT STATEMENT
Pursuant to Section 5.3 of that certain Purchase and Assumption Agreement,
------------
between First Alliance Bank (the "Purchaser") and Premier Bank, FSB (the
"Seller"), dated December 19, 1996 (the "Agreement"), the Seller hereby delivers
this Preliminary Settlement Statement to the Purchaser. Unless otherwise
defined herein, all capitalized terms used in this Preliminary Settlement
Statement shall have the meanings attributed to them in the Agreement.
The Seller and the Purchaser agree that the following is the computation of
the cash due to the Purchaser (or if negative, to the Seller) in settlement at
the Closing:
Total Acquired Deposits assumed by the
Purchaser at the Closing (including
accrued interest) $
-----------------
Minus: Aggregate amount of overdrafts for any
overdrawn accounts assumed by the
Purchaser at the Closing $
-----------------
Net Acquired Deposits assumed by the $
Purchaser at the Closing -----------------
Plus: All Acquired Liabilities $
------------------
Minus: The Purchase Price:
An amount equal to the outstanding
principal balance of the Purchased Loans
plus the accrued and unpaid interest on
the Purchased Loans (net of reserve
allocable to the Purchased Loans) $
----------------
An amount equal to the fair market value
of the Purchased Securities $
----------------
An amount equal to the book value of
the Fixed Assets $
----------------
Any cash on hand at the Branches
$
----------------
The Purchase Price $
--------------
Equals: Net cash due to Purchaser (or if negative,
to Seller) $
--------------
The Seller and the Purchaser agree that the above computation is based
on the general ledger balances, other financial information available and
estimates made therefrom at the Closing and all figures and computations herein
shall be subject to adjustment to the extent the parties deem appropriate. The
Purchaser and the Seller agree that there shall be a Final Settlement Statement,
containing all necessary or required adjustments to this Preliminary Settlement
Statement, made and delivered by the Seller (and to be reviewed and agreed to by
the Purchaser) within thirty (30) calendar days following the Closing Date. The
form and substance of the Final Statement can be found at Exhibit B-2 of the
-----------
Agreement.
The Seller and the Purchaser agree that the computation as set forth
above has been done in accordance with the Agreement and that the Final
Settlement Statement shall be calculated and delivered in accordance with the
Agreement.
IN WITNESS WHEREOF, the Purchaser and the Seller acting through their
duly authorized officers have executed this Preliminary Settlement Statement in
accordance with Section 5.3 of the Agreement, this _____ day of __________,
-----------
1997.
PREMIER BANK, F.S.B.
By:
ATTEST: ----------------------------
Name:
--------------------------
Title:
-------------------------
-------------------------
Secretary
[SEAL]
FIRST ALLIANCE BANK
By:
ATTEST: ----------------------------
Name:
--------------------------
Title:
-------------------------
-------------------------
Secretary
[SEAL]
EXHIBIT B-2
FINAL SETTLEMENT STATEMENT
Pursuant to Section 5.4 of that certain Purchase and Assumption
------------
Agreement, between First Alliance Bank (the "Purchaser") and Premier Bank, FSB
(the "Seller"), dated December 19, 1996 (the "Agreement"), the Seller hereby
delivers this Final Settlement Statement to the Purchaser. Unless otherwise
defined herein, all capitalized terms used in this Final Settlement Statement
shall have the meanings attributed to them in the Agreement.
The Seller and the Purchaser agree that the following is the final
computation of the cash due to (or from) the Purchaser in settlement of the
Purchase of the Branches:
Cash due to the Purchaser from the Seller
Total Acquired Deposits and Acquired
Liabilities assumed by the Purchaser
after the Closing Date (including accrued $
interest) -----------------
Plus: Deposits accepted by the Seller after the
Closing Date for deposit in accounts
assumed by the Purchaser at the Closing
and not previously delivered to the
Purchaser by the Seller
$
------------------
Plus: Pro-rata Expenses*
Expenses accrued by the Seller but
unpaid prior to the Closing Date $
-------------------
Minus: Expenses incurred after the Closing Date
but prepaid by the Seller $
-------------------
Net Pro-Rata Expenses $
---------------
Plus: Other Adjustments (if any) $
---------------
Plus: Aggregate amount of any checks, drafts
or withdrawal orders which had been
credited to an account assumed by the
Purchaser as of the Closing Date but
were returned to the Seller after the
Closing Date and have not been
previously paid by the Purchaser to the
Seller $
---------------
Plus: Other Adjustments (if any) $
---------------
Equals: Cash due to/from Purchaser $
---------------
*Including property taxes, rents, utility payments and similar expenses relating
to the physical plant of the Branches and other expenses relating to the
Acquired Deposits.
IN WITNESS WHEREOF, the Purchaser and the Seller acting through their
duly authorized officers have executed this Final Settlement Statement in
accordance with Section 5.4 of the Agreement, this _____ day of __________,
-----------
1997.
PREMIER BANK, F.S.B.
ATTEST By:
----------------------------
Name:
--------------------------
Title:
-------------------------
Secretary
---------------------------
[SEAL] FIRST ALLIANCE BANK
ATTEST By:
----------------------------
Name:
--------------------------
Title:
-------------------------
--------------------------
Secretary
[SEAL]
EXHIBIT C
SELLER'S COMPLIANCE CERTIFICATE
Premier Bank, FSB (the "Seller") hereby certifies that:
(1) The representations and warranties made by the Seller in Section 7 of the
---------
Purchase and Assumption Agreement, between the Seller and First Alliance
Bank, dated December 19, 1996 (the "Agreement"), are true and correct as of
the date hereof.
(2) The Seller has complied with or satisfied the conditions required by
Section 11 of the Agreement to be complied with or satisfied by it prior to
----------
or as of the date hereof.
IN WITNESS WHEREOF, the Seller has caused this Certificate to be
executed by its duly authorized officers and its seal to be affixed hereto as of
the _____ day of __________, 1997.
PREMIER BANK, F.S.B.
By:
---------------------------
Name:
-------------------------
Title:
ATTEST: ------------------------
--------------------------------------
Secretary
[SEAL]
EXHIBIT D
PURCHASER'S COMPLIANCE CERTIFICATE
First Alliance Bank (the "Purchaser") hereby certifies that:
(1) The representations and warranties made by the Purchaser in Section 8 of
---------
the Purchase and Assumption Agreement, between Premier Bank, F.S.B. and
Purchaser, dated December 19, 1996 (the "Agreement"), are true and correct
as of the date hereof.
(2) The Purchaser has complied with or satisfied the conditions required by
Section 12 of the Agreement to be complied with or satisfied by it prior to
----------
or as of the date hereof.
IN WITNESS WHEREOF, the Seller has caused this Certificate to be
executed by its duly authorized officers and its seal to be affixed hereto as of
the _____ day of __________, 1997.
FIRST ALLIANCE BANK
By:
---------------------------
Name:
-------------------------
Title:
ATTEST: ------------------------
--------------------------------------
Secretary
[SEAL]
EXHIBIT E
NOTICES
1. ADDRESSES:
---------
For Seller:
----------
Premier Bank, FSB
0000 Xxxxxxx Xxxxx
000 Xxxx Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
With Copy To:
------------
Womble, Carlyle,
Xxxxxxxxx & Rice, PLLC
Xxxxx 000
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
For Purchaser:
-------------
First Alliance Bank
00 Xxxxxxx Xxxxxxx
P. O. Xxx 000000
Xxxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxx
Executive Vice President
SCHEDULE A
The loans which will be acquired by Net.B@nk, Inc., pursuant to that certain
Amended and Restated Stock Purchase Agreement of even date herewith, between
Net.B@nk, Inc. and First Alliance/Premier Bancshaes, Inc., shall consist of the
following:
1. Five Million Dollars($5,000,000.00) in mortgage loans held for sale to
be more particularly indentified at Closing.
SCHEDULE B
The remaining assets to be acquired by Net.B@nk, Inc., pursuant that certain
Amended and Restated Stock Purchase Agreement of even date herewith, between
Net.B@nk, Inc. and First Alliance/Premier Bancshares, Inc. shall consist of the
following:
1. The Federal Stock Charter of Premier Bank, FSB (Charter Number 6205);
2. One Hundred Thousand Dollars ($100,000.00) in capital which will be
paid to First Alliance/Premier Bancshares, Inc. at book value in connection with
the consummation of the Amended and Restated Stock Purchase Agreement; and
3. Other miscellaneous assets, to be more particularly identified at
Closing.
SCHEDULE C
The Deposits and Other Liabilities to be acquired by Net.B@nk, Inc., pursuant
that certain Amended and Restated Stock Purchase Agreement of even date
herewith, between Net.B@nk, Inc. and First Alliance/Premier Bancshares, Inc.
shall consist of Five Million Dollars ($5,000,000.00) in certificates of deposit
to be more particularly identified at Closing.
