Exhibit 10.1


 


PURCHASE AND
ASSUMPTION AGREEMENT


WHOLE BANK


 


ALL DEPOSITS


 


AMONG


 


FEDERAL
DEPOSIT INSURANCE CORPORATION,

RECEIVER OF BANKUNITED, FSB

CORAL GABLES, FLORIDA


 


FEDERAL
DEPOSIT INSURANCE CORPORATION


 


and


 


BANKUNITED


 


DATED AS OF


MAY 21,
2009


 

















 


TABLE OF
CONTENTS


 


	
  ARTICLE I DEFINITIONS

  	
  2

  
	
   

  	
   

  
	
  ARTICLE II ASSUMPTION OF LIABILITIES

  	
  8

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Liabilities
  Assumed by Assuming Bank

  	
  8

  
	
  2.2

  	
  Interest on
  Deposit Liabilities

  	
  10

  
	
  2.3

  	
  Unclaimed
  Deposits

  	
  10

  
	
  2.4

  	
  Employee
  Plans

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE III PURCHASE OF ASSETS

  	
  11

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Assets
  Purchased by Assuming Bank

  	
  11

  
	
  3.2

  	
  Asset
  Purchase Price

  	
  11

  
	
  3.3

  	
  Manner of
  Conveyance; Limited Warranty; Nonrecourse: Etc.

  	
  12

  
	
  3.4

  	
  Puts of
  Assets to the Receiver

  	
  12

  
	
  3.5

  	
  Assets Not
  Purchased by Assuming Bank

  	
  13

  
	
  3.6

  	
  Retention
  or Repurchase of Assets Essential to Receiver

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV ASSUMPTION OF CERTAIN DUTIES AND
  OBLIGATIONS

  	
  16

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Continuation
  of Banking Business

  	
  16

  
	
  4.2

  	
  Reserved

  	
  16

  
	
  4.3

  	
  Agreement
  with Respect to Safe Deposit Business

  	
  16

  
	
  4.4

  	
  Reserved

  	
  16

  
	
  4.5

  	
  Reserved

  	
  16

  
	
  4.6

  	
  Agreement
  with Respect to Bank Premises

  	
  16

  
	
  4.7

  	
  Agreement
  with Respect to Leased Data Processing Equipment

  	
  19

  
	
  4.8

  	
  Agreement
  with Respect to Certain Existing Agreements

  	
  20

  
	
  4.9

  	
  Informational
  Tax Reporting

  	
  20

  
	
  4.10

  	
  Insurance

  	
  21

  
	
  4.11

  	
  Office
  Space for Receiver and Corporation

  	
  21

  
	
  4.12

  	
  Agreement
  with Respect to Continuation of Group Health Plan Coverage for Former
  Employees of the Failed Bank

  	
  21

  
	
  4.13

  	
  Reserved

  	
  22

  
	
  4.14

  	
  Reserved

  	
  22

  
	
  4.15

  	
  Agreement
  with Respect to Loss Sharing

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE V DUTIES WITH RESPECT TO DEPOSITORS OF THE
  FAILED BANK

  	
  23

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Payment of
  Checks, Drafts and Orders

  	
  23

  
	
  5.2

  	
  Certain
  Agreements Related to Deposits

  	
  23

  
	
  5.3

  	
  Notice to
  Depositors

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI RECORDS

  	
  23

  



 


i

















 


	
  6.1

  	
  Transfer of
  Records

  	
  23

  
	
  6.2

  	
  Delivery of
  Assigned Records

  	
  24

  
	
  6.3

  	
  Preservation
  of Records

  	
  24

  
	
  6.4

  	
  Access to
  Records; Copies

  	
  24

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII FIRST LOSS TRANCHE

  	
  25

  
	
   

  	
   

  
	
  ARTICLE VIII ADJUSTMENTS

  	
  25

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Pro Forma
  Statement

  	
  25

  
	
  8.2

  	
  Correction
  of Errors and Omissions; Other Liabilities

  	
  26

  
	
  8.3

  	
  Payments

  	
  26

  
	
  8.4

  	
  Interest

  	
  26

  
	
  8.5

  	
  Subsequent
  Adjustments

  	
  26

  
	
  8.6

  	
  Disagreements

  	
  27

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX CONTINUING COOPERATION

  	
  28

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  General
  Matters

  	
  28

  
	
  9.2

  	
  Additional
  Title Documents

  	
  28

  
	
  9.3

  	
  Claims and
  Suits

  	
  28

  
	
  9.4

  	
  Payment of
  Deposits

  	
  29

  
	
  9.5

  	
  Withheld
  Payments

  	
  29

  
	
  9.6

  	
  Proceedings
  with Respect to Certain Assets and Liabilities

  	
  29

  
	
  9.7

  	
  Information

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE X CONDITION
  PRECEDENT

  	
  30

  
	
   

  	
   

  
	
  ARTICLE XI REPRESENTATIONS AND WARRANTIES OF THE
  ASSUMING BANK

  	
  30

  
	
   

  	
   

  
	
  ARTICLE XII INDEMNIFICATION

  	
  31

  
	
   

  	
   

  	
   

  
	
  12.1

  	
  Indemnification
  of Indemnitees

  	
  31

  
	
  12.2

  	
  Conditions
  Precedent to Indemnification

  	
  35

  
	
  12.3

  	
  No
  Additional Warranty

  	
  36

  
	
  12.4

  	
  Indemnification
  of Receiver and Corporation

  	
  36

  
	
  12.5

  	
  Obligations
  Supplemental

  	
  36

  
	
  12.6

  	
  Criminal
  Claims

  	
  37

  
	
  12.7

  	
  Limited
  Guaranty of the Corporation

  	
  37

  
	
  12.8

  	
  Subrogation

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII MISCELLANEOUS

  	
  37

  
	
   

  	
   

  	
   

  
	
  13.1

  	
  Entire
  Agreement

  	
  37

  
	
  13.2

  	
  Headings

  	
  37

  
	
  13.3

  	
  Counterparts

  	
  37

  
	
  13.4

  	
  GOVERNING
  LAW

  	
  38

  



 


ii

















 


	
  13.5

  	
  Successors

  	
  38

  
	
  13.6

  	
  Modification;
  Assignment

  	
  38

  
	
  13.7

  	
  Notice

  	
  38

  
	
  13.8

  	
  Manner of
  Payment

  	
  39

  
	
  13.9

  	
  Costs, Fees
  and Expenses

  	
  39

  
	
  13.10

  	
  Waiver

  	
  39

  
	
  13.11

  	
  Severabilitv

  	
  39

  
	
  13.12

  	
  Term of
  Agreement

  	
  39

  
	
  13.13

  	
  Survival of
  Covenants, Etc.

  	
  40

  



 


SCHEDULES


 


	
  2.1

  	
  Certain Liabilities Assumed

  
	
  2.1(a)

  	
  Excluded Deposit Liability Accounts

  
	
  3.1

  	
  Certain Assets Purchased

  
	
  3.1(a)

  	
  Subsidiary Entities Acquired

  
	
  3.2

  	
  Purchase Price of Assets or Assets

  
	
  4.15A

  	
  Single Family Loss Share Loans

  
	
  4.15B

  	
  Commercial Loss Share Loans

  
	
  4.15C

  	
  Shared-Loss MTM Assets

  
	
  7

  	
  Calculation of Deposit Premium

  



 


EXHIBITS


 


	
  2.3

  	
  Form of Final Legal Notice and Form of
  Affidavit of Mailing

  
	
  4.15A

  	
  Single Family Shared-Loss Agreement

  
	
  4.15B

  	
  Commercial and Other Loans Shared-Loss Agreement

  
	
  4.15C

  	
  Shared-Loss MTM Assets

  
	
  9.2

  	
  Limited Power of Attorney

  



 


iii














Exhibit 10.1


 


PURCHASE AND
ASSUMPTION AGREEMENT


 


WHOLE BANK


 


ALL DEPOSITS


 


THIS
AGREEMENT,
made and entered into as of the 21st day of May, 2009, by and among the FEDERAL DEPOSIT INSURANCE CORPORATION, RECEIVER of BANKUNITED, FSB, CORAL GABLES, FLORIDA (the “Receiver”), BANKUNITED, a de novo federal savings association organized
under the laws of the United States of America, and having its principal place
of business in Coral Gables, Florida (the “Assuming Bank”), and the FEDERAL DEPOSIT INSURANCE CORPORATION, organized under the
laws of the United States of America and having its principal office in
Washington, D.C., acting in its corporate capacity (the “Corporation”).


 


WITNESSETH:


 


WHEREAS, on Bank Closing, the Chartering Authority closed
BANKUNITED, FSB (the “Failed Bank”) pursuant to applicable law and the
Corporation was appointed Receiver thereof; and


 


WHEREAS, the Assuming Bank desires to purchase certain
assets and assume certain deposit and other liabilities of the Failed Bank, and
the Assuming Bank’s holding company, BU Financial Holdings LLC, a Delaware
limited liability company, desires to provide a warrant to the Corporation (“Warrant”),
on the terms and conditions set forth in this Agreement, the Addendum to the
Purchase and Assumption Agreement, and the Warrant; and


 


WHEREAS, pursuant to 12 U.S.C.  Section 1823(c)(2)(A), the Corporation
may provide assistance to the Assuming Bank to facilitate the transactions
contemplated by this Agreement, which assistance may include indemnification
pursuant to Article XII; and


 


WHEREAS, the Board of Directors of the Corporation (the “Board”)
has determined to provide assistance to the Assuming Bank on the terms and
subject to the conditions set forth in this Agreement; and


 


WHEREAS, the Board has determined pursuant to 12
U.S.C.  Section 1823(c)(4)(A) that
such assistance is necessary to meet the obligation of the Corporation to
provide insurance coverage for the insured deposits in the Failed Bank; and


 


NOW
THEREFORE, in
consideration of the mutual promises herein set forth and other valuable
consideration, the parties hereto agree as follows:


 

















 


ARTICLE I

DEFINITIONS


 


Capitalized terms used in this
Agreement shall have the meanings set forth in this Article 1, or
elsewhere in this Agreement.  As used
herein, words imparting the singular include the plural and vice versa.


 


“Accounting
Records” means the general ledger and subsidiary ledgers and
supporting schedules which support the general ledger balances.


 


“Acquired
Subsidiaries” means the Subsidiaries of the Failed Bank listed
on Schedule 3.1a.


 


“Affiliate”
of any Person means any director, officer, or employee of that Person and any
other Person (1) who is directly or indirectly controlling, or controlled
by, or under direct or indirect common control with, such Person, or (ii) who
is an affiliate of such Person as the term “affiliate” is defined in Section 2
of the Bank Holding Company Act of 1956, as amended, 12 U.S.C.  Section 1841.


 


“Agreement”
means this Purchase and Assumption Agreement by and among the Assuming Bank,
the Corporation and the Receiver, as amended or otherwise modified from time to
time.


 


“Assets”
means all assets of the Failed Bank purchased pursuant to Section 3.1.  Assets owned by Subsidiaries of the Failed
Bank are not “Assets” within the meaning of this definition.


 


“Assumed
Deposits”“ means Deposits.


 


“Bank
Closing”“ means the close of business of the Failed Bank on the
date on which the Chartering Authority closed such institution.


 


“Bank
Premises” means the banking houses, drive-in banking facilities,
teller facilities (staffed or automated), and related corporate or
administrative facilities, together with appurtenant parking, storage and
service facilities and structures connecting remote facilities to banking
houses and other facilities, and land on which the foregoing are located, that
are owned or leased by the Failed Bank and that are occupied by the Failed Bank
as of Bank Closing.


 


“Book
Value” means, with respect to any Asset and any Liability
Assumed, the dollar amount thereof stated on the Accounting Records of the
Failed Bank.  The Book Value of any item
shall be determined as of Bank Closing after adjustments made by the Receiver
for differences in accounts, suspense items, unposted debits and credits, and
other similar adjustments or corrections and for setoffs, whether voluntary or
involuntary.  The Book Value of a
Subsidiary of the Failed Bank acquired by the Assuming Bank shall be determined
from the investment in subsidiary and related accounts on the “bank only” (unconsolidated)
balance sheet of the Failed Bank based on the equity method of accounting.  Without limiting the generality of the
foregoing, (i) the Book Value of a Liability Assumed shall include all
accrued and unpaid interest thereon as of Bank Closing, and (ii) the Book
Value of a Loan shall reflect adjustments 


 


2

















 


for earned interest, or
unearned interest (as it relates to the “rule of 78s” or add-on-interest
loans, as applicable), if any, as of Bank Closing, adjustments for the portion
of earned Or Unearned loan-related credit life and/or disability insurance
premiums, if any, attributable to the Failed Bank as of Bank Closing, and
adjustments for Failed Bank Advances, if any, in each case as determined for
financial reporting purposes.  The Book
Value of an Asset shall not include any adjustment for loan premiums,
discounts, or any related deferred income, fees or expenses, or general or
specific reserves on the Accounting Records of the Failed Bank


 


“Business
Day” means a day other than a Saturday, Sunday, Federal legal
holiday or legal holiday under the laws of the State where the Failed Bank is
located, or a day on which the principal office of the Corporation is closed.


 


“Chartering
Authority” means (i) with respect to a national bank, the
Office of the Comptroller of the Currency, (ii) with respect to a Federal
savings association or savings bank, the Office of Thrift Supervision, (iii) with
respect to a bank or savings institution chartered by a State, the agency of
such State charged with primary responsibility for regulating and/or closing
banks or savings institutions, as the case may be, (iv) the Corporation in
accordance with 12 U.S.C.  Section 1821(c),
with regard to self appointment, or (v) the appropriate Federal banking
agency in accordance with 12 U.S.C.  §
1821(c)(9).


 


“Commitment”
means the unfunded portion of a line of credit or other commitment reflected on
the books and records of the Failed Bank to make an extension of credit (or
additional advances with respect to a Loan) that was legally binding on the
Failed Bank as of Bank Closing, other than overdraft protection plans of the
Failed Bank, if any.


 


“Credit
Documents” mean the agreements, instruments, certificates or
other documents at any time evidencing or otherwise relating to, governing or
executed in connection with or as security for, a Loan, including without
limitation notes, bonds, loan agreements, letter of credit applications, lease
financing contracts, banker’s acceptances, drafts, interest protection
agreements, currency exchange agreements, repurchase agreements, reverse
repurchase agreements, guarantees, deeds of trust, mortgages, assignments,
security agreements, pledges, subordination or priority agreements, lien priority
agreements, undertakings, security instruments, certificates, documents, legal
opinions, participation agreements and intercreditor agreements, and all
amendments, modifications, renewals, extensions, rearrangements, and
substitutions with respect to any of the foregoing.


 


“Credit
File” means all Credit Documents and all other credit,
collateral, or insurance documents in the possession or custody of the Assuming
Bank, or any of its Subsidiaries or Affiliates, relating to an Asset or a Loan
included in a Put Notice, or copies of any thereof.


 


“Data
Processing Lease” means any lease or licensing agreement,
binding on the Failed Bank as of Bank Closing, the subject of which is data
processing equipment or computer hardware or software used in connection with
data processing activities.  A lease or
licensing agreement for computer software used in connection with data
processing activities shall constitute a Data Processing Lease regardless of
whether such lease or licensing agreement also covers data processing
equipment.


 


3

















 


“Deposit”
means a deposit as defined in 12 U.S.C.  Section 1813(1),
including without limitation, outstanding cashier’s checks and other official
checks and all uncojlected items included in the depositors’ balances and
credited on the books and records of the Failed Bank; provided, that the term “Deposit”
shall not include all or any portion of those deposit balances which, in the
discretion of the Receiver or the Corporation, (i) may be required to
satisfy it for any liquidated or contingent liability of any depositor arising
from an unauthorized or unlawful transaction, or (ii) may be needed to
provide payment of any liability of any depositor to the Failed Bank or the
Receiver, including the liability of any depositor as a director or officer of
the Failed Bank, whether or not the amount of the liability is or can be
determined as of Bank Closing.


 


“Equity
Adjustment” means the dollar amount resulting by subtracting the
Book Value, as of Bank Closing, of all Liabilities Assumed under this Agreement
by the Assuming Bank from the Book Value, as of Bank Closing, of all Assets
acquired under this Agreement by the Assuming Bank, which may be a positive or
a negative number.


 


“Failed
Bank Advances” means the total sums paid by the Failed Bank to (i) protect
its lien position, (ii) pay ad valorem taxes and hazard insurance, and (iii) pay
credit life insurance, accident and health insurance, and vendor’s single
interest insurance.


 


“Fair
Market Value” means (i)(a) “Market Value” as defined in the
regulation prescribing the standards for real estate appraisals used in
federally related transactions, 12 C.F.R. 
§ 323.2(g), and accordingly shall mean the most probable price which a
property should bring in a competitive and open market under all conditions
requisite to a fair sale, the buyer and seller each acting prudently and
knowledgeably, and assuming the price is not affected by undue stimulus.  Implicit in this definition is the
consummation of a sale as of a specified date and the passing of title from
seller to buyer under conditions whereby:


 


(1)                                  Buyer and seller are typically motivated;


 


(2)                                  Both parties are well informed or well advised, and
acting in what they consider their own best interests;


 


(3)                                  A reasonable time is allowed for exposure in the
open market;


 


(4)                                  Payment is made in terms of cash in U.S.  dollars or in terms of financial arrangements
comparable thereto; and


 


(5)                                  The price represents the normal consideration for
the property sold unaffected by special or creative financing or sales
concessions granted by anyone associated with the sale;


 


as determined as of Bank
Closing by an appraiser chosen by the Assuming Bank from a list of acceptable
appraisers provided by the Receiver; any costs and fees associated with such
determination shall be shared equally by the Receiver and the Assuming Bank,
and (b) which, with respect to Bank Premises (to the extent, if any, that
Bank Premises are purchased utilizing this valuation method), shall be
determined not later than sixty (60) days after Bank Closing by an appraiser
mutually selected by the Receiver and the Assuming Bank within seven (7) days
after Bank Closing; or (ii) with respect to property other than Bank
Premises purchased utilizing this valuation method, the price therefore as
established by the Receiver and agreed to by the 


 


4

















 


Assuming Bank, or in the
absence of such agreement, as determined in accordance with clause.  (i)(a) above.


 


“Fair
Value” means the fair value of a Shared Loss MTM Asset as
determined in accordance with FAS 157 as in effect on Bank Closing.


 


“First
Loss Tranche” means the dollar amount of liability that the
Assuming Bank will incur prior to the commencement of loss sharing, which is
the sum of (i) the Assuming Bank’s asset premium (discount) bid, as
reflected on the Assuming Bank’s bid form, plus (ii) the Assuming Bank’s
Deposit premium bid, as reflected on the Assuming Bank’s bid form, plus (iii) the
Equity Adjustment.  The First Loss
Tranche may be a positive or negative number.


 


“Fixtures”
means those leasehold improvements, additions, alterations and installations
constituting all or a part of Bank Premises and which were acquired, added,
built, installed or purchased at the expense of the Failed Bank, regardless of
the holder of legal title thereto as of Bank Closing.


 


“Furniture
and Equipment” means the furniture and equipment, other than
motor vehicles, leased or owned by the Failed Bank and reflected on the books
of the Failed Bank as of Bank Closing, including without limitation automated
teller machines, carpeting, furniture, office machinery (including personal
computers), shelving, office supplies, telephone, surveillance and security
systems.  Motor vehicles shall be
considered other assets and pass at Book Value.


 


“Indemnitees”
means, except as provided in paragraph (11) of Section 12.1(b), (i) the
Assuming Bank, (ii) the Subsidiaries and Affiliates of the Assuming Bank,
and (iii) the directors, officers, employees and agents of the Assuming
Bank and its Subsidiaries and Affiliates who are not also present or former
directors, officers, employees or agents of the Failed Bank or of any
Subsidiary or Affiliate of the Failed Bank.


 


“Information
Package” means the compilation of financial and other data with
respect to the Failed Bank entitled “Information Package” as of [March 31
], 2009 provided to the Assuming Bank by the Corporation on the web site used
by the Corporation to market the Failed Bank to potential acquirers.


 


“Legal
Balance” means the amount of indebtedness legally owed by an
Obligor with respect to a Loan, including principal and accrued and unpaid
interest, late fees, attorneys’ fees and expenses, taxes, insurance premiums,
and similar charges, if any.


 


“Liabilities
Assumed” has the meaning provided in Section 2.1.


 


“Lien”
means any mortgage, lien, pledge, charge, assignment for security purposes,
security interest, or encumbrance of any kind with respect to an Asset, or
asset of an Acquired Subsidiary, including any conditional sale agreement or
capital lease or other title retention agreement relating to such Asset or
asset of an Acquired Subsidiary.


 


5

















 


“Loans”
means all of the following owed to or held by the Failed Bank or, for purposes
of Section 4.15, Section 12.1(a)(12) and the Shared-Loss Agreements,
any Acquired Subsidiary, as of Bank Closing:


 


(i)                                     loans (including loans which have been charged off
the Accounting Records of the Failed Bank in whole or in part prior to the date
of the Information Package), participation agreements, interests in
participations, overdrafts of customers (including but not limited to
overdrafts made pursuant to an overdraft protection plan or similar extensions
of credit in connection with a deposit account), revolving commercial lines of
credit, home equity lines of credit, Commitments, and lease financing
contracts;


 


(ii)                                  all Liens, rights (including rights of set-off),
remedies, powers, privileges, demands, claims, priorities, equities and
benefits owned or held by, or accruing or to accrue to or for the benefit of,
the holder of the obligations or instruments referred to in clause (i) above,
including but not limited to those arising under or based upon Credit Documents
or otherwise in respect of collateral, casualty insurance policies and binders,
standby letters of credit, mortgagee title insurance policies and binders,
other related insurance policies and binders, payment bonds and performance
bonds, insurance or guaranty by any department of any governmental unit,
federal, state or local and escrow, custodial or similar arrangements at any
time and from time to time existing with respect to any of the obligations or
instruments referred to in clause (i) above; and


 


(iii)                               all amendments, modifications, renewals,
extensions, refinancings, and refundings of or for any of the foregoing.


 


“Obligor”
means each Person liable for the full or partial payment or performance of any
Loan, whether such Person is obligated directly, indirectly, primarily,
secondarily, jointly, or severally.


 


“Other
Real Estate” means all interests in real estate (other than Bank
Premises and Fixtures) and loans on “in substance foreclosure” status as of
Bank Closing as recorded on the Accounting Records of the Failed Bank,
including but not limited to mineral rights, leasehold rights, condominium and
cooperative interests, air rights and development rights that are owned by the
Failed Bank.


 


“Person”
means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, or government or any
agency or political subdivision thereof, excluding the Corporation.


 


“Primary
Indemnitor” means any Person (other than the Assuming Bank or any
of its Affiliates) who is obligated to indemnify or insure, or otherwise make
payments (including payments on account of claims made against) to or on behalf
of any Person in connection with the Losses covered under Article XII,
including without limitation, the Receiver under the Shared-Loss Agreements,
any insurer issuing any directors and officers liability policy or any Person
issuing a financial institution bond or banker’s blanket bond.


 


6

















 


“Pro forma”
means producing a balance sheet that reflects the financial position of the
Failed bank at the date of Bank Closing. 
The Pro forma financial statements serve as a basis for the opening
entries of both the.  Assuming.  Bank and the Receiver.


 


“Put Date”
has the meaning provided in Section 3.4.


 


“Put
Notice” has the meaning provided in Section 3.4.


 


“Record”
means any document, microfiche, microfilm and computer records (including but
not limited to magnetic tape, disc storage, card forms and printed copy) of the
Failed Bank generated or maintained by the Failed Bank that is owned by or in
the possession of the Receiver at Bank Closing.


 


“Related
Liability” with respect to any Asset means any liability
existing and reflected on the Accounting Records of the Failed Bank as of Bank
Closing for (i) indebtedness secured by mortgages, deeds of trust, chattel
mortgages, security interests or other liens on or affecting such Asset, (ii) ad
valorem taxes applicable to such Asset, and (iii) any other obligation
determined by the Receiver to be directly related to such Asset.


 


“Related
Liability Amount” with respect to any Related Liability on the
books of the Assuming Bank, means the amount of such Related Liability as
stated on the Accounting Records of the Assuming Bank (as maintained in
accordance with generally accepted accounting principles) as of the date as of
which the Related Liability Amount is being determined.  With respect to a liability that relates to
more than one asset, the amount of such Related Liability shall be allocated
among such assets for the purpose of determining the Related Liability Amount
with respect to any one of such assets. 
Such allocation shall be made by specific allocation, where
determinable, and otherwise shall be pro rata based upon the dollar amount of
such assets stated on the Accounting Records of the entity that owns such
asset.


 


“Repurchase
Price” means, with respect to any Loan (i) the Book Value,
adjusted to reflect changes to Book Value after Bank Closing, plus (ii) any
advances and interest on such Loan after Bank Closing, minus (iii) the
total of amounts received by the Assuming Bank for such Loan, regardless of how
applied, after Bank Closing, plus (iv) advances made by Assuming Bank,
plus (v) total disbursements of principal made by Receiver that are not
included in the Book Value.


 


“Safe
Deposit Boxes” means the safe deposit boxes of the Failed Bank,
if any, including the removable safe deposit boxes and safe deposit stacks in
the Failed Bank’s vault(s), all rights and benefits under rental agreements
with respect to such safe deposit boxes; and all keys and combinations thereto.


 


“Settlement
Date” means the first Business Day immediately prior to the day
which is one hundred eighty (180) days after Bank Closing, or such other date
prior thereto as may be agreed upon by the Receiver and the Assuming Bank.  The Receiver, in its discretion, may extend
the Settlement Date but not beyond the date which is two hundred ten (210) days
after Bank Closing.


 


7

















 


“Settlement
Interest Rate” means, for the first calendar quarter or portion
thereof during which interest accrues, the rate determined by the Receiver to
be equal to the equivalent coupon issue yield on twenty-six (26)-week United
States Treasury Bills in effect as of Bank Closing as published in The Wall
Street Journal; provided, that if no such equivalent coupon
issue yield is available as of Bank Closing, the equivalent coupon issue yield
for such Treasury Bills most recently published in The Wall Street Journal
prior to Bank Closing shall be used. 
Thereafter, the rate shall be adjusted to the rate determined by the
Receiver to be equal to the equivalent coupon issue yield on such Treasury
Bills in effect as of the first day of each succeeding calendar quarter during
which interest accrues as published in The Wall Street Journal.


 


“Shared-Loss
MTM Assets” means those securities and other assets listed on
Schedule 4.15C.


 


“Subsidiary”
has the meaning set forth in Section 3(w)(4) of the Federal Deposit
Insurance Act, 12 U.S.C.  Section 1813(w)(4),
as amended.


 


ARTICLE II


 


ASSUMPTION OF LIABILITIES


 


2.1                               Liabilities Assumed by Assuming Bank.  The Assuming Bank expressly
assumes at Book Value (subject to adjustment pursuant to Article VIII) and
agrees to pay, perform, and discharge all of the following liabilities of the
Failed Bank as of Bank Closing, except as otherwise provided in this Agreement
(such liabilities referred to as “Liabilities Assumed”):


 


(a)                                  Assumed Deposits, except those Deposits specifically listed on Schedule
2.1(a); provided, that as to any Deposits of public money which
are Assumed Deposits, the Assuming Bank agrees to properly secure such Deposits
with such of the Assets as appropriate which, prior to Bank Closing, were
pledged as security therefor by the Failed Bank, or with assets of the Assuming
Bank, if such securing Assets, if any, are insufficient to properly secure such
Deposits;


 


(b)                                 liabilities for indebtedness secured by mortgages, deeds of trust, chattel
mortgages, security interests or other liens of record as of Bank Closing on or
affecting any Assets, if any; provided, that the assumption of
any liability pursuant to this paragraph shall be limited to the market value
of the Assets securing such liability as determined by the Receiver;


 


(c)                                  borrowings from Federal Reserve Banks and Federal Home Loan Banks, if
any, provided, that the assumption of any liability pursuant to
this paragraph shall be limited to the market value of the assets securing such
liability as determined by the Receiver; and overdrafts, debit balances,
service charges, reclamations, and adjustments to accounts with the Federal
Reserve Banks as reflected on the books and records of any such Federal Reserve
Bank within ninety (90) days after Bank Closing, if any;


 


8

















 


(d)                                 ad valorem taxes applicable to any Asset, if any; provided, that the
assumption of any ad valorem taxes pursuant to this paragraph shall be limited
to an amount equal to the market value of the Asset to which such taxes apply
as determined by the Receiver;


 


(e)                                  liabilities, if any, for federal funds purchased, repurchase agreements
and overdrafts in accounts maintained with other depository institutions
(including any accrued and unpaid interest thereon computed to and including
Bank Closing); provided, that the assumption of any liability pursuant to this
paragraph shall be limited to the market value of the Assets securing such
liability as determined by the Receiver;


 


(f)                                    [Reserved];


 


(g)                                 liabilities for any acceptance or commercial letter of credit (other
than “standby letters of credit” as defined in 12 C.F.R.  Section 337.2(a)); provided, that
the assumption of any liability pursuant to this paragraph shall be limited to
the market value of the Assets securing such liability as determined by the
Receiver;


 


(h)                                 duties and obligations assumed pursuant to this Agreement including
without limitation those relating to the Failed Bank’s overdraft protection
plans and safe deposit business, if any;


 


(i)                                     liabilities, if any, for Commitments;


 


(j)                                     liabilities, if any, for amounts owed to any Acquired Subsidiary of the
Failed Bank;


 


(k)                                  [Reserved];


 


(l)                                     [Reserved];


 


(m)                               all asset-related offensive litigation liabilities and all asset-related
defensive litigation liabilities, but only to the extent such liabilities
relate to assets subject to a loss share agreement, and provided that all other
defensive litigation is retained by the Receiver; and


 


(n)                                 liabilities, obligations, or responsibilities under the Failed Bank’s
health care plans, if any.


 


Schedule 2.1 attached hereto
and incorporated herein sets forth certain categories of Liabilities Assumed
and the aggregate Book Value of the Liabilities Assumed in such
categories.  Such schedule is based upon
the best information available to the Receiver and may be adjusted as provided
in Article VIII.  The Assuming Bank
does not assume any liabilities or obligations of the Failed Bank or any of its
Affiliates or Subsidiaries whether accrued, absolute, contingent or otherwise,
asserted or unasserted, known or unknown, other than the Liabilities Assumed.


 


9

















 


2.2                               Interest on Deposit Liabilities.  The Assuming Bank agrees that,
from and after Bank Closing, it will accrue and pay interest on Deposit
liabilities assumed pursuant to Section 2.1 at a rate(s) it shall
determine; provided, that for non-transaction Deposit liabilities
such rate(s) shall not be less than the lowest rate offered by the Assuming
Bank to its depositors for non-transaction deposit accounts.  The Assuming Bank shall permit each depositor
to withdraw, without penalty for early withdrawal, all or any portion of such
depositor’s Deposit, whether or not the Assuming Bank elects to pay interest in
accordance with any deposit agreement formerly existing between the Failed Bank
and such depositor; and  further  provided, that if
such Deposit has been pledged to secure an obligation of the depositor or other
party, any withdrawal thereof shall be subject to the terms of the agreement
governing such pledge.  The Assuming Bank
shall give notice to such depositors as provided in Section 5.3 of the
rate(s) of interest which it has determined to pay (which notice may be
made subsequent to the application of such new rate(s)) and of such withdrawal
rights.


 


2.3                               Unclaimed Deposits.  Fifteen months following Bank
Closing Date, the Assuming Bank will provide the FDIC a listing of all deposits
by product type not claimed by the depositor. 
FDIC will review the list and authorize the Assuming Bank to act on
behalf of the Corporation to send a “Final Legal Notice” to the owner(s) of
the unclaimed deposits reminding them of the need to claim or arrange to
continue their account(s) with the Assuming Bank.  The notice will be sent in the form of a
letter on the Corporation’s letterhead provided in exhibit 2.3.  The Assuming bank will send the “Final Legal
Notice” to the depositors within thirty (30) days following notification of
FDIC approval.


 


The Assuming Bank will prepare
an “Affidavit of Mailing”, as provided in exhibit 2.3, and forward the “Affidavit
of Mailing” to the Corporation.”


 


If, within eighteen (18)
months after Bank Closing, any depositor of the Failed Bank does not claim or
arrange to continue such depositor’s Deposit assumed pursuant to Section 2.1
at the Assuming Bank, the Assuming Bank shall, within fifteen (15) Business
Days after the end of such eighteen (18)-month period, (i) refund to the
Corporation the fall amount of each such Deposit (without reduction for service
charges), (ii) provide to the Corporation a schedule of all such refunded
Deposits in such form as may be prescribed by the Corporation, and (iii) assign,
transfer, convey and deliver to the Receiver all right, title and interest of
the Assuming Bank in and to Records previously transferred to the Assuming Bank
and other records generated or maintained by the Assuming Bank pertaining to
such Deposits.  During such eighteen
(18)-month period, at the request of the Corporation, the Assuming Bank
promptly shall provide to the Corporation schedules of unclaimed deposits in
such form as may be prescribed by the Corporation.


 


2.4                               Employee Plans.  Except as provided in Section 4.12, the
Assuming Bank shall have no liabilities, obligations or responsibilities under
the Failed Bank’s employment agreements, severance, bonus, vacation, pension,
profit sharing, deferred compensation, 401K or stock purchase plans or similar
plans, if any, unless the Receiver and the Assuming Bank agree otherwise
subsequent to the date of this Agreement.


 


10














 


ARTICLE III

PURCHASE OF ASSETS


 


3.1                               Assets Purchased by Assuming Bank.  With the exception of certain
assets expressly excluded in Sections 3.5 and 3.6, the Assuming Bank hereby
purchases from the Receiver, and the Receiver hereby sells, assigns, transfers,
conveys, and delivers to the Assuming Bank, all right, title, and interest of
the Receiver in and to all of the assets (real, personal and mixed, wherever
located and however acquired) of the Failed Bank whether or not reflected on
the books of the Failed Bank as of Bank Closing.  Schedule 3.1 attached hereto and incorporated
herein sets forth certain categories of Assets purchased hereunder.  Such schedule is based upon the best
information available to the Receiver and may be adjusted as provided in Article VIII.  Assets are purchased hereunder by the
Assuming Bank subject to all liabilities for indebtedness collateralized by
Liens affecting such Assets to the extent provided in Section 2.1.  In addition, Assuming Bank is entitled to the
option to acquire additional assets and assume agreements as set forth in
Sections 4.6, 4.7 and 4.8.


 


3.2                               Asset Purchase Price.


 


(a)                                  All Assets and assets of the Failed Bank subject to an option to
purchase by the Assuming Bank shall be purchased for the amount, or the amount
resulting from the method specified for determining the amount, as specified on
Schedule 3.2, except as otherwise may be provided herein.  Any Asset, asset of the Failed Bank subject
to an option to purchase or other asset purchased for which no purchase price
is specified on Schedule 3.2 or otherwise herein shall be purchased at its Book
Value.  Loans or other assets charged off
the Accounting Records of the Failed Bank prior to the date of the Information
Package shall be purchased at a price of zero.


 


(b)                                 The purchase price for securities (other than the capital stock of any
Acquired Subsidiary) purchased under Section 3.1 by the Assuming Bank
shall be the market value thereof as of Bank Closing, which market value shall
be (i) the market price for each such security quoted at the close of the
trading day effective on Bank Closing as published electronically by Bloomberg,
L.P., or alternatively, at the discretion of the Receiver, IDC/Financial
Times (FT) Interactive Data; (ii) provided, that if such market
price is not available for any such security, the Assuming Bank will submit a
bid for each such security within three days of notification/bid request by the
Receiver (unless a different time period is agreed to by the Assuming Bank and
the Receiver) and the Receiver, in its sole discretion will accept or reject
each such bid; and (iii) further  provided in the absence of
an acceptable bid from the Assuming Bank, each such security shall not pass to
the Assuming Bank and shall be deemed to be an excluded asset hereunder.


 


(c)                                  Shared Loss MTM Assets, as set forth on Schedule 4.I5C, shall be
purchased at the Fair Value stated on the Accounting Records of the Failed Bank
at Bank Closing.


 


(d)                                 The Parties agree that any indemnification payment made pursuant to this
Agreement shall be treated as an adjustment to the purchase price for tax
purposes, unless otherwise required by applicable law.


 


11

















 


3.3                               Manner of Conveyance; Limited Warranty;
Nonrecourse: Etc.  EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ARTICLE XII,
THE CONVEYANCE OF ALL ASSETS, INCLUDING REAL AND PERSONAL PROPERTY
INTERESTS, PURCHASED BY THE ASSUMING BANK UNDER THIS AGREEMENT SHALL BE MADE,
AS NECESSARY, BY RECEIVER’S DEED OR RECEIVER’S BILL OF SALE, “AS IS”, “WHERE IS”,
WITHOUT RECOURSE AND, WITHOUT ANY WARRANTIES WHATSOEVER WITH RESPECT TO SUCH
ASSETS, EXPRESS OR IMPLIED, WITH RESPECT TO TITLE, ENFORCEABILITY,
COLLECTIBILITY, DOCUMENTATION OR FREEDOM FROM LIENS OR ENCUMBRANCES (IN WHOLE
OR IN PART), OR ANY OTHER MATTERS.


 


3.4                               Puts of Assets to the Receiver.


 


(a)                                  Puts Prior to the Settlement Date.


 


(i)                                     During the period from Bank Closing to and including the Business Day
immediately preceding the Settlement Date, the Assuming Bank shall be entitled
to require the Receiver to purchase any Asset or asset of an Acquired
Subsidiary which the Assuming Bank can establish is evidenced by forged or
stolen instruments as of Bank Closing.


 


(ii)                                  At the end of the thirty (30)-day period following Bank Closing and at
that time only, in accordance with this Section 3.4, the Assuming Bank
shall be entitled to require the Receiver to purchase any remaining overdraft
transferred to the Assuming Bank pursuant to 3.1 which both was made after the “as
of the date of the Information Package and was not made pursuant to an
overdraft protection plan or similar extension of credit.


 


The Assuming Bank shall
transfer all such Assets to the Receiver without recourse, and shall indemnify
the Receiver against any and all claims of any Person claiming by, through or
under the Assuming Bank with respect to any such Asset, as provided in Section 12.4.


 


(b)                                 Notices to the Receiver.  In the event that the Assuming
Bank elects to require the Receiver to purchase one or more Assets, the
Assuming Bank shall deliver to the Receiver from time to time a notice (a “Put
Notice”) which shall include:


 


(i)                                     a list of all Assets that the Assuming Bank requires the Receiver to
purchase;


 


(ii)                                  a list of all Related Liabilities with respect to the Assets identified
pursuant to (i) above; and


 


(iii)                               a statement of the estimated Repurchase Price of each Asset identified
pursuant to (i) above as of the applicable Put Date.


 


Such notice shall be in the form
prescribed by the Receiver or such other form to which the Receiver shall
consent.  As provided in Section 9.6,
the Assuming Bank shall deliver to the 


 


12

















 


Receiver such documents,
Credit Files and such additional information relating to the subject matter of
the Put Notice as the Receiver may request and shall provide to the Receiver
full access to all other relevant books and records.


 


(c)                                  Purchase by Receiver. The Receiver shall purchase Assets that are specified in any Put
Notice and shall assume Related Liabilities with respect to such Assets, and
the transfer of such Assets and Related Liabilities shall be effective as of a
date determined by the Receiver which date shall not be later than thirty (30)
days after receipt by the Receiver of the applicable Put Notice (the “Put Date”).


 


(d)                                 Purchase Price and Payment Date.  Each Asset purchased by the
Receiver pursuant to this Section 3.4 shall be purchased at a price equal
to the Repurchase Price of such Asset less the Related Liability Amount
applicable to such Asset, in each case determined as of the applicable Put
Date.  If the difference between such
Repurchase Price and such Related Liability Amount is positive, then the
Receiver shall pay to the Assuming Bank the amount of such difference; if the
difference between such amounts is negative, then the Assuming Bank shall pay
to the Receiver the amount of such difference. 
The Assuming Bank or the Receiver, as the case may be, shall pay the
purchase price determined pursuant to this Section 3.4(d) not later
than the twentieth (20th) Business Day following the applicable Put Date,
together with interest on such amount at the Settlement Interest Rate for the
period from and including such Put Date to and including the day preceding the
date upon which payment is made.


 


(e)                                  Servicing.  The Assuming Bank shall administer and manage
any Asset subject to purchase by the Receiver in accordance with usual and
prudent banking standards and business practices until such time as such Asset
is purchased by the Receiver.


 


(f)                                    Reversals.  In the event that the Receiver purchases an
Asset (and assumes the Related Liability) that it is not required to purchase
pursuant to this Section 3.4, the Assuming Bank shall repurchase such
Asset (and assume such Related Liability) from the Receiver at a price computed
so as to achieve the same economic result as would apply if the Receiver had
never purchased such Asset pursuant to this Section 3.4.


 


3.5                               Assets Not Purchased by Assuming Bank.  The Assuming Bank does not
purchase, acquire or assume, or (except as otherwise expressly provided in this
Agreement) obtain an option to purchase, acquire or assume under this
Agreement:


 


(a)                                  any financial institution bonds, banker’s blanket bonds, or public
liability, fire, or extended coverage insurance policy or any other insurance
policy of the Failed Bank, or premium refund, unearned premium derived from
cancellation, or any proceeds payable with respect to any of the foregoing,
provided however, that bank owned life insurance which has a reported balance
of approximately $128,379,000 as of April 2, 2009 on the Accounting
Records of the Failed Bank and insurance included in the definition of Loan
will be acquired by the Assuming Bank;


 


(b)                                 any interest, right, action, claim, or judgment against (i) any
officer, director, employee, accountant, attorney, or any other Person employed
or retained by the Failed 


 


13

















 


Bank or any Subsidiary of
the Failed Bank on or prior to Bank Closing arising out of any act or omission
of such Person in such capacity, (ii) any underwriter of financial
institution bonds, banker’s blanket bonds or any other insurance policy of the
Failed Bank, (iii) any shareholder or holding company of the Failed Bank,
or (iv) any other Person whose action or inaction may be related to any
loss (exclusive of any loss resulting from such Person’s failure to pay on a
Loan made by the Failed Bank) incurred by the Failed Bank; provided, that
for the purposes hereof, the acts, omissions or other events giving rise to any
such claim shall have occurred on or before Bank Closing, regardless of when
any such claim is discovered and regardless of whether any such claim is made
with respect to a financial institution bond, banker’s blanket bond, or any
other insurance policy of the Failed Bank in force as of Bank Closing;


 


(c)                                  prepaid regulatory assessments of the Failed Bank, if any;


 


(d)                                 legal or equitable interests in tax receivables of the Failed Bank, if
any, including any claims arising as a result of the Failed Bank having entered
into any agreement or otherwise being joined with another Person with respect
to the filing of tax returns or the payment of taxes;


 


(e)                                  amounts reflected on the Accounting Records of the Failed Bank as of
Bank Closing for loan premiums, discounts, or any related deferred income, fees
or expenses, or general or specific reserves, if any


 


(f)                                    leased or owned Bank Premises and leased or owned Furniture and
Equipment and Fixtures and data processing equipment (including hardware and
software) located on leased or owned Bank Premises, if any; provided, that
the Assuming Bank does obtain an option under Section 4.6, Section 4.7
or Section 4.8, as the case may be, with respect thereto;


 


(g)                                 owned Bank Premises which the Receiver, in its discretion, determines
may contain environmentally hazardous substances;


 


(h)                                 any Subsidiary (other than the Acquired Subsidiaries), joint venture,
partnership, or other business combinations or arrangements, whether active,
inactive, dissolved or terminated, of the Failed Bank;


 


(i)                                     any “goodwill,” as such term is defined in the instructions to the
report of condition prepared by banks examined by the Corporation in accordance
with 12 C.F.R.  Section 304.4, and
other intangibles (for the avoidance of doubt, other intangible assets does not
include any intellectual property (including patents, technology, know-how,
copyrights (including software), trade secrets, processes, trademarks, service
marks, trade names, domain names, logos, trade dress or other indicators of
source or origin) or right to use any such intellectual property);


 


(j)                                     any criminal restitution or forfeiture orders issued in favor of the
Failed Bank; and


 


(k)                                  assets essential to the Receiver in accordance with Section 3.6.


 


(l)                                     reserved.


 


14

















 


3.6                               Retention or Repurchase of Assets Essential to
Receiver.


 


(a)                                  The Receiver may refuse to sell to the Assuming Bank, or the Assuming
Bank agrees, at the request of the Receiver set forth in a written notice to
the Assuming Bank, to assign, transfer, convey, and deliver to the Receiver all
of the Assuming Bank’s right, title and interest in and to, any Asset or asset
acquired pursuant to this Agreement essential to the Receiver as determined by
the Receiver in its discretion (together with all Credit Documents evidencing
or pertaining thereto), which may include any Asset or asset acquired pursuant
to this Agreement that the Receiver determines to be:


 


(i)                                     made to an officer, director, or other Person engaging in the affairs of
the Failed Bank, its Subsidiaries or Affiliates or any related entities of any
of the foregoing;


 


(ii)                                  the subject of any investigation relating to any claim with respect to
any item described in Section 3.5(a) or (b), or the subject of, or
potentially the subject of, any legal proceedings;


 


(iii)                               made to a Person who is an Obligor on a loan owned by the Receiver or
the Corporation in its corporate capacity or its capacity as receiver of any
institution;


 


(iv)                              secured by collateral which also secures any asset owned by the
Receiver; or


 


(v)                                 related to any asset of the Failed Bank not purchased by the Assuming
Bank under this Article III or any liability of the Failed Bank not
assumed by the Assuming Bank under Article II.


 


(b)                                 Each such Asset or asset purchased by the Receiver shall be purchased at
a price equal to the Repurchase Price thereof less the Related Liability Amount
with respect to any Related Liabilities related to such Asset or asset, in each
case determined as of the date of the notice provided by the Receiver pursuant
to Section 3.6(a).  The Receiver
shall pay the Assuming Bank not later than the twentieth (20th) Business Day
following receipt of related Credit Documents and Credit Files together with
interest on such amount at the Settlement Interest Rate for the period from and
including the date of receipt of such documents to and including the day
preceding the day on which payment is made. 
The Assuming Bank agrees to administer and manage each such Asset or
asset in accordance with usual and prudent banking standards and business
practices until each such Asset or asset is purchased by the Receiver.  All transfers with respect to Asset or assets
under this Section 3.6 shall be made as provided in Section 9.6.  The Assuming Bank shall transfer all such
Asset or assets and Related Liabilities to the Receiver without recourse, and
shall indemnify the Receiver against any and all claims of any Person claiming
by, through or under the Assuming Bank with respect to any such Asset or asset,
as provided in Section 12.4.


 


15

















 


ARTICLE IV

ASSUMPTION OF CERTAIN DUTIES AND OBLIGATIONS


 


The Assuming Bank agrees with
the Receiver and the Corporation as follows:


 


4.1                               Continuation of Banking Business.  The Assuming Bank agrees to
provide full service banking in the trade area of the Failed Bank commencing on
the first banking business day after Bank Closing and to maintain such presence
until it has complied with all necessary notice provisions to cease providing
such banking services in the trade area. 
At the option of the Assuming Bank, such banking services may be
provided at any or all of the Bank Premises, or at other premises within such
trade area.  For the avoidance of doubt,
the foregoing shall not restrict or otherwise affect the ability of the
Assuming Bank to make changes to the banking business that it conducts at any
time from and after Bank Closing, including opening or closing branches.  In addition, the Assuming Bank may, effective
upon Bank Closing or at a later date, modify the terms of any assumed deposit
account, including, without limitation, changing the maturity of any time
Deposits, subject, in the case of changes to applicable interest rates or fees,
to compliance with Section 5.3.


 


4.2                               Reserved.


 


4.3                               Agreement with Respect to Safe Deposit Business.  The Assuming Bank assumes and
agrees to discharge, from and after Bank Closing, in the usual course of conducting
a banking business, the duties and obligations of the Failed Bank with respect
to all Safe Deposit Boxes, if any, of the Failed Bank and to maintain all of
the necessary facilities for the use of such boxes by the renters thereof
during the period for which such boxes have been rented and the rent therefor
paid to the Failed Bank, or such earlier time as is permitted under the
provisions of the rental agreements between the Failed Bank and the respective
renters of such boxes or applicable law; provided, that,
notwithstanding any provisions of the rental agreements between the Failed Bank
and the respective renters of such boxes, the Assuming Bank may immediately
relocate the Safe Deposit Boxes of the Failed Bank to any office of the
Assuming Bank located in the trade area of the Failed Bank.  Fees related to the safe deposit business
earned prior to the Bank Closing Date shall be for the benefit of the Receiver
and fees earned after the Bank Closing Date shall be for the benefit of the
Assuming Bank.


 


4.4                               Reserved.


 


4.5                               Reserved.


 


4.6                               Agreement with Respect to Bank Premises.


 


(a)                                  Option to Purchase.  Subject to Section 3.5,
the Receiver hereby grants to the Assuming Bank an exclusive option for the
period of one hundred seventy (170) days commencing the day after Bank Closing
to purchase any or all owned Bank Premises, including all Furniture, Fixtures
and Equipment located on the Bank Premises. 
The Assuming Bank shall give written notice to the Receiver within the
option period of its election to purchase or not to purchase any of the owned
Bank Premises.  Any purchase of such
premises shall be effective as of the date of Bank Closing and such purchase
shall be consummated as soon as practicable thereafter, and in no event later
than the Settlement Date.


 


16

















 


(b)                                 Option to Lease.  The Receiver hereby grants to the Assuming
Bank an exclusive option for the period of one hundred seventy (170) days
commencing the day after Bank Closing to cause the Receiver to assign to the
Assuming Bank any or all leases for leased Bank Premises, if any, which have
been continuously occupied by the Assuming Bank from Bank Closing to the date
it elects to accept an assignment of the leases with respect thereto to the
extent such leases can be assigned; provided, that the exercise
of this option with respect to any lease must be as to all premises or other
property subject to the lease.  If an
assignment cannot be made of any such leases, the Receiver may, in its
discretion, enter into subleases with the Assuming Bank containing the same
terms and conditions provided under such existing leases for such leased Bank
Premises or other property.  The Assuming
Bank shall give notice to the Receiver within the option period of its election
to accept or not to accept an assignment of any or all leases (or enter into
subleases or new leases in lieu thereof). 
The Assuming Bank agrees to assume all leases that it has elected to
accept that are assigned (or enter into subleases or new leases in lieu
thereof) pursuant to this Section 4.6.


 


(c)                                  Facilitation.  The Receiver agrees to facilitate the
assumption, assignment or sublease of leases or the negotiation of new leases
by the Assuming Bank; provided, that neither the Receiver nor the
Corporation shall be obligated to engage in litigation, make payments to the
Assuming Bank or to any third party in connection with facilitating any such
assumption, assignment, sublease or negotiation or commit to any other
obligations to third parties.


 


(d)                                 Occupancy.  The Assuming Bank shall give the Receiver
fifteen (15) days’ prior written notice of its intention to vacate prior to
vacating any leased Bank Premises with respect to which the Assuming Bank has
not exercised the option provided in Section 4.6(b).  Any such notice shall be deemed to terminate
the Assuming Bank’s option with respect to such leased Bank Premises.


 


(e)                                  Occupancy Costs.


 


(i)                                     The Assuming Bank agrees to pay to the Receiver, or to appropriate third
parties at the direction of the Receiver, during and for the period of any
occupancy by it of (x) owned Bank Premises the market rental value, as
determined by the appraiser selected in accordance with the definition of Fair
Market Value, and all operating costs, and (y) leased Bank Premises, all
operating costs with respect thereto and to comply with all relevant terms of
applicable leases entered into by the Failed Bank, including without limitation
the timely payment of all rent, Operating costs include, without limitation all
taxes, fees, charges, utilities, insurance and assessments, to the extent not
included in the rental value or rent.  If
the Assuming Bank elects to purchase any owned Bank Premises in accordance with
Section 4.6(a), the amount of any rent paid (and taxes paid to the
Receiver which have not been paid to the taxing authority and for which the
Assuming Bank assumes liability) by the Assuming Bank with respect thereto
shall be applied as an offset against the purchase price thereof.


 


(ii)                                  The Assuming Bank agrees during the period of occupancy by it of owned
or leased Bank Premises, to pay to the Receiver rent for the use of all owned
or leased Furniture and Equipment and all owned or leased Fixtures located on
such Bank 


 


17

















 


Premises
for the period of such occupancy.  Rent
for such property owned by the Failed Bank shall be the market rental value
thereof, as determined by the Receiver within sixty (60) days after Bank
Closing.  Rent for such leased property
shall be an amount equal to any and all rent and other amounts which the
Receiver incurs or accrues as an obligation or is obligated to pay for such
period of occupancy pursuant to all leases and contracts with respect to such
property.  If the Assuming Bank purchases
any owned Furniture and Equipment or owned Fixtures in accordance with Section 4.6(f) or
4.6(h), the amount of any rents paid by the Assuming Bank with respect thereto
shall be applied as an offset against the purchase price thereof,


 


(f)                                    Certain Requirements as to Furniture, Equipment
and Fixtures.  If the Assuming Bank purchases owned Bank
Premises or accepts an assignment of the lease (or enters into a sublease or a
new lease in lieu thereof) for leased Bank Premises as provided in Section 4.6(a) or
4.6(b), or if the Assuming Bank does not exercise such option but within twelve
(12) months following Bank Closing obtains the right to occupy such premises
(whether by assignment, lease, sublease, purchase or otherwise), other than in
accordance with Section 4.6(a) or (b), the Assuming Bank shall (i) effective
as of the date of Bank Closing, purchase from the Receiver all Furniture and
Equipment and Fixtures owned by the Failed Bank at Fair Market Value and
located thereon as of Bank Closing, (ii) accept an assignment or a
sublease of the leases or negotiate new leases for all Furniture and Equipment
and Fixtures leased by the Failed Bank and located thereon, and (iii) if
applicable, accept an assignment or a sublease of any ground lease or negotiate
a new ground lease with respect to any land on which such Bank Premises are
located; provided, that the Receiver shall not have disposed of
such Furniture and Equipment and Fixtures or repudiated the leases specified in
clause (ii) or (iii).


 


(g)                                 Vacating Premises.


 


(i)                                     If the Assuming Bank elects not to purchase any owned Bank Premises, the
notice of such election in accordance with Section 4.6(a) shall
specify the date upon which the Assuming Bank’s occupancy of such premises
shall terminate, which date shall not be later than ninety (90) days after the
date of the Assuming Bank’s notice not to exercise such option.  The Assuming Bank promptly shall relinquish
and release to the Receiver such premises and the Furniture and Equipment and
Fixtures located thereon in the same condition as at Bank Closing, normal wear
and tear excepted.  By occupying any such
premises after the expiration of such ninety (90) day period, the Assuming Bank
shall, at the Receiver’s option, (x) be deemed to have agreed to purchase
such Bank Premises, and to assume all leases, obligations and liabilities with
respect to leased Furniture and Equipment and leased Fixtures located thereon
and any ground lease with respect to the land on which such premises are
located, and (y) be required to purchase all Furniture and Equipment and
Fixtures owned by the Failed Bank and located on such premises as of Bank
Closing.


 


(ii)                                  If the Assuming Bank elects not to accept an assignment of the lease or
sublease any leased Bank Premises, the notice of such election in accordance
with Section 4.6(b) shall specify the date upon which the Assuming
Bank’s occupancy of such leased Bank Premises shall terminate, which date shall
not be later than the date which is one hundred eighty (180) days after Bank
Closing.  Upon vacating such 


 


18

















 


premises,
the Assuming Bank shall relinquish and release to the Receiver such premises
and the Fixtures and the Furniture and Equipment located thereon in the same
condition as at Bank Closing, normal wear and tear excepted.  By failing to provide notice of its intention
to vacate such premises prior to the expiration of the option period specified
in Section 4.6(b), or by occupying such premises after the one hundred
eighty (180)-day period specified above in this paragraph (ii), the Assuming
Bank shall, at the Receiver’s option, (x) be deemed to have assumed all
leases, obligations and liabilities with respect to such premises (including
any ground lease with respect to the land on which premises are located), and
leased Furniture and Equipment and leased Fixtures located thereon in
accordance with this Section 4.6 (unless the Receiver previously
repudiated any such lease), and (y) be required to purchase all Furniture
and Equipment and Fixtures owned by the Failed Bank at Fair Market Value and
located on such premises as of Bank Closing.


 


(h)                                 Furniture and Equipment and Certain Other Equipment.  The Receiver hereby grants to the Assuming
Bank an option to purchase all Furniture and Equipment or any
telecommunications, data processing equipment (including hardware and software)
and check processing and similar operating equipment owned by the Failed Bank
at Fair Market Value and located at any leased Bank Premises that the Assuming
Bank elects to vacate or which it could have, but did not occupy, pursuant to
this Section 4.6; provided, that, the Assuming Bank shall
give the Receiver notice of its election to purchase such property at the time
it gives notice of its intention to vacate such Bank Premises or within ten (10) days
after Bank Closing for Bank Premises it could have, but did not, occupy.


 


4.7                               Agreement with Respect to Leased Data Processing
Equipment.


 


(a)                                  The Receiver hereby grants to the Assuming Bank an exclusive option for
the period of one hundred seventy (170) days after Bank Closing days commencing
the day after Bank Closing to accept an assignment from the Receiver of any or
all Data Processing Leases to the extent that such Data Processing Leases can
be assigned.


 


(b)                                 The Assuming Bank shall (i) give written notice to the Receiver
within the option period specified in Section 4.7(a) of its intent to
accept or decline an assignment or sublease of any or all Data Processing
Leases and promptly accept an assignment or sublease of such Data Processing
Leases, and (ii) give written notice to the appropriate lessor(s) that
it has accepted an assignment or sublease of any such Data Processing Leases.


 


(c)                                  The Receiver agrees to facilitate the assignment or sublease of Data
Processing Leases or the negotiation of new leases or license agreements by the
Assuming Bank; provided, that neither the Receiver nor the
Corporation shall be obligated to engage in litigation or make payments to the
Assuming Bank or to any third party in connection with facilitating any such
assumption, assignment, sublease or negotiation.


 


(d)                                 The Assuming Bank agrees, during its period of use of any property
subject to a Data Processing Lease, to pay to the Receiver or to appropriate
third parties at the direction of the Receiver all operating costs with respect
thereto and to comply with all relevant terms of the applicable Data Processing
Leases entered into by the Failed Bank, including 


 


19

















 


without limitation the
timely payment of all rent, taxes, fees, charges, utilities, insurance and
assessments.


 


(e)                                  The Assuming Bank shall, not later than fifty (50) days after giving the
notice provided in Section 4.7(b), (i) relinquish and release to the
Receiver all property subject to the relevant Data Processing Lease, in the
same condition as at Bank Closing, normal wear and tear excepted, or (ii) accept
an assignment or a sublease thereof or negotiate a new lease or license
agreement under this Section 4.7.


 


4.8                               Agreement with Respect to Certain Existing
Agreements.


 


(a)                                  Subject to the provisions of Section 4.8(b), with respect to
agreements existing as of Bank Closing which provide for the rendering of
services by or to the Failed Bank or any Acquired Subsidiary or any other
agreement to which the Failed Bank or any Acquired Subsidiary is a party (other
than those that are the subject of Section 4.6 or 4.7), within one hundred
seventy (170) days after Bank Closing, the Assuming Bank shall give the
Receiver written notice specifying whether it elects to assume or not to assume
each such agreeinent.  Except as may be
otherwise provided in this Article IV, the Assuming Bank agrees to comply
with the service terms of each such agreement which provide for the rendering
of services by or to the Failed Bank for a period commencing on the day after
Bank Closing and ending on: (i) in the case of an agreement that provides
for the rendering of services by the Failed Bank, the date which is up to two
hundred seventy (270) days after Bank Closing, and (ii) in the case of an
agreement that provides for the rendering of services to the Failed Bank, the
date which is thirty (30) days after the Assuming Bank has given notice to the
Receiver of its election not to assume such agreement; provided, that
the Receiver can reasonably make such service agreements available to the
Assuming Bank.  The Assuming Bank shall
be deemed by the Receiver to have assumed agreements for which no notification
is timely given.  The Receiver agrees to
assign, transfer, convey, and deliver to the Assuming Bank all right, title and
interest of the Receiver, if any, in and to agreements the Assuming Bank
assumes hereunder.  In the event the
Assuming Bank elects not to accept an assignment of any lease (or sublease) or
negotiate a new lease for leased Bank Premises under Section 4.6 and does
not otherwise occupy such premises, the provisions of this Section 4.8(a) shall
not apply to service agreements or other agreements related to such
premises.  The Assuming Bank agrees,
during the period it has the use or benefit of any such agreement, promptly to
pay to the Receiver or to appropriate third parties at the direction of the
Receiver all operating costs with respect thereto and to comply with all
relevant terms of such agreement.


 


(b)                                 The provisions of Section 4.8(a) shall not apply to (i) any
insurance policy or bond referred to in Section 3.5(a) or other
agreement specified in Section 3.5 (other than any insurance included in
the definition of Loan), and (ii) consulting, management or employment
agreements, if any, between the Failed Bank or any of its Subsidiaries or
Affiliates and its or their employees or other Persons.  The Assuming Bank does not assume any
liabilities or acquire any rights under any of the agreements described in this
Section 4.8(b).


 


4.9                               Informational Tax Reporting.  The Assuming Bank agrees to
perform all obligations of the Failed Bank with respect to Federal and State
income tax informational reporting related to (i) the Assets and the
Liabilities Assumed, (ii) deposit accounts that were 


 


20

















 


closed and loans that
were paid off or collateral obtained with respect thereto prior to Bank
Closing, (iii) miscellaneous payments made to vendors of the Failed Bank,
and (iv) any other asset or liability of the Failed Bank, including,
without limitation, loans not purchased and Deposits not assumed by the
Assuming Bank, as may be required by the Receiver.


 


4.10                        Insurance.  The Assuming Bank agrees to obtain insurance
coverage effective from and after Bank Closing, including public liability,
fire and extended coverage insurance acceptable to the Receiver with respect to
owned or leased Bank Premises that it occupies, and all owned or leased
Furniture and Equipment and Fixtures and leased data processing equipment
(including hardware and software) located thereon, in the event such insurance
coverage is not already in force and effect with respect to the Assuming Bank
as the insured as of Bank Closing.  All
such insurance shall, where appropriate (as determined by the Receiver), name
the Receiver as an additional insured.


 


4.11                        Office Space for Receiver and Corporation.  For the period commencing on
the day following Bank Closing and ending on the one hundred eightieth (180th)
day thereafter, the Assuming Bank agrees to provide to the Receiver and the
Corporation, without charge, adequate and suitable office space (including
parking facilities and vault space), furniture, equipment (including
photocopying and telecopying machines), email accounts, network access and
technology resources (such as shared drive) and utilities (including local
telephone service and fax machines) at the Bank Premises occupied by the
Assuming Bank for their use in the discharge of their respective functions with
respect to the Failed Bank.  In the event
the Receiver and the Corporation determine that the space provided is
inadequate or unsuitable, the, Receiver and the Corporation may relocate to other
quarters having adequate and suitable space and the costs of relocation and any
rental and utility costs for the balance of the period of occupancy by the
Receiver and the Corporation shall be borne by the Assuming Bank.  Additionally, the Assuming Bank agrees to pay
such bills and invoices on behalf of the Receiver and Corporation as the
Receiver or Corporation may direct for the period beginning on the date of Bank
Closing and ending on Settlement Date. 
Assuming Bank shall submit its requests for reimbursement of such
expenditures pursuant to Article VIII of this Agreement.


 


4.12                        Agreement with Respect to Continuation of Group
Health Plan Coverage for Former Employees of the Failed Bank.


 


(a)                                  The Assuming Bank agrees to assist the Receiver, as provided in this Section 4.12,
in offering individuals who were employees or former employees of the Failed
Bank, or any of its Subsidiaries, and who, immediately prior to Bank Closing,
were receiving, or were eligible to receive, health insurance coverage or
health insurance continuation coverage from the Failed Bank (“Eligible
Individuals”), the opportunity to obtain health insurance coverage in the
Corporation’s HA Continuation Coverage Plan which provides for health insurance
continuation coverage to such Eligible Individuals who are qualified beneficiaries
of the Failed Bank as defined in Section 607 of the Employee Retirement
Income Security Act of 1974, as amended (respectively, “qualified beneficiaries”
and “ERISA”).  The Assuming Bank shall
consult with the Receiver and not later than five (5) Business Days after
Bank Closing shall provide written notice to the Receiver of the number (if
available), identity (if available) and addresses (if available) of the
Eligible Individuals who are qualified beneficiaries of the Failed Bank and for
whom a “qualifying event” (as defined in Section 603 of ERISA) has
occurred and 


 


21

















 


with respect to whom the
Failed Bank’s obligations under Part 6 of Subtitle B of Title I of ERISA
have not been satisfied in full, and such other information as the Receiver may
reasonably require.  The Receiver shall
cooperate with the Assuming Bank in order to permit it to prepare such notice
and shall provide to the Assuming Bank such data in its possession as may be
reasonably required for purposes of preparing such notice.


 


(b)                                 The Assuming Bank shall take such further action to assist the Receiver
in offering the Eligible Individuals who are qualified beneficiaries of the
Failed Bank the opportunity to obtain health insurance coverage in the
Corporation’s FIA Continuation Coverage Plan as the Receiver may direct.  All expenses incurred and paid by the
Assuming Bank (i) in connection with the obligations of the Assuming Bank
under this Section 4.12, and (ii) in providing health insurance
continuation coverage to any Eligible Individuals who are hired by the Assuming
Bank and such employees’ qualified beneficiaries shall be borne by the Assuming
Bank.


 


(c)                                  This Section 4.12 is for the sole and exclusive benefit of the
parties to this Agreement, and for the benefit of no other Person (including
any former employee of the Failed Bank or any Subsidiary thereof or qualified
beneficiary of such former employee). 
Nothing in this Section 4.12 is intended by the parties, or shall
be construed, to give any Person (including any former employee of the Failed
Bank or any Subsidiary thereof or qualified beneficiary of such former
employee) other than the Corporation, the Receiver and the Assuming Bank any
legal or equitable right, remedy or claim under or with respect to the
provisions of this Section.


 


4.13                        Reserved.


 


4.14                        Reserved.


 


4.15                        Agreement with Respect to Loss Sharing.  The Assuming Bank (or any
assignee thereof pursuant to the Shared-Loss Agreements) shall be entitled to
require reimbursement from the Receiver for loss sharing on all Loans and
certain other assets in accordance with the Single Family Shared-Loss Agreement
attached hereto as Exhibit 4.15A and the Commercial and Other Loans
Shared-Loss Agreement attached hereto as Exhibit 4.15B, collectively, the “Shared-Loss
Agreements.” All Loans shall be subject to either the Single Family Shared-Loss
Agreement or the Commercial and Other Loans Shared-Loss Agreement and all
private label asset backed securities and non-investment grade securities owned
by the Failed Bank or any Acquired Subsidiary as of Bank Closing shall be
subject to the Commercial and Other Loans Shared-Loss Agreement.  The Loans that shall be subject to the Single
Family Shared-Loss Agreement are identified on the Schedule of Loans 4.15A
attached hereto and the Loans and other assets that shall be subject to the
Commercial and Other Loans Shared-Loss Agreement are identified on the Schedule
of Loans 4.15B, and Schedule 4.15C, Shared-Loss MTM Assets, attached hereto.  The Single Family Shared-Loss Agreement and
the Commercial and Other Loans Shared-Loss Agreement have their own separate
terms and expressly survive the term .of this Agreement.  For the avoidance of doubt, the Shared-Loss
Agreements shall not terminate on the sixth anniversary of Bank Closing and
shall remain in full force and effect thereafter.


 


22














 


ARTICLE V

DUTIES WITH RESPECT TO DEPOSITORS OF THE FAILED BANK


 


5.1                               Payment of Checks, Drafts and Orders.  Subject to Section 9.5,
the Assuming Bank agrees to pay all properly drawn checks, drafts and
withdrawal orders of depositors of the Failed Bank presented for payment,
whether drawn on the check or draft forms provided by the Failed Bank or by the
Assuming Bank, to the extent that the Deposit balances to the credit of the
respective makers or drawers assumed by the Assuming Bank under this Agreement
are sufficient to permit the payment thereof, and in all other respects to
discharge, in the usual course of conducting a banking business, the duties and
obligations of the Failed Bank with respect to the Deposit balances due and
owing to the depositors of the Failed Bank assumed by the Assuming Bank under
this Agreement.


 


5.2                               Certain Agreements Related to Deposits.  Subject to Section 2.2,
the Assuming Bank agrees to honor the terms and conditions of any written
escrow or mortgage servicing agreement or other similar agreement relating to a
Deposit liability assumed by the Assuming Bank pursuant to this Agreement.


 


5.3                               Notice to Depositors.


 


(a)                                  Within 30 days after Bank Closing, the Assuming Bank shall give (i) notice
to depositors of the Failed Bank of its assumption of the Deposit liabilities
of the Failed Bank, and (ii) any notice required under Section 2.2,
by mailing to each such depositor a notice with respect to such assumption and
by advertising in a newspaper of general circulation in the county or counties
in which the Failed Bank was located. 
The Assuming Bank agrees that it will obtain prior approval of all such
notices and advertisements from counsel for the Receiver (such approval not to
be unreasonably withheld or delayed) and that such notices and advertisements
shall not be mailed or published until such approval is received.


 


(b)                                 The Assuming Bank shall give notice by mail to depositors of the Failed
Bank concerning the procedures to claim their deposits, which notice shall be
provided to the Assuming Bank by the Receiver or the Corporation.  Such notice shall be included with the notice
to depositors to be mailed by the Assuming Bank pursuant to Section 5.3(a).


 


(c)                                  If the Assuming Bank proposes to charge fees different from those
charged by the Failed Bank before it establishes new deposit account
relationships with the depositors of the Failed Bank, the Assuming Bank shall
give notice by mail of such changed fees to such depositors (which notice may
be made subsequent to the application of such new fees).


 


ARTICLE VI

RECORDS


 


6.1                               Transfer of Records.


 


(a)                                  In accordance with Section 3.1, the Receiver assigns, transfers,
conveys and delivers to the Assuming Bank the following Records pertaining to
the Deposit liabilities of the Failed Bank assumed by the Assuming Bank under
this Agreement, except as provided in Section 6.4:


 


23

















 


(i)                                     signature cards, orders, contracts between the Failed Bank and its
depositors and Records of similar character;


 


(ii)                                  passbooks of depositors held by the Failed Bank, deposit slips,
cancelled checks and withdrawal orders representing charges to accounts of
depositors;


 


and the following Records
pertaining to the Assets:


 


(iii)                               records of deposit balances carried with other banks, bankers or trust
companies;


 


(iv)                              Loan and collateral records and Credit Files and other documents;


 


(v)                                 deeds, mortgages, abstracts, surveys, and other instruments or records
of title pertaining to real estate or real estate mortgages; and


 


(vi)                              signature cards, agreements and records pertaining to Safe Deposit
Boxes, if any.


 


(b)                                 The Receiver, at its option, may assign and transfer to the Assuming
Bank by a single blanket assignment or otherwise, as soon as practicable after
Bank Closing, any other Records not assigned and transferred to the Assuming
Bank as provided in this Agreement, including but not limited to loan
disbursement checks, general ledger tickets, official bank checks, proof
transactions (including proof tapes) and paid out loan files.


 


6.2                               Delivery of Assigned Records.  The Receiver shall deliver to
the Assuming Bank all Records described in (i) Section 6.1(a) as
soon as practicable on or after the date of this Agreement, and (ii) Section 6.1(b) as
soon as practicable after making any assignment described therein.


 


6.3                            Preservation of Records.  The Assuming Bank agrees that
it will preserve and maintain for the joint benefit of the Receiver, the
Corporation and the Assuming Bonk, all Records of which it has custody for such
period as either the Receiver or the Corporation in its discretion may require,
until directed otherwise, in writing, by the Receiver or
Corporation.  The Assuming Bank shall
have the primary responsibility to respond to subpoenas, discovery requests,
and other similar official inquiries with respect to the Records of which it
has custody.


 


6.4                               Access to Records; Copies.  The Assuming Bank agrees to
permit the Receiver and the Corporation access to all Records of which the
Assuming Bank has custody, and to use, inspect, make extracts from or request
copies of any such Records in the manner and to the extent requested, and to
duplicate, in the discretion of the Receiver or the Corporation, any Record in
the form of microfilm or microfiche pertaining to Deposit account
relationships; provided, that in the event that the Failed Bank
maintained one or more duplicate copies of such microfilm or microfiche
Records, the Assuming Bank hereby assigns, transfers, and conveys to the
Corporation one such duplicate copy of each such Record without cost to the
Corporation, and agrees to deliver to the Corporation all Records assigned and
transferred to the Corporation under this Article VI as soon as
practicable on or after the date of this Agreement.  The party requesting a copy of any Record
shall bear the cost (based on standard accepted industry charges 


 


24

















 


to the extent applicable,
as determined by the Receiver) for providing such duplicate Records.  A copy of each Record requested shall be
provided as soon as practicable by the party having custody thereof.


 


ARTICLE VII

FIRST LOSS TRANCHE


 


The Assuming Bank has
submitted to the Receiver an asset premium (discount) bid of negative three
billion dollars ($3,000,000,000) and a Deposit premium bid of zero percent
(0%).  The Deposit premium bid will be
applied to the total of all Assumed Deposits except for brokered, CDARS, and
any market place or similar subscription services Deposits.  The First Loss Tranche shall be determined by
adding (i) the asset premium (discount) bid, (ii) the Deposit premium
bid, and (iii) the Equity Adjustment. 
If the First Loss Tranche is a positive number, then this is the Losses
on Single Family Shared-Loss Loans and Net Charge-offs on Shared Loss Assets
that the Assuming Bank will incur before loss-sharing commences under Exhibits
4.15A and 4.15B.  If the First Loss
Tranche is a negative number, the Corporation shall pay such amount by wire
transfer to the Assuming Bank by the end of the first business day following
Bank Closing and loss sharing shall commence immediately.


 


ARTICLE VIII

ADJUSTMENTS


 


8.1                               Pro Forma Statement.  The Receiver, as soon as
practicable after Bank Closing, in accordance with the best information then
available, shall provide to the Assuming Bank a pro forma statement reflecting
any adjustments of such liabilities and assets as may be necessary.  Such pro forma statement shall be prepared in
accordance with the Receiver’s customary practices and shall take into account,
to the extent possible, (i) liabilities and assets of a nature similar to
those contemplated by Section 21 or Section 3.1, respectively, which
at Bank Closing were carried in the Failed Bank’s suspense accounts, (ii) accruals
as of Bank Closing for all income related to th’e assets and business of the
Failed Bank acquired by the Assuming Bank hereunder, whether or not such
accruals were reflected on the Accounting Records of the Failed Bank in the
normal course of its operations, and (iii) adjustments to determine the
Book Value of any investment in an Acquired Subsidiary and related accounts on
the “bank only” (unconsolidated) balance sheet of the Failed Bank based on the
equity method of accounting, whether or not the Failed Bank used the equity
method of accounting for investments in subsidiaries, except that the resulting
amount cannot be less than the Acquired Subsidiary’s recorded equity as of Bank
Closing as reflected on the Accounting Records of the Acquired Subsidiary.  Any Loan purchased by the Assuming Bank
pursuant to Section 3.1 which the Failed Bank charged off during the
period following the date of the Information Package to Bank Closing shall be
deemed not to be charged off for the purposes of the pro forma statement, and
the purchase price shall be determined pursuant to Section 3.2.  It is understood and agreed that any
adjustments made pursuant to this Article VIII shall be settled in the
manner described in Sections 8.3 and 8.5 and shall not alter or affect the
calculation of the First Loss Tranche.


 


25

















 


8.2                               Correction of Errors and Omissions; Other
Liabilities.


 


(a)                                  In the event any bookkeeping omissions or errors are discovered in
preparing any Pro forma statement or in completing the transfers and
assumptions contemplated hereby, the parties hereto agree to correct such
errors and omissions, it being understood that, as far as practicable, all
adjustments will be made consistent with the judgments, methods, policies or
accounting principles utilized by the Failed Bank in preparing and maintaining
Accounting Records, except that adjustments made pursuant to this Section 8.2(a) are
not intended to bring the Accounting Records of the Failed Bank into accordance
with generally accepted accounting principles.


 


(b)                                 If the Receiver discovers at any time subsequent to the date of this
Agreement and prior to the Settlement Date that any claim exists against the
Failed Bank which is of such a nature that it would have been included in the
liabilities assumed under Article II had the existence of such claim or
the facts giving rise thereto been known as of Bank Closing, the Receiver may,
in its discretion, at any time prior to the Settlement Date, require that such
claim be assumed by the Assuming Bank in a manner consistent with the intent of
this Agreement.  The Receiver will make
appropriate adjustments to the Pro forma statement provided by the Receiver to
the Assuming Bank pursuant to Section 8.1 as may be necessary.


 


8.3                               Payments.  The Receiver agrees to cause to be paid to
the Assuming Bank, or the Assuming Bank agrees to pay to the Receiver, as the
case may be, on the Settlement Date (or, the first Business Day following the
date on which the final Pro forma statement has been deemed to be accepted in accordance
with Section 8.6(a) or delivered in accordance with Section 8.6(b),
if later), a payment in an amount which reflects the net adjustments (including
any costs, expenses and fees associated with determinations of value as
provided in this Agreement) made pursuant to Section 8.1 or Section 8.2,
plus interest as provided in Section 8.4. 
The Receiver and the Assuming Bank agree to effect on the Settlement
Date (or, the first Business Day following the date on which the final Pro
forma statement has been deemed to be accepted in accordance with Section 8.6(a) or
delivered in accordance with Section 8.6(b), if later) any further
transfer of assets to or assumption of liabilities or claims by the Assuming
Bank as may be necessary in accordance with Section 8.1 or Section 8.2.


 


8.4                               Interest.  Any amounts paid under Section 8.3 or Section 8.5,
shall bear interest for the period from and including the day following Bank
Closing to and including the day preceding the payment at the Settlement
Interest Rate.


 


8.5                               Subsequent Adjustments.  In the event that the Assuming
Bank or the Receiver discovers any errors or omissions as contemplated by Section 8.2
or any error with respect to the payment made under Section 8.3 after the
Settlement Date, the Assuming Bank and the Receiver agree to provide written
notification of such errors and omissions and any payments as may be necessary
to reflect any such correction (a “Subsequent Adjustment Notice”) and, subject
to Section 8.6, promptly correct any such errors or omissions and make any
payments as may be necessary to reflect any such correction plus interest as
provided in Section 8.4.


 


26

















 


8.6                               Disagreements.


 


(a)                                  Within thirty (30) calendar days following receipt by the Assuming Bank
of the Pro forma statement contemplated by Section 8.1, the Assuming Bank
shall have the right to dispute all or any portion of such Pro forma statement
by giving written notice (a “Notice of Disagreement”) to the Receiver setting
forth in reasonable detail the basis for any such dispute and the Assuming Bank’s
calculation of any amounts set forth in the Pro forma statement that are the
subject of such dispute (any such dispute, a “Disagreement”).  If the Assuming Bank does not deliver a
Notice of Disagreement within thirty (30) calendar days after delivery of the
Pro forma statement, the Assuming Bank will be deemed to have irrevocably
accepted the Pro forma statement.


 


(b)                                 Promptly following the delivery of a Notice of Disagreement, the parties
shall commence good faith negotiations with a view to resolving all such
Disagreements.  If there are any
Disagreements that the parties are unable to resolve within thirty (30)
calendar days after the delivery of a Notice of Disagreement, any such Disagreements
shall be resolved by determination of a review board (a “Review Board”)
consisting of three (3) members, one of which shall be selected by the
Receiver, one of which shall be selected by the Assuming Bank and the third
member of which shall be selected by the other two members.  No member of the Review Board may be
affiliated with either the Assuming Bank or the Receiver and each member of the
Review Board must possess sufficient financial expertise to permit such Member
to conduct an informed evaluation of a Disagreement.  The parties shall promptly select their
members of the Review Board and submit their positions with respect to the
Disagreements to the Review Board and shall cooperate with the Review Board and
provide the Review Board with access to all documentation and personnel as the
Review Board reasonably requests in order to render its determination.  The parties shall use their best efforts to
cause the Review Board to render its determination as soon as practicable, and
in any case no later than thirty (30) calendar days, after the referral to it
of the Disagreements.  With respect to
each Disagreement, the Review Board shall be required to either (i) adopt
the position of one of the parties regarding such Disagreement or (ii) adopt
a position that is in between the positions of the parties.  The Review Board shall issue a written
determination setting forth its determination with respect to the Disagreements
and provide the same to each party.  Such
written determination shall be final and binding upon the parties.  Promptly following the final determination of
all Disputes, the Receiver shall deliver to the Assuming Bank a Pro forma
statement reflecting the final determination as determined in accordance with
this Section 8.6(b), and any payments required to be made and transfer of
assets to or assumptions of liabilities or claims pursuant to Section 8.3
shall be determined based on such Pro forma statement.


 


(c)                                  Within thirty (30) calendar days following receipt by a party of a
Subsequent Adjustment Notice, the receiving party shall have the right to
dispute all or any portion of such Subsequent Adjustment Notice by giving a
Notice of Disagreement to the other party setting forth in reasonable detail
the basis for any such Disagreement and such party’s calculation of any amounts
set forth in the Subsequent Adjustment Notice that are the subject of such
Disagreement.  If the party receiving the
Subsequent Adjustment Notice does not deliyer a Notice of Disagreement within
thirty (30) calendar days after delivery of the Subsequent Adjustment Notice,
such party will be deemed to have irrevocably accepted the matters described in
the Subsequent Adjustment Notice.  In the
event that a Notice of Disagreement is 


 


27

















 


delivered within such
thirty (30) calendar day period, the parties agree to follow the procedures set
forth in Section 8.2(b) in order to resolve any Disagreement set
forth in such Notice of Disagreement. 
The determination of any such Disagreement made in accordance with the
procedures set forth in Section 8.2(b) shall be final and binding
upon the parties and any payments required to be made pursuant to Section 8.5
shall be determined based on such determination.


 


ARTICLE IX

CONTINUING COOPERATION


 


9.1                               General Matters.  The parties hereto agree that they will, in
good faith and with their best efforts, cooperate with each other to carry out
the transactions contemplated by this Agreement and to effect the purposes
hereof.


 


9.2                               Additional Title Documents.  The Receiver, the Corporation
and the Assuming Bank each agree, at any time, and from time to time, upon the
request of any party hereto, to execute and deliver such additional instruments
and documents of conveyance and take such other action as shall be reasonably
necessary to vest in the appropriate party its full legal or equitable title in
and to the property transferred pursuant to this Agreement or to be transferred
in accordance herewith.  The Assuming
Bank shall prepare such instruments and documents of conveyance (in form and
substance reasonably satisfactory to the Receiver) as shall be necessary to
vest title to the Assets in the Assuming Bank. 
The Assuming Bank shall be responsible for recording such instruments
and documents of conveyance at its own expense. 
In furtherance of the foregoing, concurrently with the execution of this
Agreement, the Receiver shall execute and deliver to the Assuming Bank the
Power of Attorney in the form attached as Exhibit 9.2 to this Agreement.


 


9.3                               Claims and Suits.


 


(a)                                  The Receiver shall have the right, in its discretion, to defend or
settle any claim or suit against the Assuming Bank with respect to which the
Receiver has indemnified the Assuming Bank in the same manner and to the same
extent as provided in Article XII; provided that no such settlement shall
be made without the prior written consent of the Assuming Bank (such consent
not to be unreasonably withheld or delayed) unless any such settlement includes
an express unconditional release of the Assuming Bank and its Affiliates from
any and all liabilities arising out of or relating to such claim or suit
without any admission of wrongdoing by the Assuming Bank or any of its
Affiliates.  The exercise by the Receiver
of any rights under this Section 9.3(a) shall not release the
Assuming Bank with respect to any of its obligations under this Agreement.


 


(b)                                 In the event any action at law or in equity shall be instituted by any
Person against the Receiver and the Corporation as codefendants with respect to
any asset of the Failed Bank retained or acquired pursuant to this Agreement by
the Receiver, the Receiver agrees, at the request of the Corporation, to join
with the Corporation in a petition to remove the action to the United States
District Court for the proper district. 
The Receiver agrees to institute, with or without joinder of the
Corporation as coplaintiff, any action with respect to any such retained or 


 


28

















 


acquired asset or any
matter connected therewith whenever notice requiring such action shall be given
by the Corporation to the Receiver.


 


9.4                               Payment of Deposits.  In the event any depositor does
not accept the obligation of the Assuming Bank to pay any Deposit liability of
the Failed Bank assumed by the Assuming Bank pursuant to this Agreement and
asserts a claim against the Receiver for all or any portion of any such Deposit
liability, the Assuming Bank agrees on demand to provide to the Receiver funds
sufficient to pay such claim in an amount not in excess of the Deposit
liability reflected on the books of the Assuming Bank at the time such claim is
made.  Upon payment by the Assuming Bank
to the Receiver of such amount, the Assuming Bank shall be discharged from any
further obligation under this Agreement to pay to any such depositor the amount
of such Deposit liability paid to the Receiver.


 


9.5                               Withheld Payments.  At any time, the Receiver or
the Corporation may, in its discretion, determine that all or any portion of
any deposit balance assumed by the Assuming Bank pursuant to this Agreement
does not constitute a “Deposit” (or otherwise, in its discretion, determine
that it is the best interest of the Receiver or Corporation to withhold all or
any portion of any deposit), and may direct the Assuming Bank to withhold
payment of all or any portion of any such deposit balance.  Upon such direction, the Assuming Bank agrees
to hold such deposit and not to make any payment of such deposit balance to or
on behalf of the depositor, or to itself, whether by way of transfer, set-off,
or otherwise.  The Assuming Bank agrees
to maintain the “withheld payment” status of any such deposit balance until
directed in writing by the Receiver or the Corporation as to its
disposition.  At the direction of the
Receiver or the Corporation, the Assuming Bank shall return all or any portion
of such deposit balance to the Receiver or the Corporation, as appropriate, and
thereupon the Assuming Bank shall be discharged from any further liability to
such depositor with respect to such returned deposit balance.  If such deposit balance has been paid to the
depositor prior to a demand for return by the Corporation or the Receiver, and
payment of such deposit balance had not been previously withheld pursuant to
this Section, the Assuming Bank shall not be obligated to return such deposit
balance to the Receiver or the Corporation. 
The Assuming Bank shall be obligated to reimburse the Corporation or the
Receiver, as the case may be, for the amount of any deposit balance or portion
thereof paid by the Assuming Bank in contravention of any previous direction to
withhold payment of such deposit balance or return such deposit balance the
payment of which was withheld pursuant to this Section.


 


9.6                               Proceedings with Respect to Certain Assets and
Liabilities.


 


(a)                                  In connection with any investigation, proceeding or other matter with
respect to any asset or liability of the Failed Bank retained by the Receiver,
or any asset of the Failed Bank acquired by the Receiver pursuant to this
Agreement, the Assuming Bank shall cooperate to the extent reasonably required
by the Receiver.


 


(b)                                 In addition to its obligations under Section 6.4, the Assuming Bank
shall provide representatives of the Receiver access at reasonable times and locations
without other limitation or qualification to (i) its directors, officers,
employees and agents and those of the Acquired Subsidiaries, and (ii) its
books and records, the books and records of such Acquired Subsidiaries and all
Credit Files, and copies thereof.  Copies
of books, records and Credit Files 


 


29

















 


shall be provided by the
Assuming Bank as requested by the Receiver and the costs of duplication thereof
shall be borne by the Receiver.


 


(c)                                  Not later than ten (10) days after the Put Notice pursuant to Section 3.4
or the date of the notice of transfer of any Loan by the Assuming Bank to the
Receiver pursuant to Section 3.6, the Assuming Bank shall deliver to the
Receiver such documents with respect to such Loan as the Receiver may request,
including without limitation the following: (i) all related Credit
Documents (other than certificates, notices and other ancillary documents), (ii) a
certificate setting forth the principal amount on the date of the transfer and
the amount of interest, fees and other charges then accrued and unpaid thereon,
and any restrictions on transfer to which any such Loan is subject, and (iii) all
Credit Files, and all documents, microfiche, microfilm and computer records (including
but not limited to magnetic tape, disc storage, card forms and printed copy)
maintained by, owned by, or in the possession of the Assuming Bank or any
Affiliate of the Assuming Bank relating to the transferred Loan.


 


9.7                               Information.  The Assuming Bank promptly shall provide to
the Corporation such other information, including financial statements and
computations, relating to the performance of the provisions of this Agreement
as the Corporation or the Receiver may request from time to time, and, at the
request of the Receiver, make available employees of the Failed Bank employed
or retained by the Assuming Bank to assist in preparation of the Pro forma
statement pursuant to Section 8.1.


 


ARTICLE X

CONDITION PRECEDENT


 


The obligations of the parties
to this Agreement are subject to the Receiver and the Corporation having
received at or before Bank Closing evidence reasonably satisfactory to each of
any necessary approval, waiver, or other action by any governmental authority,
the board of directors of the Assuming Bank, or other third party, with respect
to this Agreement and the transactions contemplated hereby, the closing of the
Failed Bank and the appointment of the Receiver, the chartering of the Assuming
Bank, and any agreements, documents, matters or proceedings contemplated hereby
or thereby.


 


ARTICLE XI

REPRESENTATIONS AND WARRANTIES OF THE ASSUMING BANK


 


The Assuming Bank represents
and warrants to the Corporation and the Receiver as follows:


 


(a)                                  Corporate Existence and Authority.  The Assuming Bank (i) is
duly organized, validly existing and in good standing under the laws of its
Chartering Authority and has full power and authority to own and operate its
prOperties and to conduct its business as now conducted by it, and (ii) has
full power and authority to execute and deliver this Agreement and to perform
its obligations hereunder.  The Assuming
Bank has taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement and the performance of the transactions
contemplated hereby.


 


30














 


(b)           Third Party Consents.  No governmental authority or other third
party consents (including but not limited to approvals, licenses, registrations
or declarations) are required in connection with the execution, delivery or
performance by the Assuming Bank of this Agreement, other than such consents as
have been duly obtained and are in full force and effect.


 


(c)           Execution and
Enforceability.  This
Agreement has been duly executed and delivered by the Assuming Bank and when
this Agreement has been duly authorized, executed and delivered by the
Corporation and the Receiver, this Agreement will constitute the legal, valid
and binding obligation of the Assuming Bank, enforceable in accordance with its
tends.


 


(d)           Compliance with Law.


 


(i)            Neither the Assuming Bank nor any of
its Subsidiaries is in violation of any statute, regulation, order, decision,
judgment or decree of, or any restriction imposed by, the United States of
America, any State, municipality or other political subdivision or any agency
of any of the foregoing, or any court or other tribunal having jurisdiction
over the Assuming Bank or any of its Subsidiaries or any assets of any such
Person, or any foreign government or agency thereof having such jurisdiction,
with respect to the conduct of the business of the Assuming Bank or of any of
its Subsidiaries, or the ownership of the properties of the Assuming Bank or
any of its Subsidiaries, which, either individually or in the aggregate with
all other such violations, would materially and adversely affect the business,
operations or condition (financial or otherwise) of the Assuming Bank or the
ability of the Assuming Bank to perform, satisfy or observe any obligation or
condition under this Agreement.


 


(ii)           Neither the execution and delivery
nor the performance by the Assuming Bank of this Agreement will result in any
violation by the Assuming Bank of, or be in conflict with, any provision of any
applicable law or regulation, or any order, writ or decree of any court or
governmental authority.


 


(e)           Representations Remain
True.  The Assuming Bank
represents and warrants that it has executed and delivered to the Corporation a
Purchaser Eligibility Certification and Confidentiality Agreement and that all
information provided and representations made by or on behalf of the Assuming
Bank in connection with this Agreement and the transactions contemplated
hereby, including, but not limited to, the Purchaser Eligibility Certification
and Confidentiality Agreement (which are affirmed and ratified hereby) are and
remain true and correct in all material respects and do not fail to state any
fact required to make the information contained therein not misleading.


 


ARTICLE XII

INDEMNIFICATION


 


12.1        Indemnification of Indemnitees.  From and after Bank Closing and
subject to the limitations set forth in this Section and Section 12.6
and, with respect to third party claims, compliance by the Indemnitees with Section 12.2,
the Receiver agrees to indemnify and hold harmless the Indemnitees against any
and all costs, losses, any diminution in value of any Asset 


 


31

















 


or asset of an Acquired
Subsidiary, claims, liabilities, expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement (“Losses”) suffered or incurred
by any Indernnitee based upon, relating to, arising out of, or in connection
with, any of the following set forth in (a) of this Section 12.1,
subject to the exclusions as provided in (b) of this Section 12.1:


 


(a)


 


(1)           the rights of any shareholder or
former shareholder as such of (x) the Failed Bank, or (y) any
Subsidiary or Affiliate of the Failed Bank, or the rights of (i) the
Failed Bank or (ii) any Subsidiary or Affiliate of the Failed Bank which
are asserted derivatively;


 


(2)           the rights of any creditor as such of
the Failed Bank or any Subsidiary or Affiliate of the Failed Bank, or any
creditor as such of any director, officer, employee or agent of the Failed Bank
or any Subsidiary or Affiliate of the Failed Bank, with respect to any
indebtedness or other obligation of the Failed Bank or any Subsidiary or
Affiliate of the Failed Bank arising prior to Bank Closing;


 


(3)           the rights of any present or former
director, officer, employee or agent as such of the Failed Bank or of any
Subsidiary or Affiliate of the Failed Bank;


 


(4)           any action or inaction, including,
without limitation, any violation of any law, rule or regulation, prior to
Bank Closing of the Failed Bank, its directors, officers, employees or agents
as such, or any Subsidiary or Affiliate of the Failed Bank, or the directors,
officers, employees or agents as such of such Subsidiary or Affiliate;


 


(5)           any amounts owed by the Failed Bank
or any Subsidiary or Affiliate to any Person for goods or services provided, or
with respect to periods occurring, prior to Bank Closing, including, without
limitation, any such amounts owed under any contract to which the Failed Bank
or any of its Subsidiaries or Affiliates was a party, regardless of whether or
not the Assuming Bank elects to assume such contract in accordance with this
Agreement;


 


(6)           any failure or alleged failure (not
in violation of law) by the Assuming Bank to continue to perform any service or
activity previously performed by the Failed Bank or any of its Subsidiaries or
Affiliates which the Assuming Bank is not required to perform pursuant to this
Agreement or which arise under any contract to which the Failed Bank or any of
its Subsidiaries or Affiliates was a party which the Assuming Bank elected not
to assume in accordance with this Agreement and which neither the Assuming Bank
nor any Subsidiary or Affiliate of the Assuming Bank has assumed subsequent to
the execution hereof;


 


(7)           any action or inaction of any
Indemnitee, including for purposes of this Section 12.1(a)(7) the
former officers or employees of the Failed Bank or of any Subsidiary or
Affiliate of the Failed Bank that is taken upon the specific written direction
of the Corporation or the Receiver or that is permitted to be taken under this 


 


32

















 


Agreement,
other  than any action or inaction taken in a manner constituting
bad faith, gross negligence or willful misconduct;


 


(8)           the rights of any depositor of the
Failed Bank whose deposit has been accorded “withheld payment” status and/or
returned to the Receiver or Corporation in accordance with Section 9.5
and/or has become an “unclaimed deposit” or has been returned to the
Corporation or the Receiver in accordance with Section 2,3;


 


(9)           the presence, storage or release of
any hazardous or toxic substance, or any pollutant or contaminant, or condition
of any Asset or other asset of the Failed Bank or any of its Subsidiaries or
Affiliates to the extent existing prior to Bank Closing;


 


(10)         any other liabilities of any Acquired
Subsidiary based upon, relating to, arising out of or in connection with facts
or circumstances occurring or existing prior to Bank Closing;


 


(11)         any other liabilities of the Failed
Bank or any of its Subsidiaries or Affiliates that are not expressly assumed by
the Assuming Bank pursuant to Section 2.1; and


 


(12)         for the avoidance of doubt and without
limiting the generality of this Section 12.1(a), each Indemnitee will be
indemnified for Losses suffered or incurred by any Indemnitee based upon, relating
to, arising out of, or in connection with (i) inadequate or fraudulent
origination or loan servicing activities or other lender liability causes of
action, (ii) the failure of the Failed Bank or an Acquired Subsidiary to
have a legal, valid and enforceable perfected Lien over the assets to which any
Loan relates, with the priority purported to be granted by the instrument
creating such Lien, or (iii) the failure of any Credit Documents
evidencing a Loan or which purport to create a Lien over the assets to which a
Loan relates to be legal, valid and binding obligations of the relevant parties
enforceable in accordance with their terms.


 


(b)           provided, that, with
respect to this Agreement, except for paragraphs (7) and (8) of Section 12.1(a),
no indemnification will be provided under this Agreement for any:


 


(1)           Losses for which the Assuming Bank
has been made whole under other provisions of this Agreement, including the
Single Family Shared-Loss Agreement and the Commercial Shared-Loss Agreement;


 


(2)           Losses with respect to any liability
or obligation of the Failed Bank that is expressly assumed by the Assuming Bank
pursuant to this Agreement or subsequent to the execution hereof by the
Assuming Bank or any Subsidiary or Affiliate of the Assuming Bank;


 


(3)           Losses with respect to any liability
of the Failed Bank to any present or former employee as such of the Failed Bank
or of any Subsidiary or Affiliate of the Failed Bank, which liability is
expressly assumed by the Assuming Bank 


 


33

















 


or
any Subsidiary or Affiliate of the Assuming Bank subsequent to the execution
hereof by the Assuming Bank;


 


(4)           Losses based on the failure of any
Indemnitee to seek recovery of damages from the Receiver for any claims based
upon any action or inaction of the Failed Bank, its directors, officers,
employees or agents as fiduciary, agent or custodian prior to Bank Closing;


 


(5)           Losses based on any violation or
alleged violation by any Indemnitee of the antitrust, branching, banking or
bank holding company or securities laws of the United States of America or any
State thereof (in the case of any Acquired Subsidiary, only to the extent such
violation or alleged violation occurred after the acquisition thereof by the
Assuming Bank);


 


(6)           Losses based on the rights of any
present or former creditor, customer, or supplier as such of the Assuming Bank
or any Subsidiary or Affiliate of the Assuming Bank (in the case of any
Acquired Subsidiary, only to the extent such claim is based on rights arising
after acquisition thereof by the Assuming Bank);


 


(7)           Losses based on the rights of any
present or former shareholder as such of the Assuming Bank or any Subsidiary or
Affiliate of the Assuming Bank (other than any Acquired Subsidiary) regardless
of whether any such present or former shareholder is also a present or former
shareholder of the Failed Bank;


 


(8)           [Reserved];


 


(9)           Losses which could have been enforced
against any Indernnitee (other than an Acquired Subsidiary) had the Assuming
Bank not entered into this Agreement;


 


(10)         Losses based on any liability for taxes
or fees (other than taxes or fees based on income of the Failed Bank or any
Subsidiary or Affiliate of the Failed Bank) assessed with respect to the
consummation of the transactions contemplated by this Agreement, including
without limitation any subsequent transfer of any Assets or Liabilities Assumed
to any Subsidiary or Affiliate of the Assuming Bank;


 


(11)         except as expressly provided in this Article XII,
Losses based on any action or inaction of any Indemnitee (in the case of any
Acquired Subsidiary, only with respect to any such action or inaction occurring
after the acquisition thereof by the Assuming Bank), and nothing in this
Agreement shall be construed to provide indemnification for (i) the Failed
Bank, (ii) any Subsidiary or Affiliate of the Failed Bank (other than an
Acquired Subsidiary), or (iii) any present or former director, officer,
employee or agent of the Failed Bank or its Subsidiaries or Affiliates; provided,
that the Receiver, in its discretion, may provide indemnification
hereunder for any present or former director, officer, employee or agent of the
Failed Bank or its Subsidiaries or Affiliates who is also or becomes a
director, officer, employee or agent of the Assuming Bank or its Subsidiaries
or Affiliates;


 


34

















 


(12)         claims or other actions which
constitute a breach by the Assuming Bank of the representations and warranties
contained in Article XI;


 


(13)         [Reserved]; and


 


(14)         Losses based on, related to or arising
from any asset, including a loan, acquired or liability assumed by the Assuming
Bank, which acquisition or assumption is effected other than pursuant to this
Agreement.


 


12.2        Conditions Precedent to
Indemnification.  It shall be a condition precedent to the
obligation of the Receiver to indemnify any Person pursuant to this Article XII
that such Person shall, with respect to any claim made or threatened against
such Person by a third party for which such Person is or may be entitled to
indemnification hereunder:


 


(a)           give written notice to the Regional
Counsel (Litigation Branch) of the Corporation in the manner and at the address
provided in Section 13.7 of such claim as soon as practicable after such
claim is made or threatened; provided, that notice must be given
on or before the date which is six (6) years from the date of this
Agreement;


 


(b)           provide to the Receiver such
information and cooperation with respect to such claim as the Receiver may reasonably
require;


 


(c)           cooperate and take all steps, as the
Receiver may reasonably require, to preserve and protect any defense to such
claim;


 


(d)           in the event suit is brought with
respect to such claim, upon reasonable prior notice, afford to the Receiver the
right, which the Receiver may exercise in its sole discretion, to conduct the
investigation, control the defense and effect settlement of such claim,
including without limitation the right to designate counsel and to control all
negotiations, litigation, arbitration, settlements, compromises and appeals of
any such claim, all of which shall be at the expense of the Receiver; provided,
that the Receiver shall have notified the Person claiming
indemnification in writing that such claim is a claim with respect to which the
Person claiming indemnification is entitled to indemnification under this Article XII;
provided, further  that no settlement shall be made without
the prior written consent of the Indernnitee (such consent not to be
unreasonably withheld or delayed) unless any such settlement includes an
express unconditional release of the Indemnittee and its Affiliates from any
and all liabilities arising out of or relating to such suit without any
admission of wrongdoing by the Indemnitee or any of its Affiliates;


 


(e)           not incur any costs or expenses in
connection with any response or suit with respect to such claim, unless such
costs or expenses were incurred upon the written direction of the Receiver or
unless such Indemnitee incurs such costs or expenses for its own account; provided,
that the Receiver shall not be obligated to reimburse the amount of any
such costs or expenses unless such costs or expenses were incurred upon the
written direction of the Receiver;


 


(f)            not release or settle such claim or
make any payment or admission with respect thereto, unless the Receiver
consents in writing thereto, which consent shall not be 


 


35

















 


unreasonably withheld; provided,
that the Receiver shall not be obligated to reimburse the amount of any
such settlement or payment unless such settlement or payment was effected upon
the written direction of the Receiver; and


 


(g)           take reasonable action as the
Receiver may request in writing as necessary to preserve, protect or enforce
the rights of the indemnified Person against any Primary Indemnitor.


 


12.3        No Additional Warranty.  Nothing in this Article XII
shall be construed or deemed to (i) expand or otherwise alter any warranty
or disclaimer thereof provided under Section 3.3 or any other provision of
this Agreement with respect to, among other matters, the title, value,
collectibility, genuineness, enforceability or condition of any (x) Asset,
or (y) asset of the Failed Bank purchased by the Assuming Bank subsequent
to the execution of this Agreement by the Assuming Bank or any Subsidiary or
Affiliate of the Assuming Bank, or (ii) create any warranty not expressly
provided under this Agreement with respect thereto; provided however that the
absence of any such warranty shall not affect the calculation of any Losses
with respect to which any Indemnitee is entitled to indemnification under Section 12.1.


 


12.4        Indemnification of Receiver and
Corporation.  From and after Bank Closing, the Assuming
Bank agrees to indemnify and hold harmless the Corporation and the Receiver and
their respective directors, officers, employees and agents from and against any
and all Losses actually and reasonably incurred in connection with any of the
following:


 


(a)           claims against the Corporation or any
such specified Person based on any and all liabilities or obligations of the
Failed Bank assumed by the Assuming Bank pursuant to this Agreement or
subsequent to the execution hereof by the Assuming Bank or any Subsidiary or
Affiliate of the Assuming Bank, whether or not any such liabilities
subsequently are sold and/or transferred, other than any claim based upon any
action or inaction of any Indemnitee as provided in paragraph (7) or (8) of
Section 12.1(a); and


 


(b)           claims against the Corporation or any
such specified Person based on any act or omission of any Indemnitee (including
but not limited to claims of any Person claiming any right or title by or
through the Assuming Bank with respect to Assets transferred to the Receiver
pursuant to Section 3.4 or 3.6), other than any action or inaction of any
Indemnitee as provided in paragraph (7) or (8) of Section 12.1(a).


 


12.5        Obligations Supplemental.  The obligations of the
Receiver, and the Corporation as guarantor in accordance with Section 12.7,
to provide indemnification under this Article MI are to supplement any
amount payable by any Primary Indemnitor to the Person indemnified under this Article XII.  Consistent with that intent, the Receiver
agrees only to make payments pursuant to such indemnification to the extent not
payable by a Primary Indemnitor.  If the
aggregate amount of payments actually received by the Person being indemnified
from the Receiver, or the Corporation as guarantor in accordance with Section 12.7,
and all Primary Indernnitors with respect to any item of indemnification under
this Article XII exceeds the amount payable with respect to such item,
such Person being indemnified shall notify the Receiver thereof and, upon the
request of the Receiver, shall promptly pay to the Receiver, or the 


 


36

















 


Corporation as
appropriate, the amount of the Receiver’s (or Corporation’s) payments to the
extent of such excess.


 


12.6        Criminal Claims.  Notwithstanding any provision
of this Article XII to the contrary, in the event that any Person being
indemnified under this Article XII shall become involved in any criminal
action, suit or proceeding, whether judicial, administrative or investigative,
the Receiver shall have no obligation hereunder to indemnify such Person for
liability with respect to any criminal act or to the extent any costs or
expenses are attributable to the defense against the allegation of any criminal
act, unless (i) the Person is successful on the merits or otherwise in the
defense against any such action, suit or proceeding, or (ii) such action,
suit or proceeding is terminated without the imposition of liability on such
Person.


 


12.7        Limited Guaranty of the Corporation.  The Corporation hereby
guarantees performance of the Receiver’s obligation to indemnify the Assuming
Bank as set forth in this Article XII. 
It is a condition to the Corporation’s obligation hereunder that the
Assuming Bank shall comply in all respects with the applicable provisions of
this Article XII.  The Corporation
shall be liable hereunder only for such amounts, if any, as the Receiver is
obligated to pay under the terms of this Article XII but shall fail to
pay.  Except as otherwise provided above
in this Section 12.7, nothing in this Article XII is intended or
shall be construed to create any liability or obligation on the part of the
Corporation, the United States of America or any department or agency thereof
under or with respect to this Article XII, or any provision hereof, it
being the intention of the parties hereto that the obligations undertaken by
the Receiver under this Article XII are the sole and exclusive
responsibility of the Receiver and no other Person or entity.


 


12.8        Subrogation.  Upon payment by the Receiver,
or the Corporation as guarantor in accordance with Section 12.7, to any
Indemnitee for any claims indemnified by the Receiver under this Article XII,
the Receiver, or the Corporation as appropriate, shall become subrogated to all
rights of the Indemnitee against any other Person to the extent of such
payment.


 


ARTICLE XIII

MISCELLANEOUS


 


13.1        Entire Agreement.  This Agreement (including the
Schedules and Exhibits hereto) and the Addendum to Purchase and Assumption
Agreement, the Warrant and the other documents delivered in connection
herewith, embody the entire agreement of the parties hereto in relation to the
subject matter herein and supersede all prior understandings or agreements,
oral or written, between the parties.


 


13.2        Headings.  The headings and subheadings of
the Table of Contents, Articles and Sections contained in this Agreement,
except the terms identified for definition in Article I and elsewhere in
this Agreement, are inserted for convenience only and shall not affect the
meaning or interpretation of this Agreement or any provision hereof.


 


13.3        Counterparts.  This Agreement may be executed
in any number of counterparts and by the duly authorized representative of a
different party hereto on separate counterparts, each of which when so executed
shall be deemed to be an original and all of which when taken together shall
constitute one and the same Agreement.


 


37

















 


13.4        GOVERNING LAW.  THIS AGREEMENT AND THE RIGHTS
AND OBLIGATIONS HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE FEDERAL LAW OF THE UNITED STATES OF AMERICA, AND IN THE ABSENCE OF
CONTROLLING FEDERAL LAW, IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH
THE MAIN OFFICE OF THE FAILED BANK IS LOCATED.


 


13.5        Successors.  All terms and conditions of
this Agreement shall be binding on the successors and assigns of the Receiver,
the Corporation and the Assuming Bank. 
Except as otherwise specifically provided in this Agreement, nothing
expressed or referred to in this Agreement is intended or shall be construed to
give any Person other than the Receiver, the Corporation and the Assuming Bank
any legal or equitable right, remedy or claim under or with respect to this
Agreement or any provisions contained herein, it being the intention of the parties
hereto that this Agreement, the obligations and statements of responsibilities
hereunder, and all other conditions and provisions hereof are for the sole and
exclusive benefit of the Receiver, the Corporation and the Assuming Bank and
for the benefit of no other Person.


 


13.6        Modification; Assignment.  No amendment or other
modification, rescission, release, or assignment of any part of this Agreement
shall be effective except pursuant to a written agreement subscribed by the
duly authorized representatives of the parties hereto.  Notwithstanding the foregoing, the Assuming
Bank shall be entitled to assign any of its rights or obligations under this
Agreement to any Subsidiary of the Assuming Bank, except to the extent that any
such assignment is not permitted under applicable law.


 


13.7        Notice.  Any notice, request, demand,
consent, approval or other communication to any party hereto shall be effective
when received and shall be given in writing, and delivered in person against
receipt therefore, or sent by certified mail, postage prepaid, courier service,
telex, facsimile transmission or email to such party (with copies as indicated
below) at its address set forth below or at such other address as it shall
hereafter furnish in writing to the other parties.  All such notices and other communications
shall be deemed given on the date received by the addressee.


 


Assuming Bank


 


BankUnited

255 Alhambra Circle

Coral Gables, Florida 33134

Attention: Mr.  John Kanas


 


with a copy to:


 


Receiver and
Corporation


 


Federal Deposit Insurance
Corporation,

Receiver of BankUnited, FSB

1601 Bryan Street, Suite 1700

Dallas, Texas 75201


 


38

















 


Attention: Settlement Manager


 


with copy to: Regional Counsel
(Litigation Branch)


 


and with
respect to notice under Article XII:


 


Federal Deposit Insurance
Corporation

Receiver of BankUnited, FSB

1601 Bryan Street, Suite 1700

Dallas, Texas 75201

Attention: Regional Counsel (Litigation Branch)


 


13.8        Manner of Payment.  All payments due under this
Agreement shall be in lawful money of the United States of America in
immediately available funds as each party hereto may specify to the other
parties; provided, that in the event the Receiver or the
Corporation is obligated to make any payment hereunder in the amount of
$25,000.00 or less, such payment may be made by check.


 


13.9        Costs, Fees and Expenses.  Except as otherwise
specifically provided herein, each party hereto agrees to pay all costs, fees
and expenses which it has incurred in connection with or incidental to the
matters contained in this Agreement, including without limitation any fees and
disbursements to its accountants and counsel; provided, that the Assuming Bank
shall pay all fees, costs and expenses (other than attorneys’ fees incurred by
the Receiver) incurred in connection with the transfer to it of any Assets or
Liabilities Assumed hereunder or in accordance herewith.


 


13.10      Waiver.  Each of the Receiver, the
Corporation and the Assuming Bank may waive its respective rights, powers or
privileges under this Agreement; provided, that such waiver shall
be in writing; and  further  provided, that no
failure or delay on the part of the Receiver, the Corporation or the Assuming
Bank to exercise any right, power or privilege under this Agreement shall
operate as a waiver thereof, nor will any single or partial exercise of any
right, power or privilege under this Agreement preclude any other or further
exercise thereof or the exercise of any other right, power or privilege by the
Receiver, the Corporation, or the Assuming Bank under this Agreement, nor will
any such waiver operate or be construed as a future waiver of such right, power
or privilege under this Agreement.


 


13.11      Severabilitv.  If any provision of this
Agreement is declared invalid or unenforceable, then, to the extent possible,
all of the remaining provisions of this Agreement shall remain in full force
and effect and shall be binding upon the parties hereto.


 


13.12      Term of Agreement.  This Agreement shall continue
in full force and effect until the sixth (6th) anniversary of Bank Closing; provided,
that the provisions of Section 6.3 and 6.4 shall survive until the
seventh (7th) anniversary of Bank Closing. 
Provided, however, the receivership of the Failed Bank may be terminated
prior to the expiration of the term of this Agreement; in such event, the
guaranty of the Corporation, as provided in and in accordance with the
provisions of Section 12.7 shall be in effect for the remainder of the
term (or such 


 


39

















 


longer period as
necessary to satisfy the terms of the immediately succeeding sentence).  Expiration of the term of this Agreement
shall not affect any claim or liability of any party with respect to any (i) amount
which is owing at the time of such expiration, regardless of when such amount
becomes payable, (ii) breach of this Agreement occurring prior to such
expiration, regardless of when such breach is discovered and (iii) any
matter for which a request for indemnification has been timely submitted.


 


13.13      Survival of Covenants, Etc..  The covenants, representations,
and warranties in this Agreement shall survive the execution of this Agreement
and the consummation of the transactions contemplated hereunder.


 


[Signature Page Follows]


 


40






 










 


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


 


 


	
   

  	
   

  	
  FEDERAL DEPOSIT INSURANCE

  
	
   

  	
   

  	
  CORPORATION, RECEIVER OF

  
	
   

  	
   

  	
  BANKUNITED, FSB, CORAL GABLES,

  
	
   

  	
   

  	
  FLORIDA

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Arthur Cook

  
	
   

  	
   

  	
  Name: Arthur Cook

  
	
   

  	
   

  	
  Title: Attorney-In-Fact

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attest:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Cathy Powers

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  FEDERAL DEPOSIT INSURANCE

  
	
   

  	
   

  	
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Arthur Cook

  
	
   

  	
   

  	
  Name: Arthur Cook

  
	
   

  	
   

  	
  Title: Attorney-In-Fact

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attest:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Cathy Powers

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BANKUNITED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Rajinder P. Singh

  
	
   

  	
   

  	
  Name: Rajinder P. Singh

  
	
   

  	
   

  	
  Title: Head of Consumer
  Banking

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attest:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Andrew Alin

  	
   

  	
   

  



 


41

















 


SCHEDULE 2.1
- Certain Liabilities Assumed by the Assuming Bank


 


42

















 


SCHEDULE 2.1(a) —
Excluded Deposit Liability Accounts


 


Accounts
Excluded from P&A Transaction


 


BankUnited,
FSB

Coral Gables, FL


 


BankUnited, FSB has deposits
associated with the Depository Organization (DO) Cede & Co as Nominee
for DTC.  The DO accounts do not pass to
the Assuming Bank and are excluded from the transaction as described in section
2.1 of the P&A Agreement.  The attached
Schedule 2.1.a DO Detail Report identifies the DO accounts as of March 27
2009.  This schedule will be updated post
closing with data as of Bank Closing date.


 


43

















 


Accounts
Excluded from Calculation of Deposit Franchise Bid

Premium


 


BankUnited,
FSB

Coral Gables, FL


 


The accounts identified below
will pass to the Assuming Bank (unless otherwise noted).  When calculating the premium to be paid on
Assumed Deposits in a P&A transaction, the FDIC will exclude the following
categories of deposit accounts:


 


	
  Category

  	
   

  	
  Description

  	
   

  	
  Amount

  	
   

  
	
  I

  	
   

  	
  Non-DO Brokered Deposits

  	
   

  	
  $

  	
  6,268,827.85

  	
   

  
	
  II

  	
   

  	
  CDARS

  	
   

  	
  $

  	
  0.00

  	
   

  
	
  III

  	
   

  	
  Market Place Deposits

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
  Total deposits excluded from Calculation
  of premium

  	
   

  	
  $

  	
  6,268,827.85

  	
   

  



 


Category
Description


 


I  Brokered Deposits


 


Brokered deposit accounts are
accounts for which the “depositor of record” is an agent, nominee, or custodian
who deposits funds for a principal or principals to whom “pass-through” deposit
insurance coverage may be extended.  The
FDIC separates brokered deposit accounts into 2 categories: 1) Depository
Organization (DO) Brokered Deposits and 2) Non-Depository Organization (Non-DO)
Brokered Deposits.  This distinction is
made by the FDIC to facilitate our role as Receiver and Insurer.  These terms will not appear on other “brokered
deposit” reports generated by the institution.


 


Non-DO Brokered Deposits pass
to the Assuming Bank, but are excluded from Assumed Deposits when the deposit
premium is calculated.  Please see the
attached “Schedule 7 Non-DO Broker Deposit Detail Report” for a listing of
these accounts.  This list will be
updated post closing with balances as of Bank Closing date.


 


If this institution had any DO
Brokered Deposits (Cede & Co as Nominee for DTC), they are excluded
from Assumed Deposits in the PM transaction. 
A list of these accounts is provided on “Schedule 2.1 DO Brokered
Deposit Detail Report”.


 


II  CDARS


 


CDARS deposits pass to the
Assuming Bank, but are excluded from Assumed Deposits when the deposit premium
is calculated.


 


BankUnited, FSB did not
participate in the CDARS program as of the date of the deposit download.  If CDARS deposits are taken between the date
of the deposit download and the Bank Closing Date, they will be identified post
closing and made part of Schedule 7 to the PM Agreement


 


44

















 


Ill  Market Place Deposits


 


“Market Place Deposits” is a
description given to deposits that may have been solicited via a money desk,
intemet subscription service (for example, Qwickrate), or similar programs.


 


BankUnited, FSB was
represented not to have solicited Market Place Deposits as identified
above.  This list will be 2f updated (if
necessary) post closing with balances as of Bank Closing date.


 


This schedule provides account
categories and balances as of the date of the deposit download, or as
indicated.


 


The deposit
franchise bid premium will be calculated using account categories and balances
as of Bank Closing Date that are reflected in the general ledger or subsystem
as described above.  The final numbers
for Schedule 7 will be provided post closing.


 


45

















 


SCHEDULE 3.1
- Certain Assets Purchased


 


SEE ATTACHED
LIST


 


THE LIST(S) ATTACHED
TO THIS SCHEDULE (OR SUBSCHEDULE(S)) AND THE INFORMATION THEREIN, IS AS OF
THE DATE OF THE INFORMATION PACKAGE.  IT
WILL BE ADJUSTED TO REFLECT THE COMPOSITION AND BOOK VALUE OF THE LOANS AND
ASSETS AS OF THE DATE OF BANK CLOSING. 
THE LIST(S) MAY NOT INCLUDE ALL LOANS AND ASSETS (E.G.,
CHARGED OFF LOANS).


 


46

















 


SCHEDULE
3.1a — Subsidiary Entities Acquired


 


SEE ATTACHED
LIST


 


THE LIST(S) ATTACHED
TO THIS SCHEDULE (OR SUBSCHEDULE(S)) AND THE INFORMATION THEREIN, IS AS OF
BANK CLOSING.


 


	
  Name

  	
   

  	
  TIN

  
	
  Bay Holdings, Inc.

  	
   

  	
   

  
	
  CRE Properties, Inc.

  	
   

  	
   

  
	
  BU, REIT, Inc.

  	
   

  	
   

  
	
  BU Delaware, Inc.

  	
   

  	
   

  
	
  T&D Properties of South Florida, Inc.

  	
   

  	
   

  



 


47

















 


SCHEDULE 3.2
- Purchase Price of Assets or assets


 


	
  (a)

  	
   

  	
  cash, cash equivalents and receivables from
  depository institutions, including cash items in the process of collection,
  plus interest thereon:

  	
   

  	
  Book Value

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  securities (exclusive of the capital stock of
  Acquired Subsidiaries), plus interest thereon:

  	
   

  	
  As provided in Section 3.2(b)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
  federal funds sold and repurchase agreements, if
  any, including interest thereon:

  	
   

  	
  Book Value

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (d)

  	
   

  	
  Loans:

  	
   

  	
  Book Value

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (e)

  	
   

  	
  [Reserved]

  	
   

  	
  Book Value

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (f)

  	
   

  	
  Safe Deposit Boxes and related business, if any:

  	
   

  	
  Book Value

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (g)

  	
   

  	
  Records and other documents:

  	
   

  	
  Book Value

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (h)

  	
   

  	
  capital stock of any Acquired Subsidiaries:

  	
   

  	
  Book Value

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (i)

  	
   

  	
  amounts owed to the Failed Bank by any Acquired
  Subsidiary:

  	
   

  	
  Book Value

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (j)

  	
   

  	
  assets securing Deposits of public money, to the
  extent not otherwise purchased hereunder:

  	
   

  	
  Book Value

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (k)

  	
   

  	
  Overdrafts of customers:

  	
   

  	
  Book Value

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (1)

  	
   

  	
  [Reserved]

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (m)

  	
   

  	
  [Reserved]

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (n)

  	
   

  	
  Shared-Loss MTM Assets:

  	
   

  	
  As provided in Section 3.2(c)

  



 


assets
subject to an option to purchase:


 


	
  (a)

  	
   

  	
  Owned Bank Premises:

  	
   

  	
  Fair Market Value

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  Furniture and Equipment:

  	
   

  	
  Fair Market Value

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
  Fixtures:

  	
   

  	
  Fair Market Value

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (d)

  	
   

  	
  Other Equipment:

  	
   

  	
  Fair Market Value

  



 


48

















 


SCHEDULE
4.15A


 


LOANS
SUBJECT TO LOSS SHARING UNDER THE


SINGLE
FAMILY SHARED-LOSS AGREEMENT


 


49

















 


SCHEDULE
4.15B


 


LOANS
SUBJECT TO LOSS SHARING UNDER THE


COMMERCIAL
AND OTHER LOANS SHARED-LOSS AGREEMENT


 


50






 










 


SCHEDULE
4.15C


 


SHARED-LOSS
MTM ASSETS


 


51

















 


EXHIBIT 23


 


FINAL LEGAL
NOTICE


Claiming Requirements
for Deposits

Under 12 U.S.C.  1822(e)


 


	
   

  	
  [Date]

  



 


[Name of
Unclaimed Depositor]

[Address of Unclaimed Depositor]

[Anytown, USA]


 


Subject:
[XXXXX — Name of Bank

City, State] — In Receivership


 


Dear [Sir/Madam]:


 


As you may know, on [Date: Closing Date], the [Name of
Bank (“The Bank”)] was closed and the Federal Deposit Insurance
Corporation (“FDIC”) transferred [The Bank’s]
accounts to [Name of Acquiring Institution].


 


According to federal law under
12 U.S.C., 1822(e), on [Date: eighteen months
from the Closing Date], [Name of Acquiring Institution] must
transfer the funds in your account(s) back to the FDIC if you have not
claimed your account(s) with [Name of Acquiring
Institution].  Based on the
records recently supplied to us by [Name of Acquiring
Institution], your account(s) currently fall into this
category.


 


This letter is your formal
Legal Notice that you have until [Date: eighteen months
from the Closing Date], to claim or arrange to continue your account(s) with
[Name of Acquiring Institution].  There are several ways that you can claim
your account(s) at [Name of Acquiring
Institution].  It is only necessary
for you to take any one of the following actions in order for your account(s) at
[Name of Acquiring Institution] to be
deemed claimed.  In addition, if you have
more than one account, your claim to one account will automatically claim all
accounts:


 


1.     Write to [Name of Acquiring
Institution] and notify them that you wish to keep your account(s) active
with them.  Please be sure to include the
name of the account(s), the account number(s), the signature of an authorized
signer on the account(s), name, and address. 
[Name of Acquiring Institution] address
is:


 


[123 Main
Street


 


Anytown,
USA]


 


2.     Execute a new signature card on your account(s), enter
into a new deposit agreement with [Name of Acquiring Institution], change the
ownership on your account(s), or renegotiate the terms of your certificate of
deposit account(s) (if any).


 


52

















 


3.     Provide [Name of Acquiring Institution] with a change of
address form.


 


4.     Make a deposit to or withdrawal from your account(s).  This includes writing a check on any account
or having an automatic direct deposit credited to or an automatic withdrawal
debited from an account.


 


If you do not want to continue
your account(s) with [Name of Acquiring
Institution] for any reason, you can withdraw your funds and close
your account(s).  Withdrawing funds from
one or more of your account(s) satisfies the federal law claiming
requirement.  If you have time deposits,
such as certificates of deposit, [Name of Acquiring
Institution] can advise you how to withdraw them without being
charged an interest penalty for early withdrawal.


 


If you do not claim ownership
of your account(s) at [Name of Acquiring
Institution by Date: eighteen months from the Closing Date] federal
law requires [Name of Acquiring Institution] to
return your deposits to the FDIC, which will deliver them as unclaimed property
to the State indicated in your address in the Failed Institution’s
records.  If your address is outside of
the United States, the FDIC will deliver the deposits to the State in which the
Failed Institution had its main office. 
12 U.S.0 § 1822(e).  If the State
accepts custody of your deposits, you will have 10 years from the date of
delivery to claim your deposits from the State. 
Mier 10 years you will be permanently barred from claiming your
deposits.  However, if the State refuses
to take custody of your deposits, you will be able to claim them from the FDIC
until the receivership is terminated.  If
you have not claimed your insured deposits before the receivership is
terminated, and a receivership may be terminated at any time, all of your
rights in those deposits will be barred.


 


If you have any questions or
concerns about these items, please contact [Bank Employee]
at [Name of Acquiring Institution] by
phone at [(XXX) XXX-XXXX].


 


	
   

  	
   

  
	
   

  	
  Sincerely,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Name of Claims Specialist]

  
	
   

  	
  [Title]

  



 


53

















 


AFFIDAVIT OF
MAILING


 


1.2           State of


 


1.3           COUNTY OF


 


I am employed as a [Tide of Office] by the [Name of Acquiring
Institution].


 


This will attest that on [Date of mailing], I caused a true and correct copy of
the Final Legal Notice, attached hereto, to owners of unclaimed deposits of [Name of Failed Bank], City, State, to be prepared for
deposit in the mail of the United States of America on behalf of the Federal
Deposit Insurance Corporation.  A list of
depositors to whom the notice was mailed is attached.  This notice was mailed to the depositor’s
last address as reflected on the books and records of the [Name of
Failed Bank] as of the date of failure.


 


 


	
   

  	
   

  
	
   

  	
  [Name]

  
	
   

  	
  [Title of Office]

  
	
   

  	
  [Name of Acquiring Institution]

  



 


Subscribed and sworn to before me
this             
day of [Month, Year].


 


My commission expires:


 


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Name], Notary Public

  



 


54

















 


EXHIBIT 4.15A


 


SINGLE
FAMILY SHARED-LOSS AGREEMENT


 


This agreement for the
reimbursement of loss sharing on certain single family residential mortgage
loans (the “Single Family Shared-Loss Agreement”) shall apply when the Assuming
Bank purchases Single Family Shared-Loss Loans as that term is defined herein. The
terms hereof shall modify and supplement, as necessary, the terms of the
Purchase and Assumption Agreement to which this Single Family Shared-Loss
Agreement is attached as Exhibit 4.15A and incorporated therein. To the
extent any inconsistencies may arise between the terms of the Purchase and
Assumption Agreement and this Single Family Shared-Loss Agreement with respect
to the subject matter of this Single Family Shared-Loss Agreement, the terms of
this Single Family Shared-Loss Agreement shall control. References in this
Single Family Shared-Loss Agreement to a particular Section shall be
deemed to refer to a Section in this Single Family Shared-Loss Agreement,
unless the context indicates that it is intended to be a reference to a Section of
the Purchase and Assumption Agreement.


 


ARTICLE I — DEFINITIONS


 


The capitalized terms used in
this Single Family Shared-Loss Agreement that are not defined in this Single Family
Shared-Loss Agreement are defined in the Purchase and Assumption Agreement. In
addition to the terms defined above, defined below are certain additional terms
relating to loss-sharing, as used in this Single Family Shared-Loss Agreement.


 


“Accounting Records” means the subsidiary system of record
on which the loan history and balance of each Single Family Shared-Loss Loan is
maintained; individual loan files containing either an original or copies of
documents that are customary and reasonable with respect to loan servicing,
including management and disposition of Other Real Estate; the records
documenting alternatives considered with respect to loans in default or for
which a default is reasonably foreseeable; records of loss calculations and
supporting documentation with respect to line items on the loss calculations;
and, monthly delinquency reports and other performance reports customarily
utilized by the Assuming Bank in management of loan portfolios.


 


“Accrued Interest” means, with respect to Single Family
Shared-Loss Loans, the amount of earned and unpaid interest at the note rate
specified in the applicable loan documents, limited to 90 days.


 


“Affiliate” shall have the meaning set forth in the
Purchase and Assumption Agreement; provided, that, for purposes of this Single
Family Shared-Loss Agreement, no Third Party Servicer shall be deemed to be an
Affiliate of the Assuming Bank.


 


“Commencement Date” means the first calendar day following
the Bank Closing.


 


“Commercial Shared-Loss Agreement” means the Commercial and
Other Loans Shared-Loss Agreement attached to the Purchase and Assumption
Agreement as Exhibit 4. 1 5B.


 


55

















 


“Cumulative Loss Amount” means the sum of the Monthly Loss
Amounts less the sum of all Recovery Amounts.


 


“Cumulative Shared-Loss Amount” means the excess, if any,
of the Cumulative Loss Amount over the First Loss Tranche.


 


“Customary Servicing Procedures” means procedures
(including collection procedures) that the Assuming Bank (or, to the extent a
Third Party Servicer is engaged, the Third Party Servicer) customarily employs
and exercises in servicing and administering mortgage loans for its own
accounts and the servicing procedures established by FNMA or FHLMC (as in
effect from time to time), which are in accordance with accepted mortgage
servicing practices of prudent lending institutions.


 


“Deficient Valuation” means the determination by a court in
a bankruptcy proceeding that the value of the collateral is less than the
amount of the loan in which case the loss will be the difference between the
then unpaid principal balance (or the NPV of a modified loan that defaults) and
the value of the collateral so established.


 


“Home Equity Loans” means loans or funded portions of lines
of credit secured by mortgages on one-to four-family residences or stock of
cooperative housing associations, where the Failed Bank did not have a first
lien on the same property as collateral and therefore can be treated under the
charge-off policies outlined in the Commercial and Other Loans Shared-Loss
Agreement.


 


“Final Shared-Loss Month” means the calendar month in which
the tenth anniversary of the Commencement Date occurs.


 


“Final Shared-Loss Recovery Month” means the calendar month
in which the tenth anniversary of the Commencement Date occurs.


 


“Foreclosure Loss” means the loss realized when the
Assuming Bank has completed the foreclosure on a Single Family Shared-Loss Loan
and realized final recovery on the collateral through liquidation and recovery
of all insurance proceeds. Each Foreclosure Loss shall be calculated in
accordance with the form and methodology specified in Exhibit 2a or Exhibit 2a(1).


 


“Investor-Owned Residential Loans” means Loans, excluding
advances made pursuant to Home Equity Loans, that are secured by mortgages on
one- to four family residences or stock of cooperative housing associations
that are not owner-occupied. These loans can be treated as Restructured Loans
on a commercially reasonable basis and can be a restructured under terms
separate from the Exhibit 5 standards. Please refer to Exhibit 2b for
guidance in Calculation of Loss for Restricted Loans.


 


“Loss” means a Foreclosure Loss, Restructuring Loss, Short
Sale Loss, Portfolio Loss, Modification Default Loss or Deficient Valuation.


 


“Loss Amount” means the dollar amount of loss incurred and
reported on the Monthly Certificate for a Single Family Shared-Loss Loan.


 


56

















 


“Modification Default Loss” means the loss calculated in
Exhibits 2a(1) and 2c(1) for single family loans modified under this
part of the agreement that default and result in a foreclosure or short sale.


 


“Modification Guidelines” has the meaning provided in Section 2.1(a) of
this Single Family Shared-Loss Agreement.


 


“Monthly Certificate” has the meaning provided in Section 2.1(b) of
this Single Family Shared-Loss Agreement.


 


“Monthly Loss Amount” means the sum of all Foreelosure
Losses, Restructuring Losses, Short Sale Losses, Portfolio Losses, Modification
Default Losses and losses in connection with Deficient Valuations realized by
the Assuming Bank for any Shared Loss Month.


 


“Monthly Shared-Loss Amount” means the change in the
Cumulative Shared-Loss Amount from the beginning of each month to the end of each
month.


 


“Neutral Member” has the meaning provided in Section 2.
l(f)(ii) of this Single Family Shared-Loss Agreement.


 


“Portfolio Loss” means the loss realized on either (i) a
portfolio sale of Single Family Shared-Loss Loans in accordance with the terms
of Article IV or (ii) the sale of a loan with the consent of the
Receiver as provided in Section 2.7.


 


“Recovery Amount” means, with respect to any period prior
to the Termination Date, the amount of colleeted funds received by the Assuming
Bank that (i) are applicable against a Foreclosure Loss which has
previously been paid to the Assuming Bank by the Receiver or (ii) gains
realized from a Section 4.1 sale of Single Family Shared-Loss Loans for
which the Assuming Bank has previously received a Restructuring Loss payment
from the Receiver (iii) or any incentive payments from national programs
paid to an investor or borrower on loans that have been modified or otherwise
treated (short sale or foreclosure) in accordance with Exhibit 5.


 


“Restructuring Loss” means the loss on a modified or
restructured loan measured by the difference between (a) the principal,
Accrued Interest, tax and insurance advances, third party or other fees due on
a loan prior to the modification or restructuring, and (b) the net present
value of estimated cash flows on the modified or restructured loan, discounted
at the Then-Current Interest Rate. Each Restructuring Loss shall be calculated
in accordance with the form and methodology attached as Exhibit 2b, as
applicable.


 


“Restructured Loan” means a Single Family Shared-Loss Loan
for which the Assuming Bank has received a Restructuring Loss payment from the
Receiver. This applies to owner occupied and investor owned residences.


 


“Servicing Officer” has the meaning provided in Section 2.1(b) of
this Single Family Shared-Loss Agreement.


 


57

















 


“Shared Loss Payment Trigger” means when the sum of the
Cumulative Loss Amount under this Single Family Shared-Loss Agreement and the
Shared-Loss Amount under the Commercial and Other Loans Shared-Loss Agreement,
exceeds the First Loss Tranche. If the First Loss Tranche is zero or a negative
number, the Shared Loss Payment Trigger shall be deemed to have been reached
upon Bank Closing.


 


“Shared-Loss Month” means each calendar month between the
Commencement Date and the last day of the month in which the tenth anniversary
of the Commencement Date occurs, provided that, the first Shared-Loss Month
shall begin on the Commencement Date and end on the last day of that month.


 


“Shares” means common stock and any instrument which by its
terms is currently convertible into common stock, or which will become
convertible into common stock within 18 months of the execution of this
Agreement.


 


“Short-Sale Loss” means the loss resulting from the
Assuming Bank’s agreement with the mortgagor to accept a payoff in an amount
less than the balance due on the loan (including the costs of any cash
incentives to borrower to agree to such sale or to maintain the property
pending such sale), further provided, that each Short-Sale Loss
shall be calculated in accordance with the form and methodology specified in Exhibit 2c
or Exhibit 2c(1).


 


“Single Family Shared-Loss Loans” means the single family
one-to-four residential mortgage loans (whether owned by the Assuming Bank or
any Subsidiary) identified on Schedule 4.15A of the Purchase and Assumption
Agreement.


 


“Stated Threshold” means total losses under the shared loss
agreements in the amount of $4 Billion ($4,000,000,000.00).


 


“Termination Date” means the last day of the Final
Shared-Loss Recovery Month.


 


“Then-Current Interest Rate” means the most recently
published Freddie Mac survey rate for 30-year fixed-rate loans.


 


“Third Party Servicer” means any servicer appointed from
time to time by the Assuming Bank or any Affiliate of the Assuming Bank to
service the Shared-Loss Loans on behalf of the Assuming Bank, the identity of
which shall be given to the Receiver prior to or concurrent with the
appointment thereof.


 


ARTICLE II — SHARED-LOSS ARRANGEMENT


 


2.1          Shared-Loss Arrangement.


 


(a)           Loss Mitigation and Consideration of Alternatives. For each Single Family Shared-Loss Loan in default or for which a
default is reasonably foreseeable, the Assuming Bank shall undertake reasonable
and customary loss mitigation efforts, in accordance with any of the following
programs selected by Assuming Bank in its sole discretion, Exhibit 5 (FDIC
Mortgage Loan Modification Program), the United States Treasury’s Home
Affordable


 


58

















 


Modification Program
Guidelines or any other modification program approved by the United States
Treasury Department, the Corporation, the Board of Governors of the Federal
Reserve System or any other governmental agency (it being understood that the
Assuming Bank can select different programs for the various Single Family
Shared-Loss Loans) (such program chosen, the “Modification Guidelines”). After
selecting the applicable Modification Guideline for any such Single Family Shared-Loss
Loan, the Assuming Bank shall document its consideration of foreclosure, loan
restructuring under such Modification Guideline chosen, and short-sale (if
short-sale is a viable option) alternatives and shall select the alternative
the Assuming Bank believes, based on its estimated calculations, will result in
the least Loss. Assuming Bank shall retain its calculations of the estimated
loss under each alternative, such calculations to be provided to the Receiver
upon request. For the avoidance of doubt and notwithstanding anything herein to
the contrary, (i) the Assuming Bank is not required to modify or
restructure any Single Family Shared-Loss Loan on more than one occasion and (ii) the
Assuming Bank is not required to consider any alternatives with respect to any
Shared-Loss Loan in the process of foreclosure as of the Bank Closing and shall
be entitled to continue such foreclosure measures and recover the Foreclosure
Loss as provided herein.


 


(b)           Monthly Certificates.


 


Not later than fifteen (15) days
after the end of each Shared-Loss Month, beginning with the month in which the
Commencement Date occurs and ending in the month in which the tenth anniversary
of the Commencement Date occurs (or, twelfth anniversary of the Commencement
Date if the Termination Date is extended as provided in Section 4.1(a)) ,
the Assuming Bank shall deliver to the Receiver a certificate, signed by an
officer of the Assuming Bank involved in, or responsible for, the
administration and servicing of the Single Family Shared-Loss Loans whose name
appears on a list of servicing officers furnished by the Assuming Bank to the
Receiver, (a “Servicing Officer”) setting forth in such form and detail as the
Receiver may reasonably specify (a “Monthly Certificate”):


 


(iv)          (A)          a schedule substantially in the form of Exhibit 1
listing:


 


(i)  each Single Family
Shared-Loss Loan for which a Loss Amount (calculated in accordance with the
applicable Exhibit) is being claimed, the related Loss Amount for each Single
Family Shared-Loss Loan, and the total Monthly Loss Amount for all Single
Family Shared-Loss Loans;


 


(ii)  each Single Family
Shared-Loss Loan for which a Recovery Amount was received, the Recovery Amount
for each Single Family Shared-Loss Loan, and the total Recovery Amount for all
Single Family Shared-Loss Loans;


 


(iii)          the total Monthly Loss Amount for all Single Family
Shared-Loss Loans minus the total monthly Recovery Amount for all Single Family
Shared-Loss Loans;


 


59

















 


(iv)          the Cumulative Shared-Loss Amount as of the
beginning and end of the month;


 


(v)           the Monthly Shared Loss Amount;


 


(vi)          the result obtained in (v) times 80%, or times
95% if the Stated Threshold has been reached, which in either case is the
amount to be paid under Section 2.1(d) of this Single Family
Shared-Loss Agreement by the Receiver to the Assuming Bank if the amount is a
positive number, or by the Assuming Bank to the Receiver if the amount is a
negative number;


 


(v)           (B)           for each of the Single Family Shared-Loss Loans for
which a Loss is claimed for that Shared-Loss Month, a schedule showing the
calculation of the Loss Amount using the form and methodology shown in Exhibit 2a,
Exhibit 2b, or Exhibit 2c, as applicable.


 


(vi)          (C)           For each of the Restructured Loans where a gain or
loss is realized in a sale under Section 4.1 or 4.2, a schedule showing
the calculation using the form and methodology shown in Exhibit 2d,


 


(vii)         (D)          a portfolio performance and summary schedule
substantially in the form shown in Exhibit 3.


 


(c)           Monthly Data Download. Not later than fifteen (15) days after the end of each month, beginning
with the month in which the Commencement Date occurs and ending with the Final
Shared-Loss Recovery Month, Assuming Bank shall provide Receiver:


 


(viii)        (i)            the servicing file in machine-readable format
including but not limited to the following fields for each outstanding Single
Family Shared-Loss Loan, as applicable:


 


(A)          Loan number


(B)          FICO score


(C)          Origination date


(I))          Original principal amount


(E)           Maturity date


(F)           Paid-to date


(G)          Last payment date


(H)          Loan status (bankruptcy, in foreclosure, etc.)


(I)            Delinquency counters


(J)           Current principal balance


(K)          Current escrow account balance


(L)           Current Appraisal/MO value


(M)         Current Appraisal/BPO date


(N)          Interest rate


(O)          Monthly principal and interest payment amount


 


60






 










 


(P)           Monthly escrow payment for taxes and insurance


(Q)          Interest rate type (fixed or adjustable)


(R)           If adjustable: index, margin, next interest rate
reset date


(S)           Payment/Interest rate cap and/or floor


(T)           Underwriting type (Full doc, Alt doc, No Doc)


(U)          Lien type (1st, 2nd)


(V)          Amortization type (amortizing or I/O)


(W)         Property address, including city, state, zip code


(X)          A code indicating whether the Mortgaged Property is
owner occupied


(Y)          Property type (single-family detached, condominium,
duplex, etc.)


 


(ix)         (ii)          An Excel file for ORE held as a result of
foreclosure on a Single Family Shared-Loss Loan listing:


 


(A)          Foreclosure date


(B)          Unpaid loan principal balance


(C)          Appraised value or BPO value, as applicable


(D)          Projected liquidation date


 


Notwithstanding the foregoing,
the Assuming Bank shall not be required to provide any of the foregoing
information to the extent it is unable to do so as a result of the Failed Bank’s
or Receiver’s failure to provide information required to produce the information
set forth in this Section 2.1(c); provided, that the Assuming Bank
shall, consistent with Customary Servicing Procedures seek to produce any such
missing information or improve any inaccurate Information previously provided
to it.


 


(d)           Payments With Respect to Shared-Loss Assets.


 


(i)            Losses Under the Stated Threshold.  After the Shared Loss Payment
Trigger is reached, not later than fifteen (15) days after the date on which
the Receiver receives the Monthly Certificate, the Receiver shall pay to the
Assuming Bank, in immediately available funds, an amount equal to eighty
percent (80%) of the Monthly Shared-Loss Amount reported on the Monthly
Certificate.  If the total Monthly
Shared-Loss Amount reported on the Monthly Certificate is a negative number, the
Assuming Bank shall pay to the Receiver in immediately available funds eighty
percent (80%) of that amount.


 


(ii)           Losses in Excess of the Stated Threshold.  In the event that the sum of
the Cumulative Loss Amount under.  this
Single Family Shared-Loss Agreement and the Stated Loss Amount under the
Commercial Shared-Loss Agreement meets or exceeds the Stated Threshold, the
loss/recovery sharing percentages set forth herein shall change from 80/20 to
95/5 and thereafter the Receiver shall pay to the Assuming Bank, in immediately
available funds, an amount equal to ninety-five percent (95%) of the Monthly
Shared-Loss Amount reported on the Monthly Certificate.  If the Monthly Shared-Loss Amount reported on
the Monthly Certificate is a negative number, the Assuming Bank shall pay to
the Receiver in immediately available funds ninety-five percent (95%) of that
amount.


 


61

















 


(e)           Limitations on Shared-Loss Payment.  The Receiver shall not be
required to make any payments pursuant to Section 2.1(d) with respect
to any Foreclosure Loss, Restructuring Loss, Short Sale Loss or Portfolio Loss
that the Receiver determines reasonably and in good faith, based upon the
criteria set forth in this Single Family Shared-Loss Agreement (including the
analysis and documentation requirements of Section 2.1(a)) or Customary
Servicing Procedures, should not have been effected by the Assuming Bank;
provided, however, (x) the Receiver must provide written notice to the
Assuming Bank detailing the grounds for not making such payment, (y) the
Receiver must provide the Assuming Bank with a reasonable opportunity to cure
any such deficiency and (z) (1) to the extent curable, if cured, the
Receiver shall make payment with respect to the properly effected Loss, and (2) to
the extent not curable, notwithstanding the foregoing, the Receiver shall make
a payment as to all Losses (or portion of Losses) that were effected which
would have been payable as a Loss if the Assuming Bank had properly effected
such Loss.  In the event that the
Receiver does not make any payment with respect to Losses claimed pursuant to Section 2.1(d),
the Receiver and Assuming Bank shall, upon final resolution, make the necessary
adjustments to the Monthly Shared-Loss Amount for that Monthly Certificate and
the payment pursuant to Section 2.1(d) above shall be adjusted
accordingly.


 


(f)            Payments by Wire-Transfer.  All payments under this Single
Family Shared-Loss Agreement shall be made by wire-transfer in accordance with the
wire-transfer instructions on Exhibit 4.


 


2.2          Auditor Report; Right to Audit


 


(a)           Within ninety (90) days after the end of each calendar year during which
the Receiver makes any payment to the Assuming Bank under this Single Family
Shared-Loss Agreement, the Assuming Bank shall deliver to the Receiver a report
signed by its independent public accountants stating that they have reviewed
the terms of this Single Family Shared-Loss Agreement and that, in the eourse
of their annual audit of the Assuming Bank’s books and records, nothing has
come to their attention suggesting that any computations required to be made by
the Assuming Bank during such calendar year pursuant to this Article II
were not made by the Assuming Bank in accordance herewith.  In the event that the Assuming Bank cannot
comply with the preceding sentence, it shall promptly submit to the Receiver
corrected computations together with a report signed by its independent public
accountants stating that, after giving effect to such corrected computations,
nothing has come to their attention suggesting that any computations required
to be made by the Assuming Bank during such year pursuant to this Article II
were not made by the Assuming Bank in accordance herewith.  In such event, the Assuming Bank and the
Receiver shall make all such accounting adjustments and payments as may be
necessary to give effect to each correction reflected in such corrected
computations, retroactive to the date on which the corresponding incorrect
computation was made.


 


(b)           The Receiver or the FDIC in its corporate capacity (“Corporation”) may
perform an audit or audits to determine the Assuming Bank’s compliance with the
provisions of this Single Family Shared-Loss Agreement, including this Article II,
by providing not,less than ten (10) Business Days’ prior written
notice.  Assuming Bank shall provide
access to pertinent records and proximate working space in Assuming Bank’s
facilities.  The scope and duration of
any such audit shall be within the reasonable discretion of the Receiver or the
Corporation, but 


 


62

















 


shall in no event be
administered in a manner that unreasonably interferes with the operation of the
Assuming Bank’s business.  The Receiver
or the Corporation, as the case may be, shall bear the expense of any such
audit.  In the event that any corrections
are necessary as a result of such an audit or audits, the Assuming Bank and the
Receiver shall make such accounting adjustments and payments as may be
necessary to give retroactive effect to such corrections.


 


2.3          Withholdings.  Notwithstanding any other provision in this Article II,
the Receiver, upon the direction of the Director (or designee) of the Federal
Deposit Insurance Corporation’s Division of Resolutions and Receiverships, may
withhold payment for any amounts included in a Monthly Certificate delivered
pursuant to Section 2.1, if in its good faith and reasonable judgment
there is a reasonable basis under the requirements of this Single Family
Shared-Loss Agreement for denying the eligibility of an item for which
reimbursement or payment is sought under such Section.  In such event, the Receiver shall provide a
written notice to the Assuming Bank detailing the grounds for withholding such
payment.  At such time as the Assuming
Bank demonstrates to the satisfaction of the Receiver, in its reasonable
judgment, that the grounds for such withholding of payment, or portion of
payment, no longer exist or have been cured, then the Receiver shall pay the
Assuming Bank the amount withheld which the Receiver determines is eligible for
payment, within fifteen (15) Business Days.


 


2.4          Books and Records.  The Assuming Bank shall at all
times during the term of this Single Family Shared-Loss Agreement keep books
and records sufficient to ensure and document compliance with the terms of this
Single Family Shared-Loss Agreement, including but not limited to (a) documentation
of alternatives considered with respect to defaulted loans or loans for which
default is reasonably foreseeable, (b) documentation showing the
calculation of loss for claims submitted to the Receiver, (c) retention of
documents that support each line item on the loss claim forms, and (d) documentation
with respect to the Recovery Amount on loans for which the Receiver has made a
loss-share payment


 


2.5          Information.  The Assuming Bank shall promptly provide to
the Receiver such other information, including but not limited to, financial
statements, computations, and bank policies and procedures, relating to the
performance of the provisions of this Single Family Shared-Loss Agreement, as
the Receiver may reasonably request from time to time.


 


2.6          Tax Ruling.  The Assuming Bank shall not at any time,
without the Receiver’s prior written consent, seek a private letter ruling or
other determination from the Internal Revenue Service or otherwise seek to
qualify for any special tax treatment or benefits associated with any payments
made by the Receiver pursuant to this Single Family Shared-Loss Agreement.


 


2.7          Sale of Single Family Shared-Loss Loans.  The
Receiver shall be relieved of its obligations with respect to a Single Family
Shared-Loss Loan upon payment of a Foreclosure Loss amount or a Short Sale Loss
amount with respect to such Single Family Shared-Loss Loan or upon the sale of
a Single Family Shared-Loss Loan by Assuming Bank to a person or entity that is
not an Affiliate; provided, however, that if the Receiver consents to the sale
of any such Single Family Shared-Loss Loan, any loss on such sale shall be a
Portfolio Loss.  The Assuming Bank shall
provide the Receiver with timely notice of any such sale.  Notwithstanding the foregoing, a sale of the
Single Family Shared-Loss Loan, for purposes of this Section 2.7, shall
not be deemed to have occurred as the result of (i) any change in the
ownership or control of 


 


63

















 


Assuming Bank or the
transfer of any or all of the Single Family Shared-Loss Loan(s) to any
Affiliate of Assuming Bank, (ii) a merger by Assuming Bank with or into
any other entity, (iii) a sale by Assuming Bank of all or substantially
all of its assets or (iv) the sale (in one or more transactions) of
interests in the subsidiary of the Assuming Bank holding the Shared-Loss Loans
which do not result in the transfer of 50% or more of the voting interests in
such subsidiary.


 


ARTICLE III — RULES REGARDING THE ADMINISTRATION OF
SINGLE FAMILY SHARED-LOSS LOANS


 


3.1          Agreement with Respect to Administration.  The Assuming Bank shall (and shall cause any of its Affiliates to which
the Assuming Bank transfers any Single Family Shared-Loss Loans to) manage,
administer, and collect the Single Family Shared-Loss Loans while owned by the
Assuming Bank or any Affiliate thereof during the term of this Single Family
Shared-Loss Agreement in accordance with the rules set forth in this Article III.  The Assuming Bank shall be responsible to the
Receiver in the performance of its duties hereunder and shall provide to the
Receiver such reports as the Receiver reasonably deems advisable, including but
not limited to the reports required by Sections 2.1, 2.2 and 3.3 hereof, and
shall permit the Receiver to monitor the Assuming Bank’s performance of its
duties hereunder.


 


3.2          Duties of the Assuming Bank.  (a) 
In performance of its duties under this Article III, the Assuming Bank
shall:


 


(i)            manage and administer each Single Family
Shared-Loss Loan in accordance with Assuming Bank’s usual and prudent business
and banking practices and Customary Servicing Procedures;


 


(ii)           exercise its best business judgment in managing,
administering and collecting amounts owed on the Single Family Shared-Loss
Loans;


 


(iii)          use commercially reasonable efforts to maximize
Recoveries with respect to Losses on Single Family Shared-Loss Loans without
regard to the effect of maximizing collections on assets held by the Assuming
Bank or any of its Affiliates that are not Single Family Shared-Loss Loans;


 


(iv)          retain sufficient staff (in Assuming Bank’s
discretion) to perform its duties hereunder; and


 


(v) other than as
provided in Section 2.1(a), comply with the terms of the Modification
Guidelines for any Single Family Shared-Loss Loans meeting the requirements set
forth therein.  For the avoidance of
doubt, the Assuming Bank may propose exceptions to Exhibit 5 (the FDIC
Loan Modification Program) for a group of Loans with similar characteristics,
with the objectives of (1) minimizing the loss to the Assuming Bank and
the FDIC and (2) maximizing the opportunity for qualified homeowners to
remain in their homes with affordable mortgage payments.


 


(b)           Any transaction with or between any Affiliate of the Assuming Bank with
respect to any Single Family Shared-Loss Loan including, without limitation,
the execution of any contract pursuant to which any Affiliate of the Assuming
Bank will manage, administer or 


 


64

















 


collect any of the Single
Family Shared-Loss Loans will be provided to FDIC for informational purposes
and if such transaction is not entered into on an arm’s length basis on
commercially reasonable terms such transaction shall be subject to the prior
written approval of the Receiver.


 


3.3          Shared-Loss Asset Records and Reports.  The Assuming Bank shall
establish and maintain such records as may be appropriate to account for the
Single Family Shared-Loss Loans in such form and detail as the Receiver may
reasonably require, and to enable the Assuming Bank to prepare and deliver to
the Receiver such reports as the Receiver may from time to time request regarding
the Single Family Shared-Loss Loans and the Monthly Certificates required by Section 2.1
of this Single Family Shared-Loss Agreement.


 


3.4          Related Loans.


 


(a)           Assuming Bank shall use its best efforts to determine which loans are “Related
Loans”, as hereinafter defined.  The
Assuming Bank shall not manage, administer or collect any “Related Loan” in any
manner that would have the effect of disproportionately increasing the amount
of any collections with respect to the Related Loan to the detriment of the
Single Family Shared-Loss Loan to which such loan is related.  A “Related Loan” means any loan or extension
of credit held by the Assuming Bank at any time on or prior to the end of the
Final Shared-Loss Month that is made to an Obligor of a Single Family
Shared-Loss Loan.


 


(b)           The Assuming Bank shall prepare and deliver to the Receiver with the
Monthly Certificates for the calendar months ending June 30 and December 31,
a schedule of all Related Loans on the Accounting Records of the Assuming Bank
as of the end of each such semi-annual period.


 


3.5          Legal Action; Utilization of Special Receivership
Powers.  The Assuming Bank shall notify the Receiver
in writing (such notice to be given in accordance with Article V below and
to include all relevant details) prior to utilizing in any legal action any
special legal power or right which the Assuming Bank derives as a result of
having acquired an asset from the Receiver, and the Assuming Bank shall not
utilize any such power unless the Receiver shall have consented in writing to
the proposed usage.  The Receiver shall
have the right to direct such proposed usage by the Assuming Bank and the
Assuming Bank shall comply in all respects with such direction.  Upon request of the Receiver, the Assuming
Bank will advise the Receiver as to the status of any such legal action.  The Assuming Bank shall immediately notify
the Receiver of any judgment in litigation involving any of the aforesaid
special powers or rights.


 


3.6          Third Party Servicer.  The Assuming Bank may perform
any of its obligations and/or exercise any of its rights under this Single
Family Shared-Loss Agreement through or by one or more Third Party Servicers,
who may take actions and make expenditures as if any such Third Party Servicer
was the Assuming Bank hereunder (and, for the avoidance of doubt, such expenses
incurred by any such Third Party Servicer on behalf of the Assuming Bank shall
be included in calculating Losses to the extent such expenses would be included
in such calculation if the expenses were incurred by Assuming Bank); provided,
however, that the use thereof by the Assuming Bank shall not release the
Assuming Bank of any obligation or liability hereunder.


 


65

















 


ARTICLE IV — PORTFOLIO SALE


 


4.1          Assuming Bank Portfolio Sales of Remaining Single
Family Shared-Loss  Loans.  The Assuming Bank shall have
the right with the concurrence of the Receiver to liquidate for cash
consideration, from time to time in one or more transactions, all or a portion
of Single Family Shared-Loss Loans held by the Assuming Bank at any time prior
to the Termination Date (“Portfolio Sales”). 
If the Assuming Bank exercises its option under this Section 4.1,
it must give thirty (30) days notice in writing to the Receiver setting forth
the details and schedule for the Portfolio Sale which shall be conducted by
means of sealed bid sales to third parties, not including any of the Assuming
Bank’s affiliates, contractors, or any affiliates of the Assuming Bank’s
contractors.  Sales of Restructured Loans
shall be sold in a separate pool from Single Family Shared-Loss Loans not
restructured.  The Receiver’s review of
the Assuming Bank’s proposed Portfolio Sale will be considered in a timely
fashion and approval will not be unreasonably withheld, delayed or
conditioned.  Notwithstanding anything
herein to the contrary, if the Assuming Bank seeks the consent of the Receiver
to undertake a Portfolio Sale in the nine (9) months prior to the tenth
(10th) anniversary of the Commencement Date and
the Receiver does not consent to such Portfolio Sale, then the Termination Date
shall automatically, without any further action, be extended for an additional
two years with respect to the Single Family Shared-Loss Loans that were the
subject to the proposed Portfolio Sale (the “Portfolio Sale Loans”) and all
provisions hereof shall remain in place for such additional two-year period
with respect to the Portfolio Sale Loans. 
In such event, the Assuming Bank shall have the right, without the consent
of the Receiver, to undertake a Portfolio Sale as to all or any portion of the
Portfolio Sale Loans at any time within nine (9) months prior to the
Termination Date, as so extended.


 


4.2          Assuming Bank’s Liquidation of Remaining Single
Family Shared-Loss Loans.  In the event that the Assuming Bank does not
conduct a Portfolio Sale pursuant to Section 4.1, the Receiver shall have
the right, exercisable in its sole and absolute discretion, to require the
Assuming Bank to liquidate for cash consideration, any Single Family
Shared-Loss Loans held by the Assuming Bank at any time after the date that is
six months prior to the Termination Date. 
If the Receiver exercises its option under this Section 4.2, it
must give notice in writing to the Assuming Bank, setting forth the time period
within which the Assuming Bank shall be required to liquidate the Single Family
Shared-Loss Loans.  The Assuming Bank
will comply with the Receiver’s notice and must liquidate the Single Family
Shared-Loss Loans as soon as reasonably practicable by means of sealed bid
sales to third parties, not including any of the Assuming Bank’s affiliates,
contractors, or any affiliates of the Assuming Bank’s contractors.  The selection of any financial advisor or
other third party broker or sales agent retained for the liquidation of the
remaining Single Family Shared-Loss Loans pursuant to this Section shall
be subject to the prior approval of the Receiver, such approval not to be
unreasonably withheld, delayed or conditioned.


 


4.3          Calculation of Sale Gain or Loss.  For Single Family Shared-Loss
Loans that are not Restructured Loans gain or loss on the sales under Section 4.1
or Section 4.2 will be calculated as the sale price received by the
Assuming Bank less the unpaid principal balance of the remaining Single Family
Shared-Loss Loans.  For any Restructured
Loan included in the sale gain or loss on sale will be calculated as (a) the
sale price received by the Assuming Bank less (b) the net present value of
estimated cash flows on the Restructured Loan that was used in the 


 


66

















 


calculation of the
related Restructuring Loss plus (c) Loan principal payments collected by
the Assuming Bank from the date the Loan was restructured to the date of sale.  (See Exhibit 2d for example
calculation).


 


ARTICLE V — LOSS-SHARING NOTICES GIVEN TO RECEIVER AND
PURCHASER


 


All notices, demands and other
communications hereunder shall be in writing and shall be delivered by hand, or
overnight courier, receipt requested, addressed to the parties as follows:


 


If
to Receiver, to:                                          Federal
Deposit Insurance Corporation as Receiver

for BankUnited, FSB

Division of Resolutions and Receiverships

550 17th Street, N.W.

Washington, D.C. 20429

Attention: Ralph Malami, Manager, Capital Markets


 


with
a copy to:                              Federal Deposit Insurance Corporation 

as Receiver for
                                      

Room E7056

3501 Fairfax Drive, Arlington, VA 2226 

Attn: Special Issues Unit


 


With respect to a notice under
Section 3.5 of this Single Family Shared-Loss Agreement, copies of such
notice shall be sent to:


 


Federal Deposit Insurance
Corporation 

Legal Division 1601 Bryan St.

Dallas, Texas 75201

Attention: Regional Counsel


 


	
   

  	
  If to Assuming Bank, to:

  	
   

  
	
   

  	
                                                            

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  with a copy to:

  	
   

  
	
   

  	
                                                            

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


Such Persons and addresses may
be changed from time to time by notice given pursuant to the provisions of this
Article V.  Any notice, demand or
other communication delivered pursuant to the provisions of this Article IV
shall be deemed to have been given on the . 
date actually received.


 


67

















 


ARTICLE VI — MISCELLANEOUS


 


6.1          Expenses.  Except as otherwise expressly provided
herein, all costs and expenses incurred by or on behalf of a party hereto in
connection with this Single Family Shared-Loss Agreement shall be borne by such
party whether or not the transactions contemplated herein shall be consummated.


 


6.2          Successors and Assigns; Specific Performance.  All terms and provisions of
this Single Family Shared-Loss Agreement shall be binding upon and shall inure
to the benefit of the parties hereto only; provided, however, that, Receiver
may assign or otherwise transfer this Single Family Shared-Loss Agreement (in
whole or in part) to the Federal Deposit Insurance Corporation in its corporate
capacity without the consent of Assuming Bank. 
Notwithstanding anything to the contrary contained in this Single Family
Shared-Loss Agreement, except as is expressly permitted in this Section 6.2,
Assuming Bank may not assign or otherwise transfer this Single Family
Shared-Loss Agreement (in whole or in part) without the prior written consent of
the Receiver, which consent may be granted or withheld by the Receiver in its
sole discretion, and any attempted assignment or transfer in violation of this
provision shall be void ab initio.  For
the avoidance of doubt, a merger or consolidation of the Assuming Bank with and
into another financial institution, the sale of all or substantially all of the
assets of the Assuming Bank to another financial institution constitutes the
transfer of this Single Family Shared-Loss Agreement which requires the consent
of the Receiver; and for a period of eighteen (18) months after Bank Closing, a
merger or consolidation shall also include the sale by any individual
shareholder, or shareholders acting in concert, of more than 9% of the
outstanding shares of the Assuming Bank or its holding company or any
subsidiary holding Shared-Loss Assets, or the sale of shares by the Assuming
Bank or its holding company or any subsidiary holding Shared-Loss Assets, in a
public or private offering, that increases the number of shares outstanding by
more than 9%, constitutes the transfer of this Single-Family Loss Share
Agreement which requires the consent of the Receiver.  However, no Loss shall be recognized as a
result of any accounting adjustments that are made due to any such merger,
consolidation or sale consented to by the FDIC. 
The FDIC’s consent shall not be required if the aggregate outstanding
principal balance of the Single Family Shared-Loss Loans is less than twenty
percent (20%) of the initial aggregate balance of Single Family Shared-Loss
Loans.  Notwithstanding anything
contained herein, the Receiver hereby consents to (i) the transfer of this
Single Family Shared-Loss Agreement upon any merger or consolidation of the
Assuming Bank with and into another financial institution at any time after the
eighteen-month anniversary of Bank Closing and (ii) any private offering
of equity securities by Assuming Bank’s holding company during the
eighteen-month period following Bank Closing to (x) existing investors in
Assuming Bank’s holding company and (y) persons who are not existing
investors in the Assuming Bank’s holding company provided that following any
such private offering the investors in the Assuming Bank’s holding company as
of the closing continue to hold seventy-five percent (75%) of the equity in the
Assuming Bank’s holding company and no person who was not such an existing
investor shall own or control more than twenty-four and nine-tenths percent
(24.9%) of the Assuming Bank’s holding company’s equity securities.


 


6.3          Governing Law.  This Single Family Shared-Loss Agreement
shall be construed in accordance with federal law, or, if there is no
applicable federal law, the laws of the State of 


 


68

















 


New York, without regard
to any rule of conflict of law that would result in the application of the
substantive law of any jurisdiction other than the State of New York.


 


6.4          WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL RIGHT TO TRIAL BY JURY IN OR TO HAVE
A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, ACTION, PROCEEDING OR
COUNTERCLAIM, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF
OR RELATING TO OR IN CONNECTION WITH THIS SINGLE FAMILY SHARED-LOSS AGREEMENT
OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.


 


6.5          Captions.  All captions and headings contained in this
Single Family Shared-Loss Agreement are for convenience of reference only and
do not form a part of, and shall not affect the meaning or interpretation of,
this Single Family Shared-Loss Agreement.


 


6.6          Entire Agreements Amendments.  This Single Family Shared-Loss
Agreement, along with the Commercial Shared-Loss Agreement and the Purchase and
Assumption Agreement, including the Exhibits and any other documents delivered
pursuant hereto or thereto, embody the entire agreement of the parties with
respect to the subject matter hereof, and supersede all prior representations,
warranties, offers, acceptances, agreements and understandings, written or
oral, relating to the subject matter herein. 
This Single Family Shared-Loss Agreement may be amended or modified or
any provision thereof waived only by a written instrument signed by both
parties or their respective duly authorized agents.


 


6.7          Severability.  Whenever possible, each provision of this
Single Family Shared Loss Agreement shall be interpreted in such manner as to
be effective and valid under applicable law, but if any provision of this
Single Family Shared-Loss Agreement is held to be prohibited by or invalid,
illegal or unenforceable under applicable law, such provision shall be
construed and enforced as if it had been more narrowly drawn so as not to be
prohibited, invalid, illegal or unenforceable, and the validity, legality and
enforceability of the remainder of such provision and the remaining provisions
of this Single Family Shared-Loss Agreement shall not in any way be affected or
impaired thereby.


 


6.8          No Third Party Beneficiary.  This Single Family Shared-Loss
Agreement and the Exhibits hereto are for the sole and exclusive benefit of the
parties hereto and their respective permitted successors and permitted assigns
and there shall be no other third party beneficiaries, and nothing in this
Single Family Shared-Loss Agreement or the Exhibits shall be construed to grant
to any other Person any right, remedy or Claim under or in respect of this
Single Family Shared-Loss Agreement or any provision hereof.


 


6.9          Counterparts.  This Single Family Shared-Loss Agreement may
be executed separately by Receiver and Assuming Bank in any number of
counterparts, each of which when executed and delivered shall be an original,
but such counterparts shall together constitute one and the same instrument.


 


6.10        Consent.  Except as otherwise provided herein, when the
consent of a party is required herein, such consent shall not be unreasonably
withheld or delayed.


 


69

















 


6.11        Rights Cumulative.  Except as otherwise expressly
provided herein, the rights of each of the parties under this Single Family
Shared-Loss Agreement are cumulative, may be exercised as often as any party
considers appropriate and are in addition to each such party’s rights under the
Purchase and Sale Agreement and any of the related agreements or under law.  Except as otherwise expressly provided
herein, any failure to exercise or any delay in exercising any of such rights,
or any partial or defective exercise of such rights, shall not operate as a
waiver or variation of that or any other such right.


 


ARTICLE VII — DISPUTE RESOLUTION


 


7.1          Dispute Resolution Procedures.


 


(a)           In the event a dispute arises about the interpretation, application,
calculation of Loss, or calculation of payments or otherwise with respect to
this Single Family Shared-Loss Agreement (“SF Shared-Loss Dispute Item”), then
the Receiver and the Assuming Bank shall make every attempt in good faith to
resolve such items within sixty (60) days following the receipt of a written
description of the SF Shared-Loss Dispute Item, with notification of the
possibility of taking the matter to arbitration (the date on which such 60-day
period expires, or any extension of such period as the parties hereto may
mutually agree to in writing, herein called the “Resolution Deadline Date”).  If the Receiver and the Assuming Bank resolve
all such items to their mutual satisfaction by the Resolution Deadline Date,
then within thirty (30) days following such resolution, any payment arising out
such resolution shall be made arising from the settlement of the SF Shared-Loss
Dispute.


 


(b)           If the Receiver and the Assuming Bank fail to resolve any outstanding SF
Shared-Loss Dispute Items by the Resolution Deadline Date, then either party
may notify the other of its intent to submit the SF Shared-Loss Dispute Item to
arbitration pursuant to the provisions of this Article VII.  Failure of either party to notify the other
of its intent to submit any unresolved SF Shared-Loss Dispute Item to
arbitration within thirty (30) days following the Resolution Deadline Date (the
date on which such thirty (30) day period expires is herein called the “Arbitration
Deadline Date”) shall be deemed an acceptance of such SF Shared-Loss Dispute
not submitted to arbitration, as well as a waiver of the submitting party’s
right to dispute such non-submitted SF Shared-Loss Dispute Item but not a
waiver of any similar claim which may arise in the future.


 


(c)           If a SF Shared-Loss Dispute Item is submitted to arbitration, it shall
be governed by the rules of the American Arbitration Association (the “AAA”),
except as otherwise provided herein. 
Either party may submit a matter for arbitration by delivering a notice,
prior to the Arbitration Deadline Date, to the other party in writing setting
forth:


 


(i)            A brief description of each SF Shared-Loss Dispute
Item submitted for arbitration;


 


(ii)           A statement of the moving party’s position with
respect to each SF Shared-Loss Dispute Item submitted for arbitration;


 


70






 


 










 


(iii)          The value sought by the moving party, or other relief
requested regarding each SF Shared-Loss Dispute Item submitted for arbitration,
to the extent reasonably calculable; and


 


(iv)         The name and address of the arbiter selected by the
moving party (the “Moving Arbiter”), who shall be a neutral, as determined by
the AAA.


 


Failure to adequately include
any information above shall not be deemed to be a waiver of the parties right
to arbitrate so long as after notification of such failure the Moving party cures
such failure as promptly as reasonably practicable.


 


(d)           The
non-moving party shall, within thirty (30) days following receipt of a notice
of arbitration pursuant to this Section 6.1, deliver a notice to the
moving party setting forth:


 


(i)            The name and address of the arbiter selected by the
non-moving party (the “Respondent Arbiter”), who shall be a neutral, as
determined by the AAA;


 


(ii)           A statement of the position of the respondent with
respect to each Dispute Item; and


 


(iii)          The ultimate resolution sought by the respondent or other
relief, if any, the respondent deems is due the moving party with respect to
each SF Shared-Loss Dispute Item.


 


Failure to adequately include
any information above shall not be deemed to be a waiver of the non-moving party’s
right to defend such arbitration so long as after notification of such failure
the non-moving party cures such failure as promptly as reasonably practicable


 


(e)           The
Moving Arbiter and Respondent Arbiter shall select a third arbiter from a list
furnished by the American Arbitration Association (the “AAA”).  In accordance with the rules of the AAA,
the three (3) arbiters shall constitute the arbitration panel for
resolution of each SF Loss-Share Dispute Item. 
The concurrence of any two (2) arbiters shall be deemed to be the
decision of the arbiters for all purposes hereunder.  The arbitration shall proceed on such time
schedule and in accordance with the Rules of Commercial Arbitration of the
AAA then in effect, as modified by this Section 7.1.  The arbitration proceedings shall take place
at such location as the parties thereto may mutually agree, but if they cannot
agree, then they will take place at the offices of the Corporation in
Washington, DC, or Arlington, Virginia.


 


(f)            The
Receiver and Assuming Bank shall facilitate the resolution of each outstanding
SF Shared-Loss Dispute Item by making available in a prompt and timely manner
to one another and to the arbiters for examination and copying, as appropriate,
all documents, books, and records under their respective control and that would
be discoverable under the Federal Rules of Civil Procedure.


 


(g)           The
arbiters designated pursuant to subsections (c), (d) and (e) hereof
shall select, with respect to each Dispute Item submitted to arbitration pursuant
to this Section 7.1, either (i) the position and relief submitted by
the Assuming Bank with respect to each SF Shared-Loss Dispute Item, or (ii) the
position and relief submitted by the Receiver with respect to each 


 


71

















 


SF Shared-Loss Dispute
Item, in either case as set forth in its respective notice of arbitration.  The arbiters shall have no authority to
select a value for each Dispute Item other than the determination set forth in Section 7.1(c) and
Section 7.1(d).  The arbitration
shall be final, binding and conclusive on the parties.


 


(h)           Any
amounts ultimately determined to be payable pursuant to such award shall bear
interest at the Settlement Interest Rate from and including the date specified
for the arbiters decisions specified in this Section 7.1, without regard
to any extension of the finality of such award, to but not including the date
paid.  All payments required to be made
under this Section 7.1 shall be made by wire transfer.


 


(i)            For
the avoidance of doubt, to the extent any notice of a SF Shared-Loss Dispute
Item(s) is provided
prior to the Termination Date, the terms of this Single Family Shared-Loss
Agreement shall remain in effect with respect to the Single Family Shared-Loss
Loans that are the subject of such
SF Shared-Loss Dispute Item(s) until such time as any such dispute is
finally resolved.


 


7.2          Fees
and Expenses of Arbiters.  The aggregate fees and expenses of the
arbiters shall be allocated by the arbiters against the party who is not the
prevailing party with respect to a particular SF Shared-Loss Dispute Item.  The party against whom such fees and expenses
are allocated shall pay them within thirty (30) days after receipt of the written
decision of the arbiters (unless the arbiters agree in writing on some other
payment schedule).  In the event the
arbitration ceases before a decision is made by the arbiters, the aggregate
fees and expenses shall be borne equally by the parties.


 


72

















 


Exhibit 1


 


Monthly
Certificate


 


SEE
FOLLOWING PAGE


 


73

















 


PART 1 — CURRENT MONTH NET LOSS


 


	
  MONTH
  ENDED

  	
   

  	
  [input
  report month]

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Losses


 


	
   

  	
   

  	
   

  	
   

  	
  Loss

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Loan No.

  	
   

  	
  Loss Type

  	
   

  	
  Amount

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
   

  	
   

  	
  XX

  	
   

  	
  A

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Recoveries


 


	
   

  	
   

  	
   

  	
   

  	
  Recovery

  	
   

  	
  Loss

  	
   

  	
  Loss

  	
   

  	
   

  	
   

  
	
  Loan No.

  	
   

  	
   

  	
   

  	
  Amount

  	
   

  	
  Amount

  	
   

  	
  Month

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
   

  	
   

  	
  XX

  	
   

  	
  B

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Net Losses (Recoveries)

  	
   

  	
   

  	
   

  	
  XX

  	
   

  	
  C = A - B

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


PART 2 — FIRST LOSS TEST


 


	
   

  	
   

  	
   

  	
   

  	
  Col.-

  	
   

  	
  Col. E

  	
   

  	
  Col. D - Col. E

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Cumulative Loss

  Amount

  	
   

  	
  First Loss Tranche

  	
   

  	
  Cumulative Shared-

  Loss Amount

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Balance, beginning of
  month

  	
   

  	
   

  	
   

  	
  XX

  	
   

  	
  XX

  	
   

  	
  XX

  	
   

  	
  F

  	
   

  
	
  Current month Net
  Losses (from Part 1)

  	
   

  	
   

  	
   

  	
  XX

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Balance, end of month

  	
   

  	
   

  	
   

  	
  XX

  	
   

  	
  XX

  	
   

  	
  XX

  	
   

  	
  G

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Shared Loss Amount

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  XX

  	
   

  	
  G - F

  	
   

  
	
  Times Loss Share
  percentage

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  80

  	
  %

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Amount due from (to)
  FDIC as Receiver

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  XX

  	
   

  	
   

  	
   

  



 


	
  Pursuant to Section 2.1 of the Single Family
  Shared-Loss Agreement, the undersigned hereby certifies the information on
  this Certificate is true, complete and correct.

  
	
  OFFICER SIGNATURE

  	
   

  
	
  OFFICER NAME:

  	
  TITLE

  



 


74

















 


Exhibit 2a


Calculation
of Foreclosure Loss


 


	
  Shared-Loss
  Month:

  	
   

  	
  [input month]

  
	
  Loan
  no.:

  	
   

  	
  [input loan no.]

  	
   

  



 


	
  Interest paid-to date

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Foreclosure date

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Liquidation date

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Note Interest rate

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Foreclosure
  Loss calculation

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Loan Principal balance
  after last paid installment

  	
   

  	
  xx

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Accrued interest,
  limited to 90 days

  	
   

  	
  xx

  	
   

  	
  (1

  	
  )

  	
   

  	
   

  	
   

  	
   

  
	
  Attorney’s fees

  	
   

  	
  xx

  	
   

  	
  (2

  	
  )

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Foreclosure costs,
  including title search, filing fees, advertising, etc.

  	
   

  	
  xx

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Property protection
  costs, maint., repairs and any costs or expenses relating to environmental
  conditions, (it being understood that any such costs with respect to
  remediation activities are limited to $200,000 without Assuming Bank having
  received the prior consent of the FDIC)

  	
   

  	
  xx

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Tax and insurance
  advances

  	
   

  	
  xx

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Other Advances

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  (3

  	
  )

  	
   

  	
   

  
	
  Appraisal/Broker’s
  Price Opinion fees

  	
   

  	
  xx

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Inspections

  	
   

  	
  xx

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Other

  	
   

  	
  xx

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Gross balance
  recoverable by Assuming Bank

  	
   

  	
  xx

  	
   

  	
   

  	
   

  	
  xx

  	
   

  	
  (A)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cash
  Recoveries:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Net liquidation proceeds
  (from HUD-1 settl stmt)

  	
   

  	
  xx

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Insurance proceeds

  	
   

  	
  xx

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  T &1 escrow
  account balance, if positive

  	
   

  	
  xx

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Other credits, if any
  (itemize)

  	
   

  	
  xx

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Cash Recovery

  	
   

  	
  xx

  	
   

  	
   

  	
   

  	
  xx

  	
   

  	
  (B)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Loss
  Amount

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  xx

  	
   

  	
  (A) - (B)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Times 80% (or 95% if
  the Stated Threshold has been met) (Receiver Loss Share percentage)

  	
   

  	
   

  	
   

  	
  x

  	
   

  	
  80

  	
  %

  	
   

  	
   

  
	
  Amount due Assuming
  Bank for Receiver Loss Share

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Amount

  	
   

  	
  .

  	
   

  	
   

  	
   

  	
  xx

  	
   

  	
   

  	
   

  



 






	
  (1)

  	
  Accrued interest is limited to 90 days and is
  calculated (a) at the note interest rate that would have been in effect
  if the loan was performing, (b) on the principal balance after
  application of the last payment made by the borrower.

  
	
  (2)

  	
  Reasonable and customary third-party attorney’s
  fees and expenses incurred by or on behalf of Assuming Bank in connection
  with any enforcement procedures or otherwise with respect to such (2)
  Reasonable and customary third-party attorney’s fees and expenses incurred by
  or on behalf of Assuming Bank in connection with any enforcement procedures
  or otherwise with respect to such Mortgage Loan.

  
	
  (3)

  	
  Assuming Bank’s (or Third Party Services)
  reasonable and customary out-of-pocket costs paid to either a third-party or
  an affiliate (if affiliate is pre-approved by the FDIC) for foreclosure,
  property protection and maintenance costs, repairs, assessments, taxes,
  insurance and similar items, to the extent not paid from funds in borrower
  escrow account. Allowable costs are limited to amounts per Freddie Mac or
  Fannie Mae guidelines (as in effect from time to time), where applicable,
  provided that this limitation shall not apply to costs or expenses relating
  to environmental conditions.

  
	
   

  	
   

  
	
  DO NOT INCLUDE late
  fees, prepayment penalties, or any similar lender fees or charges by the
  Assuming Bank to the loan account, any allocation of Assuming Bank’s
  servicing costs, or any allocations of Assuming Bank’s G&A or other
  operating costs.

  



 


75

















 


Exhibit 2a(1)


 


CALCULATION
OF FORECLOSURES LOSS


No Preceding
Loan Mod under Loss Share


 


	
  Shared
  Loss Month

  	
   

  	
  May-09

  	
   

  
	
  Loss no:

  	
   

  	
  R1

  	
   

  
	
  Loan no:

  	
   

  	
  292334

  	
   

  



 


	
  Interest paid-to-date

  	
   

  	
  4/30/2008

  	
   

  
	
  Foreclosure date

  	
   

  	
  1/15/2009

  	
   

  
	
  Liquidation date

  	
   

  	
  4/12/2009

  	
   

  
	
  Note Interest rate

  	
   

  	
  8.000

  	
  %

  
	
  Owner occupied?

  	
   

  	
  Yes

  	
   

  
	
  If owner occupied:

  	
   

  	
   

  	
   

  
	
  Borrower current gross
  annual Income

  	
   

  	
  42,000

  	
   

  
	
  Estimated NPV of loan
  mod

  	
   

  	
  195,000

  	
   

  
	
  Most recent BPO

  	
   

  	
  235,000

  	
   

  
	
  Most recent BPO date

  	
   

  	
  1/21/2009

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Foreclosure
  Loss calculation

  	
   

  	
   

  	
   

  
	
  Loan Principal balance
  after last paid installment

  	
   

  	
  300,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Accrued interest,
  limited to 90 days

  	
   

  	
  6,000

  	
   

  
	
  Attorney’s fees

  	
   

  	
  0

  	
   

  
	
  Foreclosure costs,
  including title search, filing fees, advertising, etc.

  	
   

  	
  4,000

  	
   

  
	
  Property protection
  costs, maint., repairs and any costs or expenses relating to environmental
  conditions, (it being understood that any such costs with respect to
  remediation activities are limited to $200,000 per asset without Assuming
  Bank having received the prior consent of the FDIC)

  	
   

  	
  5,500

  	
   

  
	
  Tax and insurance
  advances

  	
   

  	
  1,500

  	
   

  
	
  Other Advances

  	
   

  	
   

  	
   

  
	
  Appraisal/Brokers Price
  Opinion fees

  	
   

  	
  0

  	
   

  
	
  Inspections

  	
   

  	
  50

  	
   

  
	
  Other

  	
   

  	
  0

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Gross balance
  recoverable by Purchaser

  	
   

  	
  317,050

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Cash
  Recoveries:

  	
   

  	
   

  	
   

  
	
  Net liquidation
  proceeds (from HUD-1 settl stmt)

  	
   

  	
  205,000

  	
   

  
	
  Hazard Insurance
  proceeds

  	
   

  	
  0

  	
   

  
	
  Mortgage Insurance proceeds

  	
   

  	
  0

  	
   

  
	
  T & I escrow
  account balances, if positive

  	
   

  	
  0

  	
   

  
	
  Other credits, if any
  (itemize)

  	
   

  	
  0

  	
   

  
	
  Total Cash Recovery

  	
   

  	
  205,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Loss
  Amount

  	
   

  	
  112,050

  	
   

  



 


76

















 


CALCULATION
OF FORECLOSURE LOSS


Foreclosure
after a Covered Loan Mod


 


	
  Shared-Loss
  Month

  	
   

  	
  May-09

  	
   

  
	
  Loss
  no:

  	
   

  	
  R2

  	
   

  
	
  Loan
  no:

  	
   

  	
  138554

  	
   

  



 


	
  Loan mod date

  	
   

  	
  1/17/2008

  	
   

  
	
  Interest paid-to-date

  	
   

  	
  4/30/2008

  	
   

  
	
  Foreclosure date

  	
   

  	
  1/15/2009

  	
   

  
	
  Liquidation date

  	
   

  	
  4/12/2009

  	
   

  
	
  Note Interest rate

  	
   

  	
  4.000

  	
  %

  
	
  Most recent BPO

  	
   

  	
  210,000

  	
   

  
	
  Most recent BPO date

  	
   

  	
  1/20/2009

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Foreclosure
  Loss calculation

  	
   

  	
   

  	
   

  
	
  NPV of projected cash
  flows at loan mod

  	
   

  	
  285,000

  	
   

  
	
  Less: Principal
  payments between loan mod and delinquency

  	
   

  	
  2,500

  	
   

  
	
  Plus:

  	
   

  	
   

  	
   

  
	
  Attorney’s fees

  	
   

  	
  0

  	
   

  
	
  Foreclosure costs,
  including title search, filing fees, advertising, etc.

  	
   

  	
  4,000

  	
   

  
	
  Property protection
  costs, maint., repairs and any costs or expenses relating to environmental
  conditions, (it being understood that any such costs with respect to
  remediation activities are limited to $200,000 per asset without Assuming
  Bank having received the prior consent of the FDIC)

  	
   

  	
  7,000

  	
   

  
	
  Tax and insurance
  advances

  	
   

  	
  2,000

  	
   

  
	
  Other Advances

  	
   

  	
   

  	
   

  
	
  Appraisal/Broker’s
  Price Opinion fees

  	
   

  	
  0

  	
   

  
	
  Inspections

  	
   

  	
  0

  	
   

  
	
  Other

  	
   

  	
  0

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Gross balance
  recoverable by Purchaser

  	
   

  	
  295,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Cash
  Recoveries:

  	
   

  	
   

  	
   

  
	
  Net liquidation
  proceeds (from HUD-1 settl stmt)

  	
   

  	
  201,000

  	
   

  
	
  Hazard Insurance
  proceeds

  	
   

  	
  0

  	
   

  
	
  Mortgage Insurance
  proceeds

  	
   

  	
  0

  	
   

  
	
  T & I escrow
  account balances, if positive

  	
   

  	
  0

  	
   

  
	
  Other credits, if any
  (itemize)

  	
   

  	
  0

  	
   

  
	
  Total Cash Recovery

  	
   

  	
  201,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Loss
  Amount

  	
   

  	
  94,500

  	
   

  



 


77

















 


Exhibit 2b


 


Calculation
of Loss for Restructured Loans


 


	
  Concept and Definition — Restructuring Loss

  
	
  For purposes of loss sharing, losses on restructured
  loans are calculated as the difference between

  
	
  (a)           the principal, accrued
  interest and advances due on the loan prior to restructuring, and

  
	
  (b)           the Net Present Value
  (NPV) of estimated cash flows on the restructured loan, discounted at the
  most recently published Freddie Mac survey rate on 30-year fixed-rate loans
  at the restructure date for owner occupied residential loans,

  
	
  (c)           the Net Present Value
  (NPV) of estimated cash flows on the restructured loan, discounted at a
  commercially reasonable discount rate at the restructure date for
  Investor-Owned Residential Loans

  
	
   

  
	
  The NPV calculations must assume loan prepayment
  in full at the end of ten years (120 months).

  
	
   

  
	
  Form for Calculation — Restructuring Loss

  



 


	
  Shared-Loss
  Month:

  	
   

  	
  [input month]

  	
   

  
	
  Loan
  no.:

  	
   

  	
  [input loan no.]

  	
   

  



 


	
  Loan
  before Restructuring

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Original loan amount

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Current unpaid
  principal balance

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Remaining term

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Interest rate

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Interest Paid-To Date

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Monthly payment -
  P&I

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Monthly payment -
  T&I

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total monthly payment

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Loan type (fixed-rate,
  ARM, I/O, Option ARM, etc.)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Terms
  of Modified/Restructured Loan

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Closing date on
  modified/restructured loan

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  New Principal balance

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Remaining term

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Interest rate

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Monthly payment -
  P&I

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Monthly payment —
  T&I

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total monthlypayment

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Loan type (Fixed-rate,
  ARM, I/O, Option ARM, negative amortization features, etc.)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Lien type (1st, 2nd)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  If adjustable:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Initial interest rate

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Term - initial interest
  rate

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Initial payment amount

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Term - initial payment
  amount

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Negative amortization?

  	
   

  	
  [Yes/No]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Rate reset frequency
  after first adjustment

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Next reset date

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Index

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Margin

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cap per adjustment

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Lifetime Cap

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Floor

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


78

















 


	
  Restructuring
  Loss Calculation

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Loan Principal balance
  before restructuring

  	
   

  	
  xx

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Accrued interest,
  limited to 90 days

  	
   

  	
  xx

  	
   

  	
  (1)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Tax and insurance
  advances

  	
   

  	
  xx

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3rd party fees due

  	
   

  	
  xx

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total loan balance due
  before restructuring

  	
   

  	
  XX

  	
   

  	
   

  	
   

  	
  XX

  	
   

  	
  (A)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Assumptions for NPV
  Calculation, Restructured Loan:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Discount rate for
  projected cash flows

  	
   

  	
  xx

  	
  %

  	
  (2)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Loan prepayment in full

  	
   

  	
  120 months

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  NPV of projected cash
  flows (3)

  	
   

  	
  XX

  	
   

  	
  

  	
   

  	
  XX

  	
   

  	
  (B)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Loss
  Amount

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  XX

  	
   

  	
  (A) - (B)

  	
   

  
	
  Times 80% (or 95% if
  Stated Threshold met) (Receiver Loss Share percentage)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  80

  	
  %

  	
   

  	
   

  
	
  Amount due Assuming
  Bank for Receiver Loss Share

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Amount

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  XX

  	
   

  	
   

  	
   

  



 






	
  Footnotes

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
  (1)

  	
  Accrued interest is limited to 90 days and is
  calculated (a) at the note interest rate that would have been in effect
  if the loan was performing, (b) on the principal balance after
  application of the last payment made by the borrower.

  
	
  (2)

  	
  The discount rate to be used is the most recently
  published Freddie Mac Survey Rate on 30-year fixed-rate loans at the loan
  restructuring date.

  
	
  (3)

  	
  If the new loan is an adjustable-rate loan,
  interest rate resets and related cash flows should be projected based on the
  index rate in effect at the date of the loan restructuring. If the
  restructured loan otherwise provides for specified changes in monthly P&I
  payments over the term of the loan, those changes should be reflected in
  projected cash flows. Assuming Bank must retain supporting schedule of
  projected cash flows by month as required by Section 2.1 of the Single
  Family Shared-Loss Agreement and provide to the FDIC if requested for sample
  audit.

  



 


79














 


CALCULATION
OF RESTRUCTURING LOSS


 


	
  Shared-Loss
  Month

  	
   

  	
  May-09

  	
   

  
	
  Loss #

  	
   

  	
  M1

  	
   

  
	
  Loan no:

  	
   

  	
  123456

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Loan
  before Restructuring

  	
   

  	
   

  	
   

  
	
  Original loan amount

  	
   

  	
  500,000

  	
   

  
	
  Current unpaid
  principal balance

  	
   

  	
  450,000

  	
   

  
	
  Remaining term

  	
   

  	
  298

  	
   

  
	
  Interest rate

  	
   

  	
  7.500

  	
  %

  
	
  Interest Paid-To-Date

  	
   

  	
  2/29/2008

  	
   

  
	
  Monthly payment —
  P&I

  	
   

  	
  3,333

  	
   

  
	
  Monthly payment —
  T&I

  	
   

  	
  1,000

  	
   

  
	
  Total monthly payment

  	
   

  	
  4,333

  	
   

  
	
  Loan type (fixed-rate,
  ARM, I/O, Option ARM, etc.)

  	
   

  	
  Option ARM

  	
   

  
	
  Borrower current annual
  income

  	
   

  	
  82,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Terms
  of Modified/Restructured Loan

  	
   

  	
   

  	
   

  
	
  Closing date on
  modified/restructured loan

  	
   

  	
  4/19/2009

  	
   

  
	
  New Principal balance

  	
   

  	
  461,438

  	
   

  
	
  Remaining term

  	
   

  	
  313

  	
   

  
	
  Interest rate

  	
   

  	
  3.500

  	
  %

  
	
  Monthly payment —
  P&I

  	
   

  	
  1,346

  	
   

  
	
  Monthly payment —
  T&I

  	
   

  	
  800

  	
   

  
	
  Total monthly payment

  	
   

  	
  2,146

  	
   

  
	
  Loan type (fixed-rate,
  ARM, I/O, Option ARM, etc.)

  	
   

  	
  10 Hybrid

  	
   

  
	
  Lien type (1st, 2nd)

  	
   

  	
  1st

  	
   

  
	
  If adjustable:

  	
   

  	
   

  	
   

  
	
  Initial interest rate

  	
   

  	
  3.500

  	
  %

  
	
  Term — initial interest
  rate

  	
   

  	
  60 Months

  	
   

  
	
  Initial payment amount

  	
   

  	
  2,146

  	
   

  
	
  Term-initial payment
  amount

  	
   

  	
  60 Months

  	
   

  
	
  Negative amortization?

  	
   

  	
  No

  	
   

  
	
  Rate reset frequency
  after first adjustment

  	
   

  	
  6 Months

  	
   

  
	
  Next reset date

  	
   

  	
  5/1/2014

  	
   

  
	
  Index

  	
   

  	
  LIBOR

  	
   

  
	
  Margin

  	
   

  	
  2.750

  	
  %

  
	
  Cap per adjustment

  	
   

  	
  2.000

  	
  %

  
	
  Lifetime Cap

  	
   

  	
  9.500

  	
  %

  
	
  Floor

  	
   

  	
  2.750

  	
  %

  
	
  Front end DTI

  	
   

  	
  31

  	
  %

  
	
  Back end DTI

  	
   

  	
  45

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Restructuring
  Loss Calculation

  	
   

  	
   

  	
   

  
	
  Loan Principal balance
  before restructuring

  	
   

  	
  450,000

  	
   

  
	
  Accrued interest,
  limited to 90 days

  	
   

  	
  8,438

  	
   

  
	
  Tax and insurance
  advances

  	
   

  	
  3.000

  	
   

  
	
  3rd party fees due

  	
   

  	
  —

  	
   

  
	
  Total loan balance due
  before restructuring

  	
   

  	
  461,438

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Assumptions
  for NPV Calculation, Restructured Loan:

  	
   

  	
   

  	
   

  
	
  Discount rate for
  projected cash flows

  	
   

  	
  5.530

  	
  %

  
	
  Loan prepayment in full

  	
   

  	
  120 Months

  	
   

  
	
  NPV of projected cash
  flows

  	
   

  	
  403,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Loss
  Amount

  	
   

  	
  58,438

  	
   

  
						



 


80

















 


Exhibit 2c


 


Calculation
of Loss for Short Sale Loans


 


	
  Shared-Loss Month:

  	
   

  	
  [input month]

  
	
  Loan no.:

  	
   

  	
  [input loan no.]

  



 


	
  Interest paid-to date

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Short Payoff Date

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Note Interest rate

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Short-Sale
  Loss calculation

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Loan Principal balance

  	
   

  	
  xx

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Accrued interest,
  limited to 90 days

  	
   

  	
  xx

  	
   

  	
  (1)

  	
   

  	
   

  	
   

  	
   

  
	
  Attorney’s fees

  	
   

  	
  xx

  	
   

  	
  (2)

  	
   

  	
   

  	
   

  	
   

  
	
  Tax and insurance
  advances

  	
   

  	
  xx

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Property protection
  costs, maint., repairs and any costs or expenses relating to environmental
  conditions, (it being understood that any such costs with respect to
  remediation activities are limited to $200,000 per asset without Assuming
  Bank having received the prior consent of the FDIC)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3rd party fees due

  	
   

  	
  xx

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Gross balance recoverable
  by Assuming Bank

  	
   

  	
  XX

  	
   

  	
   

  	
   

  	
  XX

  	
   

  	
  (A)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Amount accepted in
  Short-Sale

  	
   

  	
  XX

  	
   

  	
   

  	
   

  	
  XX

  	
   

  	
  (B)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Loss
  Amount

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  XX

  	
   

  	
  (A) - (B)

  
	
  Times 80% (or 95% if
  the Stated Threshold has been met) (Receiver Loss Share percentage)

  	
   

  	
   

  	
   

  	
  x

  	
   

  	
  80%

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Amount due Assuming
  Bank for Receiver Loss Share

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Amount

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  XX

  	
   

  	
   

  



 






(1)          Accrued interest is limited to 90 days and is
calculated (a) at the note interest rate that would have been in effect if
the loan was performing, (b) on the principal balance after application of
the last payment made by the borrower.


 


(2)          Reasonable and customary third-party attorney’s
fees and expenses incurred by or on behalf of Assuming Bank in connection with
any enforcement procedures or otherwise with respect to negotiation and
acceptance of Short-Sale payoff.


 


DO NOT INCLUDE late fees,
prepayment penalties, or any similar lender fees or charges by the Assuming
Bank to the loan account, any allocation of Assuming Bank’s servicing costs, or
any allocations of Assuming Bank’s G&A or other operating costs.


 


81

















 


Exhibit 2c(1)


 


CALCULATION
OF LOSS FOR SHORT SALE LOANS

Short Sale after a Covered Loan Mod


 


	
  Shared-Loss Month:

  	
   

  	
  May-09

  	
   

  
	
  Loss #

  	
   

  	
  S2

  	
   

  
	
  Loan #

  	
   

  	
  20078

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Loan mod date

  	
   

  	
  5/12/2008

  	
   

  
	
  Interest paid-to-date

  	
   

  	
  9/30/2008

  	
   

  
	
  Short Payoff Date

  	
   

  	
  4/2/2009

  	
   

  
	
  Note Interest rate

  	
   

  	
  7.500

  	
  %

  
	
  Most recent BPO

  	
   

  	
  230,000

  	
   

  
	
  Most recent BPO date

  	
   

  	
  1/21/2009

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Short-Sale
  Loss calculation

  	
   

  	
   

  	
   

  
	
  NPV of projected cash
  flows at loan mod

  	
   

  	
  311,000

  	
   

  
	
  Less: Principal
  payments between loan mod and delinquency

  	
   

  	
  1,000

  	
   

  
	
  Plus:

  	
   

  	
   

  	
   

  
	
  Attorney’s fees

  	
   

  	
  0

  	
   

  
	
  Tax and insurance
  advances

  	
   

  	
  1,500

  	
   

  
	
  Property protection
  costs, maint., repairs and any costs or expenses relating to environmental
  conditions, (it being understood that any such costs with respect to
  remediation activities are limited to $200,000 per asset without Assuming
  Bank having received the prior consent of the FDIC)

  	
   

  	
  0

  	
   

  
	
  3rd party fees due

  	
   

  	
  2,600

  	
   

  
	
  Incentive to borrower

  	
   

  	
  3,500

  	
   

  
	
  Gross balance
  recoverable by Purchaser

  	
   

  	
  317,600

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Amount accepted in
  Short-Sale

  	
   

  	
  234,000

  	
   

  
	
  Hazard Insurance

  	
   

  	
  0

  	
   

  
	
  Mortgage Insurance

  	
   

  	
  0

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total Cash Recovery

  	
   

  	
  234,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Loss
  Amount

  	
   

  	
  83,600

  	
   

  
						



 


82

















 


Exhibit 2d


 


	
  Shared-Loss Month:

  	
   

  	
  [input month]

  
	
  Loan no.:

  	
   

  	
  [input loan no.]

  



 


NOTE


The calculation of recovery on a loan for which a
Restructuring Loss has been paid will only apply if the loan is sold.


 


EXAMPLE CALCULATION


 


	
  Restructuring
  Loss Information

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Loan principal balance
  before restructuring

  	
   

  	
  $

  	
  200,000

  	
   

  	
  A

  	
   

  
	
  NPV, restructured loan

  	
   

  	
  165,000

  	
   

  	
  B

  	
   

  
	
  Loss on restructured
  loan

  	
   

  	
  $

  	
  35,000

  	
   

  	
  A - B

  	
   

  
	
  Times FDIC applicable
  loss share % (80% or 95%)

  	
   

  	
  80

  	
  %

  	
   

  	
   

  
	
  Loss
  share payment to purchaser

  	
   

  	
  $

  	
  28,000

  	
   

  	
  C

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Calculation
  — Recovery amount due to Receiver

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Loan sales price

  	
   

  	
  $

  	
  190,000

  	
   

  	
   

  	
   

  
	
  NPV of restructured
  loan at mod date

  	
   

  	
  165,000

  	
   

  	
   

  	
   

  
	
  Gain - step 1

  	
   

  	
  25,000

  	
   

  	
  D

  	
   

  
	
  PLUS

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Loan UPB after
  restructuring (1)

  	
   

  	
  200,000

  	
   

  	
   

  	
   

  
	
  Loan UPB at liquidation
  date

  	
   

  	
  192,000

  	
   

  	
   

  	
   

  
	
  Gain - step 2 (principal
  collections after restructuring)

  	
   

  	
  8,000

  	
   

  	
  E

  	
   

  
	
  Recovery amount

  	
   

  	
  33,000

  	
   

  	
  D+ E

  	
   

  
	
  Times FDIC loss share %

  	
   

  	
  80

  	
  %

  	
   

  	
   

  
	
  Recovery
  due to FDIC

  	
   

  	
  $

  	
  26,400

  	
   

  	
  F

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Net
  loss share paid to purchaser (C - F)

  	
   

  	
  $

  	
  1,600

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Proof
  Calculation  (2)

  	
   

  	
  $

  	
  200,000

  	
   

  	
  G

  	
   

  
	
  Loan principal balance

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Principal collections
  on loan

  	
   

  	
  8,000

  	
   

  	
   

  	
   

  
	
  Sales price for loan

  	
   

  	
  190,000

  	
   

  	
   

  	
   

  
	
  Total collections on
  loan

  	
   

  	
  198,000

  	
   

  	
  H

  	
   

  
	
  Net loss on loan

  	
   

  	
  $

  	
  2,000

  	
   

  	
  G - H

  	
   

  
	
  Times FDIC applicable
  loss share % (80% or 95%)

  	
   

  	
  80

  	
  %

  	
   

  	
   

  
	
  Loss
  share payment to purchaser

  	
   

  	
  $

  	
  1,600

  	
   

  	
   

  	
   

  



 






(1)           This
example assumes that the FDIC loan modification program as shown in Exhibit 5
is applied and the loan restructuring does not result in a reduction in the
loan principal balance due from the borrower.


(2)           This
proof calculation is provided to illustrate the concept and the Assuming Bank
is not required to provide this with its Recovery calculations.


 


83

















 


Exhibit 3

Portfolio Performance and Summary Schedule


 


	
  SHARED-LOSS
  LOANS

  
	
  PORTFOLIO
  PERFORMANCE AND SUMMARY SCHEDULE

  
	
  MONTH ENDED:

  	
   

  	
  [input report month]

  



 


	
  POOL
  SUMMARY

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  #

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
  Loans at Sale Date

  	
   

  	
  xx

  	
   

  	
  xx

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Loans as of this
  month-end

  	
   

  	
  xx

  	
   

  	
  xx

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  STATED
  THRESHOLD TRACKING

  	
   

  	
  #

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
  Stated Threshold amount

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  A

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cumulative loss
  payments, prior month

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Loss payment for
  current month

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cumulative loss
  payment, this month

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cumulative
  Commercial & Other Loans Net Charge-Offs

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  B

  	
   

  
	
  Remaining to Stated
  Threshold

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  A - B

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Percent of Total

  	
   

  
	
  PORTFOLIO
  PERFORMANCE STATUS

  	
   

  	
  #

  	
   

  	
  $

  	
   

  	
  #

  	
   

  
	
  Current

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  30 – 69 days past due

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  60 – 89 days past due

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  90 –119 days past due

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  120 and over days past
  due

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  In foreclosure

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ORE

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Memo Item:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Loans in process of
  restructuring — total

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Loans in bankruptcy

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Loans in process of
  restructuring by delinquency status

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Current

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  30 - 59 days past due

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  60 - 89 days past due

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  90 - 119 days past due

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  120 and over days past
  due In foreclosure

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  List
  of Loans Paid Off During Month

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Loan #

  	
   

  	
  Principal Balance

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  List
  of Loans Sold During Month

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Loan #

  	
   

  	
  Principal Balance

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


84

















 


Exhibit 4

Wire Transfer Instructions


 


PURCHASER
WIRING INSTRUCTIONS


 


	
  BANK RECEIVING WIRE

  	
   

  
	
   

  	
   

  
	
  9 DIGIT ABA ROUTING NUMBER

  	
   

  
	
   

  	
   

  
	
  ACCOUNT NUMBER

  	
   

  
	
   

  	
   

  
	
  NAME OF ACCOUNT

  	
   

  
	
   

  	
   

  
	
  ATTENTION TO WHOM

  	
   

  
	
   

  	
   

  
	
  PURPOSE OF WIRE

  	
   

  
	
   

  	
   

  
	
  FDIC RECEIVER WIRING
  INSTRUCTIONS

  
	
   

  	
   

  
	
  BANK RECEIVING WIRE

  	
   

  
	
   

  	
   

  
	
  SHORT NAME

  	
   

  
	
   

  	
   

  
	
  ADDRESS OF BANK RECEIVING WIRE

  	
   

  
	
   

  	
   

  
	
  9 DIGIT ABA ROUTING NUMBER

  	
   

  
	
   

  	
   

  
	
  ACCOUNT NUMBER

  	
   

  
	
   

  	
   

  
	
  NAME OF ACCOUNT

  	
   

  
	
   

  	
   

  
	
  ATTENTION TO WHOM

  	
   

  
	
   

  	
   

  
	
  PURPOSE OF WIRE

  	
   

  



 


85






 










 


EXHIBIT 5


 


FDIC
MORTGAGE LOAN MODIFICATION PROGRAM


 


Objective


 


The objective of this FDIC
Mortgage Loan Modification Program (“Program”) is to modify the terms of
certain residential mortgage loans so as to improve affordability, increase the
probability of performance, allow borrowers to remain in their homes and
increase the value of the loans to the FDIC and assignees.  The Program provides for the modification of
Qualifying Loans (as defined below) by reducing the borrower’s monthly housing
debt to income ratio (“DTI Ratio”) to no more than 31% at the time of the
modification and eliminating adjustable interest rate and negative amortization
features.


 


Qualifying
Mortgage Loans


 


In order for a mortgage loan
to be a Qualifying Loan it must meet all of the following criteria, which must
be confirmed by the lender:


 


·                  The collateral securing the mortgage loan is
owner-occupied and the owner’s primary residence; and


·                  The mortgagor has a first priority lien on the
collateral; and


·                  Either the borrower is at least 60 days delinquent or a
default is reasonably foreseeable.


 


Modification
Process


 


The lender shall undertake a
review of its mortgage loan portfolio to identify Qualifying Loans.  For each Qualifying Loan, the lender shall
determine the net present value of the modified loan and, if it will exceed the
net present value of the foreclosed collateral upon disposition, then the
Qualifying Loan shall be modified so as to reduce the borrower’s monthly DTI
Ratio to no more than 31% at the time of the modification.  To achieve this, the lender shall use a
combination of interest rate reduction, term extension and principal
forbearance, as necessary.


 


The borrower’s monthly DTI
Ratio shall be a percentage calculated by dividing the borrower’s monthly
income by the borrower’s monthly housing payment (including principal, interest,
taxes and insurance).  For these
purposes, (1) the borrower’s monthly income shall be the amount of the
borrower’s (along with any co-borrowers’) documented and verified gross monthly
income, and (2) the borrower’s monthly housing payment shall be the amount
required to pay monthly principal and interest plus one-twelfth of the then
current annual amount required to pay real property taxes and homeowner’s
insurance with respect to the collateral.


 


In order to calculate the
monthly principal payment, the lender shall capitalize to the outstanding
principal balance of the Qualifying Loan the amount of all delinquent interest,
delinquent taxes, past due insurance premiums, third party fees and (without
duplication) escrow advances (such amount, the “Capitalized Balance”).


 


86

















 


In order to achieve the goal
of reducing the DTI Ratio to 31%, the lender shall take the following steps in
the following order of priority with respect to each Qualifying Loan:


 


1.                                       Reduce the interest rate to the then current
Freddie Mac Survey Rate for 30-year fixed rate mortgage loans, and adjust the
term to 30 years.


 


2.                                       If the DTI Ratio is still in excess of 31%, reduce
the interest rate further, but no lower than 3%, until the DTI ratio of 31% is
achieved.


 


3.                                       If the DTI Ratio is still in excess of 31% after
adjusting the interest rate to 3%, extend the remaining term of the loan by 10
years.


 


4.                                       If the DTI Ratio is still in excess of 31%,
calculate a new monthly payment (the “Adjusted Payment Amount”) that will
result in the borrower’s monthly DTI Ratio not exceeding 31%.  After calculating the Adjusted Payment
Amount, the lender shall bifurcate the Capitalized Balance into two portions —
the amortizing portion and the non-amortizing portion.  The amortizing portion of the Capitalized
Balance shall be the mortgage amount that will fully amortize over a 40-year
term at an annual interest rate of 3% and monthly payments equal to the Adjusted
Payment Amount.  The non-amortizing portion
of the Capitalized Balance shall be the difference between the Capitalized
Balance and the amortizing portion of the Capitalized Balance.  If the amortizing portion of the Capitalized
Balance is less than 75% of the current estimated value of the collateral, then
the lender may choose not to restructure the loan.  If the lender chooses to restructure the
loan, then the lender shall forbear on collecting the non-amortizing portion of
the Capitalized Balance, and such amount shall be due and payable only upon the
earlier of (i) maturity of the modified loan, (ii) a sale of the
property or (iii) a pay-off or refinancing of the loan.  No interest shall be charged on the
non-amortizing portion of the Capitalized Balance, but repayment shall be
secured by a first lien on the collateral.


 


Special
Note:


 


The net present value
calculation used to determine whether a loan should be modified based on the
modification process above is distinct and different from the net present value
calculation used to determine the covered loss if the loan is modified.  Please refer only to the net present value
calculation described in this exhibit for the modification process, with its
separate assumptions, when determining whether to provide a modification to a
borrower.  Separate assumptions may
include, without limitation, Assuming Bank’s determination of a probability of
default without modification, a probability of default with modification, home
price forecasts, prepayment speeds, and event timing.  These assumptions are applied to different
projected cash flows over the term of the loan, such as the projected cash flow
of the loan performing or defaulting without modification and the projected
cash flow of the loan performing or defaulting with modification.


 


87

















 


By contrast, the net present
value for determining the covered loss is based on a 10 year period.  While the assumptions in the net present
value calculation used in the modification process may change, the net present
value calculation for determining the covered loss remains constant.


 


88

















 


EXHIBIT 4.15B


 


COMMERCIAL
AND OTHER LOANS SHARED-LOSS AGREEMENT


 


This agreement for
reimbursement of loss sharing expenses on certain loans and other assets (the “Commercial
Shared-Loss Agreement”) shall apply when the Assuming Bank purchases
Shared-Loss Assets as that term is defined herein.  The terms hereof shall modify and supplement,
as necessary, the terms of the Purchase and Assumption Agreement to which this
Commercial Shared-Loss Agreement is attached as Exhibit 4.15B and
incorporated therein.  To the extent any
inconsistencies may arise between the terms of the Purchase and Assumption
Agreement and this Commercial Shared-Loss Agreement with respect to the subject
matter of this Commercial Shared-Loss Agreement, the terms of this Commercial
Shared-Loss Agreement shall control. 
References in this Commercial Shared-Loss Agreement to a particular Section shall
be deemed to refer to a Section in this Commercial Shared-Loss Agreement
unless the context indicates that a Section of the Purchase and Assumption
Agreement is intended.


 


ARTICLE I — DEFINITIONS


 


Capitalized terms used in this
Commercial Shared-Loss Agreement that are not defined in this Commercial
Shared-Loss Agreement are defined in the Purchase and Assumption
Agreement.  In addition to the terms
defined above, defined below are certain additional terms relating to
loss-sharing, as used in this Commercial Shared-Loss Agreement.


 


“AAA” means the American Arbitration Association as
provided in Section 2.1(f)(iii) of this Commercial Shared-Loss
Agreement.


 


“Accrued Interest” means, with respect to any Shared-Loss
Loan, Permitted Advance or Shared-Loss Loan Commitment Advance at any time, the
amount of earned and unpaid interest, taxes, credit life and/or disability
insurance premiums (if any) payable by the Obligor accrued on or with respect
to such Shared-Loss Loan, Permitted Advance or Shared-Loss Loan Commitment
Advance, all as reflected on the Accounting Records of the Failed Bank or the
Assuming Bank (as applicable); provided, that Accrued Interest
shall not include any amount that accrues on or with respect to any Shared-Loss
Loan, Permitted Advance or Shared-Loss Loan Commitment Advance after that Asset
has been placed on non-accrual or nonperforming status by either the Failed
Bank or the Assuming Bank (as applicable).


 


“Additional ORE” means Shared-Loss Loans that become Other
Red Estate after Bank Closing Date.


 


“Affiliate” shall have the meaning set forth in the
Purchase and Assumption Agreement; provided, that, for purposes of this
Commercial Shared-Loss Agreement, no Third Party Servicer shall be deemed to be
an Affiliate of the Assuming Bank.


 


“Applicable Anniversary of the Commencement Date” means the
fifth (5th) anniversary of the Commencement Date or the seventh (7th)
anniversary of the Commencement Date if extended pursuant to Article IV.


 


89

















 


“Calendar Quarter” means a quarterly period (a) for
the first such period, beginning on the Commencement Date and ending on the
last calendar day of either March, June, September or December, whichever
is the first to occur after the Commencement Date, and (b) for quarterly
periods thereafter, beginning on the first calendar day of the calendar month
immediately after the month that ended the prior period and ending on the last
calendar day of each successive three-calendar-month period thereafter (i.e.,
each March, June, September and December, starting in the applicable order
depending on the ending date of first such period) of any year.


 


“Capitalized Expenditures” means those expenditures that (i) would
be capitalized under generally accepted accounting principles, and (ii) are
incurred with respect to Shared-Loss Loans, Other Real Estate, Additional ORE
or Subsidiary ORE.  Capitalized
Expenditures shall not include expenses related to environmental conditions
including, but not limited to, remediation, storage or disposal of any
hazardous or toxic substances or any pollutant or contaminant.


 


“Charge-Offs” means, with respect to any Shared-Loss Assets
for any period, an amount equal to the aggregate amount of loans or portions of
loans classified as “Loss” under the Examination Criteria, including (a) charge-offs
of (i) the principal amount of such assets net of unearned interest
(including write-downs associated with Other Real Estate, Additional ORE,
Subsidiary ORE or loan modification(s)) (ii) Accrued Interest, and (iii) Capitalized
Expenditures plus (b) Pre-Charge-Off Expenses incurred on the respective
Shared-Loss Loans, all as effected by the Assuming Bank during such period and
reflected on the Accounting Records of the Assuming Bank; provided, that:
(i) the aggregate amount of Accrued Interest (including any reversals
thereof) for the period after Bank Closing that shall be included in
determining the amount of Charge-Offs for any Shared-Loss Loan shall not exceed
ninety (90) days’ Accrued Interest; (ii) no Charge-Off shall be taken with
respect to any anticipated expenditure by the Assuming Bank until such
expenditure is actually incurred; (iii) any financial statement
adjustments made in connection with the purchase of any Assets pursuant to this
Purchase and Assumption Agreement or any future purchase, merger, consolidation
or other acquisition of the Assuming Bank shall not constitute “Charge-Offs”;
and (iv) except for Portfolio Sales or any other sales or dispositions
consented to by the Receiver, losses incurred on the sale or other disposition
of Shared-Loss Assets to any Person (other than the sale or other disposition
of Other Real Estate, Additional ORE or Subsidiary ORE to a Person other than
an Affiliate of the Assuming Bank which is conducted in a commercially reasonable
and prudent manner) shall not constitute Charge-Offs.


 


“Commencement Date” means the first calendar day following
Bank Closing.


 


“Consumer Loans” means Loans to individuals for household,
family and other personal expenditures (including United States and/or
State-guaranteed student loans and extensions of credit pursuant to a credit
card plan or debit card plan).


 


“Environmental Assessment” means an assessment of the
presence, storage or release of any hazardous or toxic substance, pollutant or
contaminant with respect to the  collateral securing a Shared-Loss Loan that has been
fully or partially charged off.


 


90

















 


“Examination Criteria” means the loan classification
criteria employed by, or any applicable regulations of, the Assuming Bank’s
Chartering Authority at the time such action is taken, as such criteria may be
amended from time to time.


 


“Failed Bank Charge-Offs/Write-Downs” means, with respect
to any Shared-Loss Asset, an amount equal to the aggregate amount of reversals
or charge-offs of Accrued Interest and charge-offs and write-downs of principal
effected by the Failed Bank with respect to that Shared-Loss Asset as reflected
on the Accounting Records of the Failed Bank.


 


“Fair Value” means the fair value of a Shared Loss MTM
Asset as determined in accordance with FAS 157 as in effect on Bank Closing.


 


“FDIC Party” has the meaning provided in Section 2.1(f)(ii) of
this Commercial Shared-Loss Agreement.


 


“Net Charge-Offs” means, with respect to any period, an
amount equal to the aggregate amount of Charge-Offs for such period less the
amount of Recoveries for such period.


 


“Neutral Member” has the meaning provided in Section 2.1(f)(ii) of
this Commercial Shared-Loss Agreement.


 


“New Shared-Loss Loans” means loans that would otherwise be
subject to loss sharing under this Commercial Shared-Loss Agreement that were
originated after the Information Package Date and before Bank Closing.


 


“Notice of Dispute” has the meaning provided in Section 2.1(f)(iii) of
this Commercial Shared-Loss Agreement.


 


“ORE Subsidiary” means any Subsidiary of the Assuming Bank
that engages solely in holding, servicing, managing or liquidating interests of
a type described in clause (A) of the definition of “Other Real Estate,”
which interests have arisen from the collection or settlement of a Shared-Loss
Loan.


 


“Other Real Estate” means all of the following (including
any of the following fully or partially charged off the books and records of
the Failed Bank or the Assuming Bank) that (i) are owned by the Failed
Bank as of Bank Closing and are purchased pursuant to the Purchase and
Assumption Agreement or (ii) have arisen subsequent to Bank Closing from
the collection or settlement by the Assuming Bank of a Shared-Loss Loan:


 


(A)          all interests in real estate (other
than Bank Premises and Fixtures), including but not limited to mineral rights,
leasehold rights, condominium and cooperative interests, air rights and
development rights; and


 


(B)           all other assets (whether real or personal
property) acquired by foreclosure or in full or partial satisfaction of
judgments or indebtedness.


 


“Permitted Advance” means an advance of funds by the
Assuming Bank with respect to a Shared-Loss Loan, or the making of a legally
binding commitment by the Assuming 


 


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Bank to advance funds with
respect to a Shared-Loss Loan, that (i) in the case of such an advance, is
actually made, and, in the case of such a commitment, is made and all of the
proceeds thereof actually advanced, within one (1) year after the
Commencement Date, (ii) does not cause the sum of (A) the book value of
such Shared-Loss Loan as reflected on the Accounting Records of the Assuming
Bank after any such advance has been made by the Assuming Bank plus (B) the
unfunded amount of any such commitment made by the Assuming Bank related
thereto, to exceed 110% of the Book Value of such Shared-Loss Loan, (iii) is
not made with respect to a Shared-Loss Loan with respect to which (A) there
exists a related Shared-Loss Loan Commitment or (B) the Assuming Bank has
taken a Charge-Off and (iv) is made in good faith, is supported at the
time it is made by documentation in the Credit Files and conforms to and is in
accordance with the applicable requirements set forth in Article III of
this Commercial Shared-Loss Agreement and with the then effective written
internal credit policy guidelines of the Assuming Bank; provided, that
the limitations in subparagraphs (i), (ii) and (iii) of this
definition shall not apply to any such action (other than to an advance or
commitment related to the remediation, storage or final disposal of any
hazardous or toxic substance, pollutant or contaminant) that is taken by
Assuming Bank in its reasonable discretion to preserve or secure the value of
the collateral for such Shared-Loss Loan.


 


“Permitted Amendment” means, with respect to any
Shared-Loss Loan Commitment or Shared-Loss Loan, any amendment, modification,
renewal or extension thereof, or any waiver of any term, right, or remedy
thereunder, made by the Assuming Bank in good faith and otherwise in accordance
with the applicable requirements set forth in Article III of this
Commercial Shared-Loss Agreement and the then effective written internal credit
policy guidelines of the Assuming Bank; provided, that:


 


(i)            with respect to a Shared-Loss Loan Commitment or a
Shared-Loss Loan that is not a revolving line of credit, no such amendment,
modification, renewal, extension, or waiver, except as allowed under the definition
of Permitted Advance, shall operate to increase the amount of principal (A) then
remaining available to be advanced by the Assuming Bank under the Shared-Loss
Loan Commitment or (B) then outstanding under the Shared-Loss Loan;


 


(ii)           with respect to a Shared-Loss Loan Commitment or a
Shared-Loss Loan that is a revolving line of credit, no such amendment,
modification, renewal, extension, or waiver, except as allowed under the
definition of Permitted Advance, shall operate to increase the maximum amount of
principal authorized as of Bank Closing to be outstanding at any one time under
the underlying revolving line of credit relationship with the debtor
(regardless of the extent to which such revolving line of credit may have been
funded as of Bank Closing or may subsequently have been funded and/or repaid);
and


 


(iii)          no such amendment, modification, renewal, extension or
waiver shall extend the term of such Shared-Loss Loan Commitment or Shared-Loss
Loan beyond the end of the final Shared-Loss Quarter unless the term of such
Shared-Loss Loan Commitment or Shared-Loss Loan as existed on Bank Closing was
beyond the end of the final Shared-Loss Quarter, in which event no such
amendment, modification, renewal, extension or waiver shall extend such term
beyond the term as existed as of Bank Closing.


 


92






 










 


“Pre-Charge-Off Expenses” means those expenses incurred in
the usual and prudent management of a Shared-Loss Loan that would qualify as a
Reimbursable Expense or Recovery Expense if incurred after a Charge-Off of the
related Shared-Loss Asset had occurred.


 


“Quarterly Certificate” has the meaning provided in Section 2.1(a)(i) of
this Commercial Shared-Loss Agreement.


 


“Recoveries” (I)(A) In addition to any sums to be
applied as Recoveries pursuant to subparagraph (II) below, “Recoveries”
means, with respect to any period, the sum of (without duplication):


 


(i)            the amount of collections during such period by the
Assuming Bank on Charge-Offs of Shared-Loss Assets effected by the Assuming
Bank prior to the end of the final Shared-Loss Quarter; plus


 


(ii)           the amount of collections during such period by the
Assuming Bank on Failed Bank Charge-Offs/Write-Downs; plus


 


(iii)          the amount of gain on any sale or other disposition
during such period by the Assuming Bank of Shared Loss Loans, Other Real
Estate, Additional ORE or Subsidiary ORE (provided, that the
amount of any such gain included in Recoveries shall not exceed the aggregate
amount of the related Failed Bank Charge-Offs/Write-Downs and Charge-Offs taken
and any related Reimbursable Expenses and Recovery Expenses); plus


 


(iv)         the amount of collections during such period by the
Assuming Bank of any Reimbursable Expenses or Recovery Expenses; plus


 


(v)           the amount of any fee or other consideration
received by the Assuming Bank during or prior to such period in connection with
any amendment, modification, renewal, extension, refinance, restructure,
commitment or other similar action taken by the Assuming Bank with respect to a
Shared-Loss Asset with respect to which there exists a Failed Bank
Charge-Off/Write-Down or a Shared-Loss Loan as to which a Charge-Off has been
effected by the Assuming Bank during or prior to such period (provided, that
the amount of any such fee or other consideration included in Recoveries shall
not exceed the aggregate amount of the related Failed Bank
Charge-Offs/Write-Downs and Charge-Offs taken and any related Reimbursable
Expenses and Recovery Expenses).


 


(I)(B) For the purpose of
determining the amounts to be applied as Recoveriesipursuant to subparagraph
(I)(A) above, the Assuming Bank shall apply amounts received on the Assets
that are not otherwise applied to reduce the book value of principal of a
Shared-Loss Loan (or, in the case of Other Real Estate, Additional ORE,
Subsidiary ORE and Capitalized Expenditures, that are not otherwise applied to
reduce the book value thereof) in the following order:  first to  Charge-Offs and Failed Bank Charge-Offs/Write Downs; then
to Reimbursable Expenses and Recovery Expenses; then to interest income; and
then to other expenses incurred by the Assuming Bank.


 


(II) If there
occurs an amendment, modification, renewal, extension, refinance, restructure,
commitment, sale or other similar action with respect to a Shared-Loss Loan as
to


 


93

















 


which there exists a Failed
Bank Charge-Off/Write Down or as to which a Charge-Off has been effected by the
Assuming Bank during or prior to such period, and  if, as a result
of such occurrence, the Assuming Bank recognizes any interest income for
financial accounting purposes on that Shared-Loss Loan, then “Recoveries”
shall also include the portion of the total, amount of any such interest income
recognized by the Assuming Bank which is derived by multiplying:


 


(A)          the total amount of any such interest income recognized
by the Assuming Bank during such period with respect to that Shared-Loss Loan
as described above, by


 


(B)           a fraction, the numerator of which is the
aggregate principal amount (excluding reversals or charge-offs of Accrued
Interest) of all such Failed Bank Charge-Offs/Write¬Downs and Charge-Offs
effected by the Assuming Bank with respect to that Shared-Loss Loan plus the
principal amount of that Shared-Loss Loan that has not yet been charged-off but
has been placed on nonaccrual status, all of which occurred at any time prior
to or during the period in which the interest income referred to in
subparagraph (II)(A) immediately above was recognized, and the denominator
of which is the total amount of principal indebtedness (including all such
prior Failed Bank Charge-Offs/Write-Downs and Charge-Offs as described above)
due from the Obligor on that Shared-Loss Loan as of the end of such period;


 


provided, however, that the amount of any interest
income included as Recoveries for a particular Shared-Loss Loan shall not
exceed the aggregate amount of (a) Failed Bank Charge¬Offs/Write-Downs, (b) Charge-Offs
effected by the Assuming Bank during or prior to the period in which the amount
of Recoveries is being determined, plus (c) any Reimbursable Expenses and
Recovery Expenses paid to the Assuming Bank pursuant to this Commercial
Shared-Loss Agreement during or prior to the period in which the amount of
Recoveries is being determined, all with respect to that particular Shared-Loss
Loan; and, provided, further, that any collections on any
such Shared-Loss Loan that are not applied to reduce book value of
principal or recognized as interest income shall be applied pursuant to
subparagraph (I) above.


 


(III) Notwithstanding
subparagraphs (I) and (II) above, the term “Recoveries” shall not
include:  (a) any amounts paid to
the Assuming Bank by the Receiver pursuant to Section 2.1 of this
Commercial Shared-Loss Agreement, (b) amounts received with respect to
Charge-Offs effected by the Assuming Bank after the final Shared-Loss Quarter, (c) after
the final Shared-Loss Quarter, income received by the Assuming Bank from the
operation of, and any gains recognized by the Assuming Bank on the disposition
of, Other Real Estate, Additional ORE or Subsidiary ORE (such income and gains
being hereinafter together referred to as “ORE Income”), except to the
extent that aggregate ORE Income exceeds the aggregate expenses paid to third
parties by or on behalf of the Assuming Bank after the final Shared-Loss
Quarter to manage, operate and maintain Other Real Estate, Additional ORE or
Subsidiary ORE (such expenses being hereinafter referred to as “ORE Expenses”).  In determining the extent aggregate ORE
Income exceeds aggregate ORE Expenses for any Recovery Quarter as set forth
immediately above in subparagraph (c), the Assuming Bank will subtract (i) ORE
Expenses paid to third parties during such Recovery Quarter (provided, that, in
the case of the final Recovery Quarter only, the Assuming Bank will subtract
ORE Expenses paid to third parties from the beginning of the final Recovery
Quarter up to the date the Assuming Bank is required to deliver the final
Quarterly Certificate pursuant to this Commercial Shared-Loss Agreement) from
(ii) ORE


 


94

















 


Income received during such
Recovery Quarter, to calculate net ORE income (“Net ORE Income”) for that
Recovery Quarter.  If the amount of Net
ORE Income so calculated for a Recovery Quarter is positive, such amount shall
be reported as Recoveries on the Quarterly Certificate for such Recovery
Quarter.  If the amount of Net ORE Income
so calculated for a Recovery Quarter is negative (“Net ORE Loss Carryforward”),
such amount shall be added to any ORE Expenses paid to third parties in the
next succeeding Recovery Quarter, which sum shall then be subtracted from ORE
Income for that next succeeding Recovery Quarter, for the purpose of
determining the amount of Net ORE Income (or, if applicable, Net ORE Loss
Carryforward) for that next succeeding Recovery Quarter.  If, as of the end of the final Recovery
Quarter, a Net ORE Loss Carryforward exists, then the amount of the Net ORE
Loss Carryforward that does not exceed the aggregate amount of Net ORE
Income reported as Recoveries on Quarterly Certificates for all Recovery
Quarters may be included as a Recovery Expense on the Quarterly Certificate for
the final Recovery Quarter.


 


“Recovery Amount” has the meaning provided in Section 2.1(b)(ii) of
this Commercial Shared-Loss Agreement.


 


“Recovery Expenses” means, for any Recovery Quarter, the
amount of actual, reasonable and necessary out-of-pocket expenses (other than
Capitalized Expenditures) paid to third parties (other than Affiliates of the
Assuming Bank) by or on behalf of the Assuming Bank, as limited by Sections 3.2(c) and
(d) of Article III to this Commercial Shared-Loss Agreement, to
recover amounts owed with respect to (i) any Shared-Loss Asset as to which
a Charge-Off was effected prior to the end of the final Shared-Loss Quarter
(provided that such amounts were incurred no earlier than the date the first
Charge-Off on such Shared-Loss Asset could have been reflected on the
Accounting Records of the Assuming Bank), and (ii) Failed Bank
Charge-Offs/Write-Downs (including, in each case, all costs and expenses related
to an Environmental Assessment and any other costs or expenses related to any
environmental conditions with respect to the Shared-Loss Assets (it being
understood that any remediation expenses for any such pollutant or contaminant
are not recoverable if in excess of $200,000 per Shared-Loss Asset, without the
Assuming Bank having obtained the prior consent of the Receiver for such
expenses); provided, that, so long as income with respect to a
Shared-Loss Loan is being prorated pursuant to the arithmetical formula in
subsection (II) of the definition of “Recoveries”, the term “Recovery
Expenses” shall not include that portion of any such expenses paid
during such Recovery Quarter to recover any amounts owed on that Shared-Loss
Loan that is derived by:


 


subtracting (1) the product derived by multiplying:


 


(A) the total amount of
any such expenses paid by or on behalf of the Assuming Bank during such
Recovery Quarter with respect to that Shared-Loss Loan, by


 


(B) a fraction, the numerator
of which is the aggregate principal amount (excluding reversals or charge-offs
of Accrued Interest) of all such Failed Bank Charge-Offs/Write-Downs and
Charge-Offs effected by the Assuming Bank with respect to that Shared-Loss Loan
plus the principal amount of that Shared-Loss Loan that has not yet been
charged-off but has been placed on nonaccrual status, all of which occurred at
any time prior to or during the period in which the


 


95

















 


interest income referred to in
subparagraph (II)(A) of the definition of “Recoveries” was recognized, and
the denominator of which is the total amount of principal indebtedness
(including all such prior Failed Bank Charge-Offs/Write-Downs and Charge-Offs
as described above) due from the Obligor on that Shared-Loss Loan as of the end
of such period;


 


from (2) the total amount of any such expenses paid
during that Recovery Quarter with respect to that Shared-Loss Loan.


 


“Recovery Quarter” has the meaning provided in Section 21
(a)(ii) of this Commercial Shared-Loss Agreement.


 


“Reimbursable Expenses” means, for any Shared-Loss Quarter,
the amount of actual, reasonable and necessary out-of-pocket expenses (other
than Capitalized Expehditures), paid to third parties (other than Affiliates of
the Assuming Bank) by or on behalf of the Assuming Bank, as limited by Sections
3.2(c) and (d) of Article III of this Commercial Shared-Loss
Agreement, to:


 


(i) recover amounts owed
with respect to any Shared-Loss Asset as to which a Charge-Off has been
effected prior to the end of the final Shared-Loss Quarter (provided that such
amounts were incurred no earlier than the date the first Charge-Off on such
Shared-Loss Asset could have been reflected on the Accounting Records of the
Assuming Bank) and recover amounts owed with respect to Failed Bank
Charge-Offs/Write-Downs (including, in each case, all costs and expenses
related to an Environmental Assessment and any other costs or expenses related
to any environmental conditions with respect to the Shared-Loss Assets (it
being understood that any such remediation expenses for any such pollutant or
contaminant are not recoverable if in excess of $200,000 per Shared-Loss Asset,
without the Assuming Bank having obtained the prior consent of the Receiver for
such expenses); provided, that, so long as income with respect to
a Shared-Loss Loan is being pro-rated pursuant to the arithmetical formula in
subsection (II) of the definition of “Recoveries”, the term “Reimbursable
Expenses” shall not include that portion of any such expenses paid during such
Shared-Loss Quarter to recover any amounts owed on that Shared-Loss Loan that
is derived by:


 


subtracting (1) the product derived by multiplying:


 


(A) the total amount of
any such expenses paid by or on behalf of the Assuming Bank during such
Shared-Loss Quarter with respect to that Shared-Loss Loan, by


 


(B) a
fraction, the numerator of which is the aggregate principal amount
(excluding reversals or charge-offs of Accrued Interest) of all such Failed
Bank Charge-Offs/Write-Downs and Charge-Offs effected by the Assuming Bank with
respect to that Shared-Loss Loan plus the principal amount of that Shared-Loss
Loan that has not yet been charged-off but has been placed on nonaccrual
status, all of which occurred at any time prior to or during the period in
which the interest income referred to in subparagraph (II)(A) of the
definition of “Recoveries” was recognized, and the denominator of which
is the total amount of principal indebtedness (including all such prior Failed
Bank Charge-Offs/Write-


 


96

















 


Downs
and Charge-Offs as described above) due from the Obligor on that Shared-Loss
Loan as of the end of such period;


 


from (2) the total amount of any such expenses
paid during that Shared-Loss Quarter with respect to that Shared-Loss Loan; and


 


(ii) manage, operate or
maintain Other Real Estate, Additional ORE or Subsidiary ORE less the amount of
any income received by the Assuming Bank during such Shared-Loss Quarter with
respect to such Other Real Estate, Additional ORE or Subsidiary ORE (which
resulting amount under this clause (ii) may be negative).


 


“Review Board” has the meaning provided in Section 2.1(f)(i) of
this Commercial Shared-Loss Agreement.


 


“Shared-Loss Amount” has the meaning provided in Section 2.1(b)(i) of
this Commercial Shared-Loss Agreement.


 


“Shared-Loss Asset Repurchase Price” means, with respect to
any Shared-Loss Asset, the principal amount thereof plus any other fees or
penalties due from an Obligor (including, subject to the limitations discussed
below, the amount of any Accrued Interest) stated on the Accounting Records of
the Assuming Bank, as of the date as of which the Shared-Loss Asset Repurchase
Price is being determined (regardless, in the case of a Shared-Loss Loan, of
the Legal Balance thereof) plus all Reimbursable Expenses and Recovery Expenses
incurred up to and through the date of consummation of purchase of such
Shared-Loss Asset; provided, that (i) in the case of a
Shared-Loss Loan there shall be excluded from such amount the amount of any
Accrued Interest accrued on or with respect to such Shared-Loss Loan prior to
the ninety (90)-day period ending on the day prior to the purchase date
determined pursuant to Sections 2.1(e)(i) or 2,1(e)(iii) of this Commercial
Shared-Loss Agreement, except to the extent such Accrued Interest was included
in the Book Value of such Shared-Loss Loan, and (ii) any collections on a
Shared-Loss Loan received by the Assuming Bank after the purchase date
applicable to such Shared-Loss Loan shall be applied (without duplication) to
reduce the Shared-Loss Asset Repurchase Price of such Shared-Loss Loan on a
dollar-for-dollar basis.  For purposes of
determining the amount of unpaid interest which accrued during a given period
with respect to a variable-rate Shared-Loss Loan, all collections of interest
shall be deemed to be applied to unpaid interest in the chronological order in
which such interest accrued.


 


“Shared-Loss Assets” means Shared-Loss Loans, Other Real
Estate purchased by the Assuming Bank, Additional ORE, Subsidiary ORE and
Capitalized Expenditures, but does not include Shared Loss MTM Assets.


 


“Shared-Loss Loan Commitment” means:


 


(i)            any Commitment to make a further extension of
credit or to make a further advance with respect to an existing Shared-Loss
Loan; and


 


(ii)           any Shared-Loss Loan Commitment (described in
subparagraph (i) immediately preceding) with respect to which the Assuming
Bank has made a Permitted Amendment.


 


97

















 


“Shared-Loss Loan Commitment Advance” means an advance
pursuant to a Shared-Loss Loan Commitment with respect to which the Assuming
Bank has not made a Permitted Advance.


 


“Shared-Loss Loans” means:


 


(i)(A) Loans purchased by
the Assuming Bank pursuant to the Purchase and Assumption Agreement set forth
on Exhibit 4.15(b) to the Purchase and Assumption Agreement, (B) New
Shared-Loss Loans purchased by the Assuming Bank pursuant to the Purchase and
Assumption Agreement, (C) Permitted Advances and (D) Shared-Loss Loan
Commitment Advances, if any; provided, that Shared-Loss Loans
shall not include Loans, New Shared-Loss Loans, Permitted Advances and
Shared-Loss Loan Commitment Advances with respect to which an Acquired
Subsidiary, or a constituent Subsidiary thereof, is an Obligor; (E) Loans
owned by any Subsidiary which are not Shared-Loss Loans under the Single Family
Shared-Loss Agreement; and (F) Consumer Loans; and


 


(ii) any Shared-Loss
Loans (described in subparagraph (i) immediately preceding) with respect
to which the Assuming Bank has made a Permitted Amendment.


 


“Shared-Loss MTM Assets” means those securities and other
assets listed on Exhibit 4.15(C).


 


“Shared-Loss Payment Trigger” means when the sum of the
Cumulative Loss Amount under the Single Family Shared-Loss Agreement and the
cumulative Net Charge-Offs under this Commercial Shared-Loss Agreement, exceeds
the First Loss Tranche.  If the First
Loss Tranche is zero or a negative number, the Shared-Loss Payment Trigger
shall be deemed to have been reached upon Bank Closing.


 


“Shared-Loss Ouarter” has the meaning provided in Section 2.1(a)(i) of
this Commercial Shared-Loss Agreement.


 


“Shares” means common stock and any instrument which by its
terms is currently convertible into common stock, or which will become
convertible into common stock within 18 months of the execution of this
Agreement.


 


“Stated Threshold” means total losses under the shared loss
agreements in the amount of $4 Billion ($4,000,000,000.00).


 


“Subsidiary ORE” means all assets owned by ORE Subsidiaries
that would constitute Additional ORE if such assets were on the books of the
Assuming Bank.


 


“Termination Date” means the eighth (8th) anniversary of
the Commencement Date.


 


“Third Party Servicer” means any servicer appointed from
time to time by the Assuming Bank or any Affiliate of the Assuming Bank to
service the Shared-Loss Assets on behalf of the Assuming bank, the identity of
which shall be given to the Receiver prior to or concurrent with the
appointment thereof.


 


98

















 


ARTICLE II – SHARED-LOSS ARRANGEMENT


 


2.1          Shared-Loss Arrangement.


 


(a)           Quarterly Certificates.  (i)  Not later than thirty
(30) days after the end of each Calendar Quarter from and including the initial
Calendar Quarter to and including the Calendar Quarter in which the Applicable
Anniversary of the Commencement Date falls (each of such Calendar Quarters
being referred to herein as a “Shared-Loss Quarter”), the Assuming Bank shall
deliver to the Receiver a certificate, signed by the Assuming Bank’s chief
executive officer and its chief financial officer, setting forth in such form
and detail as the Receiver may specify (a “Quarterly Certificate”):


 


(A)          the amount of Charge-Offs, the amount of Recoveries
and the amount of Net Charge-Offs (which amount may be negative) during such
Shared-Loss Quarter with respect to the Shared-Loss Assets (and for Recoveries,
with respect to the Assets for which a charge-off was effected by the Failed
Bank prior to Bank Closing); and


 


(B)           the aggregate amount of Reimbursable Expenses
(which amount may be negative) during such Shared-Loss Quarter; and


 


(C)           net realized loss on the Shared Loss MTM Assets
determined pursuant to FAS 115, expressed as a positive number (MTM Net
Realized Loss), or net realized gain on the Shared Loss MTM assets, expressed
as a negative number (MTM Net Realized Gain); and


 


(D)          any other than temporary impairment of the Shared
Loss MTM Assets, determined pursuant to FAS 115, expressed as a positive number
(“OTTI Loss”) or reversals of OTTI Loss, expressed as a negative number (for
the avoidance of doubt, normal and customary unrealized mark-to-market changes
by reason of the application of fair value accounting do not qualify for loss
sharing payments).


 


(ii)           Not later than thirty (30) days after the end of each Calendar Quarter
from and including the first Calendar Quarter following the final Shared-Loss
Quarter to and including the Calendar Quarter in which the Termination Date
falls (each of such Calendar Quarters being referred to herein as a “Recovery
Quarter”), the Assuming Bank shall deliver to the Receiver a Quarterly
Certificate setting forth, in such form and detail as the Receiver may specify


 


(A)          the amount of Recoveries and Recovery Expenses
during such Recovery Quarter.  On the
Quarterly Certificate for the first Recovery Quarter only, the Assuming
Bank may report as a separate item, in such form and detail as the Receiver may
specify, the aggregate amount of any Reimbursable Expenses that: (a) were
incurred prior to or during the final Shared-Loss Quarter, and (b) had
not been included in any Quarterly Certificate for any Shared-Loss
Quarter because they had not been actually paid by or on behalf of the Assuming
Bank (in accordance with the terms of this Commercial Shared-Loss Agreement)
during any Shared-Loss Quarter and (c) were actually paid by or on
behalf of the


 


99

















 


Assuming Bank (in accordance
with the terms of this Commercial Shared-Loss Agreement) during the first
Recovery Quarter; and


 


(B)           net realized gain on the Shared Loss MTM Assets.


 


(b)            Payments With Respect to Shared-Loss Assets.


 


(i)            For purposes of this Section 2.1(b), the Assuming Bank shall
initially record the Shared-Loss Assets on its Accounting Records at Book
Value, and initially record the Shared Loss MTM Assets on its Accounting
Records at Fair Value, and adjust such amounts as such values may change after
the Bank Closing.  If the amount of all
Net Charge-Offs during any Shared-Loss Quarter plus Reimbursable
Expenses, plus MTM Net Realized Gain or MTM Net Realized Loss, plus
OTTI Loss during such Shared-Loss Quarter (the “Shared-Loss Amount”) is
positive, then, except as provided in Sections 2.1(c) and (e) below,
and subject to the provisions of Section 2.1(b)(vi) below, not later
than fifteen (15) days after the date on which the Receiver receives the
Quarterly Certificate with respect to such Shared-Loss Quarter, the Receiver
shall pay to the Assuming Bank an amount equal to eighty percent (80%) of the
Shared-Loss Amount for such Shared-Loss Quarter.  If the Shared-Loss Amount during any
Shared-Loss Quarter is negative, the Assuming Bank shall pay to the Receiver an
amount equal to eighty percent (80%) of the Shared-Loss Amount for such
Shared-Loss Quarter, which payment shall be delivered to the Receiver together
with the Quarterly Certificate for such Shared-Loss Quarter.  When the cumulative Shared-Loss Amounts for
all Shared-Loss Quarters plus the Cumulative Loss Amount under the Single
Family Shared-Loss Agreement equals or exceeds the Stated Threshold, the
Receiver shall pay to the Assuming Bank an amount equal to ninety-five percent
((95%) of the Shared-Loss Amount for each Shared-Loss Quarter, until such time
as the cumulative Shared-Loss Amount for all Shared-Loss Quarters is less than
the Stated Threshold, when the percentage shall revert back to eighty percent
(80%).


 


(ii)           If the amount of gross Recoveries during any Recovery Quarter less
Recovery Expenses during such Recovery Quarter plus net realized gains or
reversals of OTTI Loss on Shared Loss MTM Assets (the “Recovery Amount”) is
positive, then, simultaneously with its delivery of the Quarterly Certificate
with respect to such Recovery Quarter, the Assuming Bank shall pay to the
Receiver an amount equal to eighty percent (80%) of the Recovery Amount for
such Recovery Quarter.  If the Recovery
Amount is negative, then such negative amount shall be subtracted from the
amount of gross Recoveries during the next succeeding Recovery Quarter in
determining the Recovery Amount in such next succeeding Recovery Quarter; provided,
that this Section 2.1(b)(ii) shall operate successively in the
event that the Recovery Amount (after giving effect to this Section 2.1(b)(ii))
in such next succeeding Recovery Quarter is negative.  The Assuming Bank shall specify, in the
Quarterly Certificate for the final Recovery Quarter, the aggregate amount for
all Recovery Quarters only, as of the end of, and including, the final Recovery
Quarter of (A) Recoveries plus net realized gains or reversals of OTTI
Loss on Shared Loss MTM Assets (“Aggregate Recovery Period Recoveries”), (B) Recovery
Expenses (“Aggregate Recovery Expenses”), and (C) only those Recovery
Expenses that have been actually “offset” against Aggregate Recovery Period
Recoveries (including those so “offset” in that final Recovery Quarter) (“Aggregate
Offset Recovery Expenses”); as used in this sentence, the term “offset” means
the amount that has been applied to reduce gross Recoveries in any Recovery
Quarter pursuant to the methodology set forth in this Section


 


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2.1(b)(ii).  If, at the end of the final Recovery Quarter
the amount of Aggregate Recovery Expenses exceeds the amount of Aggregate
Recovery Period Recoveries, the Receiver shall have no obligation to pay to the
Assuming Bank all or any portion of such excess.  Subsequent to the Assuming Bank’s calculation
of the Recovery Amount (if any) for the final Recovery Quarter, the Assuming
Bank shall also show on the Quarterly Certificate for the final Recovery
Quarter the results of the following three mathematical calculations:  (i) Aggregate Recovery Period Recoveries
minus Aggregate Offset Recovery Expenses; (ii) Aggregate Recovery
Expenses minus Aggregate Offset Recovery Expenses; and (iii) the lesser
of the two amounts calculated in (i) and (ii) immediately above (“Additional
Recovery Expenses”) multiplied by 80% (the amount so calculated in (iii) being
defined as the “Additional Recovery Expense Amount”).  if the Additional Recovery Expense Amount is
greater than zero, then the Assuming Bank may request in the Quarterly
Certificate for the final Recovery Quarter that the Receiver reimburse the
Assuming Bank the amount of the Additional Recovery Expense Amount and the
Receiver shall pay to the Assuming Bank the Additional Recovery Expense Amount
within fifteen (15) days after the date on which the Receiver receives that
Quarterly Certificate.  On the Quarterly
Certificate for the final Recovery Quarter only, the Assuming Bank may include,
in addition to any Recovery Expenses for that Recovery Quarter that were paid
by or on behalf of the Assuming Bank in that Recovery Quarter, those Recovery
Expenses that:  (a) were incurred
prior to or during the final Recovery Quarter, and (b) had not
been included in any Quarterly Certificate for any Recovery Quarter because
they had not been actually paid by or on behalf of the Assuming Bank (in
accordance with the terms of this Commercial Shared-Loss Agreement) during any
Recovery Quarter, and (c) were actually paid by or on behalf of the
Assuming Bank (in accordance with the terms of this Commercial Shared-Loss
Agreement) prior to the date the Assuming Bank is required to deliver that
final Quarterly Certificate to the Receiver under the terms of Section 2.1(a)(ii).


 


(iii)          With respect to each Shared-Loss Quarter and Recovery Quarter,
collections by or on behalf of the Assuming Bank on any charge-off effected by
the Failed Bank prior to Bank Closing on an Asset other than a Shared-Loss
Asset or Shared-Loss MTM Assets shall be reported as Recoveries under this Section 2.1
only to the extent such collections exceed the Book Value of such Asset, if
any.  For any Shared-Loss Quarter or
Recovery Quarter in which collections by or on behalf of the Assuming Bank on
such Asset are applied to both Book Value and to a charge-off effected by the
Failed Bank prior to Bank Closing, the amount of expenditures incurred by or on
behalf of the Assuming Bank attributable to the collection of any such Asset,
that shall be considered a Reimbursable Expense or a Recovery Expense under
this Section 2.1 will be limited to a proportion of such expenditures
which is equal to the proportion derived by dividing (A) the amount of
collections on such Asset applied to a charge-off effected by the Failed Bank
prior to Bank Closing, by (B) the total collections on such Assets.


 


(iv)          If the Assuming Bank has duly specified an amount of Reimbursable
Expenses on the Quarterly Certificate for the first Recovery Quarter as
described above in the last sentence of Section 2.1(a)(ii), then, not
later than fifteen (15) days after the date on which the Receiver receives that
Quarterly Certificate, the Receiver shall pay to the Assuming Bank an amount
equal to eighty percent (80%) (or, if the Cumulative Loss Amount under the
Single Family Shared-Loss Agreement plus the cumulative Shared-Loss Amount for
all Shared-Loss Quarters equals or exceeds the Stated Threshold, ninety-five
percent (95%)) of the amount of such Reimbursable Expenses.


 


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(v)           If the First Loss Tranche as determined under the Purchase and
Assumption Agreement is a positive number, Receiver has no obligation to make
payment for any Shared Loss Quarters until the Shared-Loss Payment Trigger is
satisfied.


 


(c)            Limitation on Shared-Loss Payment.  The Receiver shall not be
required to make any payments pursuant to this Section 2.1 with respect to
any Charge-Off of a Shared-Loss Asset that the Receiver or the Corporation
determines reasonably and in good faith, based upon the Examination Criteria,
should not have been effected by the Assuming Bank; provided, (x) the
Receiver must provide written notice to the Assuming Bank detailing the grounds
for not making such payment, (y) the Receiver must provide the Assuming
Bank with a reasonable opportunity to cure any such deficiency and (z) (1) to
the extent curable, if cured, the Receiver shall make payment with respect to
any properly effected Charge-Off and (2) to the extent not curable, the
Receiver shall make a payment as to all Charge-Offs (or portion of Charge-Offs)
that were effected which would have been payable as a Charge-Off if the
Assuming Bank had properly effected such Charge-Off.  In the event that the Receiver does not make
any payments with respect to any Charge-Off of a Shared-Loss Asset pursuant to
this Section 2.1 or determines that a payment was improperly made, the
Assuming Bank and the Receiver shall, upon final resolution, make such
accounting adjustments and payments as may be necessary to give retroactive
effect to such corrections.


 


(d)            Sale of, or Additional Advances or Amendments with
Respect to, Shared-Loss Loans and Administration of Related Loans.  No Shared-Loss Loan shall be
treated as a Shared-Loss Asset pursuant to this Section 2.1 (i) if
the Assuming Bank sells or otherwise transfers such Shared-Loss Loan or any
interest therein (whether with or without 
recourse) to any Person, (ii) after the Assuming Bank makes any
additional advance, commitment or increase in the amount of a commitment with
respect to such Shared-Loss Loan that does not constitute a Permitted Advance
or a Shared-Loss Loan Commitment Advance, (ii) after the Assuming Bank makes
any amendment, modification, renewal or extension to such Shared-Loss Loan that
does not constitute a Permitted Amendment, or (iii) after the Assuming
Bank has managed, administered or collected any “Related Loan” (as such term is
defined in Section 3.4 of Article III of this Commercial Shared-Loss
Agreement) in any manner which would have the effect of disproportionately
increasing the amount of any collections with respect to the Related Loan to
the detriment of such Shared-Loss Asset to which such loan is related; provided,
that any Charge-Off with respect to a Shared-Loss Loan as to which the
Assuming Bank would be entitled to payment from the Receiver in accordance with
Section 2.1(b), but for clause (i) of this Section 2.1(d), shall
lose such entitlement only if such Charge-Off is associated with the sale or
transfer of such Shared-Loss Loan (regardless of whether such Charge-Off was
effected before or after such sale or transfer); provided  further,
that any such Shared-Loss Loan that has been the subject of Charge-Offs
prior to the taking of any action described in clause (i), (ii), or (iii) or
(iv) of this Section 2.1(d) by the Assuming Bank shall be
treated as a Shared-Loss Asset pursuant to this Section 2.1 solely for the
purpose of treatment of Recoveries on such Charge-Offs until such time as the
amount of Recoveries with respect to such Shared-Loss Asset equals such
Charge-Offs.


 


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(e)            Option to Purchase.


 


(i)            In the event that the Assuming Bank determines that there is a
substantial likelihood that continued efforts to collect a Shared-Loss Asset or
an Asset for which a charge-off was effected by the Failed Bank with, in either
case, a Legal Balance of $500,000 or more on the Accounting Records of the
Assuming Bank will result in an expenditure, after Bank Closing, of funds by on
behalf of the Assuming Bank to a third party for a specified purpose (the
expenditure of which, in its best judgment, will maximize collections), which
do not constitute Reimbursable Expenses or Recovery Expenses, and such expenses
will exceed ten percent (10%) of the then book value thereof as reflected on
the Accounting Records of the Assuming Bank, the Assuming Bank shall (i) promptly
so notify the Receiver and (ii) request that such expenditure be treated
as a Reimbursable Expense or Recovery Expense for purposes of this Section 2.1.  (Where the Assuming Bank determines that
there is a substantial likelihood that the previously mentioned situation
exists with respect to continued efforts to collect a Shared-Loss Asset or an
Asset for which a charge-off was effected by the Failed Bank with, in either
case, a Legal Balance of less than $500,000 on the Accounting Records of the
Assuming Bank, the Assuming Bank may so notify the Receiver and request that
such expenditure be treated as a Reimbursable Expense or Recovery Expense.)  Within thirty (30) days after its receipt of
such a notice, the Receiver will advise the Assuming Bank of its consent or
denial, that such expenditures shall be treated as a Reimbursable Expense or
Recovery Expense, as the case may be. 
Notwithstanding the failure of the Receiver to give its consent with
respect to such expenditures, the Assuming Bank shall continue to administer
such Shared-Loss Asset in accordance with Section 2.2, except that the
Assuming Bank shall not be required to make such expenditures.  At any time after its receipt of such a
notice and on or prior to the Termination Date the Receiver shall have the
right to purchase such Shared-Loss Asset or Asset as provided in Section 2.1(e)(iii),
notwithstanding any consent by the Receiver with respect to such expenditure.


 


(ii)           During the period prior to the Termination Date, the Assuming Bank shall
notify the Receiver within fifteen (15) days after any of the following becomes
fully or partially charged-off:


 


(A)          a Shared-Loss Loan having a Legal Balance (or, in
the case of more than one (1) Shared-Loss Loan made to the same Obligor, a
combined Legal Balance) of $500,000 or more in circumstances in which the legal
claim against the relevant Obligor survives; or


 


(B)           a Shared-Loss Loan to a director, an “executive
officer” as defined in 12 C.F.R. 215.2(d), a “principal shareholder” as defined
in 12 C.F.R. 215.2(1), or an Affiliate of the Assuming Bank.


 


(iii)          If the Receiver determines in its good faith and reasonable discretion
that the Assuming Bank is not diligently pursuing collection efforts with
respect to any Shared-Loss Asset which has been fully or partially charged-off
or written-down (including any Shared-Loss Asset which is identified or
required to be identified in a notice pursuant to Section 2.1(e)(ii)) or
any Asset for which there exists a Failed Bank Charge-Off/Write-Down, the
Receiver may at its option, exercisable at any time on or prior to the
Termination Date, require the Assuming Bank to assign, transfer and convey such
Shared-Loss Asset or Asset to and for the sole benefit of the


 


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Receiver for a price
equal to the Shared-Loss Asset Repurchase Price thereof less the Related
Liability Amount with respect to any Related Liabilities related to such
Shared-Loss Asset or Asset.


 


(iv)          Not later than ten (10) days after the date upon which the Assuming
Bank receives notice of the Receiver’s intention to purchase or require the
assignment of any Shared-Loss Asset or Asset pursuant to Section 2.1(e)(i) or
(iii), the Assuming Bank shall transfer to the Receiver such Shared-Loss Asset
or Asset and any Credit Files relating thereto and shall take all such other
actions as may be necessary and appropriate to adequately effect the transfer
of such Shared-Loss Asset or Asset from the Assuming Bank to the Receiver.  Not later than fifteen (15) days after the
date upon which the Receiver receives such Shared-Loss Asset or Asset and any
Credit Files relating thereto, the Receiver shall pay to the Assuming Bank an
amount equal to the Shared-Loss Asset Repurchase Price of such Shared-Loss
Asset or Asset less the Related Liability Amount.


 


(v)           The Receiver shall assume all Related Liabilities with respect to any
Shared-Loss Asset or Asset set forth in the notice described in Section 2.1(e)(iv).


 


(f)            Dispute Resolution.


 


(i)   (A) Any
dispute as to whether a Charge-Off of a Shared-Loss Asset was made in
accordance with Examination Criteria shall be resolved by the Assuming Bank’s
Chartering Authority.  (B) With
respect to any other dispute arising under the terms of this Commercial
Shared-Loss Agreement which the parties hereto cannot resolve after having
negotiated such matter, in good faith, for a thirty (30) day period, other than
a dispute the Corporation is not permitted to submit to arbitration under the
Administrative Dispute Resolution Act of 1996 (“ADRA”), as amended, such other
dispute shall be resolved by determination of a review board (a “Review Board”)
established pursuant to Section 2.1(f). 
Any Review Board under this Section 2.1(f) shall follow the
provisions of the Federal Arbitration Act and shall follow the provisions of
the ADRA.  (C) Any determination by
the Assuming Bank’s Chartering Authority or by a Review Board shall be
conclusive and binding on the parties hereto and not subject to further
dispute, and judgment may be entered on said determination in accordance with
applicable arbitration law in any court having jurisdiction thereof.


 


(ii)           A Review Board shall consist of three (3) members, each of whom
shall have such expertise as the Corporation and the Assuming Bank agree is
relevant.  As appropriate, the Receiver
or the Corporation (the “FDIC Party”) will select one member, one member will
be selected by the Assuming Bank and the third member (the “Neutral Member”)
will be selected by the other two members. 
The member of the Review Board selected by a party may be removed at any
time by such party upon two (2) days’ written notice to the other party of the
selection of a replacement member.  The
Neutral Member may be removed by unanimous action of the members appointed by
the FDIC Party and the Assuming Bank after two (2) days’ prior written
notice to the FDIC Party and the Assuming Bank of the selection of a
replacement Neutral Member.  In addition,
if a Neutral Member fails for any reason to serve or continue to serve on the
Review Board, the other remaining members shall so notify the parties to the
dispute and the Neutral Member in writing that such Neutral Member will be replaced,
and the Neutral Member


 


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shall thereafter be
replaced by the unanimous action of the other remaining members within twenty
(20) business days of that notification.


 


(iii)          No dispute may be submitted to a Review Board by any of the parties to
this Commercial Shared-Loss Agreement unless such party has provided to the
other party a written notice of dispute (“Notice of Dispute”).  During the forty-five (45)-day period
following the providing of a Notice of Dispute, the parties to the dispute will
make every effort in good faith to resolve the dispute by mutual
agreement.  As part of these good faith
efforts, the parties should consider the use of less formal dispute resolution
techniques, as judged appropriate by each party in its sole discretion.  Such techniques may include, but are not
limited to, mediation, settlement conference, and early neutral evaluation, if
the parties have not agreed to a resolution of the dispute by the end of such
forty-five (45)-day period, then, subject to the discretion of the Corporation
and the written consent of the Assuming Bank as set forth in Section 2.1(f)(i)(B) above,
on the first day following the end of such period, the FDIC Party and the
Assuming Bank shall notify each other of its selection of its member of the
Review Board and such members shall be instructed to promptly select the
Neutral Member of the Review Board.  If
the members appointed by the FDIC Party and the Assuming Bank are unable to
promptly agree upon the initial selection of the Neutral Member, or a timely
replacement Neutral Member as set forth in Section 2.1(f)(ii) above,
the two appointed members shall apply to the American Arbitration Association (“AAA”),
and such Neutral Member shall be appointed in accordance with the Commercial
Arbitration Rules of the AAA.


 


(iv)          The resolution of a dispute pursuant to this Section 2.1(f) shall
be governed by the Commercial Arbitration Rules of the AAA to the extent
that such rules are not inconsistent with this Section 2.1(f).  The Review Board may modify the procedures
set forth in such rules from time to time with the prior approval of the
FDIC Party and the Assuming Bank.


 


(v)           Within fifteen (15) days after the last to occur of the final written
submissions of both parties, the presentation of witnesses, if any, and oral
presentations, if any, the Review Board shall adopt the position of one of the
parties and shall present to the parties a written award regarding the
dispute.  The determination of any two (2) members
of a Review Board will constitute the determination of such Review Board.


 


(vi)          The FDIC Party and the Assuming Bank.will each pay the fees and expenses
of the member of the Review Board selected by it.  The FDIC Party and Assuming Bank will share
equally the fees and expenses of the Neutral Member.  No such fees or expenses incurred by or on
behalf of the Assuming Bank shall be subject to reimbursement by the FDIC Party
under this Commercial Shared-Loss Agreement or otherwise if such dispute is resolved
in favor of the FDIC Party; provided, that, if such dispute is
resolved in favor of the Assuming Bank, all fees and expenses incurred by or on
behalf of the Assuming Bank shall be reimbursed by the FDIC Party.


 


(vii)         Each party will bear all costs and expenses incurred by it in connection
with the submission of any dispute to a Review Board.  No such costs or expenses incurred by or on
behalf of the Assuming Bank shall be subject to reimbursement by the FDIC Party
under this Commercial Shared-Loss Agreement or otherwise if such dispute is
resolved in favor of the FDIC Party; provided, that, if such
dispute is resolved in favor of the Assuming Bank, all fees


 


105

















 


and expenses incurred by
or on behalf of the Assuming Bank shall be reimbursed by the FDIC Party.  The Review Board shall have no authority to
award costs or expenses incurred by either party to these proceedings.


 


(viii)        Any
dispute resolution proceeding held pursuant to this Section 2.1(f) shall
not be public.  In addition, each party
and each member of any Review Board shall strictly maintain the confidentiality
of all issues, disputes, arguments, positions and interpretations of any such
proceeding, as well as all information, attachments, enclosures, exhibits,
summaries, compilations, studies, analyses, notes, documents, statements,
schedules and other similar items associated therewith, except as the parties
agree in writing or such disclosure is required pursuant to law, rule or
regulation.  Pursuant to ADRA, dispute
resolution communications may not be disclosed either by the parties or by any
member of the Review board unless:


 


(1)            all
parties to the dispute resolution proceeding agree in writing;


 


(2)            the
communication has already been made public;


 


(3)            the
communication is required by statute, rule or regulation to be made
public;


 


or


 


(4)            a
court determines that such testimony or disclosure is necessary to prevent a
manifest injustice, help establish a violation of the law or prevent harm to
the public health or safety, or of sufficient magnitude in the particular case
to outweigh the integrity of dispute resolution proceedings in general by
reducing the confidence of parties in future cases that their communications
will remain confidential.


 


(ix)           Any dispute resolution proceeding pursuant to this Section 2.1(f) (whether
as a matter of good faith negotiations, by resort to a Review Board, or
otherwise) is a compromise negotiation for purposes of the Federal Rules of
Evidence and state rules of evidence. 
The parties agree that all proceedings, including any statement made or
document prepared by any party, attorney or other participants are privileged
and shall not be disclosed in any subsequent proceeding or document or
construed for any purpose as an admission against interest.  Any document submitted and any statements
made during any dispute resolution proceeding are for settlement purposes
only.  The parties further agree not to
subpoena any of the members of the Review Board or any documents submitted to
the Review Board.  In no event will the
Neutral Member voluntarily testify on behalf of any party.


 


(x)            No decision, interpretation, determination, analysis, statement, award
or other pronouncement of any Review Board shall constitute precedent as
regards any subsequent proceeding (whether or not such proceeding involves
dispute resolution under this Commercial Shared-Loss Agreement) nor shall any
Review Board be bound to follow any decision, interpretation, determination,
analysis, statement, award or other pronouncement rendered by any previous
Review Board or any other previous dispute resolution panel which may have
convened in connection with a transaction involving other failed financial
institutions or Federal assistance transactions.


 


(xi)           The parties may extend any period of time in this Section 2.1(f) by
mutual agreement.  Notwithstanding
anything above to the contrary, no dispute shall be submitted to a


 


106

















 


Review Board until each
member of the Review Board, and any substitute member, if applicable, agrees to
be bound by the provisions of this Section 2.1(f) as applicable to
members of a Review Board.  Prior to the
commencement of the Review Board proceedings, or, in the case of a substitute
Neutral Member, prior to the re-commencement of such proceedings subsequent to
that substitution, the Neutral Member shall provide a written oath of
impartiality.


 


(xii)          For the avoidance of doubt, and notwithstanding anything herein to the
contrary, in the event any notice of dispute is provided to a party under this Section 2.1(g) prior
to the Termination Date, the terms of this Commercial Shared-Loss Agreement
shall remain in effect with respect to any such items set forth in such notice
until such time as any such dispute with respect to such item is finally
resolved.


 


2.2          Administration of Shared-Loss Assets.  The Assuming Bank shall at all
times prior to the Termination Date comply with the Rules Regarding the
Administration of Shared-Loss Assets as set forth in Article III of this
Commercial Shared-Loss Agreement.


 


2.3          Auditor  Report; Right to Audit.


 


(a)           Within ninety (90) days after the end of each calendar year from and
including the calendar year during which Bank Closing falls to and including
the calendar year during which the Termination Date falls, the Assuming Bank
shall deliver to the Corporation and to the Receiver a report signed by its
independent public accountants stating that they have reviewed the terms of
this Commercial Shared-Loss Agreement and that, in the course of their annual
audit of the Assuming Bank’s books and records, nothing has come to their
attention suggesting that any computations required to be made by the Assuming
Bank during such calendar year by this Article II were not made by the
Assuming Bank in accordance herewith.  In
the event that the Assuming Bank cannot comply with the preceding sentence, it
shall promptly submit to the Receiver corrected computations together with a
report signed by its independent public accountants stating that, after giving
effect to such corrected computations, nothing has come to their attention
suggesting that any computations required to be made by the Assuming Bank
during such year by this Article II were not made by the Assuming Bank in
accordance herewith.  In such event, the
Assuming Bank and the Receiver shall make all such accounting adjustments and
payments as may be necessary to give effect to each correction reflected in
such corrected computations, retroactive to the date on which the corresponding
incorrect computation was made.


 


(b)           The Assuming Bank shall perform on a semi-annual basis an internal audit
of its compliance with the provisions of this Article II and shall provide
the Receiver and the Corporation with copies of the internal audit reports and
access to internal audit workpapers related to such internal audit.


 


(c)           The Receiver or the Corporation may perform an audit to determine the
Assuming Bank’s compliance with the provisions of this Commercial Shared-Loss
Agreement, including this Article II, at any time by providing not less
than ten (10) Business Days prior written notice.  The scope and duration of any such audit
shall be within the reasonable discretion of the Receiver or the Corporation,
as the case may be, but shall in no event be administered in a manner that
unreasonably interferes with the operation of the Assuming Bank’s


 


107

















 


business.  The Receiver or the Corporation, as the case
may be, shall bear the expense of any such audit.  In the event that any corrections are
necessary as a result of such an audit, the Assuming Bank and the Receiver
shall make such accounting adjustments and payments as may be necessary to give
retroactive effect to such corrections.


 


2.4          Withholdings.  Notwithstanding any other provision in this Article II,
the Receiver, upon the direction of the Director (or designee) of the
Corporation’s Division of Resolutions and Receiverships, may withhold payment
for any amounts included in a Quarterly Certificate delivered pursuant to Section 2.1,
if, in its good faith and reasonable judgment, there is a reasonable basis
under the terms of this Commercial Shared-Loss Agreement for denying the
eligibility of an item for which reimbursement or payment is sought under such
Section.  In such event, the Receiver
shall provide a written notice to the Assuming Bank detailing the grounds for
withholding such payment.  At such time
as the Assuming Bank demonstrates to the satisfaction of the Receiver that the
grounds for such withholding of payment, or portion of payment, no longer exist
or have been cured, then the Receiver shall pay the Assuming Bank the amount
withheld which the Receiver determines is eligible for payment, within fifteen
(15) Business Days.  In the event the
Receiver or the Assuming Bank elects to submit the issue of the eligibility of
the item for reimbursement or payment for determination under the dispute
resolution procedures of Section 2.1(f), then (i) if the dispute is
settled by the mutual agreement of the parties in accordance with Section 2.1(f)(iii),
the Receiver shall pay the amount withheld (to the extent so agreed) within
fifteen (15) Business Days from the date upon which the dispute is determined
by the parties to be resolved by mutual agreement, and (ii) if the dispute
is resolved by the determination of a Review Board, the Receiver shall pay the
amount withheld (to the extent so determined) within fifteen (15) Business Days
from the date upon which the Receiver is notified of the determination by the
Review Board of its obligation to make such payment.  Any payment by the Receiver pursuant to this Section 2.4
shall be made together with interest on the amount thereof from the date the
payment was agreed or determined otherwise to be due, at the interest rate per
annum determined by the Receiver to be equal to the coupon equivalent of the
three (3)-month U.S. Treasury Bill Rate in effect as of the first Business Day
of each Calendar Quarter during which such interest accrues as reported in the
Federal Reserve Board’s Statistical Release for Selected Interest Rates H.15
opposite the caption “Auction Average - 3-Month” or, if not so reported for
such day, for the next preceding Business Day for which such rate was so
reported.


 


2.5          Books and Records.  The Assuming Bank shall at all
times during the term of this Commercial Shared-Loss Agreement keep books and
records which fairly present all dealings and transactions carried out in
connection with its business and affairs. 
Except as otherwise provided for in the Purchase and Assumption
Agreement or this Commercial Shared-Loss Agreement, all financial books and
records shall be kept in accordance with generally accepted accounting
principles, consistently applied for the periods involved and in a manner such
that information necessary to determine compliance with any requirement of the
Purchase and Assumption Agreement or this Commercial Shared-Loss Agreement will
be readily obtainable, and in a manner such that the purposes of the Purchase
and Assumption Agreement or this Commercial Shared-Loss Agreement may be
effectively accomplished.  Without the
prior written approval of the Corporation, the Assuming Bank shall not make any
change in its accounting principles adversely affecting the value of the
Shared-Loss Assets except as required by a change in generally accepted
accounting principles.  The Assuming Bank
shall notify the


 


108

















 


Corporation of any change
in its accounting principles affecting the Shared-Loss Assets which it believes
are required by a change in generally accepted accounting principles.


 


2.6          Information.  The Assuming Bank shall promptly provide to
the Corporation such other information, including financial statements and
computations, relating to the performance of the provisions of the Purchase and
Assumption Agreement or otherwise relating to its business and affairs or this
Commercial Shared-Loss Agreement, as the Corporation or the Receiver may request
from time to time.


 


2.7          Tax Ruling.  The Assuming Bank shall not at any time,
without the Corporation’s prior written consent, seek a private letter ruling
or other determination from the Internal Revenue Service or otherwise seek to
qualify for any special tax treatment or benefits associated with any payments
made by the Corporation pursuant to the Purchase and Assumption Agreement or
this Commercial Shared-Loss Agreement.


 


ARTICLE III — RULES REGARDING THE ADMINISTRATION OF
SHARED-LOSS ASSETS AND SHARED-LOSS MTM ASSETS


 


3.1          Agreement with Respect to Administration.  The Assuming Bank shall (and
shall cause any of its Affiliates to which the Assuming Bank transfers any
Shared-Loss Assets or Shared-Loss MTM Assets) to, or a Third Party Servicer to,
manage, administer, and collect the Shared-Loss Assets and Shared-Loss MTM
Assets while owned by the Assuming Bank or any Affiliate thereof during the
term of this Commercial Shared-Loss Agreement in accordance with the rules set
forth in this Article III (“Rules”). 
The Assuming Bank shall be responsible to the Receiver and the
Corporation in the performance of its duties hereunder and shall provide to the
Receiver and the Corporation such reports as the Receiver or the Corporation
reasonably deems advisable, including but not limited to the reports required
by Section 3.3 hereof, and shall permit the Receiver and the Corporation
at all times to monitor the Assuming Bank’s performance of its duties
hereunder.


 


3.2          Duties of the Assuming Bank with Respect to Shared-Loss
Assets.  (a)  In performance of its duties under
these Rules, the Assuming Bank shall:


 


(i)            manage, administer, collect and effect Charge-Offs and Recoveries with
respect to each Shared-Loss Asset in a manner consistent with (A) usual
and prudent business and banking practices; (B) the Assuming Bank’s (or,
in the case a Third Party Servicer is engaged, the Third Party Servicer’s)
practices and procedures including, without limitation, the then-effective
written internal credit policy guidelines of the Assuming Bank, with respect to
the management, administration and collection of and taking of charge-offs and
write-downs with respect to loans, other real estate and repossessed collateral
that do not constitute Shared Loss Assets;


 


(ii)           exercise its best business judgment in managing, administering,
collecting and effecting Charge-Offs with respect to Shared-Loss Assets;


 


(iii)          use its best efforts to maximize collections with respect to Shared-Loss
Assets and, if applicable for a particular Shared-Loss Asset, without regard to
the


 


109

















 


effect
of maximizing collections on assets held by the Assuming Bank or any of its
Affiliates that are not Shared-Loss Assets;


 


(iv)          adopt and implement accounting, reporting, record-keeping and similar
systems with respect to the Shared-Loss Assets, as provided in Section 3.4
hereof;


 


(v)           retain sufficient staff (in Assuming Bank’s discretion) to perform its
duties hereunder;


 


(vi)          provide written notification in accordance with Article IV of this
Commercial Shared-Loss Agreement immediately after the execution of any
contract pursuant to which any third party (other than an Affiliate of the
Assuming Bank) will manage, administer or collect any of the Shared-Loss
Assets, together with a copy of that contract.


 


(b)     Any
transaction with or between any Affiliate of the Assuming Bank with respect to
any Shared-Loss Asset including, without limitation, the execution of any
contract pursuant to which any Affiliate of the Assuming Bank will manage,
administer or collect any of the Shared-Loss Assets which is not entered into
on an arm’s length basis on commercially reasonable terms, or any other action
involving self-dealing, shall be subject to the prior written approval of the Receiver
or the Corporation.


 


(c)     The
following categories of expenses shall not be deemed to be Reimbursable
Expenses or Recovery Expenses:


 


(i)            Federal, State, or local income taxes and expenses related thereto;


 


(ii)           salaries or other compensation and related benefits of Assuming Bank
employees and the employees of its Affiliates including, without limitation,
any bonus, commission or severance arrangements, training, payroll taxes, dues,
or travel- or relocation related expenses,;


 


(iii)          the cost of space occupied by the Assuming Bank, any Affiliate thereof
and their staff, the rental of and maintenance of furniture and equipment, and
expenses for data processing including the purchase or enhancement of data
processing systems;


 


(iv)          except as otherwise provided herein, fees for accounting and other
independent professional consultants (other than consultants retained to assess
the presence, storage or release of any hazardous or toxic substance, or any
pollutant or contaminant with respect to the collateral securing a Shared-Loss
Loan that has been fully or partially charged-off); provided, that
for purposes of this Section 3.2(c)(iv), fees of attorneys and appraisers
engaged as necessary to assist in collections with respect to Shared-Loss
Assets shall not be deemed to be fees of other independent consultants;


 


(v) allocated
portions of any other overhead or general and administrative expense other than
any fees relating to specific assets, such as appraisal


 


110














 


fees
or environmental audit fees, for services of a type the Assuming Bank does not
normally perform internally;


 


(vi)          any expense not incurred in good faith and with the same degree of care
that the Assuming Bank normally would exercise in the collection of troubled
assets in which it alone had an interest; and


 


(vii)         any expense incurred for a product, service or activity that is of an
extravagant nature or design.


 


(d)     Subject
to Section 3.7, the Assuming Bank shall not contract with third parties to
provide services the cost of which would be a Reimbursable Expense or Recovery
Expense if the Assuming Bank would have provided such services itself if the
relevant Shared-Loss Assets were not subject to the loss-sharing provisions of Section 2.1
of this Commercial Shared-Loss Agreement.


 


3.3          Duties of the Assuming Bank with Respect to
Shared-Loss MTM Assets.  (a) In performance of its duties under
these Rules, the Assuming Bank shall:


 


(i)            manage, administer, collect and each Shared-Loss MTM Asset in a manner
consistent with (A) usual and prudent business and banking practices; (B) the
Assuming Bank’s practices and procedures including, without limitation, the
then-effective written internal credit policy guidelines of the Assuming Bank,
with respect to the management, administration and collection of similar assets
that are not Shared-Loss MTM Assets;


 


(ii)           exercise its best business judgment in managing, administering,
collecting and effecting Charge-Offs with respect to Shared-Loss MTM Assets;


 


(iii)          use its best efforts to maximize collections with respect to Shared-Loss
MTM Assets and, if applicable for a particular Shared-Loss MTM Asset, without
regard to the effect of maximizing collections on assets held by the Assuming
Bank or any of its Affiliates that are not Shared-Loss MTM Assets, provided
that, any sale of a Shared-Loss MTM Asset shall only be made with the prior
approval of the Receiver or the Corporation;


 


(iv)          adopt and implement accounting, reporting, record-keeping and similar
systems with respect to the Shared-Loss MTM Assets, as provided in Section 3.4
hereof;


 


(v)           retain sufficient staff (in Assuming Bank’s discretion) to perform its
duties hereunder;


 


(vi)          provide written notification in accordance with Article IV of this
Commercial Shared-Loss Agreement immediately after the execution of any
contract pursuant to which any third party (other than an Affiliate of the
Assuming Bank) will manage, administer or collect any of the Shared-Loss MTM
Assets, together with a copy of that contract.


 


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(b)           Any transaction with or between any Affiliate of the Assuming Bank with
respect to any Shared-Loss MTM Asset including, without limitation, the
execution of any contract pursuant to which any Affiliate of the Assuming Bank
will manage, administer or collect any of the Shared-Loss Assets which is not
entered into on an arm’s length basis on commercially reasonable terms, or any
other action involving self-dealing, shall be subject to the prior written
approval of the Receiver or the Corporation.


 


(c)           The Assuming Bank shall not contract with third parties to provide
services the cost of which would be a Reimbursable Expense or Recovery Expense
if the Assuming Bank would have provided such services itself if the relevant
Shared-Loss Assets were not Subject to the loss-sharing provisions of Section 2.1
of this Commercial Shared-Loss Agreement.


 


3.4          Records and Reports.  The Assuming Bank shall
establish and maintain records  on a separate
general ledger, and on such subsidiary ledgers as may be appropriate to account
for the Shared-Loss Assets and the Shared-Loss MTM Assets, in such form and
detail as the Receiver or the Corporation may require, to enable the Assuming
Bank to prepare and deliver to the Receiver or the Corporation such reports as
the Receiver or the Corporation may from time to time request regarding the
Shared-Loss Assets, the Shared-Loss MTM Assets and the Quarterly Certificates
required by Section 2.1 of this Commercial Shared-Loss Agreement.


 


3.5          Related Loans.


 


(a)           The Assuming Bank shall not manage, administer or collect any “Related
Loan” in any manner which would have the effect of increasing the amount of any
collections with respect to the Related Loan to the detriment of the Shared-Loss
Asset to which such loan is related.  A “Related
Loan” means any loan or extension of credit held by the Assuming Bank at any
time on or prior to the end of the final Recovery Quarter that is:  (i) made to the same Obligor with
respect to a Loan that is a Shared-Loss Asset or with respect to a Loan from
which Other Real Estate, Additional ORE or Subsidiary ORE derived, or (ii) attributable
to the same primary Obligor with respect to any Loan described in clause (i) under
the rules of the Assuming Bank’s Chartering Authority concerning the legal
lending limits of financial institutions organized under its jurisdiction as in
effect on the Commencement Date, as applied to the Assuming Bank.


 


(b)           The Assuming Bank shall prepare and deliver to the Receiver with the
Quarterly Certificates for the Calendar Quarters ending June 30 and December 31
for all Shared-Loss Quarters and Recovery Quarters, a schedule of all Related
Loans which are commercial loans or commercial real estate loans with Legal
Balances of $500,000 or more on the Accounting Records of the Assuming Bank as
of the end of each such semi-annual period, and all other commercial loans or
commercial real estate loans attributable to the same Obligor on such loans of
$500,000 or more.


 


3.6          Legal Action; Utilization of Special Receivership
Powers.  The Assuming Bank  shall notify the
Receiver in writing (such notice to be given in accordance with Article IV
below  and to include all relevant details) prior to utilizing in any legal
action any special legal power or right which the Assuming Bank derives as a
result of having acquired a Shared-Loss


 


112

















 


Asset from the Receiver,
and the Assuming Bank shall not utilize any such power unless the Receiver
shall have consented in writing to the proposed usage.  The Receiver shall have the right to direct
such proposed usage by the Assuming Bank and the Assuming Bank shall comply in
all respects with such direction.  Upon
request of the Receiver, the Assuming Bank will advise the Receiver as to the
status of any such legal action.  The
Assuming Bank shall immediately notify the Receiver of any judgment in
litigation involving any of the aforesaid special powers or rights.


 


3.7          Third Party Servicer.  The Assuming Bank may perform
any of its obligations  and/or exercise
any of its rights under this Commercial Shared-Loss Agreement through or by one
or more Third Party Servicers, who may take actions and make expenditures as if
any such Third Party Servicer was the Assuming Bank hereunder (and, for the
avoidance of doubt, such expenses incurred by any such Third Party Servicer on
behalf of the Assuming Bank shall be Reimbursable Expenses or Recovery
Expenses, as the case may be, to the same extent such expenses would so qualify
if incurred by the Assuming Bank); provided, however, that the use thereof by
the Assuming Bank shall not release the Assuming Bank of any obligation or
liability hereunder.


 


ARTICLE IV — PORTFOLIO SALE


 


4.1          Assuming Bank Portfolio Sales of Remaining
Shared-Loss Assets.  The  Assuming Bank
shall have the right with the concurrence of the Receiver, commencing as of the
first day of the third to last Shared-Loss Quarter, to liquidate for cash
consideration, in one or more transactions, all or a portion of Shared-Loss
Assets held by the Assuming Bank (“Portfolio Sales”).  If the Assuming Bank exercises its option
under this Section 4.1, it must give thirty (30) days notice in writing to
the Receiver setting forth the details and schedule for the Portfolio Sale
which shall be conducted by means of sealed bid sales to third parties, not
including any of the Assuming Bank’s affiliates, contractors, or any affiliates
of the Assuming Bank’s contractors.  The
Receiver’s review of the Assuming Bank’s proposed Portfolio Sales will be
considered in a timely fashion and approval will not be unreasonably withheld,
delayed or conditioned.  Notwithstanding
anything herein to the contrary, in the event the Assuming Bank seeks the consent
of the Receiver to undertake a Portfolio Sale in the nine (9) months prior
to the fifth (5th) anniversary of the Commencement Date and the Receiver does
not consent to such Portfolio Sale, then the Applicable Anniversary of the
Commencement Date shall automatically, without any further action, be extended
for an additional two years with respect to the Shared-Loss Assets that were
the subject of the proposed Portfolio Sale (the “Portfolio Sale Loans”) and all
provisions hereof shall remain in place for such additional two-year period
with respect to such Portfolio Sale Loans. 
The Assuming Bank shall have the right, without consent of the Receiver,
to undertake a Portfolio Sale as to all or any portion of the Portfolio Sale
Loans at any time within nine (9) months prior to the Applicable Anniversary
of the Commencement Date, as so extended.


 


4.2          Calculation of Sale Gain or Loss.  For Shared-Loss Assets gain or
loss on the sales under Section 4.1 will be calculated as the sale price
received by the Assuming Bank less the book value of the remaining Shared-Loss
Assets.


 


113

















 


ARTICLE V – LOSS-SHARING NOTICES GIVEN TO CORPORATION
AND/OR  RECEIVER


 


As a supplement to the notice
provisions contained in Section 13.7 of the Purchase and Assumption Agreement,
any notice, request, demand, consent, approval, or other communication (a “Notice”)
given to the Corporation and/or the Receiver in the loss-sharing context shall
be given as follows:


 


5.1          With respect to a Notice under Section 2 and
Sections 3.1-3.5 of this Commercial  Shared-Loss Agreement:


 


Federal Deposit Insurance
Corporation 

Division of Resolutions and Receiverships 

550 17th Street, N.W.

Washington, D.C.  20429

Attention:  Assistant Director, Franchise
and Asset Marketing


 


5.2          With respect to a Notice under Section 3.6 of
this Commercial  Shared-Loss Agreement:


 


Federal Deposit Insurance
Corporation Legal Division 

161 Bryan Street

Dallas, Texas 75201

Attention:  Regional Counsel


 


with a copy to:


 


Federal Deposit Insurance
Corporation Legal Division 

550 17th Street, N.W.

Washington, D.C.  20429

Attention:  Senior Counsel (Special
Issues Group)


 


ARTICLE VI — MISCELLANEOUS


 


6.1          Expenses.  Except as otherwise expressly provided
herein, all costs and expenses incurred by a party hereto in connection with
this Commercial Shared-Loss Agreement shall be borne by such party whether or
not the transactions contemplated herein shall be consummated.


 


6.2          Successors and Assigns; Specific Performance.  All terms and provisions of
this Commercial Shared-Loss Agreement shall be binding upon and shall inure to
the benefit of the parties hereto only; provided, however, that, Receiver may
assign or otherwise transfer this Commercial Shared-Loss Agreement (in whole or
in part) to the Federal Deposit Insurance Corporation in its corporate capacity
without the consent of Assuming Bank. 
Notwithstanding anything to the contrary contained in this Commercial
Shared-Loss Agreement, except as is expressly permitted in this Section 6.2,
Assuming Bank may not assign or otherwise transfer this Commercial Shared-Loss
Agreement (in whole or in part) without the prior written consent of the
Receiver, which consent may be granted or withheld by the Receiver in its sole
discretion, and any attempted assignment or transfer in violation of this
provision shall be void ab initio.


 


114

















 


For the avoidance of
doubt, a merger or consolidation of the Assuming Bank with and into another
financial institution, the sale of all or substantially all of the assets of
the Assuming Bank to another financial institution constitutes the transfer of
this Commercial Shared-Loss Agreement which requires the consent of the
Receiver; and for a period of eighteen (18) months after Bank Closing, a merger
or consolidation shall also include the sale by any individual shareholder, or
shareholders acting in concert, of more than 9% of the outstanding shares of
the Assuming Bank or its holding company or any subsidiary holding Shared-Loss
Assets, or the sale of shares by the Assuming Bank or its holding company or
any subsidiary holding Shared-Loss Assets, in a public or private offering,
that increases the number of shares outstanding by more than 9%, constitutes
the transfer of this Commercial Shared-Loss Agreement which requires the
consent of the Receiver.  However, no
Loss shall be recognized as a result of any accounting adjustments that are
made due to any such merger, consolidation or sale consented to by the FDIC.  The FDIC’s consent shall not be required if
the aggregate outstanding principal balance of Shared-Loss Assets is less than
twenty percent (20%) of the initial aggregate balance of Shared-Loss
Assets.  Notwithstanding anything
contained herein, the Receiver hereby consents to (i) the transfer of this
Commercial Shared-Loss Agreement upon any merger or consolidation of the
Assuming Bank with and into another financial institution at any time after the
eighteen-month anniversary of Bank Closing and (ii) any private offering
of equity securities by Assuming Bank’s holding company during the
eighteen-month period following Bank Closing to (x) existing investors in
Assuming Bank’s holding company and (y) persons who are not existing
investors in the Assuming Bank’s holding company provided that following any such
private offering the investors in the Assuming Bank’s holding company as of the
closing continue to hold seventy-five percent (75%) of the equity in the
Assuming Bank’s holding company and no person who was not such an existing
investor shall own or control more than twenty-four and nine-tenths percent
(24.9%) of the Assuming Bank’s holding company’s equity securities.


 


6.3          Governing  Law.  This Commercial Shared-Loss Agreement shall
be construed in accordance with federal law, or, if there is no applicable
federal law, the laws of the State of New York, without regard to any rule of
conflict of law that would result in the application of the substantive law of
any jurisdiction other than the State of New York.


 


6.4          WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL RIGHT TO TRIAL BY JURY IN OR TO HAVE
A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, ACTION, PROCEEDING OR
COUNTERCLAIM, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF
OR RELATING TO OR IN CONNECTION WITH THIS COMMERCIAL SHARED-LOSS AGREEMENT OR
ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.


 


6.5          Captions.  All captions and headings contained in this
Commercial Shared-Loss Agreement are for convenience of reference only and do
not form a part of, and shall not affect the meaning or interpretation of, this
Commercial Shared-Loss Agreement.


 


6.6          Entire Agreement; Amendments.  This Commercial Shared-Loss
Agreement, along with the Single Family Shared-Loss Agreement and the Purchase
and Assumption Agreement, including the Exhibits and any other documents delivered
pursuant hereto, embody


 


115

















 


the entire agreement of
the parties with respect to the subject matter hereof, and supersede all prior
representations, warranties, offers, acceptances, agreements and
understandings, written or oral, relating to the subject matter herein.  This Commercial Shared-Loss Agreement may be
amended or modified or any provision thereof waived only by a written
instrument signed by both parties or their respective duly authorized agents.


 


6.7          Severability.  Whenever possible, each provision of this
Commercial Shared-Loss Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this
Commercial Shared-Loss Agreement is held to be prohibited by or invalid,
illegal or unenforceable under applicable law, such provision, shall be
construed and enforced as if it had been more narrowly drawn so as not to be
prohibited, invalid, illegal or unenforceable, and the validity, legality and
enforceability of the remainder of such provision and the remaining provisions
of this Commercial Shared-Loss Agreement shall not in any way be affected or
impaired thereby.


 


6.8          No Third Party Beneficiary.  This Commercial Shared-Loss
Agreement and the Exhibits hereto are for the sole and exclusive benefit of the
parties hereto and their respective permitted successors and permitted assigns
and there shall be no other third party beneficiaries, and nothing in
Commercial Shared-Loss Agreement or the Exhibits shall be construed to grant to
any other Person any right, remedy or claim under or in respect of this
Commercial Shared-Loss Agreement or any provision hereof.


 


6.9          Counterparts.  This Commercial Shared-Loss Agreement may be
executed separately by Receiver and Assuming Bank in any number of
counterparts, each of which when executed and delivered shall be an original,
but such counterparts shall together constitute one and the same instrument.


 


6.10        Consent.  Except as otherwise provided herein, when the
consent of a party is required herein, such consent shall not be unreasonably
withheld or delayed.


 


6.11        Rights Cumulative.  Except as otherwise expressly
provided herein, the rights of each of the parties under this Commercial
Shared-Loss Agreement are cumulative, may be exercised as often as any party
considers appropriate and are in addition to each such party’s rights under the
Purchase and Sale Agreement and any of the related agreements or under
law.  Except as otherwise expressly
provided herein, any failure to exercise or any delay in exercising any of such
rights, or any partial or defective exercise of such rights, shall not operate
as a waiver or variation of that or any other such right.


 


116

















 


Exhibit 9.2


 


(Note to
FDIC Preparer: When preparing the actual Limited Power of Attorney, delete this

instruction and the reference to Attachment G above.)


 


LIMITED
POWER OF ATTORNEY


 


KNOW ALL PERSONS BY THESE
PRESENTS, that the FEDERAL DEPOSIT INSURANCE CORPORATION, a corporation
organized and existing under an Act of Congress, hereafter called the “FDIC”,
hereby designates the individual(s) set out below (the “Attomey(s)-
in-Fact”) for the sole purpose of executing the documents outlined below:


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


WHEREAS, the undersigned has
full authority to execute this instrument on behalf of the FDIC under
applicable Resolutions of the FDIC’s Board of Directors and redelegations
thereof.


 


NOW THEREFORE, the FDIC grants
to the above-named Attomey(s)-in-Fact the authority, subject to the limitations
herein, as follows:


 


1.  To execute, acknowledge, seal and deliver on
behalf of the FDIC as Receiver of BankUnited, FSB all instruments of transfer
and conveyance, appropriately completed, with all ordinary or necessary
endorsements, acknowledgments, affidavits and supporting documents as may be
necessary or appropriate to evidence the sale and transfer of any asset of
BankUnited, FSB, including all loans held by BankUnited, FSB to [Assuming Bank]
pursuant to that certain  Purchase and
Assumption Agreement, dated as of
              2009,
between FDIC as Receiver of  BankUnited,
FSB, and [Assuming Bank] .


 


The form which the
Attomey(s)-in-Fact shall use for endorsing promissory notes or preparing
allonges to promissory notes is as, follows:


 


	
   

  	
  Pay to the order of

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Without Recourse

  
	
   

  	
   

  
	
   

  	
  FEDERAL DEPOSIT INSURANCE
  CORPORATION, as Receiver for BankUnited, FSB

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
  Attorney-in-Fact

  



 


All other documents of
assignment, conveyance or transfer shall contain this sentence: “This
assignment is made without recourse, representation or warranty, express or
implied, by the FDIC in its corporate capacity or as Receiver.”


 


117

















 


2.             FDIC further grants to each Attorney-in-Fact full
power and authority to do and perform all acts necessary to carry into effect
the powers granted by this Limited Power of Attorney as fully as FDIC might or
could do with the same validity as if all and every such act had been herein
particularly stated, expressed and especially provided for.


 


This Limited Power of Attorney
shall be effective from
                              
and shall continue in full force and effect through [two years after date of
execution], unless otherwise terminated by an official of the FDIC authorized
to do so by the Board of Directors (“Revocation”).  At such time this Limited Power of Attorney
will be automatically revoked.  Any third
party may rely upon this document as the named individual(s)’ authority to
continue to exercise the powers herein granted unless a Revocation has been
recorded in the public records of the jurisdiction where this Limited Power of
Attorney has been recorded, or unless a third party has received actual notice
of a Revocation.


 


IN WITNESS WHEREOF, the FDIC
by its duly authorized officer empowered by appropriate resolution of its Board
of Directors, has caused these presents to be executed and subscribed in its
name this          day of
                            ,
20    .


 


	
   

  	
  FEDERAL DEPOSIT INSURANCE
  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (CORPORATE SEAL)

  	
  ATTEST:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signed, sealed and delivered

  	
   

  
	
  in the presence of

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
  Witness

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
  Witness

  	
   

  



 


118