slaterminationagreementb







                               TERMINATION AGREEMENT       AMONG      FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER OF    BEACH FIRST NATIONAL BANK,   MYRTLE BEACH, SOUTH CAROLINA      FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER OF    BLUE RIDGE SAVINGS BANK, INC.,   ASHEVILLE, NORTH CAROLINA      FEDERAL DEPOSIT INSURANCE CORPORATION      and      BANK OF NORTH CAROLINA      DATED AS OF      MAY 02, 2016                                                     





 







2      TERMINATION AGREEMENT       THIS TERMINATION AGREEMENT (the “Agreement”), is made and entered into as   of the 2nd day of May, 2016, by and among the FEDERAL DEPOSIT INSURANCE   CORPORATION AS RECEIVER OF BEACH FIRST NATIONAL BANK, MYRTLE   BEACH, SOUTH CAROLINA and as RECEIVER OF BLUE RIDGE SAVINGS BANK,   INC., ASHEVILLE, NORTH CAROLINA (the “Receiver”), BANK OF NORTH   CAROLINA, organized under the  laws of the state of North Carolina, and having its principal   place of business in Thomasville, North Carolina (the “Assuming Institution”), 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”).      RECITALS      A. The Receiver, the Assuming Institution and the Corporation entered into the following   Purchase and Assumption Agreements (collectively, the “P&A Agreements” and each,   respectively, the “P&A Agreement”):            1. P&A Agreement dated as of April 9, 2010 with respect to certain assets and   liabilities of Beach First National Bank, Myrtle Beach, South Carolina (a “Failed   Bank”);       2. P&A Agreement dated as of October 14, 2011 with respect to certain assets and   liabilities of Blue Ridge Savings Bank, Inc., Asheville, North Carolina (a “Failed   Bank”).   B. The Receiver, the Assuming Institution and the Corporation desire to terminate the Single   Family Shared-Loss Agreement, Exhibit 4.15A (the “SFSLA”) and the Non-Single Family   Shared-Loss Agreement, Exhibit 4.15 B (the “CSLA”) of each one of the P&A Agreements   (collectively, the “Shared-Loss Agreements”).       NOW, THEREFORE, in consideration of the mutual promises herein set forth and other   valuable consideration, the parties hereto agree as follows:      ARTICLE I   CLOSING       Except as noted below in Section 2.1 and subject to the satisfaction, or waiver in writing   of the conditions precedent set forth in Article III, the transactions contemplated by this   Agreement shall be consummated at a closing (the "Closing") to be held in person or by   electronic means, as the Receiver shall direct, on May 2, 2016, or such earlier or later date, or in   such other manner, as the parties hereto may agree in writing (the "Closing Date").                  





 







3      ARTICLE II   PAYMENTS AND TERMINATION       2.1 Payment of Termination Amount.   Within two Business Days after the Closing   Date, subject to the satisfaction or waiver in writing of the conditions precedent set forth herein,    the Receiver shall pay or cause to be paid to the Assuming Institution by wire transfer in   immediately available funds  Two Million One Hundred Nine Thousand Nine Hundred Thirty-   Eight United States Dollars ($2,109,938) (the "Termination Amount"). The Assuming Institution   and the Receiver hereby acknowledge that the amount of shared-loss claims filed by the   Assuming Institution but not yet paid by the Receiver were accounted for in the calculation of   the Termination Amount.        2.2 Termination of the SFSLA and the CSLA.  Upon the occurrence of the Closing   and subsequent payment of the Termination Amount all rights and obligations of the parties to   make and receive payments pursuant to the SFSLA and the CSLA and all rights and obligations   of the parties thereto, shall terminate effective as of the Closing Date.         2.3 Legal Action; Utilization of Special Receivership Powers.  As of the Closing   Date, the Assuming Institution’s right, under Article III of the SFSLAs and Article III of the   CSLAs, to request to utilize any special legal power or right which the Assuming Institution   derived as a result of having acquired an asset from the Receiver shall terminate; provided,   however, any prior requests to utilize such special powers or rights that were granted by the   Receiver shall not be affected hereby, and the Assuming Institution may continue to use such   special legal rights or powers in the litigation in which the permission to use those special legal   powers or rights was given.  Notwithstanding the foregoing, the Assuming Institution shall   continue to have all rights and remedies available to it under applicable state and federal laws,   which shall not be limited or altered by this Agreement.      ARTICLE III    CONDITIONS PRECEDENT       The obligations of the parties to this Agreement are subject to the Receiver and the   Corporation having received at or before the Closing Date evidence reasonably satisfactory to   each of any necessary approval, waiver, or other action by any governmental authority, the board   of directors of the Assuming Institution, or other third party, with respect to this Agreement and   the transactions contemplated hereby, and any agreements, documents, matters or proceedings   contemplated hereby or thereby.      ARTICLE IV   MISCELLANEOUS       4.1  No Third Party Beneficiary.   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 Institution (and their respective successors and assigns)  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     





 







4      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 Institution   and that there be no other third party beneficiaries.          4.2  Rights Cumulative.   Except as otherwise expressly provided herein, the rights of   each of the parties under this Agreement are cumulative, may be exercised as often as any party   considers appropriate and are in addition to each such party’s rights under this Agreement, any of   the agreements related thereto or under applicable law.  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, unless expressly otherwise provided.         4.3 Entire Agreement.  This Agreement embodies the entire agreement of the parties   hereto in relation to the subject matter herein and supersedes all prior understandings or   agreements, oral or written, between the parties.      4.4  Counterparts.        (a) 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.      (b) Each counterpart of this Agreement will be treated in all manner and respects as   an original agreement and will be considered to have the same binding legal effect as if it were   the original signed version thereof delivered in person. No signatory to this Agreement may raise   the use of a facsimile machine or other electronic means to deliver an executed document or the   fact that any signature or agreement was transmitted or communicated through the use of a   facsimile machine or other electronic means as a defense to the formation or enforceability of a   contract and each party hereto forever waives any such defense.       4.5  GOVERNING LAW.  THIS AGREEMENT AND THE RIGHTS AND   OBLIGATIONS HEREUNDER AND THEREUNDER 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 WAS LOCATED.       4.6  Successors.  All terms and conditions of this Agreement shall be binding on the   successors and assigns of the Receiver, the Corporation and the Assuming Institution.        4.7  Modification.  No amendment or other modification, rescission or release 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.       4.8  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     





 







5      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.       4.9  Waiver.  Each of the Receiver, the Corporation and the Assuming Institution 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 Institution 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   Institution 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.        4.10  Severability.  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.      4.11      Survival of Covenants.  The covenants, representations, and warranties in this   Agreement shall survive the execution of this Agreement and the consummation of the   transactions contemplated hereunder.             4.12      Capitalized Terms. Capitalized terms not otherwise defined herein shall have   the meanings given such terms in the P&A Agreement, the SFSLA or the CSLA, as applicable.      [Signature Page Follows]                                                                    





 







6      IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed by   themselves or their respective officers, as the case may be, as of the day and year first above   written.                   BANK OF NORTH CAROLINA                      BY:                 NAME:          TITLE:     Attest:      __________________________         FEDERAL DEPOSIT INSURANCE CORPORATION,    RECEIVER OF BEACH FIRST NATIONAL BANK                       BY:                 NAME:          TITLE:       Attest:      __________________________         FEDERAL DEPOSIT INSURANCE CORPORATION,    RECEIVER OF BLUE RIDGE SAVINGS BANK, INC.                       BY:                 NAME:          TITLE:       Attest:      __________________________              





 







7      FEDERAL DEPOSIT INSURANCE CORPORATION                 BY:                 NAME:          TITLE:       Attest:      __________________________