Exhibit 10.1


 


 





 


TERMINATION AGREEMENT 


 


AMONG


 


FEDERAL DEPOSIT INSURANCE CORPORATION
AS


RECEIVER OF SUBURBAN FEDERAL SAVINGS
BANK


CROFTON, MARYLAND


 


FEDERAL DEPOSIT INSURANCE CORPORATION


 


and


 


ESSEX BANK (formerly known as BANK OF
ESSEX), RICHMOND, VA


 


DATED AS OF


 


SEPTEMBER 10, 2015


 


 


 






     


     


    




 


 


TERMINATION AGREEMENT


 


 





THIS TERMINATION AGREEMENT (the “Agreement”),
is made and entered into as of the 10th day of September, 2015, by and among the FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER
OF SUBURBAN FEDERAL SAVINGS BANK, CROFTON, MARYLAND (the “Receiver”), ESSEX BANK (formerly known as BANK
OF ESSEX), organized under the laws of the State of Virginia and having its principal place of business in RICHMOND,
VIRGINIA (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 a Purchase and Assumption Agreement, dated January 30, 2009 (the “P&A Agreement”) with
respect to certain assets and liabilities of Suburban Federal Savings Bank (the “Failed Bank”).


 





B.  The Receiver, the
Assuming Institution and the Corporation desire to terminate the Single Family Shared-Loss Agreement, Exhibit 4.15A of the
P&A Agreement (the “SFSLA”), and the Non-Single Family Shared-Loss Agreement, Exhibit 4.15B (the
“CSLA”) of the P&A Agreement (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 September 10, 2015, or such earlier or later date, or in such other manner, as the parties hereto may
agree in writing (the "Closing Date").


 






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ARTICLE II


PAYMENTS AND TERMINATION


 


2.1Payment
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 Three Million One Hundred Thousand Dollars ($3,100,000) (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.


 


2.2Termination 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.


 


2.3Legal Action; Utilization
of Special Receivership Powers. As of the Closing Date, the Assuming Institution’s right, under Section
3.5 of the SFSLA and Section 3.5 of the CSLA, 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 legal 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.


 






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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 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.


 


4.3Entire 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. 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.


 


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.


  



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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 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]





 



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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.


  





	 	 	ESSEX BANK (formerly known as BANK OF ESSEX)
	 	 	 	 	 
	 	 	BY:	/s/ Rex L. Smith, III	 
	 	 	NAME: 	Rex L. Smith, III	 
	 	 	TITLE: 	President and Chief Executive Officer	 
	Attest:	 	 	 	 
	 	 	 	 	 
	/s/ John M. Oakey, III	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	FEDERAL DEPOSIT INSURANCE CORPORATION, 
	 	 	RECEIVER OF SUBURBAN FEDERAL SAVINGS BANK 
	 	 	 	 	 
	 	 	BY:	/s/ Phillip Mangano	 
	 	 	NAME: 	Phillip Mangano	 
	 	 	TITLE: 	Assistant Director	 
	 	 	 	 	 
	Attest:	 	 	 	 
	 	 	 	 	 
	/s/ Sandra Gates	 	 	 	 
	 	 	 	 	 
	 	 	FEDERAL DEPOSIT INSURANCE CORPORATION
	 	 	 	 	 
	 	 	BY:	/s/ Sharon L. Yore	 
	 	 	NAME: 	Sharon L. Yore	 
	 	 	TITLE: 	Associate Director, DRR	 
	 	 	 	 	 
	Attest:	 	 	 	 
	 	 	 	 	 
	/s/ Sandra Gates	 	 	 	 







 


 








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