exv10w10






Exhibit 10.10




 





PURCHASE AND ASSUMPTION AGREEMENT




WHOLE BANK



ALL DEPOSITS 



AMONG



FEDERAL DEPOSIT INSURANCE CORPORATION,



RECEIVER OF SUNSHINE STATE COMMUNITY BANK,



PORT ORANGE, FLORIDA



FEDERAL DEPOSIT INSURANCE CORPORATION



and



PREMIER AMERICAN BANK, NATIONAL ASSOCIATION



DATED AS OF



FEBRUARY 11, 2011



 





	 	 	 

	Module 1 — Whole Bank w/ Optional Shared Loss Agreements

	 	Sunshine State Community Bank
	Version 3.0 — Purchase and Assumption Agreement

	 	Port Orange, Florida
	December 8, 2010
	 	 
















 





PURCHASE AND ASSUMPTION AGREEMENT




Table of Contents



	 	 	 	 	 

	ARTICLE I. GENERAL
	 	 	2	 
	1.1. Purpose
	 	 	2	 
	1.2. Shared-Loss Agreements
	 	 	2	 
	1.3. Defined Terms
	 	 	2	 
	ARTICLE
II.  ASSUMPTION OF LIABILITIES
	 	 	10	 
	2.1. Liabilities Assumed by Assuming Institution
	 	 	10	 
	2.2. Interest on Deposit Liabilities
	 	 	11	 
	2.3. Unclaimed Deposits
	 	 	12	 
	2.4. Employee Plans
	 	 	12	 
	ARTICLE
III. PURCHASE OF ASSETS
	 	 	12	 
	3.1. Assets Purchased by Assuming Institution
	 	 	12	 
	3.2. Asset Purchase Price
	 	 	13	 
	3.3. Manner of Conveyance; Limited Warranty; Nonrecourse; Etc
	 	 	13	 
	3.4. Puts of Assets to the Receiver
	 	 	14	 
	3.5. Assets Not Purchased by Assuming Institution
	 	 	16	 
	3.6. Retention or Repurchase of Assets Essential to Receiver
	 	 	17	 
	3.7. Receiver’s Offer to Sell Withheld Loans
	 	 	18	 
	ARTICLE
IV.  ASSUMPTION OF CERTAIN DUTIES AND OBLIGATIONS
	 	 	19	 
	4.1. Continuation of Banking Business
	 	 	19	 
	4.2. Credit Card Business
	 	 	19	 
	4.3. Safe Deposit Business
	 	 	19	 
	4.4. Safekeeping Business
	 	 	20	 
	4.5. Trust Business
	 	 	20	 
	4.6. Bank Premises
	 	 	20	 
	4.7. Agreement with Respect to Leased Data Management Equipment
	 	 	24	 
	4.8. Certain Existing Agreements
	 	 	25	 
	4.9. Informational Tax Reporting
	 	 	26	 
	4.10. Insurance
	 	 	26	 
	4.11. Office Space for Receiver and Corporation; Certain Payments
	 	 	27	 
	4.12. Continuation of Group Health Plan Coverage for Former Employees of the Failed Bank
	 	 	27	 
	4.13. Interim Asset Servicing
	 	 	29	 
	4.14. [Reserved]
	 	 	29	 
	4.15. Loss Sharing
	 	 	29	 
	ARTICLE
V. DUTIES WITH RESPECT TO DEPOSITORS OF THE FAILED BANK
	 	 	29	 
	5.1. Payment of Checks, Drafts, Orders and Deposits

	 	 	29	 
	5.2. Certain Agreements Related to Deposits
	 	 	29	 
	5.3. Notice to Depositors
	 	 	29	 
	ARTICLE
VI. RECORDS
	 	 	30	 
	6.1. Transfer of Records
	 	 	30	 
	6.2. Transfer of Assigned Records
	 	 	30	 
	6.3. Preservation of Records
	 	 	30	 
	6.4. Access to Records; Copies
	 	 	31	 
	6.5. Right of Receiver or Corporation to Audit
	 	 	31	 
	ARTICLE
VII. BID; INITIAL PAYMENT
	 	 	31	 
	ARTICLE
VIII. ADJUSTMENTS
	 	 	32	 
	8.1. Pro Forma Statement
	 	 	32	 
	8.2. Correction of Errors and Omissions; Other Liabilities
	 	 	32	 
	8.3. Payments
	 	 	33	 
	8.4. Interest
	 	 	33	 
	8.5. Subsequent Adjustments
	 	 	33	 
	ARTICLE
IX. CONTINUING COOPERATION
	 	 	33	 
	9.1. General Matters
	 	 	33	 
	9.2. Additional Title Documents
	 	 	33	 
	9.3. Claims and Suits
	 	 	33	 
	9.4. Payment of Deposits
	 	 	34	 
	9.5. Withheld Payments
	 	 	34	 
	9.6. Proceedings with Respect to Certain Assets and Liabilities
	 	 	34	 
	9.7. Information
	 	 	35	 
	9.8. Tax Ruling
	 	 	35	 
	ARTICLE
X. CONDITION PRECEDENT
	 	 	35	 
	ARTICLE
XI. REPRESENTATIONS AND WARRANTIES OF THE ASSUMING INSTITUTION
	 	 	36	 
	11.1. Corporate Existence and Authority
	 	 	36	 
	11.2. Third Party Consents
	 	 	36	 
	11.3. Execution and Enforceability
	 	 	36	 
	11.4. Compliance with Law
	 	 	36	 
	11.5. Insured or Guaranteed Loans
	 	 	37	 
	11.6. Representations Remain True
	 	 	37	 
	11.7. No Reliance; Independent Advice
	 	 	37	 
	ARTICLE
XII. INDEMNIFICATION
	 	 	37	 
	12.1. Indemnification of Indemnitees
	 	 	37	 
	12.2. Conditions Precedent to Indemnification
	 	 	40	 
	12.3. No Additional Warranty
	 	 	41	 
	12.4. Indemnification of Receiver and Corporation
	 	 	41	 
	12.5. Obligations Supplemental
	 	 	42	 
	12.6. Criminal Claims
	 	 	42	 
	12.7. Limited Guaranty of the Corporation
	 	 	42	 
	12.8. Subrogation
	 	 	43	 
	ARTICLE
XIII. MISCELLANEOUS
	 	 	43	 







	 	 	 

	Module 1 — Whole Bank w/ Optional Shared Loss Agreements

	 	Sunshine State Community Bank
	Version 3.0 — Purchase and Assumption Agreement

	 	Port Orange, Florida
	December 8, 2010
	 	 






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	13.1. Expenses
	 	 	43	 
	13.2. Waiver of Jury Trial
	 	 	43	 
	13.3. Consent; Determination or Discretion
	 	 	43	 
	13.4. Rights Cumulative
	 	 	43	 
	13.5. References
	 	 	43	 
	13.6. Notice
	 	 	44	 
	13.7. Entire Agreement
	 	 	45	 
	13.8. Counterparts
	 	 	45	 
	13.9. Governing Law
	 	 	45	 
	13.10. Successors
	 	 	45	 
	13.11. Modification
	 	 	45	 
	13.12. Manner of Payment
	 	 	45	 
	13.13. Waiver
	 	 	45	 
	13.14. Severability
	 	 	46	 
	13.15. Term of Agreement
	 	 	46	 
	13.16. Survival of Covenants, Etc.
	 	 	46	 






SCHEDULES




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	Excluded Deposit Liability Accounts
	 	Schedule 2.1(a)	 	 	46	 
	Purchase Price of Assets or any other assets
	 	Schedule 3.2	 	 	47	 
	Excluded Securities
	 	Schedule 3.5(l)	 	 	49	 
	Data Retention Catalog
	 	Schedule 6.3	 	 	50	 
	Accounts Excluded from Calculation of Deposit Franchise Bid Premium
	 	Schedule 7	 	 	52	 
	 
	 	 	 	 	 	 	 	 
	EXHIBITS

	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	Final Legal Notice
	 	Exhibit 2.3A	 	 	54	 
	Affidavit of Mailing
	 	Exhibit 2.3B	 	 	56	 
	Valuation of Certain Qualified Financial Contracts
	 	Exhibit 3.2(c)	 	 	57	 
	Interim Asset Servicing Arrangement
	 	Exhibit 4.13	 	 	59	 









	 	 	 

	Module 1 — Whole Bank w/ Optional Shared Loss Agreements

	 	Sunshine State Community Bank
	Version 3.0 — Purchase and Assumption Agreement

	 	Port Orange, Florida
	December 8, 2010
	 	 









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PURCHASE AND ASSUMPTION AGREEMENT




WHOLE BANK



ALL DEPOSITS



     THIS AGREEMENT, made and entered into as of the 11th day of February, 2011, by and among the
FEDERAL DEPOSIT INSURANCE CORPORATION, RECEIVER of SUNSHINE STATE COMMUNITY BANK, PORT ORANGE,
FLORIDA (the “Receiver”), PREMIER AMERICAN BANK, NATIONAL ASSOCIATION, organized under the laws of
the United States of America, and having its principal place of business in Miami, Florida (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”).



R E C I T A L S



A. On the Bank Closing Date, the Chartering Authority closed Sunshine State Community Bank (the
“Failed Bank”) pursuant to applicable law, and the Corporation was appointed Receiver thereof.



B. The Assuming Institution desires to purchase certain assets and assume certain deposits and
other liabilities of the Failed Bank on the terms and conditions set forth in this Agreement.



C. Pursuant to 12 U.S.C. § 1823(c)(2)(A), the Corporation may provide assistance to the Assuming
Institution to facilitate the transactions contemplated by this Agreement, which assistance may
include indemnification pursuant to Article XII.



D. The Board of Directors of the Corporation (the “Board”) has determined to provide assistance to
the Assuming Institution on the terms and subject to the conditions set forth in this Agreement.



E. The Board has determined pursuant to 12 U.S.C. § 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 is the least costly to the deposit insurance fund of all possible methods for
meeting such obligation.




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




	 	 	 

	Module 1 — Whole Bank w/ Optional Shared Loss Agreements

	 	Sunshine State Community Bank
	Version 3.0 — Purchase and Assumption Agreement

	 	Port Orange, Florida
	December 8, 2010
	 	 






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A G R E E M E N T




ARTICLE I. GENERAL.




     1.1. Purpose. The purpose of this Agreement is to set forth requirements regarding,
among other things, the terms and conditions on which the Assuming Institution purchases certain
assets and assumes certain liabilities of the Failed Bank.



     1.2. Shared-Loss Agreements. If the Receiver and the Assuming Institution desire to
share losses and recoveries on certain acquired assets, a Shared-Loss Agreement or Shared-Loss
Agreements are attached hereto as Exhibit 4.15A and/or Exhibit 4.15B, as
applicable, and will govern the terms of any such shared-loss arrangement. To the extent that any
inconsistencies may arise between the terms of this Agreement and a Shared-Loss Agreement with
respect to the subject matter of a Shared-Loss Agreement, the terms of the applicable Shared-Loss
Agreement shall control.



     1.3. Defined Terms. Capitalized terms used in this Agreement shall have the meanings
set forth or referenced in this Section 1.3. As used herein, words imparting the singular include
the plural and vice versa.



     “Acquired Subsidiary” or “Acquired Subsidiaries” means one or more, as applicable,
Subsidiaries of the Failed Bank acquired pursuant to Section 3.1.



     “Affiliate” of any Person means any director, officer, or employee of that Person and any
other Person (i) 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 § 2(k) of the Bank Holding Company Act of 1956, as amended, 12 U.S.C. §
1841.



     “Agreement” means this Purchase and Assumption Agreement by and among the Assuming
Institution, 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 by virtue
of being owned by such Subsidiaries.



     “Assumed Deposits” means Deposits.



     “Assuming Institution” has the meaning set forth in the introduction to this Agreement.



     “Bank Closing Date” 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 buildings, drive-in banking facilities, teller facilities
(staffed or automated), storage and service facilities, structures connecting remote




	 	 	 

	Module 1 — Whole Bank w/ Optional Shared Loss Agreements

	 	Sunshine State Community Bank
	Version 3.0 — Purchase and Assumption Agreement

	 	Port Orange, Florida
	December 8, 2010
	 	 






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facilities to banking houses, land on which the foregoing are located and unimproved land,
together with any adjacent parking, that are owned or leased by the Failed Bank and that have
formerly been utilized, are currently utilized, or are intended to be utilized in the future by the
Failed Bank as shown on the Failed Bank Records as of the Bank Closing Date.




     “Bid Amount” has the meaning set forth in Article VII.



     “Bid Valuation Date” means November 30, 2010.



     “Board” has the meaning set forth in Recital D.



     “Book Value” means, with respect to any Asset and any Liability Assumed, the dollar amount
thereof stated on the Failed Bank Records. The Book Value of any item shall be determined as of
the Bank Closing Date 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 an Acquired Subsidiary 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 the Bank Closing Date, and (ii) the Book Value of a Loan shall reflect
adjustments 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 the Bank Closing Date, 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 the Bank Closing Date, 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 Failed Bank Records.



     “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. § 1821(c)(4), 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 the Bank Closing Date,
other than extensions of credit pursuant to the credit card business and overdraft protection plans
of the Failed Bank, if any.




	 	 	 

	Module 1 — Whole Bank w/ Optional Shared Loss Agreements

	 	Sunshine State Community Bank
	Version 3.0 — Purchase and Assumption Agreement

	 	Port Orange, Florida
	December 8, 2010
	 	 






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     “Corporation” has the meaning set forth in the introduction to this Agreement.



     “Counterclaim” has the meaning set forth in Section 12.1(b).



     “Credit Documents” means 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 Institution, or any of its Subsidiaries or
Affiliates, relating to an Asset or a Loan included in a Put Notice, or copies of any such
documents.



     “Deposit” means a deposit as defined in 12 U.S.C. § 1813(l), including without limitation,
outstanding cashier’s checks and other official checks and all uncollected 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 the Bank Closing Date.



     “Deposit Secured Loan” means a loan in which the only collateral securing the loan is Assumed
Deposits or deposits at other insured depository institutions.



     “Electronically Stored Information” means any system backup tapes, any electronic mail
(whether on an exchange or other similar system), any data on personal computers and any data on
server hard drives.



     “Eligible Individuals” has the meaning set forth in Section 4.12.



     “ERISA” has the meaning set forth in Section 4.12.



     “Failed Bank” has the meaning set forth in Recital A.




	 	 	 

	Module 1 — Whole Bank w/ Optional Shared Loss Agreements

	 	Sunshine State Community Bank
	Version 3.0 — Purchase and Assumption Agreement

	 	Port Orange, Florida
	December 8, 2010
	 	 






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     “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 premiums for credit life
insurance, accident and health insurance and vendor’s single interest insurance.



     “Failed Bank Records” means Records of the Failed Bank, including but not limited to, its
corporate minutes, general ledger and subsidiary ledgers and schedules which support the general
ledger balances.



     “Fair Market Value” means:



     (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
assumed consummation of a sale as of a specified date and the passing of title from seller to buyer
under conditions whereby:




     (i) Buyer and seller are typically motivated;




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




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




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




     (v) 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 the Bank Closing Date by an appraiser chosen by the Assuming Institution 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 Institution, and




     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 the Bank
Closing Date by an appraiser selected by the Receiver and the Assuming Institution within seven (7)
days after the Bank Closing Date; or



     (b) with respect to property other than Bank Premises purchased utilizing this valuation
method, the price therefor as established by the Receiver and agreed to by the Assuming
Institution, or in the absence of such agreement, as determined in accordance with clause (a)
above.




	 	 	 

	Module 1 — Whole Bank w/ Optional Shared Loss Agreements

	 	Sunshine State Community Bank
	Version 3.0 — Purchase and Assumption Agreement

	 	Port Orange, Florida
	December 8, 2010
	 	 






5









 





     “FDIC Office Space” has the meaning set forth in Section 4.11.



     “Final Legal Notice” has the meaning set forth in Section 2.3(a).



     “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
the Bank Closing Date.



     “Furniture and Equipment” means the furniture and equipment (other than Safe Deposit Boxes,
Personal Computers, Owned Data Management Equipment and motor vehicles), leased or owned by the
Failed Bank and reflected on the Failed Bank Records as of the Bank Closing Date and located on or
at Bank Premises, including without limitation automated teller machines, carpeting, furniture,
office machinery, shelving, office supplies, telephone, surveillance and security systems,
ancillary equipment and artwork. Furniture and equipment located at a storage facility not
adjacent to a Bank Premises are excluded from this definition.



     “GSE” means a government sponsored enterprise.



     “Indemnitees” means, except as provided in Section 12.1(b)(xi), (i) the Assuming Institution,
(ii) the Subsidiaries and Affiliates of the Assuming Institution other than any Subsidiaries or
Affiliates of the Failed Bank that are or become Subsidiaries or Affiliates of the Assuming
Institution and (iii) the directors, officers, employees and agents of the Assuming Institution 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 most recent compilation of financial and other data with
respect to the Failed Bank, including any amendments or supplements thereto, provided to the
Assuming Institution by the Corporation on the web site used by the Corporation to market the
Failed Bank to potential acquirers.



     “Initial Payment” means the payment made pursuant to Article VII (based on the best
information available as of the Bank Closing Date), the amount of which shall be either (i) if the
Bid Amount is positive, the aggregate Book Value of the Liabilities Assumed minus the sum of the
aggregate purchase price of the Assets as determined pursuant to Section 3.2 and assets purchased
and the positive Bid Amount, or (ii) if the Bid Amount is negative, the sum of the aggregate Book
Value of the Liabilities Assumed and the negative Bid Amount minus the aggregate purchase price of
the Assets and assets purchased. The Initial Payment shall be payable by the Corporation to the
Assuming Institution if (i) the Liabilities Assumed are greater than the sum of the positive Bid
Amount and the Assets and any other assets purchased, or if (ii) the sum of the Liabilities Assumed
and the negative Bid Amount are greater than the Assets and assets purchased. The Initial Payment
shall be payable by the Assuming Institution to the Corporation if (i) the Liabilities Assumed are
less than the sum of the positive Bid Amount and the Assets and assets purchased, or if (ii) the
sum of the Liabilities Assumed and the negative




	 	 	 

	Module 1 — Whole Bank w/ Optional Shared Loss Agreements

	 	Sunshine State Community Bank
	Version 3.0 — Purchase and Assumption Agreement

	 	Port Orange, Florida
	December 8, 2010
	 	 






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Bid Amount is less than the Assets and assets purchased. Such Initial Payment shall be subject
to adjustment as provided in Article VIII.




     “Leased Data Management Equipment” means any equipment, computer hardware, computer software
(and the lease or licensing agreements related thereto), computer networking equipment, printers,
fax machines, copiers, document scanners, data tape systems, data tapes, DVDs, CDs, flash drives,
telecommunications and check processing equipment and any other electronic storage media leased by
the Failed Bank at Bank Closing which is, was, or could have been used by the Failed Bank in
connection with data management activities.



     “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, including any conditional sale
agreement or capital lease or other title retention agreement relating to such Asset.



     “Loan” or “Loans” means, individually or collectively, all of the following owed to or held by
the Failed Bank as of the Bank Closing Date:




     (a) loans (including loans which have been charged off the Failed Bank Records in whole
or in part prior to and including the Bid Valuation Date), 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, United States and/or State-guaranteed student loans and lease
financing contracts;




     (b) 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 (a) above, including but not limited to those arising under or based upon Credit
Documents, casualty insurance policies and binders, standby letters of credit, mortgagee
title insurance policies and binders, payment bonds and performance bonds at any time and
from time to time existing with respect to any of the obligations or instruments referred to
in clause (a) above; and




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



     “New Loan” means a Loan made by the Failed Bank after the Bid Valuation Date that is not a
continuation, amendment, modification, renewal, extension, refinancing, restructuring or refunding
of or for any then-existing Loan.




	 	 	 

	Module 1 — Whole Bank w/ Optional Shared Loss Agreements

	 	Sunshine State Community Bank
	Version 3.0 — Purchase and Assumption Agreement

	 	Port Orange, Florida
	December 8, 2010
	 	 






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     “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), including but not limited to mineral rights, leasehold rights, condominium and
cooperative interests, easements, air rights and development rights that are owned by the Failed
Bank.



     “Owned Data Management Equipment” means any equipment, computer hardware, computer software
(and the lease or licensing agreements related thereto), computer networking equipment, printers,
fax machines, copiers, document scanners, data tape systems, data tapes, DVDs, CDs, flash drives,
telecommunications and check processing equipment and any other electronic storage media owned by
the Failed Bank at Bank Closing which is, was, or could have been used by the Failed Bank in
connection with data management activities.



     “Payment Date” means the first Business Day after the Bank Closing Date.



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



     “Personal Computer(s)” means computers based on a microprocessor generally designed to be used
by one person at a time and which usually store informational data on that computer’s internal hard
drive or attached peripheral, and associated peripherals (such as keyboard, mouse, etc.). A
personal computer can be found in various configurations such as laptops, net books, and desktops.



     “Primary Indemnitor” means any Person (other than the Assuming Institution 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 claims
covered under Article XII, including without limitation any insurer issuing any directors and
officers liability policy or any Person issuing a financial institution bond or banker’s blanket
bond.



     “Pro Forma” means a balance sheet that reflects a reasonably accurate financial statement of
the Failed Bank through the Bank Closing Date and serves as a basis for the opening entries of both
the Assuming Institution and the Receiver.



     “Put Date” has the meaning set forth in Section 3.4(d).



     “Put Notice” has the meaning set forth in Section 3.4(c).



     “Qualified Beneficiaries” has the meaning set forth in Section 4.12.




	 	 	 

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     “Qualified Financial Contract” means a qualified financial contract as defined in 12 U.S.C. §
1821(e)(8)(D).



     “Record” means any document, microfiche, microfilm or Electronically Stored Information
(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 the Bank Closing Date.



     “Receiver” has the meaning set forth in the introduction to this Agreement.



     “Related Liability” with respect to any Asset means any liability existing and reflected on
the Failed Bank Records as of the Bank Closing Date 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
Institution, means the amount of such Related Liability as stated on the books and records of the
Assuming Institution (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 Failed Bank Records of the
entity that owns such Asset.



     “Repurchase Price” means, with respect to any Asset, first taking the Book Value of the Asset
at the Bank Closing Date and either subtracting the pro rata Asset discount or adding the pro rata
Asset premium, and subsequently adjusting that amount (i) for any advances and interest on such
Asset after the Bank Closing Date, (ii) by subtracting the total amount received by the Assuming
Institution for such Asset after the Bank Closing Date, regardless of how applied and (iii) by
adding total disbursements of principal made by the Receiver not otherwise 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 three
hundred sixty-five (365) days after the Bank Closing Date, or such other date prior thereto as may
be agreed upon by the Receiver and the Assuming Institution. The Receiver, in its discretion, may
extend the Settlement Date.




	 	 	 

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     “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 investment rate on
twenty-six (26)-week United States Treasury Bills as published on the Bank Closing Date by the
United States Treasury on the TreasuryDirect.gov website; provided, that if no such Investment Rate
is published the week of the Bank Closing Date, the investment rate for such Treasury Bills most
recently published by the United States Treasury on TreasuryDirect.gov prior to the Bank Closing
Date shall be used. Thereafter, the rate shall be adjusted to the rate determined by the Receiver
to be equal to the Investment Rate on such Treasury Bills in effect as of the first day of each
succeeding calendar quarter during which interest accrues as published by the United States
Treasury on the TreasuryDirect.gov website.



     “Shared-Loss Agreements” means, if any, the Single Family Shared-Loss Agreement attached
hereto as Exhibit 4.15A and, if any, the Commercial Shared-Loss Agreement, attached hereto
as Exhibit 4.15B.



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



ARTICLE II. ASSUMPTION OF LIABILITIES.




     2.1. Liabilities Assumed by Assuming Institution. The Assuming Institution 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 the Bank Closing Date,
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
Institution agrees to properly secure such Deposits with such Assets as appropriate which, prior to
the Bank Closing Date, were pledged as security by the Failed Bank, or with assets of the Assuming
Institution, 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 on or affecting any Assets, if any; provided, that the amount of
any liability assumed pursuant to this Section 2.1(b) shall be limited to the market value of the
Assets securing such liability as determined by the Receiver;




          (c) all borrowings from, and obligations and indebtedness to, Federal Reserve Banks and
Federal Home Loan Banks, if any, whether currently owed, or conditional or not yet matured,
including but not limited to, if applicable, (i) advances, including principal, interest, and any
prepayment fees, costs and expenses; (ii) letters of credit, including any reimbursement
obligations; (iii) acquired member assets programs, including representations, warranties, credit
enhancement obligations and servicing obligations; (iv) affordable housing programs, including
retention agreements and other contracts and monitoring obligations; (v) swaps and other
derivatives; and (vi) safekeeping and custody agreements, provided, that the assumption of any






	 	 	 

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liability pursuant to this Section 2.1(c) 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 the Bank
Closing Date, if any;




          (d) ad valorem taxes applicable to any Asset, if any; provided, that the assumption of any ad
valorem taxes pursuant to this Section 2.1(d) 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 the Bank Closing Date); provided, that the assumption of any
liability pursuant to this Section 2.1(e) shall be limited to the market value of the Assets
securing such liability as determined by the Receiver;




          (f) United States Treasury tax and loan note option accounts, if any;




          (g) liabilities for any acceptance or commercial letter of credit provided, that the
assumption of any liability pursuant to this Section 2.1(g) shall be limited to the market value of
the Assets securing such liability as determined by the Receiver;




          (h) liabilities for any “standby letters of credit” as defined in 12 C.F.R. § 337.2(a) issued
on the behalf of any Obligor of a Loan acquired hereunder by the Assuming Institution, but
excluding any other standby letters of credit;




          (i) duties and obligations assumed pursuant to this Agreement including without limitation
those relating to the Failed Bank’s Records, credit card business, debit card business, stored
value and gift card business, overdraft protection plans, safe deposit business, safekeeping
business and trust business, if any;




          (j) liabilities, if any, for Commitments;




          (k) liabilities, if any, for amounts owed to any Acquired Subsidiary;




          (l) liabilities, if any, with respect to Qualified Financial Contracts; and




          (m) liabilities, if any, under any contract pursuant to which mortgage servicing is provided
to the Failed Bank by others.




     2.2. Interest on Deposit Liabilities. The Assuming Institution agrees that, from and
after the Bank Closing Date, it will accrue and pay interest on Assumed Deposits 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 Institution to its
depositors for non-transaction deposit accounts. The Assuming Institution shall permit each
depositor to withdraw, without penalty for early withdrawal, all or any portion of such




	 	 	 

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depositor’s Deposit, whether or not the Assuming Institution 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 Institution shall give notice to such depositors as provided
in Section 5.3 of the rate(s) of interest which it has determined to pay and of such withdrawal
rights.




     2.3. Unclaimed Deposits.



          (a) Final Legal Notice. Fifteen (15) months following the Bank Closing Date, the
Assuming Institution will provide the Receiver a listing of all deposit accounts, including the
type of account, not claimed by the depositor. The Receiver will review the list and authorize the
Assuming Institution to act on behalf of the Receiver to send a Final Legal Notice in a form
substantially similar to Exhibit 2.3A (the “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 Institution. The Assuming Institution will send the Final Legal Notice to the
depositors within thirty (30) days following notification of the Receiver’s authorization. The
Assuming Institution will prepare an Affidavit of Mailing in a form substantially similar to
Exhibit 2.3B and will forward the Affidavit of Mailing to the Receiver after mailing out
the Final Legal Notice to the owner(s) of unclaimed deposit accounts.




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




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



ARTICLE III. PURCHASE OF ASSETS.




     3.1. Assets Purchased by Assuming Institution. With the exception of certain assets
expressly excluded in Sections 3.5 and 3.6 and, if applicable, listed on Schedule 3.5(l) the
Assuming Institution hereby purchases from the Receiver, and the Receiver hereby sells, assigns,
transfers, conveys and delivers to the Assuming Institution, all right, title and interest of the




	 	 	 

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Receiver in and to all of the assets (real, personal and mixed, wherever located and however
acquired) including all subsidiaries, joint ventures, partnerships and any and all other business
combinations or arrangements, whether active, inactive, dissolved or terminated, of the Failed Bank
whether or not reflected on the books of the Failed Bank as of the Bank Closing Date. Assets are
purchased hereunder by the Assuming Institution subject to all liabilities for indebtedness
collateralized by Liens affecting such Assets to the extent provided in Section 2.1.




     3.2. Asset Purchase Price.



          (a) Determination of Asset Purchase Price. All Assets and assets of the Failed Bank
subject to an option to purchase by the Assuming Institution 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 on the Failed Bank Records before the Bid Valuation Date shall be
purchased at a price of zero. The purchase price for Acquired Subsidiaries shall be adjusted
pursuant to Section 4.6(i)(iv), if applicable.




          (b) Purchase Price for Securities. The purchase price for securities (other than the
capital stock of any Acquired Subsidiary and Federal Home Loan Bank stock) purchased under Section
3.1 by the Assuming Institution shall be the market value thereof as of the Bank Closing Date,
which market value shall be (i) the market price for each such security quoted at the close of the
trading day effective on the Bank Closing Date 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 Institution
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 Institution and the Receiver)
and the Receiver, in its sole and absolute discretion, will accept or reject each such bid; and
(iii) further provided that in the absence of an acceptable bid from the Assuming Institution, each
such security shall not pass to the Assuming Institution and shall be deemed to be an excluded
asset hereunder and listed on Schedule 3.5(l).




          (c) Purchase Price for Qualified Financial Contracts. Qualified Financial Contracts
shall be purchased at market value determined in accordance with the terms of Exhibit
3.2(c). Any costs associated with such valuation shall be shared equally by the Receiver and
the Assuming Institution.




     3.3. Manner of Conveyance; Limited Warranty; Nonrecourse; Etc. THE CONVEYANCE OF ALL
ASSETS, INCLUDING REAL AND PERSONAL PROPERTY INTERESTS, PURCHASED BY THE ASSUMING INSTITUTION 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, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT,
WITHOUT ANY WARRANTIES WHATSOEVER WITH RESPECT TO SUCH ASSETS,




	 	 	 

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EXPRESS OR IMPLIED, WITH RESPECT TO TITLE, VALUE, COLLECTIBILITY, GENUINENESS, ENFORCEABILITY,
DOCUMENTATION, CONDITION 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 Within 30 Days After the Bank Closing Date. During the thirty (30)-day
period following the Bank Closing Date and only during such period (which thirty (30)-day period
may be extended in writing in the sole and absolute discretion of the Receiver for any Loan), in
accordance with this Section 3.4, the Assuming Institution shall be entitled to require the
Receiver to purchase any New Loans and any Deposit Secured Loan transferred to the Assuming
Institution pursuant to Section 3.1 which is not fully secured by Assumed Deposits or deposits at
other insured depository institutions due to either insufficient Assumed Deposit or deposit
collateral or deficient documentation regarding such collateral; provided that with regard to any
Deposit Secured Loan secured by an Assumed Deposit:





          (i) no such purchase may be required until any Deposit setoff determination, whether
voluntary or involuntary, has been made; and




          (ii) the Assuming Institution shall be entitled to require the Receiver to purchase,
within a reasonable time, any remaining overdraft transferred to the Assuming Institution
pursuant to Section 3.1 which existed on the thirtieth (30th) day following the Bank Closing
Date and which was made after the Bid Valuation Date and not made pursuant to an overdraft
protection plan or similar extension of credit.



          Notwithstanding the foregoing, the Assuming Institution shall not have the right to require
the Receiver to purchase any Loan if (i) the Obligor with respect to such Loan is an Acquired
Subsidiary, or (ii) the Assuming Institution has:





          (A) made any advance in accordance with the terms of a Commitment or otherwise
with respect to such Loan;




          (B) taken any action that increased the amount of a Related Liability with
respect to such Loan over the amount of such liability immediately prior to the time
of such action;




          (C) created or permitted to be created any Lien on such Loan which secures
indebtedness for money borrowed or which constitutes a conditional sales agreement,
capital lease or other title retention agreement;




          (D) entered into, agreed to make, grant or permit, or made, granted or
permitted any modification or amendment to, any waiver or extension with respect to,
or any renewal, refinancing or refunding of, such Loan or related Credit Documents
or collateral, including, without limitation, any act or omission which diminished
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          (E) sold, assigned or transferred all or a portion of such Loan to a third
party (whether with or without recourse).




          (iii) The Assuming Institution 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 Institution with respect to any such Asset, as provided in
Section 12.4.



          (b) Puts Prior to the Settlement Date. During the period from the Bank Closing Date
to and including the Business Day immediately preceding the Settlement Date, the Assuming
Institution shall be entitled to require the Receiver to purchase any Asset which the Assuming
Institution can establish is evidenced by forged or stolen instruments as of the Bank Closing Date;
provided that the Assuming Institution shall not have the right to require the Receiver to
purchase any such Asset with respect to which the Assuming Institution has taken any action
referred to in Section 3.4(a)(ii) with respect to such Asset. The Assuming Institution 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 Institution with
respect to any such Asset, as provided in Section 12.4.




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





          (i) a list of all Assets that the Assuming Institution 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 Institution shall deliver to the
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.




          (d) Purchase by Receiver. The Receiver shall purchase Assets that are specified in
the 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 Put Notice
(the “Put Date”).




          (e) 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






	 	 	 

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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 Institution the amount of
such difference; if the difference between such amounts is negative, then the Assuming Institution
shall pay to the Receiver the amount of such difference. The Assuming Institution or the Receiver,
as the case may be, shall pay the purchase price determined pursuant to this Section 3.4(e) 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.




          (f) Servicing. The Assuming Institution 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.




          (g) 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
Institution 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 Institution. The Assuming Institution 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,
extended coverage insurance policy, bank owned life insurance 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;




          (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 Bank or any
Subsidiary of the Failed Bank on or prior to the Bank Closing Date 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 the
Bank Closing Date, 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 the Bank Closing Date;




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








	 	 	 

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          (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 Failed Bank Records as of the Bank Closing Date as a general or
specific loss reserve or contingency account, if any;




          (f) leased or owned Bank Premises and leased or owned Fixtures, Furniture and Equipment
located on leased or owned Bank Premises, if any; provided that the Assuming Institution does
obtain an option under Sections 4.6, 4.7 or 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 “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. § 304.3, and other
intangibles (other than intellectual property);




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




          (j) any and all prepaid fees or any other income as shown on the books and Records of the
Failed Bank, but not taken into income as of the Bank Closing Date, associated with a line of
business of the Failed Bank which is not assumed pursuant to this Agreement;




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




          (l) any banker’s bank stock, and the securities listed on the attached Schedule
3.5(l);




          (m) [reserved];




          (n) prepaid accounts associated with any contract or agreement that the Assuming Institution
either does not directly assume pursuant to the terms of this Agreement nor has an option to assume
under Section 4.8; and




          (o) except with respect to any Federal Home Loan Bank loans, any contract pursuant to which
the Failed Bank provides mortgage servicing for others.




     3.6. Retention or Repurchase of Assets Essential to Receiver.



          (a) The Receiver may refuse to sell to the Assuming Institution, or the Assuming Institution
agrees, at the request of the Receiver set forth in a written notice to the Assuming Institution,
to sell, assign, transfer, convey, and deliver to the Receiver, all of the






	 	 	 

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Assuming Institution’s right, title and interest in and to, any Asset or asset 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 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 Institution
under this Article III or any liability of the Failed Bank not assumed by the Assuming
Institution under Article II.




          (vi) 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 Institution 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
Institution 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 Institution shall transfer all such
Assets 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 Institution with respect to any such Asset or asset, as provided in Section 12.4.



     3.7. Receiver’s Offer to Sell Withheld Loans. For the period of thirty (30) days
commencing the day after the Bank Closing Date, the Receiver may sell, in its sole and absolute
discretion, and the Assuming Institution, may purchase, in its sole and absolute discretion, at
Book Value as of the Bank Closing Date, any Loans initially withheld from sale to the Assuming
Institution pursuant to Sections 3.5 or 3.6 of this Agreement. Except for the sales price, Loans




	 	 	 

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sold under this section will be treated as if initially sold under Section 3.1 of this
Agreement, and will be subject to all relevant terms of this Agreement as similarly situated Loans
sold and transferred pursuant to this Agreement, provided that, no Loan shall be a Shared-Loss Loan
pursuant to the Shared-Loss Agreements if it does not meet the definition of Shared-Loss Loan in
the applicable Shared-Loss Agreement. Payment for Loans sold under this Section 3.7 will be handled
through the settlement process pursuant to Article VIII.




ARTICLE IV. ASSUMPTION OF CERTAIN DUTIES AND OBLIGATIONS.




     4.1. Continuation of Banking Business. For the period commencing on the first banking
Business Day after the Bank Closing Date and ending on the first anniversary of the Bank Closing
Date, the Assuming Institution will provide full service banking in the trade area of the Failed
Bank. Thereafter, the Assuming Institution may cease providing such banking services in the trade
area of the Failed Bank, provided the Assuming Institution has received all necessary regulatory
approvals, including the approval of the Receiver and, if applicable, the Corporation. At the
option of the Assuming Institution, such banking services may be provided at any or all of the Bank
Premises, or at other premises within such trade area, as determined by the Receiver. The Assuming
Institution may open, close or sell branches upon receipt of the necessary regulatory approvals,
provided that the Assuming Institution or its successors continue to provide banking services in
the trade area during the period specified in this Section 4.1. The Assuming Institution will pay
to the Receiver, upon the sale of a branch or branches within the year following the date of this
Agreement, fifty percent (50%) of any franchise premium in excess of the franchise premium paid by
the Assuming Institution with respect to such branch or branches.



     4.2. Credit Card Business. The Assuming Institution agrees to honor and perform, from
and after the Bank Closing Date, all duties and obligations with respect to the Failed Bank’s
credit card business (including issuer or merchant acquirer) debit card business, stored value and
gift card business, and/or processing related to credit cards, if any, and assumes all extensions
of credit or balances outstanding as of the Bank Closing Date with respect to these lines of
business.



     4.3. Safe Deposit Business. The Assuming Institution assumes and agrees to discharge,
from and after the Bank Closing Date, 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, subject to the provisions of the rental agreements between the Failed Bank and
the respective renters of such boxes; provided, that the Assuming Institution may relocate the Safe
Deposit Boxes of the Failed Bank to any office of the Assuming Institution located in the trade
area of the branch of the Failed Bank in which such Safe Deposit Boxes were located, as determined
by the Receiver. The Safe Deposit Boxes shall be located and maintained in such trade area for a
minimum of one year from the Bank Closing Date.




	 	 	 

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     4.4. Safekeeping Business. The Receiver transfers, conveys and delivers to the
Assuming Institution and the Assuming Institution accepts all securities and other items, if any,
held by the Failed Bank in safekeeping for its customers as of the Bank Closing Date. The Assuming
Institution assumes and agrees to honor and discharge, from and after the Bank Closing Date, the
duties and obligations of the Failed Bank with respect to such securities and items held in
safekeeping. The Assuming Institution shall provide to the Receiver written verification of all
assets held by the Failed Bank for safekeeping within sixty (60) days after the Bank Closing Date.
The assets held for safekeeping by the Failed Bank shall be held and maintained by the Assuming
Institution in the trade area of the Failed Bank for a minimum of one year from the Bank Closing
Date. At the option of the Assuming Institution, the safekeeping business may be provided at any or
all of the Bank Premises, or at other premises within such trade area, as determined by the
Receiver. The Assuming Institution shall be entitled to all rights and benefits which accrue after
the Bank Closing Date with respect to securities and other items held in safekeeping.



     4.5. Trust Business.



          (a) Assuming Institution as Successor. The Assuming Institution shall, without
further transfer, substitution, act or deed, to the full extent permitted by law, succeed to the
rights, obligations, properties, assets, investments, deposits, agreements, and trusts of the
Failed Bank under trusts, executorships, administrations, guardianships, and agencies, and other
fiduciary or representative capacities, all to the same extent as though the Assuming Institution
had assumed the same from the Failed Bank prior to the Bank Closing Date; provided, that any
liability based on the misfeasance, malfeasance or nonfeasance of the Failed Bank, its directors,
officers, employees or agents with respect to the trust business is not assumed hereunder.




          (b) Wills and Appointments. The Assuming Institution shall, to the full extent
permitted by law, succeed to, and be entitled to take and execute, the appointment to all
executorships, trusteeships, guardianships and other fiduciary or representative capacities to
which the Failed Bank is or may be named in wills, whenever probated, or to which the Failed Bank
is or may be named or appointed by any other instrument.




          (c) Transfer of Trust Business. In the event additional proceedings of any kind are
necessary to accomplish the transfer of such trust business, the Assuming Institution agrees that,
at its own expense, it will take whatever action is necessary to accomplish such transfer. The
Receiver agrees to use reasonable efforts to assist the Assuming Institution in accomplishing such
transfer.




          (d) Verification of Assets. The Assuming Institution shall provide to the Receiver
written verification of the assets held in connection with the Failed Bank’s trust business within
sixty (60) days after the Bank Closing Date.




     4.6. Bank Premises.



          (a) Option to Purchase. Subject to Section 3.5, the Receiver hereby grants to the
Assuming Institution an exclusive option for the period of ninety (90) days commencing the






	 	 	 

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day after the Bank Closing Date to purchase any or all owned Bank Premises, including all
Fixtures, Furniture and Equipment located on the Bank Premises. The Assuming Institution 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 the Bank Closing Date and such purchase shall be consummated as soon as practicable
thereafter, and in no event later than the Settlement Date. If the Assuming Institution gives
notice of its election not to purchase one or more of the owned Bank Premises within seven (7) days
of the Bank Closing Date, then, notwithstanding any other provision of this Agreement to the
contrary, the Assuming Institution shall not be liable for any of the costs or fees associated with
Fair Market Value appraisals for such Bank Premises and associated Fixtures, Furniture and
Equipment.




          (b) Option to Lease. The Receiver hereby grants to the Assuming Institution an
exclusive option for the period of ninety (90) days commencing the day after the Bank Closing Date
to cause the Receiver to assign to the Assuming Institution any or all leases for leased Bank
Premises, if any, which have been continuously occupied by the Assuming Institution from the Bank
Closing Date 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. The Assuming
Institution 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 new leases in lieu thereof). The
Assuming Institution agrees to assume all leases assigned (or enter into new leases in lieu
thereof) pursuant to this Section 4.6. If the Assuming Institution gives notice of its election
not to accept an assignment of a lease for one or more of the leased Bank Premises within seven (7)
days of the Bank Closing Date, then, notwithstanding any other provision of this Agreement to the
contrary, the Assuming Institution shall not be liable for any of the costs or fees associated with
Fair Market Value appraisals for the Fixtures, Furniture and Equipment located on such leased Bank
Premises.




          (c) Facilitation. The Receiver agrees to facilitate the assumption, assignment or
sublease of leases or the negotiation of new leases by the Assuming Institution; provided that
neither the Receiver nor the Corporation shall be obligated to engage in litigation, make payments
to the Assuming Institution 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 Institution 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 Institution has not exercised the option provided in Section 4.6(b).
Any such notice shall be deemed to terminate the Assuming Institution’s option with respect to such
leased Bank Premises.






	 	 	 

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          (e) Occupancy Costs.





          (i) The Assuming Institution 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,
maintenance, utilities, insurance and assessments, to the extent not included in the rental
value or rent. If the Assuming Institution 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 Institution assumes
liability) by the Assuming Institution with respect thereto shall be applied as an offset
against the purchase price thereof.




          (ii) The Assuming Institution 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 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 the Bank Closing
Date. 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 Institution 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
Institution with respect thereto shall be applied as an offset against the purchase price
thereof.



          (f) Certain Requirements as to Fixtures, Furniture and Equipment. If the Assuming
Institution 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 Institution does not exercise such option but within twelve (12) months
following the Bank Closing Date 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 4.6(b),
the Assuming Institution shall (i) effective as of the Bank Closing Date, purchase from the
Receiver all Fixtures, Furniture and Equipment owned by the Failed Bank at Fair Market Value and
located thereon as of the Bank Closing Date, (ii) accept an assignment or a sublease of the leases
or negotiate new leases for all Fixtures, Furniture and Equipment 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 Fixtures, Furniture and Equipment or
repudiated the leases referred to in clause (ii) or (iii).






	 	 	 

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          (g) Vacating Premises.





          (i) If the Assuming Institution 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 Institution’s occupancy of such premises shall terminate, which date shall not be
later than ninety (90) days after the date of the Assuming Institution’s notice not to exercise
such option. The Assuming Institution shall be responsible for promptly relinquishing and
releasing to the Receiver such premises and the Fixtures, Furniture and Equipment located
thereon which existed at the time of the Bank Closing Date, in the same condition as at the
Bank Closing Date and at the premises where they were inventoried at the Bank Closing Date,
normal wear and tear excepted. Any of the aforementioned which is missing will be charged to
the Assuming Institution at the item’s Fair Market Value as determined in accordance with this
Agreement. By occupying any such premises after the expiration of such ninety (90)-day period,
the Assuming Institution 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
Fixtures, Furniture and Equipment owned by the Failed Bank and located on such premises as of
the Bank Closing Date.




          (ii) If the Assuming Institution 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 Institution’s occupancy of such leased
Bank Premises shall terminate, which date shall not be later than ninety (90) days after the
date of the Assuming Institution’s notice not to exercise such option. Upon vacating such
premises, the Assuming Institution shall be liable for relinquishing and releasing to the
Receiver such premises and the Fixtures and the Furniture and Equipment located thereon which
existed at the time of the Bank Closing Date, in the same condition as at the Bank Closing
Date, and at the premises where they were inventoried at Bank closing, normal wear and tear
excepted. Any of the aforementioned which is missing will be charged to the Assuming
Institution at the item’s Fair Market Value as determined in accordance with this Agreement.
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
ninety (90) day period specified above in this Section 4.6(g)(ii), the Assuming Institution
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 Fixtures, Furniture and Equipment owned by the
Failed Bank at Fair Market Value and located on such premises as of the Bank Closing Date.



          (h) Furniture and Equipment and Certain Other Equipment. The Receiver hereby grants
to the Assuming Institution an option to purchase all Furniture and Equipment





	 	 	 

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owned by the Failed Bank at Fair Market Value and located at any leased or owned Bank Premises
that the Assuming Institution elects to vacate or which it could have, but did not occupy, pursuant
to this Section 4.6; provided that, the Assuming Institution 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 the Bank Closing Date for Bank Premises it could have, but
did not, occupy.




          (i) Option to Put Bank Premises and Related Fixtures, Furniture and Equipment.





          (i) For a period of ninety (90) days following the Bank Closing Date, the Assuming
Institution shall be entitled to require the Receiver to purchase any Bank Premises that is
owned, directly or indirectly, by an Acquired Subsidiary and the purchase price paid by the
Receiver shall be the Fair Market Value of the Bank Premises.




          (ii) If the Assuming Institution elects to require the Receiver to purchase any Bank
Premises that is owned, directly or indirectly, by an Acquired Subsidiary, the Assuming
Institution shall also have the option, exercisable within the same ninety (90) day time
period, to require the Receiver to purchase any Fixtures, Furniture and Equipment that is
owned, directly or indirectly, by an Acquired Subsidiary which is located on such Bank Premises
and was utilized by the Failed Bank for banking purposes. The purchase price paid by the
Receiver shall be the Fair Market Value of the Fixtures, Furniture and Equipment purchased.




          (iii) In the event the Assuming Institution elects to exercise its options under this
Section 4.6(i), the Assuming Institution shall pay to the Receiver occupancy costs in
accordance with Section 4.6(e) and shall vacate the Bank Premises in accordance with Section
4.6(g)(i).




          (iv) Regardless of whether the Assuming Institution exercises any of its options under
this Section 4.6(i), the purchase price for the Acquired Subsidiary shall be adjusted by the
difference between the Fair Market Value of the Bank Premises and Fixtures, Furniture and
Equipment utilized by the Failed Bank for banking purposes and their respective Book Value as
reflected of the books and records of the Acquired Subsidiary. Such adjustment shall be made in
accordance with Article VIII of this Agreement.



     4.7. Agreement with Respect to Leased Data Management Equipment.



          (a) Option. The Receiver hereby grants to the Assuming Institution an exclusive
option for the period of ninety (90) days commencing the day after Bank Closing to accept an
assignment from the Receiver of all Leased Data Management Equipment.




          (b) Notices Regarding Leased Data Management Equipment. The Assuming Institution
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 all Leased Data





	 	 	 

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Management Equipment and promptly accept an assignment or sublease of such Leased Data
Management Equipment, and (ii) give written notice to the appropriate lessor(s) that it has
accepted an assignment or sublease of any such Leased Data Management Equipment that is subject to
a lease.




          (c) Facilitation by Receiver. The Receiver agrees to facilitate the assignment or
sublease of Leased Data Management Equipment or the negotiation of new leases or license agreements
by the Assuming Institution; provided, that neither the Receiver nor the Corporation shall be
obligated to engage in litigation, make payments to the Assuming Institution 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) Operating Costs. The Assuming Institution agrees, during its period of use of any
Leased Data Management Equipment, 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 any existing Leased Data Management Equipment leases entered into by the Failed Bank,
including without limitation the timely payment of all rent, taxes, fees, charges, maintenance,
utilities, insurance and assessments.




          (e) Assuming Institution’s Obligation. The Assuming Institution shall, not later than
fifty (50) days after giving the notice provided in Section 4.7(b), (i) relinquish and release to
the Receiver or, at the direction of the Receiver, to a third party, all Leased Data Management
Equipment, in the same condition as at Bank Closing, normal wear and tear excepted, or (ii) accept
an assignment or a sublease of any existing Leased Data Management lease or negotiate a new lease
or license agreement under this Section 4.7 with respect to Leased Data Management Equipment.




          (f) Data Removal. The Assuming Institution shall, prior to returning any Leased Data
Management Equipment, and unless otherwise requested by the Receiver, (i) remove all data from the
Leased Data Management Equipment and (ii) provide a written statement to the Receiver that all data
has been removed in a manner that renders it unrecoverable.




     4.8. Certain Existing Agreements.



          (a) Assumption of Agreements. Subject to the provisions of Section 4.8(b), with
respect to agreements existing as of the Bank Closing Date which provide for the rendering of
services by or to the Failed Bank, within thirty (30) days after the Bank Closing Date, the
Assuming Institution shall give the Receiver written notice specifying whether it elects to assume
or not to assume each such agreement. Except as may be otherwise provided in this Article IV, the
Assuming Institution agrees to comply with the terms of each such agreement for a period commencing
on the day after the Bank Closing Date 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 ninety (90) days after the Bank
Closing Date, 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 Institution has given notice
to the Receiver of its election not to assume such agreement;





	 	 	 

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provided that the Receiver can reasonably make such service agreements available to the
Assuming Institution. The Assuming Institution 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 Institution all right, title and interest of the Receiver, if
any, in and to agreements the Assuming Institution assumes hereunder. In the event the Assuming
Institution 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 related to such premises.
The Assuming Institution 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) Excluded Agreements. The provisions of Section 4.8(a) regarding the Assuming
Institution’s election to assume or not assume certain agreements shall not apply to (i) agreements
pursuant to which the Failed Bank provides mortgage servicing for others or mortgage servicing is
provided to the Failed Bank by others, (ii) agreements that are subject to Sections 4.1 through 4.7
and any insurance policy or bond referred to in Section 3.5(a) or other agreement specified in
Section 3.5 and (iii) consulting, management or employment agreements, if any, between the Failed
Bank and its employees or other Persons. Except as otherwise expressly set forth elsewhere in this
Agreement, the Assuming Institution 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 Institution 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 closed and
loans that were paid off or collateral obtained with respect thereto prior to the Bank Closing
Date, (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 Institution, as may be required by the Receiver.



     4.10. Insurance.



          (a) Assuming Institution to Insure. The Assuming Institution will obtain and maintain
insurance coverage acceptable to the Receiver (including public liability, fire, and extended
coverage insurance) naming the Assuming Institution as the insured and the Receiver as additional
insured, effective from and after the Bank Closing Date, with respect to all (i) Bank Premises that
the Assuming Institution occupies, and (ii) Fixtures, Furniture and Equipment and Leased Data
Management Equipment located on those Bank Premises.




          (b) Rights of Receiver. If the Assuming Institution at any time from or after Bank
Closing Date fails to (i) obtain or maintain any of the insurance policies required by Section
4.10(a), (ii) pay any premium in whole or in part related to those insurance policies, or (iii)
provide evidence of those insurance policies acceptable to the Receiver, then the Receiver may in
its sole and absolute discretion, without notice, and without waiving or releasing any




	 	 	 

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obligation or liability of the Assuming Institution, obtain and maintain insurance policies,
pay insurance premiums and take any other actions with respect to the insurance coverage as the
Receiver deem advisable. The Assuming Institution will reimburse the Receiver for all sums
disbursed in connection with this Section 4.10(b).




     4.11. Office Space for Receiver and Corporation; Certain Payments.



          (a) FDIC Office Space. For the period commencing on the day following the Bank
Closing Date and ending on the one hundred eightieth (180th) day following the Bank Closing Date,
the Assuming Institution will 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) (collectively, “FDIC Office Space”) at the Bank Premises occupied by the Assuming
Institution for the Receiver and the Corporation to use in the discharge of their respective
functions with respect to the Failed Bank.




          (b) Receiver’s Right to Extend. Upon written notice by the Receiver or the
Corporation, for the period commencing on the one hundred eighty first (181st) day following the
Bank Closing Date and ending no later than the three hundred and sixty-fifth (365th) day following
the Bank Closing Date, the Assuming Institution will continue to provide to the Receiver and the
Corporation FDIC Office Space at the Bank Premises. During the period from the 181st day following
the Bank Closing Date until the day the FDIC and the Corporation vacate FDIC Office Space, the
Receiver and the Corporation will pay to the Assuming Institution their respective pro rata share
(based on square footage occupied) of (A) the market rental value for the applicable owned Bank
Premises or (B) actual rent paid for applicable leased Bank Premises.




          (c) Receiver’s Relocation Right. If the Receiver or the Corporation determine that
the space provided by the Assuming Institution is inadequate or unsuitable, the Receiver and the
Corporation may relocate to other quarters having adequate and suitable FDIC Office 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 Institution.




          (d) Expenditures. The Assuming Institution will pay such bills and invoices on behalf
of the Receiver and the Corporation as the Receiver or the Corporation may direct for the period
beginning on the date of the Bank Closing Date and ending on Settlement Date. The Assuming
Institution shall submit its requests for reimbursement of such expenditures pursuant to Article
VIII of this Agreement.




     4.12. Continuation of Group Health Plan Coverage for Former Employees of the Failed
Bank.



          (a) Continuation Coverage. The Assuming Institution 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 the Bank






	 	 	 

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Closing Date, 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 Federal Insurance Administration Continuation
Coverage Plan which provides for health insurance continuation coverage to such Eligible
Individuals and other persons who are qualified beneficiaries of the Failed Bank (“Qualified
Beneficiaries”) as defined in the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”) § 607, 29 U.S.C. § 1167. The Assuming Institution shall consult with the Receiver and
not later than five (5) Business Days after the Bank Closing Date 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 ERISA § 603, 29 U.S.C. § 1163) has occurred and with respect to
whom the Failed Bank’s obligations under Part 6 of Subtitle B of Title I of ERISA, 29 U.S.C. §§
1161-1169 have not been satisfied in full, and such other information as the Receiver may
reasonably require. The Receiver shall cooperate with the Assuming Institution in order to permit
it to prepare such notice and shall provide to the Assuming Institution such data in its possession
as may be reasonably required for purposes of preparing such notice.




          (b) Qualified Beneficiaries; Expenses. The Assuming Institution 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 Federal Insurance Administration Continuation Coverage Plan as the Receiver may
direct. All expenses incurred and paid by the Assuming Institution (i) in connection with the
obligations of the Assuming Institution under this Section 4.12, and (ii) in providing health
insurance continuation coverage to any Eligible Individuals who are hired by the Assuming
Institution and such employees’ Qualified Beneficiaries shall be borne by the Assuming Institution.




          (c) Employee List. No later than five (5) Business Days after the Bank Closing Date,
the Assuming Institution shall provide the Receiver with a list of all Failed Bank employees the
Assuming Institution will not hire. Unless otherwise agreed, the Assuming Institution shall pay all
salaries and payroll costs for all Failed Bank employees until the list is provided to the
Receiver. The Assuming Institution shall be responsible for all costs and expenses (i.e., salary,
benefits, etc.) associated with all other employees not on that list from and after the date of
delivery of the list to the Receiver. The Assuming Institution shall offer to the Failed Bank
employees it retains employment benefits comparable to those the Assuming Institution, offers its
current employees.




          (d) No Third Party Beneficiaries. 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, Eligible Individual 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, Eligible Individual or Qualified Beneficiary of such former employee) other
than the Corporation, the Receiver and the Assuming Institution, any





	 	 	 

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legal or equitable right, remedy or claim under or with respect to the provisions of this
Section 4.12.




     4.13. Interim Asset Servicing. At any time after the Bank Closing Date, the Receiver
may establish on its books an asset pool(s) and may transfer to such asset pool(s) (by means of
accounting entries on the books of the Receiver) all or any assets and liabilities of the Failed
Bank which are not acquired by the Assuming Institution, including, without limitation, wholly
unfunded Commitments and assets and liabilities which may be acquired, funded or originated by the
Receiver subsequent to the Bank Closing Date. The Receiver may remove assets (and liabilities)
from or add assets (and liabilities) to such pool(s) at any time in its discretion. At the option
of the Receiver, the Assuming Institution agrees to service, administer and collect such pool
assets in accordance with, and for the term set forth in, Exhibit 4.13.



     4.14. [Reserved]



     4.15. Loss Sharing.



     This Agreement includes no Shared-Loss Agreements.



ARTICLE V. DUTIES WITH RESPECT TO DEPOSITORS OF THE FAILED BANK.




     5.1. Payment of Checks, Drafts, Orders and Deposits. Subject to Section 9.5, the
Assuming Institution agrees to pay all properly drawn checks, drafts, withdrawal orders and Assumed
Deposits 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 Institution, to the extent that the
Deposit balances to the credit of the respective makers or drawers assumed by the Assuming
Institution 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 Institution under this Agreement.



     5.2. Certain Agreements Related to Deposits. Except as may be modified pursuant to
Section 2.2, the Assuming Institution 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 Institution pursuant to this Agreement.



     5.3. Notice to Depositors.



          (a) Assumption of Deposits. Within seven (7) days after the Bank Closing Date, the
Assuming Institution shall give notice by mail to each depositor of the Failed Bank of (i) the
assumption of the Deposit liabilities of the Failed Bank, and (ii) the procedures to claim Deposits
(the Receiver shall provide item (ii) to Assuming Institution). The Assuming Institution shall
also publish notice of its assumption of the Deposit liabilities of the Failed Bank in a newspaper
of general circulation in the county or counties in which the Failed Bank was located.






	 	 	 

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          (b) Notice to Depositors. Within seven (7) days after the Bank Closing Date, the
Assuming Institution shall give notices by mail to each depositor of the Failed Bank, as required
under Section 2.2.




          (c) Fee Schedule. If the Assuming Institution proposes to charge fees different from
those fees formerly charged by the Failed Bank, the Assuming Institution shall include its fee
schedule in its mailed notice.




          (d) Approval of Notices and Publications. The Assuming Institution shall obtain
approval of all notices and publications required by this Section 5.3 from counsel for the Receiver
prior to mailing or publication.




ARTICLE VI. RECORDS.




     6.1. Transfer of Records. In accordance with Sections 2.1 and 3.1, the Receiver
assigns, transfers, conveys and delivers to the Assuming Institution, whether located on Bank
Premises occupied or not occupied by the Assuming Institution or at any other location, any and all
Records of the Failed Bank, other than the following:



          (a) Records pertaining to former employees of the Failed Bank who were no longer employed by
the Failed Bank as of the Bank Closing Date and Records pertaining to employees of the Failed Bank
who were employed by the Failed Bank as of the Bank Closing Date and for whom the Receiver is
unable to obtain a waiver to release such Records to the Assuming Institution;




          (b) Records pertaining to (i) any asset or liability of the Failed Bank retained by the
Receiver, or (ii) any asset of the Failed Bank acquired by the Receiver pursuant to this Agreement;
and




          (c) any other Records as determined by the Receiver.




     6.2. Transfer of Assigned Records. The Receiver shall transfer to the Assuming
Institution all Records described in Section 6.1 as soon as practicable on or after the date of
this Agreement.



     6.3. Preservation of Records.



          (a) Assuming Institution Records Retention. The Assuming Institution agrees that it
will preserve and maintain for the joint benefit of the Receiver, the Corporation and the Assuming
Institution, all Records of which it has custody. The Assuming Institution shall have the primary
responsibility to respond to subpoenas, discovery requests, and other similar official inquiries
and customer requests for lien releases with respect to the Records of which it has custody. With
respect to its obligations under this Section 6.3 regarding Electronically Stored Information, the
Assuming Institution will complete the Data Retention Catalog attached hereto as Schedule
6.3 and submit it to the Receiver within thirty (30) days following the Bank Closing Date.







	 	 	 

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          (b) Destruction of Certain Records. With regard to all Records of which it has
custody which are at least ten (10) years old as of the date of the appointment of the Receiver,
the Assuming Institution agrees to request written permission to destroy such records by submitting
a written request to destroy, specifying precisely which records are included in the request, to
DRR— Records Manager, CServiceFDICDAL@FDIC.gov.




          (c) Destruction of Records After Six Years. With regard to all Records of which it
has custody which have been maintained in the custody of the Assuming Institution after six (6)
years from the date of the appointment of the Receiver, the Assuming Institution agrees to request
written permission to destroy such records by submitting a written request to destroy, specifying
precisely which records are included in the request, to DRR— Records Manager,
CServiceFDICDAL@FDIC.gov.




     6.4. Access to Records; Copies. The Assuming Institution agrees to permit the
Receiver and the Corporation access to all Records of which the Assuming Institution 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 pertaining to Deposit account relationships; provided that in the event that the Failed Bank
maintained one or more duplicate copies of such Records, the Assuming Institution 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 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.



     6.5. Right of Receiver or Corporation to Audit. The Receiver or the Corporation,
their respective agents, contractors and employees, may (but are not required to) perform an audit
to determine the Assuming Institution’s compliance with this Agreement at any time, by providing
not less than ten (10) Business Days prior notice. The scope and duration of any such audit shall
be at the discretion of the Receiver or the Corporation, as the case may be. 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 Institution and the Receiver
shall make such accounting adjustments, payments and withholdings as may be necessary to give
retroactive effect to such corrections.



ARTICLE VII. BID; INITIAL PAYMENT.




     The Assuming Institution has submitted to the Receiver a Deposit premium bid of 0.50% and an
Asset premium (discount) bid of $(32,500,000) (the “Bid Amount”). 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 as reflected on Schedule 7. On the Payment
Date, the Assuming Institution will pay to the Corporation, or the Corporation will pay to the
Assuming Institution, as the case may be, the Initial Payment, together with interest on




	 	 	 

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	Version 3.0 — Purchase and Assumption Agreement

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such amount (if the Payment Date is not the day following the Bank Closing Date) from and
including the day following the Bank Closing Date to and including the day preceding the Payment
Date at the Settlement Interest Rate.




ARTICLE VIII. ADJUSTMENTS.




     8.1. Pro Forma Statement. The Receiver, as soon as practicable after the Bank Closing
Date, in accordance with the best information then available, shall provide to the Assuming
Institution a Pro Forma statement reflecting any adjustments of such liabilities and assets as may
be necessary. Such Pro Forma statement shall take into account, to the extent possible, (a)
liabilities and assets of a nature similar to those contemplated by Section 2.1 or Section 3.1,
respectively, which on the Bank Closing Date were carried in the Failed Bank’s suspense accounts,
(b) accruals as of the Bank Closing Date for all income related to the assets and business of the
Failed Bank acquired by the Assuming Institution hereunder, whether or not such accruals were
reflected on the Failed Bank Records in the normal course of its operations, and (c) 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 the Bank Closing Date as reflected on the Failed Bank Records of the Acquired
Subsidiary. Any Loan purchased by the Assuming Institution pursuant to Section 3.1 which the
Failed Bank charged off during the period beginning the day after the Bid Valuation Date to the
date of the Bank Closing Date 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.



     8.2. Correction of Errors and Omissions; Other Liabilities.



          (a) Adjustments to Correct Errors. 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
Failed Bank Records, except that adjustments made pursuant to this Section 8.2(a) are not intended
to bring the Failed Bank Records into accordance with generally accepted accounting principles.




          (b) Receiver’s Rights Regarding Other Liabilities. If the Receiver discovers at any
time subsequent to the date of this Agreement 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 the Bank Closing
Date, the Receiver may, in its discretion, at any time, require that such claim be assumed by the
Assuming Institution 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
Institution pursuant to Section 8.1 as may be necessary.








	 	 	 

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     8.3. Payments. The Receiver agrees to cause to be paid to the Assuming Institution,
or the Assuming Institution agrees to pay to the Receiver, as the case may be, on the Settlement
Date, a payment in an amount which reflects 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
Institution agree to effect on the Settlement Date any further transfer of assets to or assumption
of liabilities or claims by the Assuming Institution 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 the Bank Closing Date to and including the day
preceding the payment at the Settlement Interest Rate.



     8.5. Subsequent Adjustments. In the event that the Assuming Institution 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 Institution and the
Receiver agree to promptly correct any such errors or omissions, make any payments and effect any
transfers or assumptions as may be necessary to reflect any such correction plus interest as
provided in Section 8.4.



ARTICLE IX. CONTINUING COOPERATION.




     9.1. General Matters. The parties hereto 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
Institution each shall, at any time, and from time to time, upon the request of any party hereto,
execute and deliver such additional instruments and documents of conveyance 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
Institution shall prepare such instruments and documents of conveyance (in form and substance
satisfactory to the Receiver) as shall be necessary to vest title to the Assets in the Assuming
Institution. The Assuming Institution shall be responsible for recording such instruments and
documents of conveyance at its own expense.



     9.3. Claims and Suits.



          (a) Defense and Settlement. The Receiver shall have the right, in its discretion, to
(i) defend or settle any claim or suit against the Assuming Institution with respect to which the
Receiver has indemnified the Assuming Institution in the same manner and to the same extent as
provided in Article XII, and (ii) defend or settle any claim or suit against the Assuming
Institution with respect to any Liability Assumed, which claim or suit may result in a loss to the
Receiver arising out of or related to this Agreement, or which existed against the Failed Bank on
or before the Bank Closing Date. The exercise by the Receiver of any rights







	 	 	 

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	Version 3.0 — Purchase and Assumption Agreement

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under this Section 9.3(a) shall not release the Assuming Institution with respect to any of
its obligations under this Agreement.




          (b) Removal of Actions. 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 co-plaintiff, any action with respect
to any such retained or 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 Institution to pay any Deposit liability of the Failed Bank assumed by the Assuming
Institution pursuant to this Agreement and asserts a claim against the Receiver for all or any
portion of any such Deposit liability, the Assuming Institution 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 Institution at the time such claim is made. Upon payment by
the Assuming Institution to the Receiver of such amount, the Assuming Institution 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
Institution 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 Institution to withhold payment of all
or any portion of any such deposit balance. Upon such direction, the Assuming Institution 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
Institution 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 Institution shall return all or any portion of such
deposit balance to the Receiver or the Corporation, as appropriate, and thereupon the Assuming
Institution 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 9.5, the Assuming Institution shall not be obligated
to return such deposit balance to the Receiver or the Corporation. The Assuming Institution 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 Institution 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 9.5.



     9.6. Proceedings with Respect to Certain Assets and Liabilities.




	 	 	 

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          (a) Cooperation by Assuming Institution. 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 Institution shall cooperate to the extent reasonably required by the Receiver.




          (b) Access to Records. In addition to its obligations under Section 6.4, the Assuming
Institution 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 shall be provided by the Assuming Institution as requested by the Receiver and the costs of
duplication thereof shall be borne by the Receiver.




          (c) Loan Documents. 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 Institution to the
Receiver pursuant to Section 3.6, the Assuming Institution 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 Institution or any Affiliate of the Assuming Institution relating to the transferred Loan.




     9.7. Information. The Assuming Institution 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 Institution to assist in preparation of the Pro Forma
statement pursuant to Section 8.1.



     9.8. Tax Ruling. The Assuming Institution shall not at any time, without the
Corporation’s prior 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 or Corporation pursuant to this Agreement.



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 the Bank 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, the closing of the Failed Bank and the




	 	 	 

	 

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appointment of the Receiver, the chartering of the Assuming Institution, and any agreements,
documents, matters or proceedings contemplated hereby or thereby.




ARTICLE XI. REPRESENTATIONS AND WARRANTIES OF THE ASSUMING INSTITUTION.




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



     11.1. Corporate Existence and Authority. The Assuming Institution (a) 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 (b) has full power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. The Assuming Institution has taken all necessary corporate (or
other applicable governance) action to authorize the execution, delivery and performance of this
Agreement and the performance of the transactions contemplated hereby.



     11.2. 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 Institution of this
Agreement, other than such consents as have been duly obtained and are in full force and effect.



     11.3. Execution and Enforceability. This Agreement has been duly executed and
delivered by the Assuming Institution 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 Institution, enforceable in accordance with its terms.



     11.4. Compliance with Law.



          (a) No Violations. Neither the Assuming Institution 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 Institution 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 Institution or of any of its Subsidiaries, or the ownership of the properties of
the Assuming Institution 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 Institution or the ability of the Assuming
Institution to perform, satisfy or observe any obligation or condition under this Agreement.




          (b) No Conflict. Neither the execution and delivery nor the performance by the
Assuming Institution of this Agreement will result in any violation by the Assuming






	 	 	 

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Institution 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.




     11.5. Insured or Guaranteed Loans. If any Loans being transferred pursuant to this
Agreement are insured or guaranteed by any department or agency of any governmental unit, federal,
state or local, Assuming Institution represents that Assuming Institution has been approved by such
agency and is an approved lender or mortgagee, as appropriate, if such approval is required. The
Assuming Institution further assumes full responsibility for determining whether or not such
insurance or guarantees are in full force and effect on the date of this Agreement and with respect
to those Loans whose insurance or guaranty is in full force and effect on the date of this
Agreement, Assuming Institution assumes full responsibility for doing all things necessary to
insure such insurance or guarantees remain in full force and effect. Assuming Institution agrees
to assume all of the obligations under the contract(s) of insurance or guaranty and agrees to
cooperate with the Receiver where necessary to complete forms required by the insuring or
guaranteeing department or agency to effect or complete the transfer to Assuming Institution.



     11.6. Representations Remain True. The Assuming Institution 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 Institution 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.



     11.7. No Reliance; Independent Advice. The Assuming Institution is not relying on the
Receiver or the Corporation for any business, legal, tax, accounting, investment or other advice in
connection with this Agreement and the Exhibits hereto and documents delivered in connection with
the foregoing, and has had adequate opportunity to consult with advisors of its choice in
connection therewith.



ARTICLE XII. INDEMNIFICATION.




     12.1. Indemnification of Indemnitees. From and after the Bank Closing Date and
subject to the limitations set forth in this Section 12.1 and Section 12.6 and compliance by the
Indemnitees with Section 12.2, the Receiver agrees to indemnify and hold harmless the Indemnitees
against any and all costs, losses, liabilities, expenses (including attorneys’ fees) incurred prior
to the assumption of defense by the Receiver pursuant to Section 12.2(d), judgments, fines and
amounts paid in settlement actually and reasonably incurred in connection with claims against any
Indemnitee based on liabilities of the Failed Bank that are not assumed by the Assuming Institution
pursuant to this Agreement or subsequent to the execution hereof by the Assuming Institution or any
Subsidiary or Affiliate of the Assuming Institution for which indemnification is provided:




	 	 	 

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	Version 3.0 — Purchase and Assumption Agreement

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          (a) hereunder in this Section 12.1, subject to certain exclusions as provided in Section
12.1(b):





          (i) claims based on the rights of any shareholder or former shareholder as such of (A) the
Failed Bank, or (B) any Subsidiary or Affiliate of the Failed Bank;




          (ii) claims based on the rights of any creditor as such of the Failed Bank, or any
creditor as such of any director, officer, employee or agent of the Failed Bank, with respect
to any indebtedness or other obligation of the Failed Bank arising prior to the Bank Closing
Date;




          (iii) claims based on 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;




          (iv) claims based on any action or inaction prior to the Bank Closing Date 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;




          (v) claims based on any malfeasance, misfeasance or nonfeasance of the Failed Bank, its
directors, officers, employees or agents with respect to the trust business of the Failed Bank,
if any;




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




          (vii) claims arising from any action or inaction of any Indemnitee, including for purposes
of this Section 12.1(a)(vii) 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, other than any action or inaction taken in a manner
constituting bad faith, gross negligence or willful misconduct; and




          (viii) claims based on 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;




	 	 	 

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





          (i) judgment or fine against, or any amount paid in settlement (without the written
approval of the Receiver) by, any Indemnitee in connection with any action that seeks damages
against any Indemnitee (a “Counterclaim”) arising with respect to any Asset and based on any
action or inaction of either the Failed Bank, its directors, officers, employees or agents as
such prior to the Bank Closing Date, unless any such judgment, fine or amount paid in
settlement exceeds the greater of (A) the Repurchase Price of such Asset, or (B) the monetary
recovery sought on such Asset by the Assuming Institution in the cause of action from which the
Counterclaim arises; and in such event the Receiver will provide indemnification only in the
amount of such excess; and no indemnification will be provided for any costs or expenses other
than any costs or expenses (including attorneys’ fees) which, in the determination of the
Receiver, have been actually and reasonably incurred by such Indemnitee in connection with the
defense of any such Counterclaim; and it is expressly agreed that the Receiver reserves the
right to intervene, in its discretion, on its behalf and/or on behalf of the Receiver, in the
defense of any such Counterclaim;




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




          (iii) claims 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 Institution pursuant to this Agreement or
subsequent to the execution hereof by the Assuming Institution or any Subsidiary or Affiliate
of the Assuming Institution;




          (iv) claims 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 the Bank Closing Date;




          (v) claims 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;




          (vi) claims based on the rights of any present or former creditor, customer, or supplier
as such of the Assuming Institution or any Subsidiary or Affiliate of the Assuming Institution;




          (vii) claims based on the rights of any present or former shareholder as such of the
Assuming Institution or any Subsidiary or Affiliate of the Assuming Institution




	 	 	 

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regardless of whether any such present or former shareholder is also a present or former
shareholder of the Failed Bank;




          (viii) claims, if the Receiver determines that the effect of providing such
indemnification would be to (A) expand or alter the provisions of any warranty or disclaimer
thereof provided in Section 3.3 or any other provision of this Agreement, or (B) create any
warranty not expressly provided under this Agreement;




          (ix) claims which could have been enforced against any Indemnitee had the Assuming
Institution not entered into this Agreement;




          (x) claims based on any liability for taxes or fees 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 Institution;




          (xi) except as expressly provided in this Article XII, claims based on any action or
inaction of any Indemnitee, 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,
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 sole and absolute 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 Institution or its Subsidiaries or Affiliates;




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




          (xiii) claims arising out of or relating to the condition of or generated by an Asset
arising from or relating to the presence, storage or release of any hazardous or toxic
substance, or any pollutant or contaminant, or condition of such Asset which violate any
applicable Federal, State or local law or regulation concerning environmental protection; and




          (xiv) claims based on, related to or arising from any asset, including a loan, acquired or
liability assumed by the Assuming Institution, 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 for which such
Person is or may be entitled to indemnification hereunder:



          (a) give written notice to the Managing Counsel (Legal Division) of the Corporation in the
manner and at the address provided in Section 13.6 of such claim as soon as







	 	 	 

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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 and absolute
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 such Person is
entitled to indemnification under this Article XII;




          (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;
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 thereto; 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 such reasonable action as the Receiver may request in writing as necessary to
preserve, protect or enforce the rights of the Indemnitee against any Primary Indemnitor.




     12.3. No Additional Warranty. Nothing in this Article XII shall be construed or
deemed to (a) 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, collectability, genuineness, enforceability, documentation, condition or freedom from liens
or encumbrances, of any (i) Asset, or (ii) asset of the Failed Bank purchased by the Assuming
Institution subsequent to the execution of this Agreement by the Assuming Institution or any
Subsidiary or Affiliate of the Assuming Institution, or (b) create any warranty not expressly
provided under this Agreement with respect thereto.



     12.4. Indemnification of Receiver and Corporation. From and after the Bank Closing
Date, the Assuming Institution 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 costs, losses, liabilities, expenses (including attorneys’ fees), judgments, fines and




	 	 	 

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amounts paid in settlement actually and reasonably incurred in connection with any of the
following:




          (a) claims based on any and all liabilities or obligations of the Failed Bank assumed by the
Assuming Institution pursuant to this Agreement or subsequent to the execution hereof by the
Assuming Institution or any Subsidiary or Affiliate of the Assuming Institution, 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 Section 12.1(a)(vii) or (viii);




          (b) claims 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 Institution with respect to
Assets transferred to the Receiver pursuant to Section 3.4 or Section 3.6), other than any action
or inaction of any Indemnitee as provided in (vii) or (viii) of Section 12.1(a); and




          (c) claims based on any failure to preserve, maintain or provide reasonable access to Records
transferred to the Assuming Institution pursuant to Article VI.




     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 XII 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 by the Receiver, or the Corporation as guarantor in accordance with Section 12.7, and all
Primary Indemnitors 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
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 (a) the Person is successful on
the merits or otherwise in the defense against any such action, suit or proceeding, or (b) 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 Institution as set forth in this
Article XII. It is a condition to the Corporation’s obligation hereunder that the Assuming
Institution 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




	 	 	 

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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. Costs, Fees, and Expenses. All fees, costs and expenses incurred by a party in
connection with this Agreement (including the performance of any obligations or the exercise of any
rights hereunder) shall be borne by such party unless expressly otherwise provided; provided that
the Assuming Institution 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.



     13.2. WAIVER OF JURY TRIAL. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES,
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 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 AGREEMENT OR
ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.



     13.3. Consent; Determination or Discretion. When the consent or approval of a party
is required under this Agreement, such consent or approval shall be obtained in writing and unless
expressly otherwise provided, shall not be unreasonably withheld or delayed. When a determination
or decision is to be made by a party under this Agreement, that party shall make such determination
or decision in its reasonable discretion unless expressly otherwise provided.



     13.4. Rights Cumulative. Except as expressly otherwise 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.



     13.5. References. References in this Agreement to Recitals, Articles, Sections,
Schedules and Exhibits are to Recitals, Articles, Sections, Schedules and Exhibits of this
Agreement, respectively, unless the context indicates that a Shared-Loss Agreement is intended.
References to parties are to the parties to this Agreement. Unless expressly otherwise provided,
references to days and months are to calendar days and months respectively. Article and Section




	 	 	 

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headings are for convenient reference and shall not affect the meaning of this Agreement.
References to the singular shall include the plural, as the context may require, and vice versa.




     13.6. Notice.



          (a) Form of Notices. All notices shall be given in writing and provided in accordance
with the provisions of this Section 13.6, unless expressly otherwise provided.




          (b) Notice to the Receiver or the Corporation. With respect to a notice under this
Agreement:



Federal Deposit Insurance Corporation

7777 Baymeadows Way West

Jacksonville, Florida 32256

Attention: Settlement Agent



In addition, with respect to notices under Section 4.6, with a copy to:



Federal Deposit Insurance Corporation

7777 Baymeadows Way West

Jacksonville, Florida 32256

Attention: Resolutions and Closings Manager, ORE Department



In addition, with respect to notice under Article XII:



Federal Deposit Insurance Corporation

7777 Baymeadows Way West

Jacksonville, Florida 32256

Attention: Managing Counsel (Legal Division)



In addition, with respect to communications under Exhibit 4.13, a copy to:



Federal Deposit Insurance Corporation,

Receiver of Sunshine State Community Bank

7777 Baymeadows Way West

Jacksonville, Florida 32256




          (c) Notice to Assuming Institution. With respect to a notice under this Agreement:



Premier American Bank, National Association

5301 Blue Lagoon Drive, Suite 200

Miami, Florida 33126

Attention: Daniel M. Healy, Chief Executive Officer



with a copy to: Kent S. Ellert, President & COO





	 	 	 

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     13.7. Entire Agreement. This Agreement and the Shared-Loss Agreements, if any,
including the Schedules and Exhibits hereto and thereto, 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.



     13.8. 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.



     13.9. 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.



     13.10. 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. 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 Institution 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 for the benefit of no other Person.



     13.11. Modification. No amendment or other modification, rescission or release of any
part of this Agreement or a Shared-Loss Agreement, if any, shall be effective except pursuant to a
written agreement subscribed by the duly authorized representatives of the parties.



     13.12. 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.



     13.13. 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




	 	 	 

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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.




     13.14. 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.



     13.15. Term of Agreement. This Agreement shall continue in full force and effect
until the tenth (10th) anniversary of the Bank Closing Date; provided that the provisions of
Sections 6.3 and 6.4 shall survive the expiration of the term of this Agreement; and provided
further that the receivership of the Failed Bank may be terminated prior to the expiration of the
term of this Agreement, and 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 of
this Agreement. Expiration of the term of this Agreement shall not affect any claim or liability
of any party with respect to any (a) amount which is owing at the time of such expiration,
regardless of when such amount becomes payable, and (b) breach of this Agreement occurring prior to
such expiration, regardless of when such breach is discovered.



     13.16. 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]




	 	 	 

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



	 	 	 	 	 
	 	FEDERAL DEPOSIT INSURANCE CORPORATION, RECEIVER OF SUNSHINE STATE
COMMUNITY 
BANK, PORT ORANGE, FLORIDA

 	 
	 	By:  	/s/ M. Barry Gilman
 	 
	 	 	Name:  	M. Barry Gilman 	 
	 	 	Title:  	Receiver-in-Charge 	 
	 



	 	 	 

	Attest:
	 	 
	 
	 	 
	/s/ Cantrell Dumas
 


	 	 






	 	 	 	 	 
	 	FEDERAL DEPOSIT INSURANCE CORPORATION

 	 
	 	By:  	/s/ M. Barry Gilman
 	 
	 	 	Name:  	M. Barry Gilman 	 
	 	 	Title:  	Attorney-in-Fact 	 
	 



	 	 	 

	Attest:
	 	 
	 
	 	 
	/s/ Cantrell Dumas
 


	 	 






	 	 	 	 	 
	 	PREMIER AMERICAN BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Kent S. Ellert
 	 
	 	 	Name:  	Kent S. Ellert 	 
	 	 	Title:  	President & COO 	 
	 



	 	 	 

	Attest:
	 	 
	 
	 	 
	/s/ Stuart I. Oran
 


	 	 







					
	 	 	 	 	 
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SCHEDULE 2.1(a)




EXCLUDED DEPOSIT LIABILITY ACCOUNTS



- NONE —




					
	 	 	 	 	 
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SCHEDULE 3.2


PURCHASE PRICE OF ASSETS OR ANY OTHER ASSETS




	 	 	 

	(a) cash 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 and FHLB stock), 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) credit card business:

	 	Book Value
	 
	 	 
	(f) Safe Deposit Boxes and related business, safekeeping business and trust business, if any:

	 	Book Value
	 
	 	 
	(g) Records and other documents:

	 	Book Value
	 
	 	 
	(h) Other Real Estate:

	 	Book Value
	 
	 	 
	(i) boats, motor vehicles, aircraft, trailers, fire arms, and repossessed collateral:

	 	Book Value
	 
	 	 
	(j) capital stock of any Acquired Subsidiaries (subject to Section 3.2(b)), and FHLB stock:

	 	Book Value
	 
	 	 
	(k) amounts owed to the Failed Bank by any Acquired Subsidiaries:

	 	Book Value
	 
	 	 
	(l) assets securing Deposits of public money, to the extent not otherwise purchased hereunder:

	 	Book Value
	 
	 	 
	(m) overdraft of customers:

	 	Book Value






					
	 	 	 	 	 
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	(n) rights, if any, with respect to Qualified Financial Contracts:

	 	As provided in Section 3.2(c)
	 
	 	 
	(o) rights of the Failed Bank to have mortgage servicing provided to the Failed Bank by others and related contracts:

	 	Book Value
	 
	 	 
	(q) Personal Computers and Owned Data Management Equipment:

	 	Fair Market Value
	 
	 	 
	Assets subject to an option to purchase:
	 	 
	 
	 	 
	(a) Bank Premises:

	 	Fair Market Value
	 
	 	 
	(b) Furniture and Equipment:

	 	Fair Market Value
	 
	 	 
	(c) Fixtures:

	 	Fair Market Value
	 
	 	 
	(d) Other Equipment:

	 	Fair Market Value






					
	 	 	 	 	 
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SCHEDULE 3.5(l) 




EXCLUDED SECURITIES



- NONE -




					
	 	 	 	 	 
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SCHEDULE 6.3




DATA RETENTION CATALOG



FDIC_Acquirer_Data_Retention_Catalog_v2 0







FDIC Data Management Services (DMS)




Acquirer Data Retention Catalog


Version 2.0



Failed Institution




     Name



     Data Center Address


Assuming Institution




     Name



     Address


DRC Preparation Date



DRC Preparer’s Contact




     Name



     Designation



     Phone



     Email


Alternate Contact for Subsequent Data Requests (if different from above)




     Name



     Phone



     Email



Instructions




	1.	 	Provide preparer’s contact information and Bank information on the “Cover Page” tab.
	 
	2.	 	Provide point of contact and desired procedure for data requests on the “Data Request Procedure” Tab.
	 
	3.	 	Provide the requested application retention details on “Data Retention” tab of this workbook.






	 	a.	 	Update provided application list with any additional systems that were not included.
	 
	 	b.	 	Select the most appropriate value from the drop down list when the list is provided with applicable column.




If you need additional clarification while recording the information, please call Kevin Sheehan (FDIC) at
703-562-2012 or Leslie Bowie (FDIC) at 703-562-6262. Send the final copy of this document to Leslie Daley
LDaley@FDIC.gov.





	 	 	 

	FDIC Confidential

	 	 5/25/2010















					
	 	 	 	 	 
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	Application Classification	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 		 	 		 	 	 	 	 	 	Time Duration for	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Data exists in the	 	 	Explain if partial	 	 		 	 	Application is in	 	 	Time Duration for	 	 	Time Duration for	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	Core Banking	 	 	data exists in Core	 	 	Hosting	 	 	Operation	 	 	Online Data	 	 	Offline Data	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Application Name	 	Sub-Category	 	 	Business Usage	 	 	Vendor	 	 	application?	 	 	Banking application	 	 	Platform	 	 	From	 	 	To	 	 	From	 	 	To	 	 	From	 	 	To	 	 	Office Data Details	 	 	Acquirer Plan	 	 	Migration Details	 	 	Documentation Schedules	 	 	Comments	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Provide the	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Select the most	 	 	details of data	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Describe the	 	 	 	 	 	 	Indicate whether	 	 	Provide an	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	appropriate	 	 	being migrated	 	 	Provide	 	 	 	 	 	 	 
	 	 	Select the most	 	 	business users	 	 	 	 	 	 	the application	 	 	explanation if	 	 	 	 	 	 	Provide the time	 	 	Provide the time	 	 	Provide the time	 	 	Select the	 	 	option that	 	 	to the target	 	 	details of the	 	 	 	 	 	 	 
	 	 	appropriate	 	 	and key	 	 	Provide	 	 	data also exists	 	 	partial data exist	 	 	Select the	 	 	duration (Month	 	 	duration (Month	 	 	duration (Month	 	 	appropriate	 	 	defines the	 	 	system (type of	 	 	data not being	 	 	Select the appropriate	 	 	Provide any additional	 
	Provide the	 	category	 	 	processes	 	 	the name	 	 	in the core	 	 	in the core	 	 	deployment	 	 	& Year) for which	 	 	& Year) for which	 	 	& Year) for which	 	 	mechanism	 	 	acquirer plan	 	 	data, volume	 	 	migrated to	 	 	timeline if application	 	 	comments related to the	 
	name of the	 	represented by	 	 	supported by	 	 	of the	 	 	banking	 	 	banking	 	 	model of the	 	 	the application is	 	 	data is available	 	 	data is available	 	 	representing the	 	 	for the	 	 	and date	 	 	the target	 	 	decommissioning is	 	 	retention plans associated	 
	application.	 	the application.	 	 	the application.	 	 	vendor.	 	 	application.	 	 	application.	 	 	application.	 	 	in operation.	 	 	online.	 	 	offline.	 	 	offline data.	 	 	application.	 	 	range).	 	 	system.	 	 	planned in future.	 	 	with the application’s data.	 
	Core Banking Application	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Insert more rows as needed	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	¡Maintaining As-Is	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	o Loan Servicing	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	o Loan History	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	¡Migrating	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	o Deposit Accounts	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	   o Active Accounts	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	o Account Balances	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	   o Inactive Accounts	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	o Customer Information	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	   o Closed Accounts	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	o ACH Details	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	   o Transaction History	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	o Wire Transfer Details	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	   o Other (Provide Comments)	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	o General Ledger	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	o Accounts Payable	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	¡Not Maintaining	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	Other:	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	   o Tape Backups	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	   o Data With Servicer	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	   o Data Not Available	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	   o Data Deleted	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	   o Other (Provide Comments)	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applications Category: Loans	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Insert more rows as needed	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applications Category: Deposits	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Insert more rows as needed	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Applications Category: Financials	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Insert more rows as needed	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applications Category: HR	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Insert more rows as needed	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applications Category: Corporate	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Insert more rows as needed	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applications Category: Imaging	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Insert more rows as needed	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Applications Category; Email	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Insert more rows as needed	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Production	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Tape Backup Schedule:	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	<Provide details>	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Retention Policy:	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	<Provide details>	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Deletion Policy:	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	<Provide details>	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applications Category: File Shares	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Insert more rows as needed	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	User Share	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Application	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Line of Business	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






					
	 	 	 	 	 
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and Assumption Agreement
December 8, 2010
	 	 	 	  Sunshine State Community Bank

Port Orange, Florida








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SCHEDULE 7




Accounts Excluded from Calculation of Deposit Franchise Bid Premium



Sunshine State Community Bank

Port Orange, FL


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




	 	 	 	 	 	 	 
	Category	 	Description	 	Amount	 
	I	 	Non- DO Brokered Deposits
	 	$	0	 
	II	 	CDARS
	 	$	0	 
	III	 	Market Place Deposits
	 	$	1,090,278	 
	 	 	 
	 	 	 
	 	 	Total deposits excluded from Calculation of premium
	 	$	1,090,278	 
	 	 	 
	 	 	 




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 Institution, 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 the Bank Closing Date.



DO Brokered Deposits (Cede & Co as Nominee for DTC), are typically excluded from Assumed Deposits
in the Purchase & Assumption Agreement transaction. A list of these accounts is provided on
“Schedule 2.1 DO Brokered Deposit Detail Report”. If, however, the terms of a particular
transaction are altered and the DO Brokered Deposits pass to the Assuming Bank, they will not be
included in Assumed Deposits for purposes of calculating the deposit premium.




II. CDARS



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



Sunshine State Community Bank 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





					
	 	 	 	 	 
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December 8, 2010
	 	 	 	  Sunshine State Community Bank

Port Orange, Florida






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the
Bank Closing Date, they will be identified post closing and made part of Schedule 7 to the Purchase
& Assumption Agreement.




III. Market Place Deposits



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



This schedule provides a snapshot of account categories and balances as of November 30, 2010, which
is the date of the deposit download. 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.










					
	 	 	 	 	 
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December 8, 2010
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Port Orange, Florida







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EXHIBIT 2.3A




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).







					
	 	 	 	 	 
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Port Orange, Florida






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	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.C. § 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. After 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]














					
	 	 	 	 	 
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December 8, 2010
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Port Orange, Florida






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EXHIBIT 2.3B




AFFIDAVIT OF MAILING


AFFIDAVIT OF MAILING



State of



COUNTY OF



I am employed as a [Title 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
	 	 







					
	 	 	 	 	 
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December 8, 2010
	 	 	 	  Sunshine State Community Bank

Port Orange, Florida






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EXHIBIT 3.2(c)




VALUATION OF CERTAIN

QUALIFIED FINANCIAL CONTRACTS




	A.	 	Scope
	 
	 	 	Interest Rate Contracts — All interest rate swaps, forward rate agreements, interest rate
futures, caps, collars and floors, whether purchased or written.
	 
	 	 	Option Contracts — All put and call option contracts, whether purchased or written, on
marketable securities, financial futures, foreign currencies, foreign exchange or foreign
exchange futures contracts.
	 
	 	 	Foreign Exchange Contracts — All contracts for future purchase or sale of foreign
currencies, foreign currency or cross currency swap contracts, or foreign exchange futures
contracts.
	 
	B.	 	Exclusions
	 
	 	 	All financial contracts used to hedge assets and liabilities that are acquired by the
Assuming Institution but are not subject to adjustment from Book Value.
	 
	C.	 	Adjustment
	 
	 	 	The difference between the Book Value and market value as of the Bank Closing Date.
	 
	D.	 	Methodology






	 	1.	 	The price at which the Assuming Institution sells or disposes of Qualified
Financial Contracts will be deemed to be the fair market value of such contracts, if
such sale or disposition occurs at prevailing market rates within a predefined
timetable as agreed upon by the Assuming Institution and the Receiver.
	 
	 	2.	 	In valuing all other Qualified Financial Contracts, the following principles
will apply:






	 	(i)	 	All known cash flows under swaps or forward exchange contracts
shall be present valued to the swap zero coupon interest rate curve.
	 
	 	(ii)	 	All valuations shall employ prices and interest rates based on
the actual frequency of rate reset or payment.
	 
	 	(iii)	 	Each tranche of amortizing contracts shall be separately
valued. The total value of such amortizing contract shall be the sum of the
values of its component tranches.






					
	 	 	 	 	 
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December 8, 2010
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Port Orange, Florida






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	 	(iv)	 	For regularly traded contracts, valuations shall be at the
midpoint of the bid and ask prices quoted by customary sources (e.g., The Wall
Street Journal, Telerate, Reuters or other similar source) or regularly traded
exchanges.
	 
	 	(v)	 	For all other Qualified Financial Contracts where published
market quotes are unavailable, the adjusted price shall be the average of the
bid and ask price quotes from three (3) securities dealers acceptable to the
Receiver and Assuming Institution as of the Bank Closing Date. If quotes from
securities dealers cannot be obtained, an appraiser acceptable to the Receiver
and the Assuming Institution will perform a valuation based on modeling,
correlation analysis, interpolation or other techniques, as appropriate.







					
	 	 	 	 	 
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December 8, 2010
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Port Orange, Florida






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EXHIBIT 4.13




INTERIM ASSET SERVICING ARRANGEMENT



     This Interim Asset Servicing Arrangement is made pursuant to and as of the date of that
certain Purchase and Assumption Agreement (the “Purchase and Assumption Agreement”) among the
Receiver, the Assuming Institution and the Corporation, to which this Arrangement is attached.
Capitalized terms used and not otherwise defined in this Exhibit 4.13 shall have the meanings
assigned to such terms in the Agreement.



     (a) With respect to each asset or liability designated from time to time by the Receiver to be
serviced by the Assuming Institution pursuant to this Interim Asset Servicing Arrangement (the
“Arrangement”), including any assets or liabilities sold or conveyed by the Receiver to any party
other than the Assuming Institution (any such party, a “Successor Owner”) but with respect to which
the Receiver has an obligation to service or provide servicing support (such assets and
liabilities, the “Pool Assets”), during the term of this Arrangement the Assuming Institution
shall, with respect to the Pool Assets:



          (i) promptly post and apply payments received to the applicable system of record;




          (ii) reverse and return insufficient funds checks;




          (iii) pay (A) participation payments to participants in Loans, as and when received; (B) tax
and insurance bills, as they come due, out of any escrow funds maintained for such purposes; and
(C) unfunded commitments and protective advances out of any escrow funds created for such purposes;




          (iv) process funding draws under Loans and protective advances in connection with collateral
and acquired property, in each case, as and to the extent authorized and funded by the Receiver;




          (v) maintain in use all data processing equipment and systems and other systems of record on
which any activity with respect to any Pool Assets are, or prior to the Bank Closing Date, were,
recorded, and maintain all historical data on any such systems as of the Bank Closing Date and not,
without the express consent of the Receiver (which consent must be sought at least sixty (60) days
prior to taking any action), deconvert, remove, transfer or otherwise discontinue use of any of the
Failed Bank’s systems of record with respect to any Pool Asset;




          (vi) maintain accurate records reflecting (A) payments received by the Assuming Institution,
(B) information received by the Assuming Institution concerning changes in the address or identity
of any Obligor and (C) other servicing actions taken by the Assuming Institution, including checks
returned for insufficient funds;





					
	 	 	 	 	 
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December 8, 2010
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Port Orange, Florida






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          (vii) send (A) billing statements to Obligors on Pool Assets (to the extent that such
statements were sent by the Failed Bank or as are requested by the Receiver) and (B)
notices to Obligors who are in default on Loans (in the same manner as the Failed Bank or as
are requested by the Receiver);




          (viii) employ a sufficient number of qualified employees to provide the services required to
be provided by the Assuming Institution pursuant to this Arrangement (with the number and
qualifications of such employees to be not less than the number and qualifications of employees
employed by the Failed Bank to perform such functions as of the Bank Closing Date);




          (ix) hold in trust any Credit Files and any servicing files in the possession or on the
premises of the Assuming Institution for the Receiver or the Successor Owner (as applicable) and
segregate from the other books and records of the Assuming Institution and appropriately mark such
Credit Files and servicing files to clearly reflect the ownership interest of the Receiver or the
successor owner (as applicable);




          (x) send to the Receiver (indicating closed bank name and number), Attn: Interim Servicing
Manager, at the email address provided in Section 13.6 of the Purchase and Assumption Agreement, or
to such other person at such address as the Receiver may designate, via overnight delivery: (A) on
a weekly basis, weekly reports, including, without limitation, reports reflecting collections and
trial balances, and (B) any other reports, copies or information as may be requested from time to
time by the Receiver, including, if requested, copies of (1) checks or other remittances received,
(2) insufficient funds checks returned, (3) checks or other remittances for payment to participants
or for taxes, insurance, funding advances and protective advances, (4) pay-off requests, and (5)
notices to defaulted Obligors;




          (xi) remit on a weekly basis to the Receiver (indicating closed bank name and number), Attn:
DRR Cashier Unit, Business Operations Support Branch, in the same manner as provided in paragraph
(a)(x), via wire transfer to the account designated by the Receiver, or to such other person at
such other address and/or account as the Receiver may designate, all payments received;




          (xii) prepare and timely file all information reports with appropriate tax authorities, and,
if requested by the Receiver, prepare and file tax returns and remit taxes due on or before the due
date;




          (xiii) provide and furnish such other services, operations or functions, including, without
limitation, with regard to any business, enterprise or agreement which is a Pool Asset, as may be
requested by the Receiver;




          (xiv) establish a custodial account for the Receiver and for each successor owner at the
Assuming Institution, each of which shall be interest bearing, titled in the name of Assuming
Institution, in trust for the Receiver or the successor owner (as applicable), in each case as the
owner, and segregate and hold all funds collected and received with respect to the Pool Assets
separate and apart from any of the Assuming Institution’s own funds and general assets; and




					
	 	 	 	 	 
	Module 1 — Whole Bank w/ Optional Shared Loss Agreements
Version 3.0 — Purchase and Assumption Agreement

December 8, 2010
	 	 	 	  Sunshine State Community Bank

Port Orange, Florida







62









 








          (xv) no later than the end of the second Business Day following receipt thereof, deposit into
the applicable custodial account and retain therein all funds collected and received with respect
to the Pool Assets.



Notwithstanding anything to the contrary in this Exhibit, the Assuming Institution shall not be
required to initiate litigation or other collection proceedings against any Obligor or any
collateral with respect to any defaulted Loan. The Assuming Institution shall promptly notify the
Receiver, at the address referred to above in paragraph (a)(x), of any claims or legal actions
regarding any Pool Asset.




     (b) In consideration for the provision of the services provided pursuant to this Arrangement,
the Receiver agrees to reimburse the Assuming Institution for actual, reasonable and necessary
expenses incurred in connection with the performance of its duties pursuant to this Arrangement,
including expenses of photocopying, postage and express mail, data processing and amounts paid for
employee services (based upon the number of hours spent performing servicing duties).



     (c) The Assuming Institution shall provide the services described herein for a term of up to
three hundred sixty-five (365) days after the Bank Closing Date. The Receiver may terminate the
Arrangement at any time upon not less than sixty (60) days notice to the Assuming Institution
without any liability or cost to the Receiver other than the fees and expenses due to the Assuming
Institution as of the termination date pursuant to paragraph (b) above.



     (d) At any time during the term of this Arrangement, the Receiver may, upon not less than
thirty (30) days prior written notice to the Assuming Institution, remove one or more Pool Assets,
and at the time of such removal the Assuming Institution’s responsibility with respect thereto
shall terminate.



     (e) At the expiration of this Arrangement or upon the termination of the Assuming
Institution’s responsibility with respect to any Pool Asset pursuant to paragraph (d) hereof, the
Assuming Institution shall:




     (i) deliver to the Receiver (or its designee) all of the Credit Documents and records
relating to the Pool Assets; and




     (ii) cooperate with the Receiver to facilitate the orderly transition of managing the
Pool Assets to the Receiver or its designees (including, without limitation, its contractors
and persons to which any Pool Assets are conveyed).



     (f) At the request of the Receiver, the Assuming Institution shall perform such transitional
services with regard to the Pool Assets as the Receiver may request. Transitional services may
include, without limitation, assisting in any due diligence process deemed necessary by the
Receiver and providing to the Receiver and its designees (including, without limitation, its
contractors and any actual or potential successor owners) (i) information and data regarding the
Pool Assets, including, without limitation, system reports and data downloads sufficient to
transfer the Pool Assets to another system or systems and to facilitate due diligence




					
	 	 	 	 	 
	Module 1 — Whole Bank w/ Optional Shared Loss Agreements
Version 3.0 — Purchase and Assumption Agreement

December 8, 2010
	 	 	 	  Sunshine State Community Bank

Port Orange, Florida






63









 





by actual and potential successor owners, and (ii) access to employees of the Assuming Institution involved in the management of, or otherwise familiar with, the Pool Assets.



     (g) Until such time as the Arrangement expires or is terminated, without limitation of its
obligations set forth above or in the Purchase and Assumption Agreement and without any additional
consideration (other than that set forth in paragraph (b) above), the Assuming
Institution shall provide the Receiver and its designees (including, without limitation, its
contractors and actual and potential successor owners) with the following, as the same may be
requested:




     (i) access to and the ability to obtain assistance and information from personnel of
the Assuming Institution, including former personnel of the Failed Bank and personnel of
third party consultants;




     (ii) access to and the ability to use and download information from data processing
systems and other systems of record on which information regarding Pool Assets or any assets
transferred to or liabilities assumed by the Assuming Institution is stored or maintained
(regardless of whether information with respect to other assets or liabilities is also
stored or maintained thereon); and




     (iii) access to and the ability to use and occupy office space (including parking
facilities and vault space), facilities, utilities (including local telephone service and
facsimile machines), furniture, equipment (including photocopying and facsimile machines),
and technology and connectivity (including email accounts, network access and technology
resources such as shared drives) in the Bank Premises occupied by the Assuming Institution.





					
	 	 	 	 	 
	Module 1 — Whole Bank w/ Optional Shared Loss Agreements
Version 3.0 — Purchase and Assumption Agreement

December 8, 2010
	 	 	 	  Sunshine State Community Bank

Port Orange, Florida






64