Exhibit 10.1


 





 


 


 


 


 


TERMINATION AGREEMENT


AMONG


 


FEDERAL DEPOSIT INSURANCE CORPORATION,


RECEIVER OF COOPERATIVE BANK


WILMINGTON, NORTH CAROLINA


 


 


FEDERAL DEPOSIT INSURANCE CORPORATION,


RECEIVER OF THE BANK OF ASHEVILLE


ASHEVILLE, NORTH CAROLINA


 


 


FEDERAL DEPOSIT INSURANCE CORPORATION


 


and


 


FIRST BANK


SOUTHERN PINES, NORTH CAROLINA


 


 


DATED
AS OF SEPTEMBER 22, 2016




    

     

    


TERMINATION AGREEMENT


 


 


THIS TERMINATION AGREEMENT (the
“Agreement”), is made and entered into as of the 22nd day of September, 2016, by and among the FEDERAL DEPOSIT
INSURANCE CORPORATION, as RECEIVER OF COOPERATIVE BANK, WILMINGTON, NORTH CAROLINA, and as RECEIVER OF THE BANK
OF ASHEVILLE, ASHEVILLE, NORTH CAROLINA (collectively the “Receiver”), FIRST BANK, organized under the
laws of the State of North Carolina and having its principal place of business in Southern Pines, North Carolina (the “Assuming
Institution”), and the FEDERAL DEPOSIT INSURANCE CORPORATION, organized under the laws of the United States of America
and having its principal office in Washington, D.C., acting in its corporate capacity (the “Corporation”). The Receiver,
the Corporation and the Assuming Institution may each be referred to herein as a “Party” or collectively as the “Parties”.


 


RECITALS


 


A.          The
foregoing Purchase and Assumption Agreements (collectively the “P&A Agreements” and each, respectively, the “P&A
Agreement”) were entered into as follows:


 


		1.	The Receiver, the Assuming Institution and the Corporation entered into a P&A Agreement dated
as of June 19, 2009 with respect to certain assets and liabilities of Cooperative Bank (a “Failed Bank”);



 


		2.	The Receiver, the Assuming Institution and the Corporation entered into a P&A Agreement
dated as of January 21, 2011, as well as an Amendment to the P&A Agreement dated as of January 21, 2011 with respect to certain
assets and liabilities of The Bank of Asheville (a “Failed Bank”); and



 


B.          The
Receiver, the Assuming Institution and the Corporation desire to terminate the Single Family Shared-Loss Agreements, Exhibit 4.15A
of the P&A Agreements (the “SFSLAs”), the Commercial Shared-Loss Agreements, Exhibit 4.15 B of the P&A Agreements
(the “CSLAs”) (the SFSLAs and the CSLAs collectively, the “Shared-Loss Agreements”).


 


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


 


ARTICLE I 

CLOSING


 


Except as noted below in
Section 2.1 and subject to the satisfaction, or waiver in writing of the conditions precedent set forth in Article III, the transactions
contemplated by this Agreement shall be consummated at a closing (the "Closing") to be held in person or by electronic
means, as the Receiver shall direct, on September 22, 2016, or such earlier or later date, or in such other manner, as the parties
hereto may agree in writing (the "Closing Date").




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ARTICLE II

 PAYMENTS
AND TERMINATION


 


2.1          Payment
of Termination Amount. Within two Business Days after the Closing Date, subject to the satisfaction or waiver in writing
of the conditions precedent set forth herein, the Assuming Institution shall pay or cause to be paid to the Receiver by wire transfer
in immediately available funds, Two Million, Twelve Thousand, Fifty Six Dollars ($2,012,056) (the "Termination Amount").
The Assuming Institution and the Receiver hereby acknowledge that the amount of shared-loss claims filed by the Assuming Institution
but not yet paid by the Receiver were accounted for in the calculation of the Termination Amount.


 


2.2          Termination
of the Shared-Loss Agreements. Upon the occurrence of the Closing and subsequent payment of the Termination Amount all
rights and obligations of the parties to make and receive payments pursuant to the Shared-Loss Agreements and all rights and obligations
of the parties thereto, shall terminate effective as of the Closing Date.


 


2.3          Legal
Action; Utilization of Special Receivership Powers. As of the Closing Date, the Assuming Institution’s right, under
Article III of each of the Shared-Loss Agreements, to request to utilize any special legal power or right which the Assuming Institution
derived as a result of having acquired an asset from the Receiver shall terminate; provided, however, any prior requests to utilize
such special powers or rights that were granted by the Receiver shall not be affected hereby, and the Assuming Institution may
continue to use such special legal rights or powers in the litigation in which the permission to use those special legal powers
or rights was given. Notwithstanding the foregoing, the Assuming Institution shall continue to have all rights and remedies available
to it under applicable state and federal laws, which shall not be limited or altered by this Agreement.


 


 


ARTICLE III

 CONDITIONS
PRECEDENT


 


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


 


 


ARTICLE IV

 MISCELLANEOUS


 


4.1          No
Third Party Beneficiary. Nothing expressed or referred to in this Agreement is intended or shall be construed to give any
Person other than the Receiver, the Corporation and the Assuming Institution (and their respective successors and assigns) any
legal or equitable right, remedy or claim under or with respect to this Agreement or any provisions contained




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herein, it being the intention
of the parties hereto that this Agreement, the obligations and statements of responsibilities hereunder, and all other conditions
and provisions hereof are for the sole and exclusive benefit of the Receiver, the Corporation and the Assuming Institution and
that there be no other third party beneficiaries.


 


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


 


4.3          Entire
Agreement. This Agreement embodies the entire agreement of the parties hereto in relation to the subject matter herein
and supersedes all prior understandings or agreements, oral or written, between the parties.


 


4.4          Counterparts.


 


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


 


(b)          Each
counterpart of this Agreement will be treated in all manner and respects as an original agreement and will be considered to have
the same binding legal effect as if it were the original signed version thereof delivered in person. No signatory to this Agreement
may raise the use of a facsimile machine or other electronic means to deliver an executed document or the fact that any signature
or agreement was transmitted or communicated through the use of a facsimile machine or other electronic means as a defense to the
formation or enforceability of a contract and each party hereto forever waives any such defense.


 


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


 


4.6          Successors.
All terms and conditions of this Agreement shall be binding on the successors and assigns of the Receiver, the Corporation
and the Assuming Institution.


 


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




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


 


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


 


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


 


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


 


4.12          Capitalized
Terms. Capitalized terms not otherwise defined herein shall have the meanings given such terms in the P&A Agreements
or the Shared-Loss Agreements, as applicable.


 


[Signature Page Follows]



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IN WITNESS WHEREOF,
the parties have caused this Agreement to be duly executed by themselves or their respective officers, as the case may be, as of
the day and year first above written.


 





	 	 	
        FEDERAL DEPOSIT INSURANCE CORPORATION, 

RECEIVER OF COOPERATIVE
        BANK

         

	 	 	 	 
	 	 	BY:  	/s/ Robert N. Stoner
	 	 	NAME:	Robert N. Stoner
	 	 	TITLE:  	Manager, Strategic Programs
	 	 	 	 
	
        Attest:

        
	 	 	 
	 	 	 	 
	/s/ Andy C. Hoang	 	 	 
	 	 	 	 
	 	 	
        FEDERAL DEPOSIT INSURANCE CORPORATION, 

RECEIVER OF THE
        BANK OF ASHEVILLE

         

	 	 	 	 
	 	 	BY:  	/s/ Robert N. Stoner
	 	 	NAME:	Robert N. Stoner
	 	 	TITLE:  	Manager, Strategic Programs
	 	 	 	 
	
        Attest:

        
	 	 	 
	 	 	 	 
	/s/ Andy C. Hoang	 	 	 
	 	 	FEDERAL DEPOSIT INSURANCE CORPORATION
	 	 	 	 
	 	 	BY:  	/s/ Robert N. Stoner
	 	 	NAME:	Robert N. Stoner
	 	 	TITLE:  	Manager, Strategic Programs
	 	 	 	 
	
        Attest:

        
	 	 	 
	 	 	 	 
	/s/ Andy C. Hoang	 	 	 
	 	 	 	 
	 	 	
        FIRST BANK

         

	 	 	 	 
	 	 	BY:  	/s/ Eric P. Credle
	 	 	NAME:	Eric P. Credle
	 	 	TITLE:  	Chief Financial Officer
	 	 	 	 
	
        Attest:

        
	 	 	 
	 	 	 	 
	/s/ Gerald M. Kinlaw	 	 	 
	 	 	 	 
	 	 	 	 
	 	 	 	 


 






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