PURCHASE AND ASSUMPTION AGREEMENT 


WHOLE BANK 


ALL DEPOSITS 


AMONG 


FEDERAL DEPOSIT INSURANCE CORPORATION, 


RECEIVER OF FIRST COMMERCIAL BANK 


BLOOMINGTON, MINNESOTA 


FEDERAL DEPOSIT INSURANCE CORPORATION 


and 


REPUBLIC BANK & TRUST COMPANY 


DATEDASOF 


SEPTEMBER 7, 2012 


Whole Bank w/ Optional Shared Loss Agreements First Commercial Bank 

Version 4.3- PURCHASE AND ASSUMPTION AGREEMENT Bloomington, MN 

July 31,2012 
PURCHASE AND ASSUMPTION AGREEMENT 


TABLE OF CONTENTS 


ARTICLE I. GENERAL ................................................ ! 


1.1 	 Purpose ..................................................................... 1 


1.2 	 Shared-Loss Agreements .......................................... 1 


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 ................................................ 11 


2.4 	 Employee Plans ...................................................... 12 


ARTICLE III. PURCHASE OF ASSETS ......................12 


3.1 	 Assets Purchased by the Assuming Institution ....... 12 


3.2 	 Asset Purchase Price ............................................... 12 


3.3 	 Manner of Conveyance; Limited Warranty; 


Nonrecourse; Etc .................................................... 14 


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 .................................................................. 18 


3.7 	 Receiver's Offer to Sell Withheld Loans ................ 19 


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 ............................................. 20 


4.4 	 Safekeeping Business ............................................. 20 


4.5 	 Trust Business ......................................................... 20 


4.6 	 Bank Premises ........................................................ 21 


4.7 	 Agreement with Respect to Leased Data 


Management Equipment ......................................... 25 


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 


Pay1nents ................................................................. 27 


4.12 	 Continuation of Group Health Plan Coverage for 


Former Employees of the Failed Bank ................... 28 


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 


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Version 4.3- PURCHASE AND ASSUMPTION AGREEMENT 


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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; SETTLEMENT 


PROCESS............................................................................ 32 


8.1 	 Pro Forma Statement.. ............................................ 32 


8.2 	 Correction of Errors and Omissions; Other 


Liabilities................................................................ 3 2 


8.3 	 Payments ................................................................ 32 


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. 35 


11.1 Corporate Existence and Authority ........................ 35 


11.2 Third Party Consent ............................................... 35 


11.3 Execution and Enforceability ................................. 36 


11.4 Compliance with Law ............................................ 36 


11.5 Insured or Guaranteed Loans ................................. 36 


11.6 Representations Remain True ................................ 36 


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 ......................................... 40 


12.4 Indemnification of Receiver and Corporation ........ 40 


12.5 Obligations Supplemental ...................................... 41 


12.6 Criminal Claims ..................................................... 41 


12.7 Limited Guaranty of the Corporation ..................... 41 


12.8 Subrogation ............................................................ 42 


ARTICLE XIII. MISCELLANEOUS............................... 42 


13.1 Expenses................................................................. 42 


13.2 Waiver of Jury Trial ............................................... 42 


First Commercial Bank 

Bloomington, MN 
13.3 Consent; Determination or Discretion ................... .42 I3 .1 0 Successors .............................................................. 44 


13.4 Rights Cumulative ................................................. .42 13.11 Modification ........................................................... 44 


I3.5 References .............................................................. 42 13.12 Manner of Payment ................................................ 44 


I3.6 Notice...................................................................... 43 13.13 Waiver .................................................................... 44 


I3.7 Entire Agreement .................................................... 43 13.14 Severability ............................................................ 44 


I3.8 Counterparts............................................................ 43 I3.15 Term of Agreement ................................................ 44 


I3.9 Governing Law ...................................................... .44 I3.16 Survival of Covenants, Etc ..................................... 45 


SCHEDULES 

Page 


Excluded Deposit Liability Accounts ................................................................................................ Schedule 2.I(a) 47 


Purchase Price of Assets or any other assets .......................................................................................... Schedule 3.2 48 


Excluded Securities ............................................................................................................................ Schedule 3.5(1) 50 


Data Retention Catalog .......................................................................................................................... Schedule 6.3 53 


Accounts Excluded from Calculation of Deposit Franchise Bid Premium ............................................... Schedule 7 70 


EXHIBITS 

Page 


Final Legal Notice .................................................................................................................................. Exhibit 2.3A 7I 


Affidavit of Mailing······························································································································· Exhibit 2.3B 73 


Valuation of Certain Qualified Financial Contracts .............................................................................. Exhibit 3.2(c) 74 


Interim Asset Servicing Arrangement ..................................................................................................... Exhibit 4.I3 76 


Single Family Shared-Loss Agreement ................................................................................................ Exhibit 4.I5A I 


Commercial Shared-Loss Agreement·································································································· Exhibit 4.15B I 


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Version 4.3- PLRCHASE AND ASSUMPTION AGREEMENT Bloomington, MN 

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PURCHASE AND ASSUMPTION AGREEMENT 


WHOLE BANK 

ALL DEPOSITS 

THIS AGREEMENT, made and entered into as of the 7th day of September, 2012, by 

and among the FEDERAL DEPOSIT INSURANCE CORPORATION, RECEIVER of 

FIRST COMMERCIAL BANK, Bloomington, Minnesota (the "Receiver"), Republic Bank 

& Trust Company, organized under the laws of the State of Kentucky, and having its principal 

place of business in Louisville, Kentucky (the "Assuming Institution"), and the FEDERAL 

DEPOSIT INSURANCE CORPORATION, organized under the laws of the United States of 

America and having its principal office in Washington, D.C., acting in its corporate capacity (the 

"Corporation"). 

RECITALS 

A. On the Bank Closing Date, the Chartering Authority closed First Commercial 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: 

AGREEMENT 

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 

ce1tain 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 

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Version 4.3- PURCHASE AND ASSUMPTION AGREEMENT Bloomington, MN 

July 31,2012 
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 fmth 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 

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. 

"Bank Premises Surrender Date" means, with respect to each specific Bank Premises, 

the date selected by the Assuming Institution to surrender such Bank Premises to the Receiver, 

which date shall be no later than the first day after the Receiver is satisfied that all of the 

conditions for surrender of such Bank Premises set forth in this Agreement have been met; 

provided that, unless otherwise provided in this Agreement, such date shall not be more than 180 

days after the Bank Closing Date. 

"Bid Amount" has the meaning set forth in Article VII. 

"Bid Form" means Exhibit "A" to the bid instructions provided to the Assuming 

Institution. 

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Version 4.3- PURCHASE AND ASSUMPTION AGREEMENT Bloomington, MN 

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"Bid Valuation Date" means June 20,2012. 

"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, a Federal savings 

association or savings bank, the Office of the Comptroller of the Currency, (ii) 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, (iii) 

the Corporation in accordance with 12 U.S.C. § 1821(c)(4), with regard to self appointment, or 

(iv) 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. 

"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 

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Version 4.3- PURCHASE AND ASSUMPTION AGREEMENT Bloomington, MN 

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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(1), 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. 

"Equity Method of Accounting" means the carrying value of a bank's investment in a 

subsidiary is originally recorded at cost but is adjusted periodically to record as income the 

bank's proportionate share of the subsidiary's earnings or losses and decreased by the amount of 

cash dividends or similar distributions received from the subsidiary. Acquired Subsidiaries with 

negative equity will be restated to $1 pursuant to the Equity Method of Accounting. 

"ERISA" has the meaning set forth in Section 4.12. 

"Failed Bank" has the meaning set forth in Recital A. 

"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.P.R. § 323.2(g), and accordingly 

shall mean the most probable price which a property should bring in a competitive and open 

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Version 4.3- PURCHASE AND ASSUMPTION AGREEMENT Bloomington, MN 

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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 are 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 Receiver; any costs and 

fees associated with such determination shall be paid by the Receiver, 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 within seven (7) days after the Bank 

Closing Date, and with respect to Specialty Assets, shall be determined by an appraiser selected 

by the Receiver within seven (7) days after the Bank Closing Date; or 

(b) with respect to property other than Bank Premises and Specialty Assets purchased 

utilizing this valuation method, the price therefor as established by the Receiver, as determined 

in accordance with clause (a) above. 

"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 (including without limitation automated teller 

machines that are affixed to a Bank Premises and may be not removed without causing structural 

damage to such 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, Specialty Assets 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 (to the extent they are not Fixtures), 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. 

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Version 4.3- PURCHASE AND ASSUMPTION AGREEMENT Bloomington, MN 

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"GSE" means a government sponsored enterprise. 

"Indemnitees" means, except as provided in Section 12.l(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 (including any Bank Premises purchased via the Bid Form) 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 (including any Bank Premises purchased via the Bid Form). 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 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. 

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Version 4.3- PURCHASE AND ASSUMPTION AGREEMENT Bloomington, MN 

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"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 perfmmance 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. 

"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 estates, leasehold rights, condominium and 

cooperative interests, easements, air rights, water rights, and development rights that are owned 

by the Failed Bank. 

"Owned Data Management Equipment" means any equipment, computer hardware, 

computer software, 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. 

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"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. 

"Proprietary Software" means computer software developed for and owned by the 

Failed Bank for its own purpose and use. 

"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. 

"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 Failed Bank 

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. 

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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. For New Loans, Deposit Secured Loans and overdrafts put back to the Receiver 

under Section 3.4, the Repurchase Price shall not take into account the pro rata Asset discount or 

premium. 

"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. 

"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. 

"Specialty Assets" means assets that have a greater value than more traditional furniture 

and equipment 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 fine art and 

high end decorative art; classic and antique motor vehicles; rare books; rare coins; airplanes; 

boats; jewelry; collectible firearms; Indian or other cultural artifacts; sculptures; Proprietary 

Software; and any other items that typically cannot be appraised by a Furniture and Equipment 

appraiser. Specialty Assets does not include any repossessed collateral. 

"Subsequently Occupied Space" has the meaning set forth in Section 4.6(f). 

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"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. Liabi1ities 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 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; 

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(g) liabilities for any acceptance or commercial letter of credit provided, that 

the assumption of any liability pursuant to this Section 2.l(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.P.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; 

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

(m) liabilities, if any, under any contract pursuant to which loan servicing is 

provided to the Failed Bank by others; 

(n) any deferred revenue, income or fees recorded on the general ledger of 

the Failed Bank as of the Bank Closing Date attributable to any business assumed pursuant to 

Section 4.2, 4.3, 4.4, or 4.5 of this Agreement, excluding any deferred income or revenue 

relative to FASB 91 -Loan Fees and Costs associated with originating or acquiring Loans and 

initial direct costs of leases; and 

(o) notwithstanding any other provlSlon of this Section 2.1, Assuming 

Institution does not assume any liability whatsoever with assets retained by Receiver pursuant 

to Section 3.5(m). 

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 

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 Lee:al 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 

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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 pe1taining 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 Schedules 3.5(1) and 

3.5(m) 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 Receiver in and to all of the assets (real, personal and mixed, wherever located and 

however acquired) including all subsidiaries, joint ventures, pa1tnerships 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. 

The purchase price for Acquired Subsidiaries shall be adjusted pursuant to Section 4.6(i)(iv), if 

applicable. 

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(b) Purchase Price for Securities. The purchase price for any security (other 

than the capital stock of any Acquired Subsidiary and Federal Horne Loan Bank stock) 

purchased under Section 3.1 by the Assuming Institution shall consist of the market price (as 

defined below) of the security as of the Bank Closing Date, multiplied by the bank's ownership 

interest in the security (see Calculation of Purchase Price below) and shall include accrued 

interest, where applicable, as noted below. 

(i) Definition of Market Price: The market price for any security shall 

be (i) the market price for that 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, by IDC/Financial Times (FT) Interactive Data; (ii) 

provided that if such market price is not available for such security, the Assuming 

Institution will submit a written purchase price bid for 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 purchase price bid; (iii) further provided that in 

the absence of an acceptable bid from the Assuming Institution, or in the event that a 

security is deemed essential to the Receiver as determined by the Receiver in its 

discretion (see Section 3.6 Retention or Repurchase of Assets Essential to the Receiver) 

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(1). 

(ii) Calculation of Purchase Price. The bank's ownership interest in a 

security will be quantified one of two ways: (i) number of shares or other units, as 

applicable (in the case of equity securities) or (ii) par value or notational amount, as 

applicable (in the case of non-equity securities). As a result, the purchase price (except 

where determined pursuant to clause (ii) of the preceding paragraph) shall be calculated 

one of two ways, depending on whether or not the security is an equity security: (i) the 

purchase price for an equity security shall be calculated by multiplying the number of 

shares or other units by the applicable market price per unit; and (ii) the purchase price 

for a non-equity security shall be an amount equal to the applicable market price 

(expressed as a decimal), multiplied by the par value for such security (based on the 

payment factor most recently widely available). The purchase price also shall include 

accrued interest as calculated below (see Calculation of Accrued Interest), except to the 

extent the parties may otherwise expressly agree, pursuant to clause (ii) of the preceding 

paragraph. If the factor used to determine the par value of any security for purposes of 

calculating the purchase price, is not for the period in which the Bank Closing Date 

occurs, then the purchase price for that security shall be subject to adjustment postclosing based on a "cancel and correct" procedure. Under this procedure, after such 

current factor becomes publicly available, the Receiver will recalculate the purchase price 

utilizing the current factor and related interest rate, and will notify the Assuming 

Institution of any difference and of the applicable amount due from one party to the other. 

Such amount will then be paid as part of the settlement process pursuant to Article VIII. 

(iii) Calculation of Accrued Interest for Securities: Accrued interest 

shall be calculated for a non-equity security by multiplying the interest rate (expressed as 

a decimal point) paid on the security as then most recently publicly available, by the most 

recent par value (or notational amount, as applicable) of that security, multiplied by the 

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number of days from and including the first interest day of the accrual period in which 

the Bank Closing Date occurs, through the Bank Closing Date. 

(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 Warrantv; 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, 

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 

dete1mination, whether voluntary or involuntary, has been made; and 

(ii) the Assuming Institution shall be entitled to require the Receiver to 

purchase, within forty (40) days from Bank Closing Date, 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 othe1wise with respect to such Loan; 

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(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 such collateral; or 

(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 reqmres 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 infmmation 

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. 

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(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 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, 

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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; 

(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, 

Proprietary Software, Furniture and Equipment located on leased or owned Bank Premises, and 

Specialty Assets 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.P.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(1); 

(m) assets listed on Schedule 3.5(m); 

(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; 

(o) except with respect to any Federal Home Loan Bank loans, any contract 

pursuant to which the Failed Bank provides loan servicing for others; 

(p) all assets that were fully charged-off by the Failed Bank prior to the Bid 

Valuation Date, other than those assets that were secured by collateral that is an Asset 

purchased by the Assuming Institution under this Agreement; 

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(q) any Loan that was secured by collateral that is an asset retained by the 

Receiver under this Agreement; and 

(r) all assets related to any plan of the Failed Bank described in Section 2.4 

or any plan of the type described in Section 2.4 under which the Failed Bank has any liability, 

obligation or responsibility unless the Assuming Institution assumes liability, obligations or 

responsibilities under such plan subsequent to the date of this Agreement. 

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 

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 

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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, any 

Loans initially withheld from sale to the Assuming Institution pursuant to Sections 3.5 or 3.6 of 

this Agreement. Loans sold under this section will, at the sole and absolute discretion of the 

Receiver, be treated as if initially sold under Section 3.1 of this Agreement, or sold pursuant to 

the standard loan sale agreement utilized by the Receiver for the sale of loan pools. If sold under 

Section 3.1 of this Agreement, the purchase price for such Loan shall be the Book Value as of 

the Bank Closing Date, adjusted (i) for any advances and interest on such Loan after the Bank 

Closing Date, (ii) by subtracting the total amount received by the Assuming Institution for such 

Loan after the Bank Closing Date, and (iii) by adding total disbursements of principal made by 

the Receiver and not otherwise included in the Book Value. The sale will be subject to all 

relevant terms of this Agreement except that the Loans purchased pursuant to this Section 3.7 

shall not be included in the calculation of the pro rata Asset discount or pro rata Asset premium 

utilized for the repurchase of other Assets. No Loan purchased pursuant to this Section 3.7 shall 

be a Shared-Loss Loan pursuant to the Shared-Loss Agreements unless (i) it is crosscollateralized with a Shared-Loss Loan purchased pursuant to this Agreement and (ii) it 

otherwise meets 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. Loans sold pursuant to the standard loan sale agreement shall be 

governed by and paid for in accordance with that document. 

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 

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lines of business. The obligations undertaken pursuant to this Section do not include loyalty, 

reward, affinity, or other similar programs related to the credit and debit card businesses. 

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. 

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) Assumine: 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 

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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 thirty (30) days commencing the 

day after the Bank Closing Date with respect to Bank Premises for which the Assuming 

Institution declined its option to purchase at a fixed price as shown on the Bid Form, and for a 

period of ninety (90) days commencing the day after the Bank Closing Date with respect to all 

other owned Bank Premises ninety (90) days commencing the day after the Bank Closing Date 

to purchase any or all owned Bank Premises, including all Fixtures and all Furniture and 

Equipment located on or at 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 Bank 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. 

(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, 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 such lease. To the extent the lease payments provided for in any assigned lease are 

minimal in relation to the current market rate, and the value of that difference is not otherwise 

reflected in the purchase of the associated Fixtures, the Assuming Institution shall pay the 

Receiver the Fair Market Value of the Receiver's interest in any such assigned 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 shall assume all leases assigned (or enter into new leases in 

lieu thereof) pursuant to this Section 4.6. 

(c) Facilitation. The Receiver shall 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) Notice of Surrender of Bank Premises. The Assuming Institution shall 

give the Receiver at least fifteen (15) days prior written notice of its intent to surrender to the 

Receiver any Bank Premises with respect to which the Assuming Institution has not exercised 

the options provided in Sections 4.6(a) and 4.6(b). Any such notice shall designate the intended 

Bank Premises Surrender Date and shall terminate the Assuming Institution's option with 

respect to such Bank Premises. 

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(e) Occupancy Costs. 

(i) The Assuming Institution shall pay to the Receiver, or to 

appropriate third parties at the direction of the Receiver, for the period from the Bank 

Closing Date to the Bank Premises Surrender Date, the following amounts: (A) for 

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 (B) for 

leased Bank Premises, all operating costs with respect thereto. The Assuming Institution 

shall comply with the terms of applicable leases on leased Bank Premises, 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 shall pay to the Receiver rent for all 

owned or leased Furniture and Equipment, all owned or leased Fixtures and all Specialty 

Assets located on or at the Bank Premises for the period from the Bank Closing Date to 

the Bank Premises Surrender Date. 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 property leased by the Failed Bank 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 pursuant to all leases and 

contracts with respect to such property. If the Assuming Institution purchases any owned 

Furniture and Equipment, owned Fixtures or Specialty Assets in accordance with 

Sections 4.6(f), 4.6(h) or 4.6(j), the amount of any rents paid by the Assuming Institution 

with respect thereto shall be applied as an offset against the purchase price thereof. 

(iii) Subject to Section 4.1, 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, or not to purchase one or more of the owned Bank Premises, within two 

Business Days of the Bank Closing Date, and the Receiver is satisfied that all of the 

conditions for surrender of such Bank Premises set forth in this Agreement have been met 

within fifteen (15) 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 imposed by this Section 4.6( e). 

(f) Certain Requirements as to Fixtures, Furniture and Equipment and Certain 

Specialty Assets. If the Assuming Institution purchases owned Bank Premises (including any 

Bank Premises purchased at the fixed price shown on the Bid Form) 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 either such 

option, but within twelve (12) months following the Bank Closing Date obtains the right to 

occupy all or any portion of such Bank Premises (the "Subsequently Occupied Space"), 

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, all Furniture and Equipment, and all Specialty 

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Assets with an appraised value (as determined in accordance with Section 4.60)) of less than 

$10,000 owned by the Failed Bank and located on or at the Subsequently Occupied Space as of 

the Bank Closing Date at Fair Market Value , (ii) accept an assignment or a sublease of the 

leases or negotiate new leases for all Fixtures and Furniture and Equipment leased by the Failed 

Bank and located on or at the Subsequently Occupied Space, 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 the Subsequently Occupied Space is located; provided that the Receiver has 

not previously disposed of such Fixtures or Furniture and Equipment or Specialty Assets or 

repudiated the leases referred to in clause (ii) or (iii). 

(g) Surrenderine: Bank 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 

intended Bank Premises Surrender Date. The Assuming Institution shall be responsible 

for promptly relinquishing and releasing to the Receiver such Bank Premises and the 

Fixtures, the Furniture and Equipment and the Specialty Assets 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 Bank 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 remaining in any such Bank Premises more than 

180 days after the Bank Closing Date (unless the Assuming Institution must do so to 

comply with Section 4.1 and has made appropriate arrangements with the Receiver and 

all applicable lessors), 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 

Bank Premises are located, and (y) be required to purchase all Fixtures and all Furniture 

and Equipment owned by the Failed Bank and located on or at the Bank Premises as of 

the Bank Closing Date. 

(ii) If the Assuming Institution elects not to accept an assignment of 

the lease or sublease of any leased Bank Premises, the notice of such election in 

accordance with Section 4.6(b) shall specify the intended Bank Premises Surrender Date. 

The Assuming Institution shall be responsible for promptly relinquishing and releasing to 

the Receiver such Bank Premises and the Fixtures, the Furniture and Equipment and the 

Specialty Assets 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 Bank 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 failing to 

provide notice of its intention to surrender such Bank Premises prior to the expiration of 

the option period specified in Section 4.6(b ), or by remaining in any such Bank Premises 

more than 180 days after the Bank Closing Date (unless the Assuming Institution must do 

so to comply with Section 4.1 and has made appropriate arrangements with the Receiver 

and all applicable lessors), the Assuming Institution shall, at the Receiver's option, (x) be 

deemed to have assumed all leases, obligations and liabilities with respect to such Bank 

Premises (including any ground lease with respect to the land on which such Bank 

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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 and all Furniture and 

Equipment owned by the Failed Bank at Fair Market Value and located on or at the Bank 

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 

owned by the Failed Bank at Fair Market Value and located at any leased or owned Bank 

Premises (A) that the Assuming Institution does not elect to purchase pursuant to Section 4.6(a) 

or (b) for which Assuming Institution does not elect to take assignment of its lease pursuant to 

Section 4.6(b ); provided that, the Assuming Institution shall give the Receiver notice of its 

election to purchase such Furniture and Equipment at the time it gives notice of its intention to 

surrender such Bank Premises. 

(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, any 

Furniture and Equipment and any Specialty Assets that are owned, directly or indirectly, 

by an Acquired Subsidiary and are located on or at such Bank Premises and were 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 and Specialty Assets 

purchased. 

(iii) If the Assuming Institution elects to exercise its options under this 

Section 4.6(i), the Assuming Institution shall pay to the Receiver occupancy costs as 

described in Section 4.6(e) and shall surrender 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, the 

Fixtures, the Furniture and Equipment and the Specialty Assets utilized by the Failed 

Bank for banking purposes and their respective Book Value as reflected on the books and 

records of the Acquired Subsidiary. Such adjustment shall be made in accordance with 

Article VIII of this Agreement. 

(j) Option to Purchase Specialty Assets. The Receiver hereby grants to the 

Assuming Institution an exclusive option for the period of thirty (30) days commencing the day 

after the Receiver provides the Assuming Institution the appropriate appraisal to purchase at 

Fair Market Value all, some or none of the Specialty Assets. 

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(k) Data Removal. The Assuming Institution shall, prior to returning any 

automated teller machine to Receiver and unless otherwise requested by the Receiver, (i) remove 

all data from that automated teller machine and (ii) provide a written statement to the Receiver 

that all data has been removed in a manner that renders it unrecoverable. 

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 

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) Assumine: 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 

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rendering of services by or to the Failed Bank, within ninety (90) 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; 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 loan servicing for others or loan 

servicing is provided to the Failed Bank by others, (ii) agreements maintained between the 

Failed Bank and MERSCORP, Inc., or its wholly owned subsidiary, Mortgage Electronic 

Registration Systems, Inc., (iii) 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 (iv) 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, and (ii) Fixtures, Furniture and Equipment, Specialty Assets and Leased Data 

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Management Equipment located on or at those Bank Premises. The Assuming Institution's 

obligation to insure and to maintain the Receiver as an additional insured on Bank Premises 

insurance coverage shall cease upon either: (x) Bank Premises Surrender Date or (y) the date the 

Assuming Institution receives a deed from the Receiver for owned Bank Premises or assumes the 

lease for leased Bank Premises. 

(a) 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 

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 4.1 O(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 shall be borne by the Assuming Institution and any 

rental and utility costs for the balance of the period of occupancy by the Receiver and the 

Corporation shall paid in accordance with 4.11 (b). 

(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 

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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 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) Failed Bank Employees. Unless otherwise agreed by the Receiver and 

the Assuming Institution, the Assuming Institution shall be responsible for all salaries and 

payroll costs, including benefits, for all Failed Bank employees from the time of the closing of 

the Failed Bank until the Assuming Institution makes a final determination as to whether such 

employee is to be retained by the Assuming Institution. The Assuming Institution shall offer to 

the Failed Bank employees it retains employment benefits comparable to those the Assuming 

Institution, offers its current employees. In the event the Receiver utilizes the services of any 

Failed Bank employee, the Receiver shall reimburse the Assuming Institution for such cost 

through the settlement process described in Article VIII. 

(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 

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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 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 loan 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. 

(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. 

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(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. 

(e) Validation. To validate the notice requirements outlined in Section 5.3, 

the Assuming Institution shall provide the Receiver (i) an Affidavit of Publication to meet the 

publication requirements outlined in Section 5.3(a) and (ii) the Assuming Institution will 

prepare an Affidavit of Mailing in a form substantially similar to Exhibit 2.3B after mailing the 

seven (7) day Notice to Depositors as required under Section 5.3(b). 

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) Assumine: 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. 

(b) Destruction of Certain Records. With regard to all Records of which it 

has custody which are at least ten (1 0) years old as of the date of the appointment of the 

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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 Zero 

Percent (0%) and an Asset discount bid of negative Seventy Nine Million, Four Hundred 

Twelve Thousand, Two Hundred and Eighty Dollars ($79,412,280.00) (the "Bid Amount"). 

The Deposit premium bid will be applied to the total of all Assumed Deposits except for 

brokered, CDARS:N, 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 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. 

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ARTICLE VIII. ADJUSTMENTS; SETTLEMENT PROCESS. 

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. Acquired Subsidiaries with negative equity will be 

restated to $1 pursuant to the Equity Method of Accounting. Any Asset purchased by the 

Assuming Institution or any asset of an Acquired Subsidiary purchased by the Assuming 

Institution pursuant to Section 3.1 which was partially or wholly 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. 

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 

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assumption of liabilities or claims by the Assuming Institution as may be necessary m 

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 

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. 

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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. Ifsuch 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. 

(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 

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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 

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 pa1ty consents 

(including but not limited to approvals, licenses, registrations or declarations) are required in 

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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 

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) 

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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) 

incuued 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 incuued 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: 

(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 

Whole Bank w/ Optional Shared Loss Agreements 37 First Commercial Bank 

Version 4.3- PURCHASE AND ASSUMPTION AGREEMENT Bloomington, MN 

July 31,2012 
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.l(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; 

(b) provided that with respect to this Agreement, except for Section 

12.l(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 

Whole Bank w/ Optional Shared Loss Agreements 38 First Commercial Bank 

Version 4.3- PURCHASE AND ASSUMPTION AGREEMENT Bloomington, MN 

July 31,2012 
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 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. 

Whole Bank w/ Optional Shared Loss Agreements 

Version 4.3- PURCHASE AND ASSUMPTION AGREEMENT 

July 31,2012 

39 First Commercial Bank 

Bloomington, MN 
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 Regional Counsel (Litigation Branch) of the 

Corporation in the manner and at the address provided in Section 13.6 of such claim as soon as 

practicable after such claim is made or threatened; provided that notice must be given on or 

before the date which is six (6) years from the date of this Agreement; 

(b) provide to the Receiver such information and cooperation with respect to 

such claim as the Receiver may reasonably require; 

(c) cooperate and take all steps, as the Receiver may reasonably require, to 

preserve and protect any defense to such claim; 

(d) in the event suit is brought with respect to such claim, upon reasonable 

prior notice, afford to the Receiver the right, which the Receiver may exercise in its sole 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 Xll 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 

Whole Bank w/ Optional Shared Loss Agreements 40 First Commercial Bank 

Version 4.3- PURCHASE AND ASSUMPTION AGREEMENT Bloomington, MN 

July 31,2012 
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 

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 

Whole Bank w/ Optional Shared Loss Agreements 41 First Commercial Bank 

Version 4.3- PURCHASE AND ASSUMPTION AGREEMENT Bloomington, MN 

July 31,2012 
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 pa1ty 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. Further, the Assuming Institution 

shall be responsible for the payment of MERS routine transaction charges. 

13.2. WAIVER OF JURY TRIAL. EACH PARTY HEREBY IRREVOCABLY 

AND UN CONDITIONALLY W AlVES, 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. In any case where a 

notice or other action is due on a day which is not a Business Day, such notice or other action 

may be delayed until the next-succeeding Business Day. Article and Section 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. 

Whole Bank w/ Optional Shared Loss Agreements 42 First Commercial Bank 

Version 4.3- PURCHASE AND ASSUMPTION AGREEMENT Bloomington, MN 

July 31,2012 
13.6. Notice. 

(a) 1-'otm of Noth:~es, 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 

1601 Bryan Street 

Dallas, Texas 75201 

Attention: Settkrnent Agent 

In addition, wirl1 respect to notices under Section 4.6, with a copy to: 

BankPremiseK otice@fdic. gov 

In audition, wilh respect tu notice under Article XII: 

Regional Counsel (Litigation Branch) 

1601 Bryan Street 

Dallas, Texas 75201 

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

Attention: Interim Servicing Manager, 

WThompson@ FDIC.gov 

1601 Bryan Street 

Dallas, Texas 75201 

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

Agreement: 

Republic Bank & Trust Company 

Attn: Mr. William Ferko, SVP & Chief Risk Mgmt. Officer 

601 West Market Street 

Louisville. Kentucky 4020~ 

1 

cc: Mr. John Rippy, Chief Legal & Compliance Officer 

I 

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. Counterpart~. This Agreement may he executed in any numher of counterpmts 

and by the duly authorized representative of a different party hereto on separate counterparts, 

Whole BanJ: w/ Optioml Shared Loss Agreements 43 First ConuuerciJJ Bank 

Vcr.;iun 43-l'llKH,•.Sr i\M: AS~ll.lrtiOJ\ ACRCE~~r~T Bloomi11gton. ::.1::-1 

July ~I, 2012 
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. 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 

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 (lOth) 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 

Whole Bank w/ Optional Shared Loss Agreements 44 First Commercial Bank 

Version 4.3- PURCHASE AND ASSUMPTION AGREEMENT Bloomington, MN 

July 31,2012 
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] 

Whole Bank w/ Optional Shared Loss Agreements 45 First Commercial Bank 

Version 4.3- PURCHASE AND ASSUMPTION AGREEMENT Bloomington, MN 

July 31,2012 
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be 

executed by their duly authorized representatives as ofthe date first above written. 

Atte_g_ 

·-­

Attest: 

-

FEDERAL DEPOSIT INSURANCE CORPORATION, 

RECEIVER OF FIRST 'r-'-'"-LLL"-'-""-....................,...._._..o..u..u, 

BLOO.MINGTON MN 

BY: 

Steven A. Carr 

Receiver-in-Charge 

BY: 

Attorney-in-fact 

r--­

Republic Bank & Trust Company 

BY: ~~--~-r------------------------~ Willtam --- Ferko 


Senior Vice President 


Wht.~l~ Bank w/ Otuional Shared Los~ Atrc<:JIII.::Ilt! 46 First Cvmmcrcial 83nk 


Vc:n~hm 4.3 ·- "JttCJJ.:\StAt!Q~~~V~~.IlON i\OtU:t!t.1~T aluomin~t~m. 'MN 


July 31. 2012 
SCHEDULE 2.1(a) 


Excluded Deposits 


None 

Whole Bank w/ Optional Shared Loss Agreements 47 First Commercial Bank 

Version 4.3- PURCHASE AND ASSUMPTION AGREEMENT Bloomington, MN 

July 31,2012 
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: 

(b) 	 securities (exclusive of the capital stock of 

Acquired Subsidiaries and FHLB stock), 

plus interest thereon: 

(c) 	 federal funds sold and repurchase 

agreements, if any, including interest 

thereon: 

(d) 	 Loans: 

(e) 	 credit card business: 

(f) 	 safe deposit business, safekeeping business 

and trust business, if any: 

(g) 	 Records and other documents: 

(h) 	 Other Real Estate: 

(i) 	 all repossessed collateral, such as boats, 

motor vehicles, aircraft, trailers, and fire 

arms 

capital stock of any Acquired Subsidiaries 

(subject to Section 3.2(b), and FHLB stock: 

(k) 	 amounts owed to the Failed Bank by any 

Acquired Subsidiaries: 

(1) 	 assets securing Deposits of public money, 

to the extent not otherwise purchased 

hereunder: 

(m) 	 overdrafts of customers: 

(n) 	 rights, if any, with respect to Qualified 

Financial Contracts: 

Book Value 

As provided in Section 3.2(b) 

Book Value 

Book Value 


Book Value 


Book Value 


Book Value 


Book Value 


Book Value 


Book Value 


Book Value 


Book Value 


Book Value 


As provided in Section 3.2(c) 


Whole Bank w/ Optional Shared Loss Agreements 48 First Commercial Bank 

Version 4.3- PURCHASE AND ASSUMPTION AGREEMENT Bloomington, MN 

July 31,2012 
(o) 	 rights of the Failed Bank to have loan 

servicing provided to the Failed Bank by 

others and related contracts: 

(q) 	 Personal Computers and Owned Data 

Management Equipment: 

(r) 	 Safe Deposit Boxes 

Assets subject to an option to purchase: 

(a) 	 Bank Premises with a fixed price: 

All other Bank Premises 

(b) 	 Furniture and Equipment: 

(c) 	 Fixtures: 

(d) 	 Other Equipment: 

(e) 	 Specialty Assets 

Book Value 

Fair Market Value 

Fair Market Value 

As set forth in the Bid Form 

Fair Market Value 

Fair Market Value 

Fair Market Value 

Fair Market Value 

Fair Market Value 

Whole Bank w/ Optional Shared Loss Agreements 49 First Commercial Bank 

Version 4.3- PURCHASE AND ASSUMPTION AGREEMENT Bloomington, MN 

July 31,2012 
SCHEDULE 3.5(1) 


Excluded Securities 


None 

Whole Bank w/ Optional Shared Loss Agreements 50 First Commercial Bank 

Version 4.3- PURCHASE AND ASSUMPTION AGREEMENT Bloomington, MN 

July 31,2012 
Schedule 3.5(m) 


Excluded Assets 


ACCTNO I SHORTNAME I ORIG AMT I ORIGDATE I MATDATE 


W hole Bank w/ Optional .Shared Loss Agreements 51 First Commercial Bank 

Version 4.3-PURCHASE AND ASSUMP'l'ION AGREEMENT Bloomington. MN 

July 31,2012 
Whole BanJ: w/ Optioml Shared Loss Agreements 52 First ConuuerciJJ Bank 

Vcr.;iun 4.:1-l'llKH,•.Sr i\M: AS~ll.lrT!OJ\ ACRCE~~r~T Bloomi11gton. ::.1::-1 

July ~I, 2012 
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a. Update provided application list with any additional that we.re not included 

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If you need additional clarification while recording the information, please call Kevin Sheehan (FDIC) at 703-562-20!2 or Leslie Bowie (FDIC) at 703-562­

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Whole Bank w/ Optional Shared Loss Agreements 54 First Commercial Bank Version 4.3- PURCHASE AND ASSUMPTION AGREEMENT Bloomington, MN July 31,2012 
SCHEDULE7 


Accounts Excluded from Calculation of Deposit Franchise Bid Premium 


First Commercial Bank ("The Bank") 


Bloomington, MN 


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 and assumption 

transaction, the FDIC will exclude the following categories of deposit accounts: 

Category Description Attachment Amount 

I Non-DO Brokered Deposits 1 $ 731,408 

II CDARS $ 

III Market Place Deposits 2 $ 

48,772,000 

Total deposits -- excluded from calculation of deposit $ 

premium 49,503,408 

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 two 

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 Bank. 

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 -NonDO 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. 

If the Bank had any DO Brokered Deposits (Cede & Co as Nominee for DTC), they are excluded 

from Assumed Deposits in the Purchase and Assumption Agreement. 

II. CDARS 

CDARS deposits pass to the Assuming Institution, but are excluded from Assumed Deposits 

when the deposit premium is calculated. 

However, the 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 the Bank 

Closing Date, they will be identified post closing and made part of Schedule 7 to the Purchase 

and Assumption Agreement. 

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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. 

The Bank does have Market Place deposits (as identified above). Please see the Attachment 2 

for a listing of these accounts as of June 20, 2012. This list will be updated post closing with 

balances as of the Bank Closing Date. 

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

or as indicated. The deposit franchise bid premium will be calculated using account categories 

and balances as of the 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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Attachment 1 to Schedule 7 

Account Amount 

Number 

Totals $731,408.19 

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July ~I, 2012 
Attachment 2 to Schedule 7 

ACCOUN' ORIGINAL 

!!. AMT RATE 

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ACCOUN' ORIGINAL 

!!. AMT 

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July 3 1,2012 
ACCOUN' ORIGINAL 

!!. AMT 

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ACCOUN' ORIGINAL 

!!. AMT 

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ACCOUN' ORIGINAL 

# AMT RATE 

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ACCOUN' ORIGINAL 

!!. AMT 

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July 3 1,2012 
ACCOUN' ORIGINAL 

!!. AMT 

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ACCOUN' ORIGINAL 

!!. AMT 

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ACCOUN' ORIGINAL 

!!. AMT 

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ACCOUN' ORIGINAL 

!!. AMT 

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ACCOUN' ORIGINAL 

!!. AMT 

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!!. AMT 

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Version 4.3-PURCHASE AND ASSUMP'l'ION AGREEMENT Bloomington. MN 


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ACCOUN' ORIGINAL 

# AMT RATE 

Total .... $48,772,000.00 

Whole BanJ: w/ Optioml Shared Loss Agreements 70 First ConuuerciJJ Bank 

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July ~I, 2012 
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 

Bloomington, MNJ -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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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] 

Whole Bank w/ Optional Shared Loss Agreements 72 First Commercial Bank 

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July 31,2012 
EXHffiiT2.3B 

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], 

Bloomington, MN, 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 offailure. 

[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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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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(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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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"), for certain loans (the "Loans") during the 

term of this Arrangement the Assuming Institution shall service or provide servicing support to 

the Pool Assets as described in this Exhibit 4.13. 

If the Assuming Institution is an approved or qualified servicer for any government 

sponsored entity (each, a "GSE") and if any of the Loans are owned by a GSE, the Assuming 

Institution shall service or provide servicing support for the Loans owned by a GSE in 

accordance with the guidelines promulgated by and its agreements with the applicable GSE. If 

the Assuming Institution is not an approved or qualified servicer for a GSE or the Loans are not 

owned by a GSE, then the Assuming Institution shall service or provide servicing support for the 

Loans in accordance with the following: 

(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 

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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; 

(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 tiust 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: ORR 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; 

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(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 

(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 prov1s10n of the services provided pursuant to this 

Auangement, the Receiver agrees to reimburse the Assuming Institution for the actual, 

reasonable and necessary expenses incuued in connection with the performance of its duties 

pursuant to this Arrangement, including shared services of photocopying, postage, express mail, 

core data processing (allocated on a per loan basis based on historical actual costs) 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 Auangement 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 Auangement, 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 

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services may include, without limitation, ass1stmg 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 

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. 

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EXIDBIT 4.15A 


SINGLE FAMILY SHARED-LOSS AGREEMENT 


INTENTIONALLY OMITTED 


Whole Bank w/ Optional Shared Loss Agreements SF-1 First Commerical Bank 

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EXHIBIT 4.15B 


COMMERCIAL SHARED-LOSS AGREEMENT 


INTENTIONALLY OMITTED 


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