PURCHASE AND ASSUMPTION AGREEMENT 


WHOLE BANK 


ALL DEPOSITS 


AMONG 


FEDERAL DEPOSIT INSURANCE CORPORATION, 


RECEIVER OF WESTERN SPRINGS NATIONAL BANK AND TRUST, 


WESTERN SPRINGS, ILLINOIS 


FEDERAL DEPOSIT INSURANCE CORPORATION 


and 


HEARTLAND BANK AND TRUST COMPANY 


DATED AS OF 


April 8, 2011 


Module 1 - \Nhole Bank w/ Optional Shared Loss Agreements Western Springs National Bank and Trust 

Version 3.01 -PURCHASE AND ASSUMPTION AGREEMENT Western Springs, Illinois 

December ~. 2010 
PURCHASE AND ASSUMPTION AGREEMENT 


TABLE OF CONTENTS 


6.1 Transfer of Records ................................................ 27
 ARTICLE I. GENERAL ................................................ l 


1.1 	 Purpose ..................................................................... ! 


1.2 	 Shared-Loss Agreements .......................................... 2 


1. 3 	 Defined Terms .......................................................... 2 


ARTICLE II. ASSUMPTION OF LIABILITIES ......... 9 


2.1 	 Liabilities Assumed by Assuming Institution ........... 9 


2.2 	 Interest on Deposit Liabilities ................................. 10 


2.3 	 Unclaimed Deposits ................................................ 11 


2.4 	 Employee Plans ...................................................... 11 


ARTICLE III. PURCHASE OF ASSETS...................... ll 


3.1 	 Assets Purchased by the Assuming Institution ....... 11 


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


3.3 	 Manner of Conveyance; Limited Warranty; 


Nonrecourse; Etc .................................................... 12 


3.4 	 Puts of Assets to the Receiver ................................. 12 


3.5 	 Assets Not Purchased by Assuming Institution ...... 15 


3.6 	 Retention or Repurchase of Assets Essential to 


Receiver .................................................................. 16 


3.7 	 Receiver's Offer to Sell Withheld Loans ................ 17 


ARTICLE IV. ASSUMPTION OF CERTAIN DUTIES 


AND OBLIGATIONS......................................................... 17 


4.1 	 Continuation of Banking Business .......................... 17 


4.2 	 Credit Card Business .............................................. 17 


4.3 	 Safe Deposit Business ............................................. 17 


4.4 	 Safekeeping Business ............................................. 18 


4.5 	 Trust Business ......................................................... IS 


4.6 	 Bank Premises ........................................................ 19 


4. 7 Agreement with Respect to Leased Data 


Management Equipment ......................................... 22 


4. 8 	 Certain Existing Agreements .................................. 23 


4.9 	 Informational Tax Reporting .................................. 24 


4.10 	 Insurance................................................................. 24 


4.11 	 Office Space for Receiver and Corporation; Certain 


Payments ................................................................. 24 


4.12 	 Continuation of Group Health Plan Coverage for 


Former Employees of the Failed Bank ................... 25 


4.13 	 Interim Asset Servicing .......................................... 26 


4.14 	 [RESERVED] ......................................................... 26 


4.15 	 Loss Sharing ........................................................... 26 


ARTICLE V. DUTIES WITH RESPECT TO 


DEPOSITORS OF THE FAILED BANK ........................ 26 


5.1 	 Payment of Checks. Drafts. Orders and Deposits ... 26 


5.2 	 Certain Agreements Related to Deposits ................ 27 


5.3 	 Notice to Depositors ............................................... 27 


ARTICLE VI. RECORDS .............................................. 27 


Module 1 -Whole Bank w/ Optional Shared Loss Agreements 

Version 3.01 -PURCHASE AND ASSUMPTION AGREEMENT 

December ~. 2010 

6.2 Transfer of Assigned Records ................................ 28 


6.3 Preservation ofRecords .......................................... 28 


6.4 Access to Records; Copies ..................................... 28 


6.5 Right of Receiver or Corporation to Audit.. ........... 28 


ARTICLE VIII. BID; INITIAL PAYMENT ................... 29 


ARTICLE VIII. ADJUSTMENTS.................................... 29 


8.1 	 Pro Forma Statement.. ............................................ 29 


8.2 	 Correction of Errors and Omissions; Other 


Liabilities................................................................ 29 


8.3 	 Payments ................................................................ 30 


8.4 	 Interest.................................................................... 30 


8.5 	 Subsequent Adjustments ........................................ 30 


ARTICLE IX. CONTINUING COOPERATION ........ 30 


9.1 General Matters ...................................................... 3 0 


9.2 Additional Title Documents ................................... 30 


9.3 	 ClaimsandSuits ..................................................... 31 


9.4 	 Payment of Deposits............................................... 31 


9.5 	 Withheld Payments ................................................ 31 


9.6 	 Proceedings with Respect to Certain Assets and 


Liabilities................................................................ 32 


9.7 	 Information............................................................. 32 


9.8 	 Tax Ruling .............................................................. 32 


ARTICLE X. CONDITION PRECEDENT ................. 32 


ARTICLE XL REPRESENTATIONS AND 


WARRANTIES OF THE ASSUMING INSTITUTION. 33 


11.1 Corporate Existence and Authority ........................ 33 


11.2 Third Party Consent ............................................... 33 


11.3 Execution and Enforceability ................................. 33 


11.4 Compliance with Law ............................................ 33 


11.5 Insured or Guaranteed Loans ................................. 34 


11.6 Representations Remain True ................................ 34 


11.7 No Reliance; Independent Advice .......................... 34 


ARTICLE XII INDEMNIFICATION ........................... 34 


12.1 Indemnification oflndemnitees .............................. 34 


12.2 Conditions Precedent to Indemnification ............... 37 


12.3 No Additional Warranty ......................................... 38 


12.4 Indemnification of Receiver and Corporation ........ 38 


12.5 Obligations Supplemental ...................................... 38 


12.6 Criminal Claims ..................................................... 39 


12.7 Limited Guaranty of the Corporation ..................... 39 


12.8 Subrogation ............................................................ 39 


ARTICLE XIII. MISCELLANEOUS............................... 39 


13.1 Expenses................................................................. 39 


Western Springs National Bank and Trust 

Western Springs, Illinois 
13 .2 Waiver of Jury Trial... ............................................. 3 9 13.10 Successors .............................................................. 41 


13.3 Consent; Determination or Discretion .................... 3 9 13.11 Modification ........................................................... 42 


13.4 Rights Cumulative ................................................. .40 13.12 MannerofPayment ................................................ 42 


13.5 References .............................................................. 40 13.13 Waiver .................................................................... 42 


13.6 Notice...................................................................... 40 13.14 Severability ............................................................ 42 


13.7 Entire Agreement .................................................... 41 13.15 Term of Agreement.. .............................................. 42 


13.8 Counterparts............................................................ 41 13.16 Survival of Covenants, Etc ..................................... 42 


13.9 Governing Law ...................................................... .41 


SCHEDULES 

Page 


Excluded Deposit Liability Accounts ................................................................................................ Schedule 2.1(a) 44 


Purchase Price of Assets or any other assets .......................................................................................... Schedule 3.2 45 


Excluded Securities ............................................................................................................................ Schedule 3.5(1) 47 


Data Retention Catalog .......................................................................................................................... Schedule 6.3 48 


Accounts Excluded from Calculation of Deposit Franchise Bid Premium ............................................... Schedule 7 50 


EXHIBITS 

Page 


Final Legal Notice .................................................................................................................................. Exhibit 2.3A 51 


Affidavit of Mailing ............................................................................................................................... Exhibit 2.3B 53 


Valuation of Certain Qualified Financial Contracts .............................................................................. Exhibit 3 .2( c) 54 


Interim Asset Servicing Arrangement. .................................................................................................... Exhibit 4.13 56 


Single Family Shared-Loss Agreement... ............................................................................................. Exhibit 4.15A 60 


Commercial Shared-Loss Agreement .................................................................................................. Exhibit 4.15B 61 


Module 1 -Whole Bank w/ Optional Shared Loss Agreements 11 Westem Springs National Bank and Trust 

Version 3.01 -PURCHASE AND ASSUMPTION AGREEMENT Western Springs, Illinois 

December g, 2Ul U 
PURCHASE AND ASSUMPTION AGREEMENT 

WHOLE BANK 

ALL DEPOSITS 

THIS AGREEMENT, made and entered into as of the 8th day of April, 2011, by and 

among the FEDERAL DEPOSIT INSURANCE CORPORATION, RECEIVER of 

WESTERN SPRINGS NATIONAL BANK AND TRUST, WESTERN SPRINGS, 

ILLINOIS (the "Receiver"), HEARTLAND BANK AND TRUST COMPANY, organized 

under the laws of the State of Illinois, and having its principal place of business in 

BLOOMINGTON, ILLINOIS (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 WESTERN SPRINGS 

NATIONAL BANK AND TRUST (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 

certain assets and assumes certain liabilities ofthe Failed Bank. 

Module 1 -Whole Bank w/ Optional Shared Loss Agreements 1 Western Springs National Bank and Trust 

Version 3.01- PURCHASE AND ASSUMPTION AGREEMENT Western Springs, Illinois 

December ~. 2010 
1.2. Shared-Loss Agreements. If the Receiver and the Assuming Institution desire to 

share losses and recoveries on certain acquired assets, a Shared-Loss Agreement or Shared-Loss 

Agreements are attached hereto as Exhibit 4.15A and/or Exhibit 4.15B, as applicable, and will 

govern the terms of any such shared-loss arrangement. To the extent that any inconsistencies 

may arise between the terms of this Agreement and a Shared-Loss Agreement with respect to the 

subject matter of a Shared-Loss Agreement, the terms of the applicable Shared-Loss Agreement 

shall control. 

1.3. Defined Terms. Capitalized terms used in this Agreement shall have the 

meanings set forth or referenced in this Section 1.3. As used herein, words imparting the 

singular include the plural and vice versa. 

"Acquired Subsidiary" or "Acquired Subsidiaries" means one or more, as applicable, 

Subsidiaries of the Failed Bank acquired pursuant to Section 3 .1. 

"Affiliate" of any Person means any director, officer, or employee of that Person and any 

other Person (i) who is directly or indirectly controlling, or controlled by, or under direct or 

indirect common control with, such Person, or (ii) who is an affiliate of such Person as the term 

"a±Iiliate" 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 ofthis definition 

by virtue of being owned by such Subsidiaries. 

"Assumed Deposits" means Deposits. 

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

"Bank Closing Date" means the close of business of the Failed Bank on the date on 

which the Chartering Authority closed such institution. 

"Bank Premises" means the banking buildings, drive-in banking facilities, teller 

facilities (staffed or automated), storage and service facilities, structures connecting remote 

facilities to banking houses, land on which the foregoing are located and unimproved land, 

together with any adjacent parking, that are owned or leased by the Failed Bank and that have 

formerly been utilized, are currently utilized, or are intended to be utilized in the future by the 

Failed Bank as shown on the Failed Bank Records as of the Bank Closing Date. 

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

"Bid Valuation Date" means January 24, 2011. 

"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 

Module 1 -Whole Bank w/ Optional Shared Loss Agreements 2 Western Springs National Bank and Trust 

Version 3.01- PURCHASE AND ASSUMPTION AGREEMENT Western Springs, Illinois 

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in accounts, suspense items, unposted debits and credits and other similar adjustments or 

corrections and for setoffs, whether voluntary or involuntary. The Book Value of an Acquired 

Subsidiary shall be determined from the investment in subsidiary and related accounts on the 

"bank only" (unconsolidated) balance sheet of the Failed Bank based on the equity method of 

accounting. Without limiting the generality of the foregoing, (i) the Book Value of a Liability 

Assumed shall include all accrued and unpaid interest thereon as of the Bank Closing Date, and 

(ii) the Book Value of a Loan shall reflect adjustments for earned interest, or unearned interest 

(as it relates to the "rule of 78s" or add-on-interest loans, as applicable), if any, as of the Bank 

Closing Date, adjustments for the portion of earned or unearned loan-related credit life and/or 

disability insurance premiums, if any, attributable to the Failed Bank as of the Bank Closing 

Date, and adjustments for Failed Bank Advances, if any, in each case as determined for financial 

reporting purposes. The Book Value of an Asset shall not include any adjustment for loan 

premiums, discounts or any related deferred income, fees or expenses, or general or specific 

reserves on the Failed Bank Records. 

"Business Day" means a day other than a Saturday, Sunday, Federal legal holiday or 

legal holiday under the laws of the State where the Failed Bank is located, or a day on which the 

principal office of the Corporation is closed. 

"Chartering Authority" means (i) with respect to a national bank, the Office of the 

Comptroller of the Currency, (ii) with respect to a Federal savings association or savings bank, 

the Office of Thrift Supervision, (iii) with respect to a bank or savings institution chartered by a 

State, the agency of such State charged with primary responsibility for regulating and/or closing 

banks or savings institutions, as the case may be, (iv) the Corporation in accordance with 12 

U.S.C. § 1821(c)(4), with regard to self appointment, or (v) the appropriate Federal banking 

agency in accordance with 12 U.S. C. § 1821(c)(9). 

"Commitment" means the unfunded portion of a line of credit or other commitment 

reflected on the books and records of the Failed Bank to make an extension of credit (or 

additional advances with respect to a Loan) that was legally binding on the Failed Bank as of the 

Bank Closing Date, other than extensions of credit pursuant to the credit card business and 

overdraft protection plans of the Failed Bank, if any. 

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

"Counterclaim" has the meaning set forth in Section 12.l(b ). 

"Credit Documents" means the agreements, instruments, certificates or other documents 

at any time evidencing or otherwise relating to, governing or executed in connection with or as 

security for, a Loan, including without limitation notes, bonds, loan agreements, letter of credit 

applications, lease financing contracts, banker's acceptances, drafts, interest protection 

agreements, currency exchange agreements, repurchase agreements, reverse repurchase 

agreements, guarantees, deeds of trust, mortgages, assignments, security agreements, pledges, 

subordination or priority agreements, lien priority agreements, undertakings, security 

instruments, certificates, documents, legal opinions, participation agreements and intercreditor 

agreements, and all amendments, modifications, renewals, extensions, rearrangements, and 

substitutions with respect to any of the foregoing. 

"Credit File" means all Credit Documents and all other credit, collateral or insurance 

documents in the possession or custody of the Assuming Institution, or any of its Subsidiaries or 

Module 1 -Whole Bank w/ Optional Shared Loss Agreements 3 Western Springs National Bank and Trust 

Version 3.01- PURCHASE AND ASSUMPTION AGREEMENT Western Springs, Illinois 

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Affiliates, relating to an Asset or a Loan included m 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. 

"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.F.R. § 323.2(g), and accordingly 

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

market under all conditions requisite to a fair sale, the buyer and seller each acting prudently and 

knowledgeably, and assuming the price is not affected by undue stimulus. Implicit in this 

definition is the assumed consummation of a sale as of a specified date and the passing of title 

from seller to buyer under conditions whereby: 

(i) Buyer and seller are typically motivated; 

(ii) Both parties are well informed or well advised, and acting in what they 

consider their own best interests; 

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

Module 1 -Whole Bank w/ Optional Shared Loss Agreements 4 Western Springs National Bank and Trust 

Version 3.01- PURCHASE AND ASSUMPTION AGREEMENT Western Springs, Illinois 

December ~. 2010 
(iv) Payment is made in terms of cash in U.S. dollars or in terms of financial 

arrangements comparable thereto; and 

(v) The price represents the normal consideration for the property sold 

unaffected by special or creative financing or sales concessions granted by anyone 

associated with the sale; 

as determined as of the Bank Closing Date by an appraiser chosen by the Assuming Institution 

from a list of acceptable appraisers provided by the Receiver; any costs and fees associated with 

such determination shall be shared equally by the Receiver and the Assuming Institution, and 

with respect to Bank Premises (to the extent, if any, that Bank Premises are purchased 

utilizing this valuation method), shall be determined not later than sixty (60) days after the Bank 

Closing Date by an appraiser selected by the Receiver and the Assuming Institution within seven 

(7) days after the Bank Closing Date; or 

(b) with respect to property other than Bank Premises purchased utilizing this 

valuation method, the price therefor as established by the Receiver and agreed to by the 

Assuming Institution, or in the absence of such agreement, as determined in accordance with 

clause (a) above. 

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

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

"Fixtures" means those leasehold improvements, additions, alterations and installations 

constituting all or a part of Bank Premises and which were acquired, added, built, installed or 

purchased at the expense of the Failed Bank, regardless of the holder of legal title thereto as of 

the Bank Closing Date. 

"Furniture and Equipment" means the furniture and equipment (other than Safe 

Deposit Boxes, Personal Computers, Owned Data Management Equipment and motor vehicles), 

leased or owned by the Failed Bank and reflected on the Failed Bank Records as of the Bank 

Closing Date and located on or at Bank Premises, including without limitation automated teller 

machines, carpeting, furniture, office machinery, shelving, office supplies, telephone, 

surveillance and security systems, ancillary equipment and artwork. Furniture and equipment 

located at a storage facility not adjacent to a Bank Premises are excluded from this definition. 

"GSE" means a government sponsored enterprise. 

"Indemnitees" means, except as provided in Section 12.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 

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Version 3.01- PURCHASE AND ASSUMPTION AGREEMENT Western Springs, Illinois 

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the Assuming Institution by the Corporation on the web site used by the Corporation to market 

the Failed Bank to potential acquirers. 

"Initial Payment" means the payment made pursuant to Article VII (based on the best 

information available as of the Bank Closing Date), the amount of which shall be either (i) if the 

Bid Amount is positive, the aggregate Book Value of the Liabilities Assumed minus the sum of 

the aggregate purchase price of the Assets as determined pursuant to Section 3.2 and assets 

purchased and the positive Bid Amount, or (ii) if the Bid Amount is negative, the sum of the 

aggregate Book Value of the Liabilities Assumed and the negative Bid Amount minus the 

aggregate purchase price of the Assets and assets purchased. The Initial Payment shall be 

payable by the Corporation to the Assuming Institution if (i) the Liabilities Assumed are greater 

than the sum of the positive Bid Amount and the Assets and any other assets purchased, or if (ii) 

the sum of the Liabilities Assumed and the negative Bid Amount are greater than the Assets and 

assets purchased. The Initial Payment shall be payable by the Assuming Institution to the 

Corporation if (i) the Liabilities Assumed are less than the sum of the positive Bid Amount and 

the Assets and assets purchased, or if (ii) the sum of the Liabilities Assumed and the negative 

Bid Amount is less than the Assets and assets purchased. Such Initial Payment shall be subject 

to adjustment as provided in Article VIII. 

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

computer software (and the lease or licensing agreements related thereto), computer networking 

equipment, printers, fax machines, copiers, document scanners, data tape systems, data tapes, 

DVDs, CDs, flash drives, telecommunications and check processing equipment and any other 

electronic storage media leased by the Failed Bank at Bank Closing which is, was, or could have 

been used by the Failed Bank in connection with data management activities. 

"Legal Balance" means the amount of indebtedness legally owed by an Obligor with 

respect to a Loan, including principal and accrued and unpaid interest, late fees, attorneys' fees 

and expenses, taxes, insurance premiums, and similar charges, if any. 

"Liabilities Assumed" has the meaning provided in Section 2.1. 

"Lien" means any mortgage, lien, pledge, charge, assignment for security purposes, 

security interest or encumbrance of any kind with respect to an Asset, including any conditional 

sale agreement or capital lease or other title retention agreement relating to such Asset. 

"Loan" or "Loans" means, individually or collectively, all of the following owed to or 

held by the Failed Bank as of the Bank Closing Date: 

(a) loans (including loans which have been charged off the Failed Bank 

Records in whole or in part prior to and including the Bid Valuation Date), participation 

agreements, interests in participations, overdrafts of customers (including but not limited 

to overdrafts made pursuant to an overdraft protection plan or similar extensions of credit 

in connection with a deposit account), revolving commercial lines of credit, home equity 

lines of credit, Commitments, United States and/or State-guaranteed student loans and 

lease financing contracts; 

(b) all Liens, rights (including rights of set-off), remedies, powers, privileges, 

demands, claims, priorities, equities and benefits owned or held by, or accruing or to 

accrue to or for the benefit of, the holder of the obligations or instruments referred to in 

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Version 3.01- PURCHASE AND ASSUMPTION AGREEMENT Western Springs, Illinois 

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clause (a) above, including but not limited to those arising under or based upon Credit 

Documents, casualty insurance policies and binders, standby letters of credit, mortgagee 

title insurance policies and binders, payment bonds and performance bonds at any time 

and from time to time existing with respect to any of the obligations or instruments 

referred to in clause (a) above; and 

(c) all amendments, modifications, renewals, extensions, refinancings and 

refundings of or for any ofthe foregoing. 

"Obligor" means each Person liable for the full or partial payment or performance of any 

Loan, whether such Person is obligated directly, indirectly, primarily, secondarily, jointly or 

severally. 

"Other Real Estate" means all interests in real estate (other than Bank Premises and 

Fixtures), including but not limited to mineral rights, leasehold rights, condominium and 

cooperative interests, easements, air rights and development rights that are owned by the Failed 

Bank. 

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

computer software (and the lease or licensing agreements related thereto), computer networking 

equipment, printers, fax machines, copiers, document scanners, data tape systems, data tapes, 

DVDs, CDs, flash drives, telecommunications and check processing equipment and any other 

electronic storage media owned by the Failed Bank at Bank Closing which is, was, or could have 

been used by the Failed Bank in connection with data management activities. 

"Payment Date" means the first Business Day after the Bank Closing Date. 

"Person" means any individual, corporation, partnership, joint venture, association, 

limited liability company, limited liability partnership, joint-stock company, trust, 

unincorporated organization, or government or any agency or political subdivision thereof, 

excluding the Corporation. 

"Personal Computer(s)" means computers based on a microprocessor generally 

designed to be used by one person at a time and which usually store informational data on that 

computer's internal hard drive or attached peripheral, and associated peripherals (such as 

keyboard, mouse, etc.). A personal computer can be found in various configurations such as 

laptops, net books, and desktops. 

"Primary Indemnitor" means any Person (other than the Assuming Institution or any of 

its Affiliates) who is obligated to indemnify or insure, or otherwise make payments (including 

payments on account of claims made against) to or on behalf of any Person in connection with 

the claims covered under Article XII, including without limitation any insurer issuing any 

directors and officers liability policy or any Person issuing a financial institution bond or 

banker's blanket bond. 

"Pro Forma" means a balance sheet that reflects a reasonably accurate financial 

statement of the Failed Bank through the Bank Closing Date and serves as a basis for the 

opening entries of both the Assuming Institution and the Receiver. 

"Put Date" has the meaning set forth in Section 3 .4( d). 

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"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. 

Such allocation shall be made by specific allocation, where determinable, and otherwise 

shall be pro rata based upon the dollar amount of such Assets stated on the Failed Bank Records 

of the entity that owns such Asset. 

"Repurchase Price" means, with respect to any Asset, first taking the Book Value of the 

Asset at the Bank Closing Date and either subtracting the pro rata Asset discount or adding the 

pro rata Asset premium, and subsequently adjusting that amount (i) for any advances and interest 

on such Asset after the Bank Closing Date, (ii) by subtracting the total amount received by the 

Assuming Institution for such Asset after the Bank Closing Date, regardless of how applied and 

(iii) by adding total disbursements of principal made by the Receiver not otherwise included in 

the Book Value. 

"Safe Deposit Boxes" means the safe deposit boxes of the Failed Bank, if any, including 

the removable safe deposit boxes and safe deposit stacks in the Failed Bank's vault(s), all rights 

and benefits under rental agreements with respect to such safe deposit boxes, and all keys and 

combinations thereto. 

"Settlement Date" means the first Business Day immediately prior to the day which is 

three hundred sixty-five (365) days after the Bank Closing Date, or such other date prior thereto 

as may be agreed upon by the Receiver and the Assuming Institution. The Receiver, in its 

discretion, may extend the Settlement Date. 

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"Settlement Interest Rate" means, for the first calendar quarter or portion thereof during 

which interest accrues, the rate determined by the Receiver to be equal to the investment rate on 

twenty-six (26)-week United States Treasury Bills as published on the Bank Closing Date by the 

United States Treasury on the TreasuryDirect.gov website; provided, that if no such Investment 

Rate is published the week of the Bank Closing Date, the investment rate for such Treasury Bills 

most recently published by the United States Treasury on TreasuryDirect.gov prior to the Bank 

Closing Date shall be used. Thereafter, the rate shall be adjusted to the rate determined by the 

Receiver to be equal to the Investment Rate on such Treasury Bills in effect as of the first day of 

each succeeding calendar quarter during which interest accrues as published by the United States 

Treasury on the TreasuryDirect.gov website. 

"Shared-Loss Agreements" means, if any, the Single Family Shared-Loss Agreement 

attached hereto as Exhibit 4.15A and, if any, the Commercial Shared-Loss Agreement, attached 

hereto as Exhibit 4.15B. 

"Subsidiary" has the meaning set forth in § 3(w)(4) of the Federal Deposit Insurance 

Act, 12 U.S.C. § 1813(w)(4), as amended. 

ARTICLE II. ASSUMPTION OF LIABILITIES. 

2.1. Liabilities Assumed by Assuming Institution. The Assuming Institution 

expressly assumes at Book Value (subject to adjustment pursuant to Article VIII) and agrees to 

pay, perform and discharge, all of the following liabilities of the Failed Bank as of the Bank 

Closing Date, except as otherwise provided in this Agreement (such liabilities referred to as 

"Liabilities Assumed"): 

(a) Assumed Deposits, except those Deposits specifically listed on 

Schedule 2.1(a); provided, that as to any Deposits of public money which are Assumed Deposits, 

the Assuming Institution agrees to properly secure such Deposits with such Assets as 

appropriate which, prior to the Bank Closing Date, were pledged as security by the Failed Bank, 

or with assets of the Assuming Institution, if such securing Assets, if any, are insufficient to 

properly secure such Deposits; 

(b) liabilities for indebtedness secured by mortgages, deeds of trust, chattel 

mortgages, security interests or other liens on or affecting any Assets, if any; provided, that the 

amount of any liability assumed pursuant to this Section 2.1 (b) shall be limited to the market 

value of the Assets securing such liability as determined by the Receiver; 

(c) all borrowings from, and obligations and indebtedness to, Federal Reserve 

Banks and Federal Home Loan Banks, if any, whether currently owed, or conditional or not yet 

matured, including but not limited to, if applicable, (i) advances, including principal, interest, 

and any prepayment fees, costs and expenses; (ii) letters of credit, including any reimbursement 

obligations; (iii) acquired member assets programs, including representations, warranties, credit 

enhancement obligations and servicing obligations; (iv) affordable housing programs, including 

retention agreements and other contracts and monitoring obligations; (v) swaps and other 

derivatives; and (vi) safekeeping and custody agreements, provided, that the assumption of any 

liability pursuant to this Section 2.l(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 

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books and records of any such Federal Reserve Bank within ninety (90) days after the Bank 

Closing Date, if any; 

(d) ad valorem taxes applicable to any Asset, if any; provided, that the 

assumption of any ad valorem taxes pursuant to this Section 2.1(d) shall be limited to an amount 

equal to the market value of the Asset to which such taxes apply as determined by the Receiver; 

(e) liabilities, if any, for federal funds purchased, repurchase agreements and 

overdrafts in accounts maintained with other depository institutions (including any accrued and 

unpaid interest thereon computed to and including the Bank Closing Date); provided, that the 

assumption of any liability pursuant to this Section 2.1 (e) shall be limited to the market value of 

the Assets securing such liability as determined by the Receiver; 

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

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

the assumption of any liability pursuant to this Section 2.1(g) shall be limited to the market value 

of the Assets securing such liability as determined by the Receiver; 

(h) liabilities for any "standby letters of credit" as defined in 12 C.F .R. 

§ 337.2(a) issued on the behalf of any Obligor of a Loan acquired hereunder by the Assuming 

Institution, but excluding any other standby letters of credit; 

(i) duties and obligations assumed pursuant to this Agreement including 

without limitation those relating to the Failed Bank's Records, credit card business, debit card 

business, stored value and gift card business, overdraft protection plans, safe deposit business, 

safekeeping business and trust business, if any; 

G) 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 mortgage servicing 

is provided to the Failed Bank by others; and 

(n) all asset-related offensive litigation liabilities and all asset-related 

defensive litigation liabilities, but only to the extent such liabilities relate to assets subject to a 

Shared-Loss Agreement, and provided that all other defensive litigation and any class actions 

with respect to credit card business are retained by the Receiver. 

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 

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pledge. The Assuming Institution shall give notice to such depositors as provided in Section 5.3 

of the rate(s) of interest which it has determined to pay and of such withdrawal rights. 

2.3. Unclaimed Deposits. 

(a) Final Legal Notice. Fifteen (15) months following the Bank Closing Date, 

the Assuming Institution will provide the Receiver a listing of all deposit accounts, including the 

type of account, not claimed by the depositor. The Receiver will review the list and authorize 

the Assuming Institution to act on behalf of the Receiver to send a Final Legal Notice in a form 

substantially similar to Exhibit 2.3A (the "Final Legal Notice") to the owner(s) of the unclaimed 

deposits reminding them of the need to claim or arrange to continue their account(s) with the 

Assuming Institution. The Assuming Institution will send the Final Legal Notice to the 

depositors within thirty (30) days following notification of the Receiver's authorization. The 

Assuming Institution will prepare an Affidavit of Mailing in a form substantially similar to 

Exhibit 2.3B and will forward the Affidavit of Mailing to the Receiver after mailing out the Final 

Legal Notice to the owner(s) of unclaimed deposit accounts. 

(b) Unclaimed Deposits. If, within eighteen (18) months after the Bank 

Closing Date, any depositor of the Failed Bank does not claim or arrange to continue such 

depositor's Assumed Deposits at the Assuming Institution, the Assuming Institution shall, within 

fifteen (15) Business Days after the end of such eighteen (18) month period, (i) refund to the 

Receiver the full amount of each such Deposit (without reduction for service charges), (ii) 

provide to the Receiver a schedule of all such refunded Deposits in such form as may be 

prescribed by the Receiver, and (iii) assign, transfer, convey, and deliver to the Receiver, all 

right, title and interest of the Assuming Institution in and to the Records previously transferred to 

the Assuming Institution and other records generated or maintained by the Assuming Institution 

pertaining to such Deposits. During such eighteen (18) month period, at the request of the 

Receiver, the Assuming Institution promptly shall provide to the Receiver schedules of 

unclaimed Deposits in such form as may be prescribed by the Receiver. 

2.4. Employee Plans. Except as provided in Section 4.12, the Assuming Institution 

shall have no liabilities, obligations or responsibilities under the Failed Bank's health care, 

bonus, vacation, pension, profit sharing, deferred compensation, 401k or stock purchase plans or 

similar plans, if any, unless the Receiver and the Assuming Institution agree otherwise 

subsequent to the date of this Agreement. 

ARTICLE III. PURCHASE OF ASSETS. 

3.1. Assets Purchased by Assuming Institution. With the exception of certain assets 

expressly excluded in Sections 3.5 and 3.6 and, if applicable, listed on Schedule 3.5(1) 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, partnerships and any and all other business 

combinations or arrangements, whether active, inactive, dissolved or terminated, of the Failed 

Bank whether or not reflected on the books of the Failed Bank as of the Bank Closing Date. 

Assets are purchased hereunder by the Assuming Institution subject to all liabilities for 

indebtedness collateralized by Liens affecting such Assets to the extent provided in Section 2.1. 

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3.2. Asset Purchase Price. 

(a) Determination of Asset Purchase Price. All Assets and assets of the Failed 

Bank subject to an option to purchase by the Assuming Institution shall be purchased for the 

amount, or the amount resulting from the method specified for determining the amount, as 

specified on Schedule 3 .2, except as otherwise may be provided herein. Any Asset, asset of the 

Failed Bank subject to an option to purchase or other asset purchased for which no purchase 

price is specified on Schedule 3.2 or otherwise herein shall be purchased at its Book Value. 

Loans or other assets charged off on the Failed Bank Records before the Bid Valuation Date 

shall be purchased at a price of zero. The purchase price for Acquired Subsidiaries shall be 

adjusted pursuant to Section 4.6(i)(iv), if applicable. 

(b) Purchase Price for Securities. The purchase price for securities (other than 

the capital stock of any Acquired Subsidiary and Federal Home Loan Bank stock) purchased 

under Section 3.1 by the Assuming Institution shall be the market value thereof as of the Bank 

Closing Date, which market value shall be (i) the market price for each such security quoted at 

the close of the trading day effective on the Bank Closing Date as published electronically by 

Bloomberg, L.P., or alternatively, at the discretion of the Receiver, IDC/Financial Times (FT) 

Interactive Data; (ii) provided that if such market price is not available for any such security, the 

Assuming Institution will submit a bid for each such security within three days of 

notification/bid request by the Receiver (unless a different time period is agreed to by the 

Assuming Institution and the Receiver) and the Receiver, in its sole and absolute discretion, will 

accept or reject each such bid; and (iii) further provided that in the absence of an acceptable bid 

from the Assuming Institution, each such security shall not pass to the Assuming Institution and 

shall be deemed to be an excluded asset hereunder and listed on Schedule 3.5(1). 

(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 Deposit Secured Loan transferred to the Assuming Institution 

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pursuant to Section 3.1 which is not fully secured by Assumed Deposits or deposits at other 

insured depository institutions due to either insufficient Assumed Deposit or deposit collateral or 

deficient documentation regarding such collateral; provided that with regard to any Deposit 

Secured Loan secured by an Assumed Deposit: 

(i) no such purchase may be required until any Deposit setoff 

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

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

purchase, within a reasonable time, any remaining overdraft transferred to the Assuming 

Institution pursuant to Section 3.1 which existed on the thirtieth (30th) day following the 

Bank Closing Date and which was made after the Bid Valuation Date and not made 

pursuant to an overdraft protection plan or similar extension of credit. 

Notwithstanding the foregoing, the Assuming Institution shall not have the 

right to require the Receiver to purchase any Loan if (i) the Obligor with respect to such Loan is 

an Acquired Subsidiary, or (ii) the Assuming Institution has: 

(A) made any advance in accordance with the terms of a 

Commitment or otherwise with respect to such Loan; 

(B) taken any action that increased the amount of a Related 

Liability with respect to such Loan over the amount of such liability immediately 

prior to the time of such action; 

(C) created or permitted to be created any Lien on such Loan 

which secures indebtedness for money borrowed or which constitutes a 

conditional sales agreement, capital lease or other title retention agreement; 

(D) entered into, agreed to make, grant or permit, or made, 

granted or permitted any modification or amendment to, any waiver or extension 

with respect to, or any renewal, refinancing or refunding of, such Loan or related 

Credit Documents or collateral, including, without limitation, any act or omission 

which diminished 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 

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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, 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 requues 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 ofthe applicable Put Date. 

Such notice shall be in the form prescribed by the Receiver or such other 

form to which the Receiver shall consent. As provided in Section 9.6, the Assuming Institution 

shall deliver to the Receiver such documents, Credit Files and such additional information 

relating to the subject matter of the Put Notice as the Receiver may request and shall provide to 

the Receiver full access to all other relevant books and Records. 

(d) Purchase by Receiver. The Receiver shall purchase Assets that are 

specified in the Put Notice and shall assume Related Liabilities with respect to such Assets, and 

the transfer of such Assets and Related Liabilities shall be effective as of a date determined by 

the Receiver which date shall not be later than thirty (30) days after receipt by the Receiver of 

the Put Notice (the "Put Date"). 

(e) Purchase Price and Payment Date. Each Asset purchased by the Receiver 

pursuant to this Section 3.4 shall be purchased at a price equal to the Repurchase Price of such 

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. 

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3.5. Assets Not Purchased by Assuming Institution. The Assuming Institution does 

not purchase, acquire or assume, or (except as otherwise expressly provided in this Agreement) 

obtain an option to purchase, acquire or assume under this Agreement: 

(a) any financial institution bonds, banker's blanket bonds, or public liability, 

fire, extended coverage insurance policy, bank owned life insurance or any other insurance 

policy of the Failed Bank, or premium refund, unearned premium derived from cancellation, or 

any proceeds payable with respect to any of the foregoing; 

(b) any interest, right, action, claim, or judgment against (i) any officer, 

director, employee, accountant, attorney, or any other Person employed or retained by the Failed 

Bank or any Subsidiary of the Failed Bank on or prior to the Bank Closing Date arising out of 

any act or omission of such Person in such capacity, (ii) any underwriter of financial institution 

bonds, banker's blanket bonds or any other insurance policy of the Failed Bank, (iii) any 

shareholder or holding company of the Failed Bank, or (iv) any other Person whose action or 

inaction may be related to any loss (exclusive of any loss resulting from such Person's failure to 

pay on a Loan made by the Failed Bank) incurred by the Failed Bank; provided that for the 

purposes hereof, the acts, omissions or other events giving rise to any such claim shall have 

occurred on or before the Bank Closing Date, regardless of when any such claim is discovered 

and regardless of whether any such claim is made with respect to a financial institution bond, 

banker's blanket bond, or any other insurance policy of the Failed Bank in force as of the Bank 

Closing Date; 

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

(d) legal or equitable interests in tax receivables of the Failed Bank, if any, 

including any claims arising as a result of the Failed Bank having entered into any agreement or 

otherwise being joined with another Person with respect to the filing of tax returns or the 

payment of taxes; 

(e) amounts reflected on the Failed Bank Records as of the Bank Closing Date 

as a general or specific loss reserve or contingency account, if any; 

(f) leased or owned Bank Premises and leased or owned Fixtures, Furniture 

and Equipment located on leased or owned Bank Premises, if any; provided that the Assuming 

Institution does obtain an option under Sections 4.6, 4.7 or 4.8, as the case may be, with respect 

thereto; 

(g) owned Bank Premises which the Receiver, in its discretion, determines 

may contain environmentally hazardous substances; 

(h) any "goodwill," as such term is defined in the instructions to the report of 

condition prepared by banks examined by the Corporation in accordance with 12 C.F.R. § 304.3, 

and other intangibles (other than intellectual property); 

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

Bank; 

G) 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; 

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

(1) any banker's bank stock, and the securities listed on the attached Schedule 

Dill; 

(m) reserved; 

(n) prepaid accounts associated with any contract or agreement that the 

Assuming Institution either does not directly assume pursuant to the terms of this Agreement nor 

has an option to assume under Section 4.8; and 

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

pursuant to which the Failed Bank provides mortgage servicing for others. 

3.6. Retention or Repurchase of Assets Essential to Receiver. 

(a) The Receiver may refuse to sell to the Assuming Institution, or the 

Assuming Institution agrees, at the request of the Receiver set forth in a written notice to the 

Assuming Institution, to sell, assign, transfer, convey, and deliver to the Receiver, all of the 

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 

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manage each such Asset or asset in accordance with usual and prudent banking standards 

and business practices until each such Asset or asset is purchased by the Receiver. All 

transfers with respect to Asset or assets under this Section 3.6 shall be made as provided 

in Section 9.6. The Assuming Institution shall transfer all such Assets or assets and 

Related Liabilities to the Receiver without recourse, and shall indemnify the Receiver 

against any and all claims of any Person claiming by, through or under the Assuming 

Institution with respect to any such Asset or asset, as provided in Section 12.4. 

3.7. Receiver's Offer to Sell Withheld Loans. For the period of thirty (30) days 

commencing the day after the Bank Closing Date, the Receiver may sell, in its sole and absolute 

discretion, and the Assuming Institution, may purchase, in its sole and absolute discretion, at 

Book Value as of the Bank Closing Date, any Loans initially withheld from sale to the Assuming 

Institution pursuant to Sections 3.5 or 3. 6 of this Agreement. Except for the sales price, Loans 

sold under this section will be treated as if initially sold under Section 3.1 of this Agreement, and 

will be subject to all relevant terms of this Agreement as similarly situated Loans sold and 

transferred pursuant to this Agreement, provided that, no Loan shall be a Shared-Loss Loan 

pursuant to the Shared-Loss Agreements if it does not meet the definition of Shared-Loss Loan 

in the applicable Shared-Loss Agreement. Payment for Loans sold under this Section 3.7 will be 

handled through the settlement process pursuant to Article VIII. 

ARTICLE IV. ASSUMPTION OF CERTAIN DUTIES AND OBLIGATIONS. 

4.1. Continuation of Banking Business. For the period commencing on the first 

banking Business Day after the Bank Closing Date and ending on the first anniversary of the 

Bank Closing Date, the Assuming Institution will provide full service banking in the trade area 

of the Failed Bank. Thereafter, the Assuming Institution may cease providing such banking 

services in the trade area of the Failed Bank, provided the Assuming Institution has received all 

necessary regulatory approvals, including the approval of the Receiver and, if applicable, the 

Corporation. At the option of the Assuming Institution, such banking services may be provided 

at any or all of the Bank Premises, or at other premises within such trade area, as determined by 

the Receiver. The Assuming Institution may open, close or sell branches upon receipt of the 

necessary regulatory approvals, provided that the Assuming Institution or its successors continue 

to provide banking services in the trade area during the period specified in this Section 4.1. The 

Assuming Institution will pay to the Receiver, upon the sale of a branch or branches within the 

year following the date of this Agreement, fifty percent (50%) of any franchise premium in 

excess of the franchise premium paid by the Assuming Institution with respect to such branch or 

branches. 

4.2. Credit Card Business. The Assuming Institution agrees to honor and perform, 

from and after the Bank Closing Date, all duties and obligations with respect to the Failed 

Bank's credit card business (including issuer or merchant acquirer) debit card business, stored 

value and gift card business, and/or processing related to credit cards, if any, and assumes all 

extensions of credit or balances outstanding as of the Bank Closing Date with respect to these 

lines ofbusiness. 

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 

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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 ofthe 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. Safekeenine: Business. The Receiver transfers, conveys and delivers to the 

Assuming Institution and the Assuming Institution accepts all securities and other items, if any, 

held by the Failed Bank in safekeeping for its customers as of the Bank Closing Date. The 

Assuming Institution assumes and agrees to honor and discharge, from and after the Bank 

Closing Date, the duties and obligations of the Failed Bank with respect to such securities and 

items held in safekeeping. The Assuming Institution shall provide to the Receiver written 

verification of all assets held by the Failed Bank for safekeeping within sixty (60) days after the 

Bank Closing Date. The assets held for safekeeping by the Failed Bank shall be held and 

maintained by the Assuming Institution in the trade area of the Failed Bank for a minimum of 

one year from the Bank Closing Date. At the option of the Assuming Institution, the safekeeping 

business may be provided at any or all of the Bank Premises, or at other premises within such 

trade area, as determined by the Receiver. The Assuming Institution shall be entitled to all rights 

and benefits which accrue after the Bank Closing Date with respect to securities and other items 

held in safekeeping. 

4.5. Trust Business. 

(a) Assuming Institution as Successor. The Assuming Institution shall, 

without further transfer, substitution, act or deed, to the full extent permitted by law, succeed to 

the rights, obligations, properties, assets, investments, deposits, agreements, and trusts of the 

Failed Bank under trusts, executorships, administrations, guardianships, and agencies, and other 

fiduciary or representative capacities, all to the same extent as though the Assuming Institution 

had assumed the same from the Failed Bank prior to the Bank Closing Date; provided, that any 

liability based on the misfeasance, malfeasance or nonfeasance of the Failed Bank, its directors, 

officers, employees or agents with respect to the trust business is not assumed hereunder. 

(b) Wills and Appointments. The Assuming Institution shall, to the full extent 

permitted by law, succeed to, and be entitled to take and execute, the appointment to all 

executorships, trusteeships, guardianships and other fiduciary or representative capacities to 

which the Failed Bank is or may be named in wills, whenever probated, or to which the Failed 

Bank is or may be named or appointed by any other instrument. 

(c) Transfer of Trust Business. In the event additional proceedings of any kind 

are necessary to accomplish the transfer of such trust business, the Assuming Institution agrees 

that, at its own expense, it will take whatever action is necessary to accomplish such transfer. 

The Receiver agrees to use reasonable efforts to assist the Assuming Institution in accomplishing 

such transfer. 

(d) Verification of Assets. The Assuming Institution shall provide to the 

Receiver written verification of the assets held in connection with the Failed Bank's trust 

business within sixty (60) days after the Bank Closing Date. 

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4.6. Bank Premises. 

(a) Option to Purchase. Subject to Section 3.5, the Receiver hereby grants to 

the Assuming Institution an exclusive option for the period of ninety (90) days commencing the 

day after the Bank Closing Date to purchase any or all owned Bank Premises, including all 

Fixtures, Furniture and Equipment located on the Bank Premises. The Assuming Institution shall 

give written notice to the Receiver within the option period of its election to purchase or not to 

purchase any of the owned Bank Premises. Any purchase of such premises shall be effective as 

of the date of the Bank Closing Date and such purchase shall be consummated as soon as 

practicable thereafter, and in no event later than the Settlement Date. If the Assuming Institution 

gives notice of its election not to purchase one or more of the owned Bank Premises within seven 

(7) days of the Bank Closing Date, then, notwithstanding any other provision of this Agreement 

to the contrary, the Assuming Institution shall not be liable for any of the costs or fees associated 

with Fair Market Value appraisals for such Bank Premises and associated Fixtures, Furniture and 

Equipment. 

(b) Option to Lease. The Receiver hereby grants to the Assuming Institution 

an exclusive option for the period of ninety (90) days commencing the day after the Bank 

Closing Date to cause the Receiver to assign to the Assuming Institution any or all leases for 

leased Bank Premises, if any, which have been continuously occupied by the Assuming 

Institution from the Bank Closing Date to the date it elects to accept an assignment of the leases 

with respect thereto to the extent such leases can be assigned; provided that the exercise of this 

option with respect to any lease must be as to all premises or other property subject to the lease. 

The Assuming Institution shall give notice to the Receiver within the option period of its election 

to accept or not to accept an assignment of any or all leases (or enter into new leases in lieu 

thereof). The Assuming Institution agrees to assume all leases assigned (or enter into new leases 

in lieu thereof) pursuant to this Section 4.6. If the Assuming Institution gives notice of its 

election not to accept an assignment of a lease for one or more of the leased Bank Premises 

within seven (7) days of the Bank Closing Date, then, notwithstanding any other provision of this 

Agreement to the contrary, the Assuming Institution shall not be liable for any of the costs or 

fees associated with Fair Market Value appraisals for the Fixtures, Furniture and Equipment 

located on such leased Bank Premises. 

(c) Facilitation. The Receiver agrees to facilitate the assumption, assignment 

or sublease of leases or the negotiation of new leases by the Assuming Institution; provided that 

neither the Receiver nor the Corporation shall be obligated to engage in litigation, make 

payments to the Assuming Institution or to any third party in connection with facilitating any 

such assumption, assignment, sublease or negotiation or commit to any other obligations to third 

parties. 

(d) Occupancy. The Assuming Institution shall give the Receiver fifteen (15) 

days prior written notice of its intention to vacate prior to vacating any leased Bank Premises 

with respect to which the Assuming Institution has not exercised the option provided in Section 

4.6(b). Any such notice shall be deemed to terminate the Assuming Institution's option with 

respect to such leased Bank Premises. 

(e) Occupancy Costs. 

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

appropriate third parties at the direction of the Receiver, during and for the period of any 

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occupancy by it of (x) owned Bank Premises the market rental value, as determined by 

the appraiser selected in accordance with the definition of Fair Market Value, and all 

operating costs, and (y) leased Bank Premises, all operating costs with respect thereto and 

to comply with all relevant terms of applicable leases entered into by the Failed Bank, 

including without limitation the timely payment of all rent. Operating costs include, 

without limitation all taxes, fees, charges, maintenance, utilities, insurance and 

assessments, to the extent not included in the rental value or rent. If the Assuming 

Institution elects to purchase any owned Bank Premises in accordance with Section 

4.6(a), the amount of any rent paid (and taxes paid to the Receiver which have not been 

paid to the taxing authority and for which the Assuming Institution assumes liability) by 

the Assuming Institution with respect thereto shall be applied as an offset against the 

purchase price thereof 

(ii) The Assuming Institution agrees during the period of occupancy 

by it of owned or leased Bank Premises, to pay to the Receiver rent for the use of all 

owned or leased Furniture and Equipment and all owned or leased Fixtures located on 

such Bank Premises for the period of such occupancy. Rent for such property owned by 

the Failed Bank shall be the market rental value thereof, as determined by the Receiver 

within sixty (60) days after the Bank Closing Date. Rent for such leased property shall be 

an amount equal to any and all rent and other amounts which the Receiver incurs or 

accrues as an obligation or is obligated to pay for such period of occupancy pursuant to 

all leases and contracts with respect to such property. If the Assuming Institution 

purchases any owned Furniture and Equipment or owned Fixtures in accordance with 

Section 4.6(±) or 4.6(h), the amount of any rents paid by the Assuming Institution with 

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

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

Assuming Institution purchases owned Bank Premises or accepts an assignment of the lease (or 

enters into a sublease or a new lease in lieu thereof) for leased Bank Premises as provided in 

Section 4.6(a) or 4.6(b ), or if the Assuming Institution does not exercise such option but within 

twelve (12) months following the Bank Closing Date obtains the right to occupy such premises 

(whether by assignment, lease, sublease, purchase or otherwise), other than in accordance with 

Section 4.6(a) or 4.6(b ), the Assuming Institution shall (i) effective as of the Bank Closing Date, 

purchase from the Receiver all Fixtures, Furniture and Equipment owned by the Failed Bank at 

Fair Market Value and located thereon as of the Bank Closing Date, (ii) accept an assignment or 

a sublease of the leases or negotiate new leases for all Fixtures, Furniture and Equipment leased 

by the Failed Bank and located thereon, and (iii) if applicable, accept an assignment or a sublease 

of any ground lease or negotiate a new ground lease with respect to any land on which such Bank 

Premises are located; provided that the Receiver shall not have disposed of such Fixtures, 

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

(g) Vacating Premises. 

(i) If the Assuming Institution elects not to purchase any owned Bank 

Premises, the notice of such election in accordance with Section 4.6(a) shall specify the 

date upon which the Assuming Institution's occupancy of such premises shall terminate, 

which date shall not be later than ninety (90) days after the date of the Assuming 

Institution's notice not to exercise such option. The Assuming Institution shall be 

responsible for promptly relinquishing and releasing to the Receiver such premises and 

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the Fixtures, Furniture and Equipment located thereon which existed at the time of the 

Bank Closing Date, in the same condition as at the Bank Closing Date and at the 

premises where they were inventoried at the Bank Closing Date, normal wear and tear 

excepted. Any of the aforementioned which is missing will be charged to the Assuming 

Institution at the item's Fair Market Value as determined in accordance with this 

Agreement. By occupying any such premises after the expiration of such ninety (90)-day 

period, the Assuming Institution shall, at the Receiver's option, (x) be deemed to have 

agreed to purchase such Bank Premises, and to assume all leases, obligations and 

liabilities with respect to leased Furniture and Equipment and leased Fixtures located 

thereon and any ground lease with respect to the land on which such premises are located, 

and (y) be required to purchase all Fixtures, Furniture and Equipment owned by the 

Failed Bank and located on such premises as of the Bank Closing Date. 

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

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

with Section 4.6(b) shall specify the date upon which the Assuming Institution's 

occupancy of such leased Bank Premises shall terminate, which date shall not be later 

than ninety (90) days after the date of the Assuming Institution's notice not to exercise 

such option. Upon vacating such premises, the Assuming Institution shall be liable for 

relinquishing and releasing to the Receiver such premises and the Fixtures and the 

Furniture and Equipment located thereon which existed at the time of the Bank Closing 

Date, in the same condition as at the Bank Closing Date, and at the premises where they 

were inventoried at Bank closing, normal wear and tear excepted. Any of the 

aforementioned which is missing will be charged to the Assuming Institution at the 

item's Fair Market Value as determined in accordance with this Agreement. By failing to 

provide notice of its intention to vacate such premises prior to the expiration of the option 

period specified in Section 4.6(b ), or by occupying such premises after the ninety (90)­

day period specified above in this Section 4.6(g)(ii), the Assuming Institution shall, at the 

Receiver's option, (x) be deemed to have assumed all leases, obligations and liabilities 

with respect to such premises (including any ground lease with respect to the land on 

which premises are located), and leased Furniture and Equipment and leased Fixtures 

located thereon in accordance with this Section 4.6 (unless the Receiver previously 

repudiated any such lease), and (y) be required to purchase all Fixtures, Furniture and 

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

as of the Bank Closing Date. 

(h) Furniture and Equipment and Certain Other Equipment. The Receiver 

hereby grants to the Assuming Institution an option to purchase all Furniture and Equipment 

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

Premises that the Assuming Institution elects to vacate or which it could have, but did not 

occupy, pursuant to this Section 4.6; provided that, the Assuming Institution shall give the 

Receiver notice of its election to purchase such property at the time it gives notice of its intention 

to vacate such Bank Premises or within ten (10) days after the Bank Closing Date for Bank 

Premises it could have, but did not, occupy. 

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

Equipment. 

(i) For a period of ninety (90) days following the Bank Closing Date, 

the Assuming Institution shall be entitled to require the Receiver to purchase any Bank 

Premises that is owned, directly or indirectly, by an Acquired Subsidiary and the 

purchase price paid by the Receiver shall be the Fair Market Value of the Bank Premises. 

(ii) If the Assuming Institution elects to require the Receiver to 

purchase any Bank Premises that is owned, directly or indirectly, by an Acquired 

Subsidiary, the Assuming Institution shall also have the option, exercisable within the 

same ninety (90) day time period, to require the Receiver to purchase any Fixtures, 

Furniture and Equipment that is owned, directly or indirectly, by an Acquired Subsidiary 

which is located on such Bank Premises and was utilized by the Failed Bank for banking 

purposes. The purchase price paid by the Receiver shall be the Fair Market Value of the 

Fixtures, Furniture and Equipment purchased. 

(iii) In the event the Assuming Institution elects to exercise its options 

under this Section 4.6(i), the Assuming Institution shall pay to the Receiver occupancy 

costs in accordance with Section 4.6(e) and shall vacate the Bank Premises in accordance 

with Section 4.6(g)(i). 

(iv) Regardless of whether the Assuming Institution exercises any of its 

options under this Section 4.6(i), the purchase price for the Acquired Subsidiary shall be 

adjusted by the difference between the Fair Market Value of the Bank Premises and 

Fixtures, Furniture and Equipment utilized by the Failed Bank for banking purposes and 

their respective Book Value as reflected of the books and records of the Acquired 

Subsidiary. Such adjustment shall be made in accordance with Article VIII of this 

Agreement. 

4.7. Agreement with Respect to Leased Data Management Equipment. 

(a) Option. The Receiver hereby grants to the Assuming Institution an 

exclusive option for the period of ninety (90) days commencing the day after Bank Closing to 

accept an assignment from the Receiver of all Leased Data Management Equipment. 

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

Institution shall (i) give written notice to the Receiver within the option period specified in 

Section 4.7(a) of its intent to accept or decline an assignment or sublease of all Leased Data 

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. 

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(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 tenns of any existing Leased Data Management Equipment leases entered into by the 

Failed Bank, including without limitation the timely payment of all rent, taxes, fees, charges, 

maintenance, utilities, insurance and assessments. 

(e) Assuming Institution's Obligation. The Assuming Institution shall, not 

later than fifty (50) days after giving the notice provided in Section 4.7(b ), (i) relinquish and 

release to the Receiver or, at the direction of the Receiver, to a third party, all Leased Data 

Management Equipment, in the same condition as at Bank Closing, normal wear and tear 

excepted, or (ii) accept an assignment or a sublease of any existing Leased Data Management 

lease or negotiate a new lease or license agreement under this Section 4.7 with respect to Leased 

Data Management Equipment. 

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

Leased Data Management Equipment, and unless otherwise requested by the Receiver, 

(i) remove all data from the Leased Data Management Equipment and (ii) provide a written 

statement to the Receiver that all data has been removed in a manner that renders it 

unrecoverable. 

4.8. Certain Existing Agreements. 

(a) Assumption of Agreements. Subject to the provisions of Section 4.8(b ), 

with respect to agreements existing as of the Bank Closing Date which provide for the rendering 

of services by or to the Failed Bank, within thirty (30) days after the Bank Closing Date, the 

Assuming Institution shall give the Receiver written notice specifying whether it elects to 

assume or not to assume each such agreement. Except as may be otherwise provided in this 

Article IV, the Assuming Institution agrees to comply with the terms of each such agreement for 

a period commencing on the day after the Bank Closing Date and ending on: (i) in the case of an 

agreement that provides for the rendering of services by the Failed Bank, the date which is ninety 

(90) days after the Bank Closing Date, and (ii) in the case of an agreement that provides for the 

rendering of services to the Failed Bank, the date which is thirty (30) days after the Assuming 

Institution has given notice to the Receiver of its election not to assume such agreement; 

provided that the Receiver can reasonably make such service agreements available to the 

Assuming Institution. The Assuming Institution shall be deemed by the Receiver to have 

assumed agreements for which no notification is timely given. The Receiver agrees to assign, 

transfer, convey and deliver to the Assuming Institution all right, title and interest of the 

Receiver, if any, in and to agreements the Assuming Institution assumes hereunder. In the event 

the Assuming Institution elects not to accept an assignment of any lease (or sublease) or 

negotiate a new lease for leased Bank Premises under Section 4.6 and does not otherwise occupy 

such premises, the provisions of this Section 4.8(a) shall not apply to service agreements related 

to such premises. The Assuming Institution agrees, during the period it has the use or benefit of 

any such agreement, promptly to pay to the Receiver or to appropriate third parties at the 

direction of the Receiver all operating costs with respect thereto and to comply with all relevant 

terms of such agreement. 

(b) Excluded Agreements. The provisions of Section 4.8(a) regarding the 

Assuming Institution's election to assume or not assume certain agreements shall not apply to (i) 

agreements pursuant to which the Failed Bank provides mortgage servicing for others or 

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mortgage servicing is provided to the Failed Bank by others, (ii) agreements that are subject to 

Sections 4.1 through 4.7 and any insurance policy or bond referred to in Section 3.5(a) or other 

agreement specified in Section 3.5 and (iii) consulting, management or employment agreements, 

if any, between the Failed Bank and its employees or other Persons. Except as otherwise 

expressly set forth elsewhere in this Agreement, the Assuming Institution does not assume any 

liabilities or acquire any rights under any ofthe agreements described in this Section 4.8(b). 

4.9. Informational Tax Reporting. The Assuming Institution agrees to perform all 

obligations of the Failed Bank with respect to Federal and State income tax informational 

reporting related to (i) the Assets and the Liabilities Assumed, (ii) deposit accounts that were 

closed and loans that were paid off or collateral obtained with respect thereto prior to the Bank 

Closing Date, (iii) miscellaneous payments made to vendors of the Failed Bank, and (iv) any 

other asset or liability of the Failed Bank, including, without limitation, loans not purchased and 

Deposits not assumed by the Assuming Institution, as may be required by the Receiver. 

4.10. Insurance. 

(a) Assuming Institution to Insure. The Assuming Institution will obtain and 

maintain insurance coverage acceptable to the Receiver (including public liability, fire, and 

extended coverage insurance) naming the Assuming Institution as the insured and the Receiver 

as additional insured, effective from and after the Bank Closing Date, with respect to all (i) Bank 

Premises that the Assuming Institution occupies, and (ii) Fixtures, Furniture and Equipment and 

Leased Data Management Equipment located on those Bank Premises. 

(b) Rights of Receiver. If the Assuming Institution at any time from or after 

Bank Closing Date fails to (i) obtain or maintain any of the insurance policies required by 

Section 4.10(a), (ii) pay any premium in whole or in part related to those insurance policies, or 

(iii) provide evidence of those insurance policies acceptable to the Receiver, then the Receiver 

may in its sole and absolute discretion, without notice, and without waiving or releasing any 

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 

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Receiver and the Corporation FDIC Office Space at the Bank Premises. During the period from 

the 181 st day following the Bank Closing Date until the day the FDIC and the Corporation 

vacate FDIC Office Space, the Receiver and the Corporation will pay to the Assuming Institution 

their respective pro rata share (based on square footage occupied) of (A) the market rental value 

for the applicable owned Bank Premises or (B) actual rent paid for applicable leased Bank 

Premises. 

(c) Receiver's Relocation Right. If the Receiver or the Corporation determine 

that the space provided by the Assuming Institution is inadequate or unsuitable, the Receiver and 

the Corporation may relocate to other quarters having adequate and suitable FDIC Office Space 

and the costs of relocation and any rental and utility costs for the balance of the period of 

occupancy by the Receiver and the Corporation shall be borne by the Assuming Institution. 

(d) Expenditures. The Assuming Institution will pay such bills and invoices 

on behalf of the Receiver and the Corporation as the Receiver or the Corporation may direct for 

the period beginning on the date of the Bank Closing Date and ending on Settlement Date. The 

Assuming Institution shall submit its requests for reimbursement of such expenditures pursuant 

to Article VIII of this Agreement. 

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

Failed Bank. 

(a) Continuation Coverage. The Assuming Institution agrees to assist the 

Receiver, as provided in this Section 4.12, in offering individuals who were employees or former 

employees of the Failed Bank, or any of its Subsidiaries, and who, immediately prior to the Bank 

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 

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Institution and such employees' Qualified Beneficiaries shall be borne by the Assuming 

Institution. 

(c) Employee List. No later than five (5) Business Days after the Bank 

Closing Date, the Assuming Institution shall provide the Receiver with a list of all Failed Bank 

employees the Assuming Institution will not hire. Unless otherwise agreed, the Assuming 

Institution shall pay all salaries and payroll costs for all Failed Bank employees until the list is 

provided to the Receiver. The Assuming Institution shall be responsible for all costs and 

expenses (i.e., salary, benefits, etc.) associated with all other employees not on that list from and 

after the date of delivery of the list to the Receiver. The Assuming Institution shall offer to the 

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

Institution, offers its current employees. 

(d) No Third Party Beneficiaries. This Section 4.12 is for the sole and 

exclusive benefit of the parties to this Agreement, and for the benefit of no other Person 

(including any former employee of the Failed Bank or any Subsidiary thereof, Eligible Individual 

or Qualified Beneficiary of such former employee). Nothing in this Section 4.12 is intended by 

the parties, or shall be construed, to give any Person (including any former employee of the 

Failed Bank or any Subsidiary thereof, Eligible Individual or Qualified Beneficiary of such 

former employee) other than the Corporation, the Receiver and the Assuming Institution, any 

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 a Commercial Shared-Loss Agreement attached hereto as Exhibit 

4.15B. The Assuming Institution shall be entitled to require reimbursement from the Receiver 

for shared losses, and share recoveries, on certain loans and assets in accordance with the 

Commercial Shared-Loss Agreement. 

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 

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all other respects to discharge, in the usual course of conducting a banking business, the duties 

and obligations of the Failed Bank with respect to the Deposit balances due and owing to the 

depositors of the Failed Bank assumed by the Assuming Institution under this Agreement. 

5.2. Certain Agreements Related to Deposits. Except as may be modified pursuant 

to Section 2.2, the Assuming Institution agrees to honor the terms and conditions of any written 

escrow or mortgage servicing agreement or other similar agreement relating to a Deposit liability 

assumed by the Assuming Institution pursuant to this Agreement. 

5.3. Notice to Depositors. 

(a) Assumption of Deposits. Within seven (7) days after the Bank Closing 

Date, the Assuming Institution shall give notice by mail to each depositor of the Failed Bank of 

(i) the assumption of the Deposit liabilities of the Failed Bank, and (ii) the procedures to claim 

Deposits (the Receiver shall provide item (ii) to Assuming Institution). The Assuming 

Institution shall also publish notice of its assumption of the Deposit liabilities of the Failed Bank 

in a newspaper of general circulation in the county or counties in which the Failed Bank was 

located. 

(b) Notice to Depositors. Within seven (7) days after the Bank Closing Date, 

the Assuming Institution shall give notices by mail to each depositor of the Failed Bank, as 

required under Section 2.2. 

(c) Fee Schedule. If the Assuming Institution proposes to charge fees 

different from those fees formerly charged by the Failed Bank, the Assuming Institution shall 

include its fee schedule in its mailed notice. 

(d) Approval of Notices and Publications. The Assuming Institution shall 

obtain approval of all notices and publications required by this Section 5.3 from counsel for the 

Receiver prior to mailing or publication. 

ARTICLE VI. RECORDS. 

6.1. Transfer of Records. In accordance with Sections 2.1 and 3.1, the Receiver 

assigns, transfers, conveys and delivers to the Assuming Institution, whether located on Bank 

Premises occupied or not occupied by the Assuming Institution or at any other location, any and 

all Records of the Failed Bank, other than the following: 

(a) Records pertaining to former employees of the Failed Bank who were no 

longer employed by the Failed Bank as of the Bank Closing Date and Records pertaining to 

employees of the Failed Bank who were employed by the Failed Bank as of the Bank Closing 

Date and for whom the Receiver is unable to obtain a waiver to release such Records to the 

Assuming Institution; 

(b) Records pertaining to (i) any asset or liability of the Failed Bank retained 

by the Receiver, or (ii) any asset of the Failed Bank acquired by the Receiver pursuant to this 

Agreement; and 

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

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6.2. Transfer of Assigned Records. The Receiver shall transfer to the Assuming 

Institution all Records described in Section 6.1 as soon as practicable on or after the date of this 

Agreement. 

6.3. Preservation of Records. 

(a) Assuming Institution Records Retention. The Assuming Institution agrees 

that it will preserve and maintain for the joint benefit of the Receiver, the Corporation and the 

Assuming Institution, all Records of which it has custody. The Assuming Institution shall have 

the primary responsibility to respond to subpoenas, discovery requests, and other similar official 

inquiries and customer requests for lien releases with respect to the Records of which it has 

custody. With respect to its obligations under this Section 6.3 regarding Electronically Stored 

Information, the Assuming Institution will complete the Data Retention Catalog attached hereto 

as Schedule 6.3 and submit it to the Receiver within thirty (30) days following the Bank Closing 

Date. 

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

custody which are at least ten (10) years old as of the date of the appointment of the Receiver, 

the Assuming Institution agrees to request written permission to destroy such records by 

submitting a written request to destroy, specifying precisely which records are included in the 

request, to DRR- Records Manager, CServiceFDICDAL@FDIC.gov. 

(c) Destruction of Records After Six Years. With regard to all Records of 

which it has custody which have been maintained in the custody of the Assuming Institution 

after six (6) years from the date of the appointment of the Receiver, the Assuming Institution 

agrees to request written permission to destroy such records by submitting a written request to 

destroy, specifying precisely which records are included in the request, to DRR- Records 

Manager, CServiceFDICDAL@FDIC.gov. 

6.4. Access to Records; Copies. The Assuming Institution agrees to permit the 

Receiver and the Corporation access to all Records of which the Assuming Institution has 

custody, and to use, inspect, make extracts from or request copies of any such Records in the 

manner and to the extent requested, and to duplicate, in the discretion of the Receiver or the 

Corporation, any Record pertaining to Deposit account relationships; provided that in the event 

that the Failed Bank maintained one or more duplicate copies of such Records, the Assuming 

Institution hereby assigns, transfers, and conveys to the Corporation one such duplicate copy of 

each such Record without cost to the Corporation, and agrees to deliver to the Corporation all 

Records assigned and transferred to the Corporation under this Article VI as soon as practicable 

on or after the date of this Agreement. The party requesting a copy of any Record shall bear the 

cost (based on standard accepted industry charges to the extent applicable, as determined by the 

Receiver) for providing such duplicate Records. A copy of each Record requested shall be 

provided as soon as practicable by the party having custody thereof 

6.5. Right of Receiver or Corporation to Audit. The Receiver or the Corporation, 

their respective agents, contractors and employees, may (but are not required to) perform an 

audit to determine the Assuming Institution's compliance with this Agreement at any time, by 

providing not less than ten (1 0) 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 

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the Receiver shall make such accounting adjustments, payments and withholdings as may be 

necessary to give retroactive effect to such corrections. 

ARTICLE VII. BID; INITIAL PAYMENT. 

The Assuming Institution has submitted to the Receiver a Deposit premium bid of 0.0 % 

and an Asset (discount) bid of ($27,900,000.00) (the "Bid Amount"). The Deposit premium bid 

will be applied to the total of all Assumed Deposits except for brokered, CDARS®, and any 

market place or similar subscription services Deposits as reflected on Schedule 7. On the 

Payment Date, the Assuming Institution will pay to the Corporation, or the Corporation will pay 

to the Assuming Institution, as the case may be, the Initial Payment, together with interest on 

such amount (if the Payment Date is not the day following the Bank Closing Date) from and 

including the day following the Bank Closing Date to and including the day preceding the 

Payment Date at the Settlement Interest Rate. 

ARTICLE VIII. ADJUSTMENTS. 

8.1. Pro Forma Statement. The Receiver, as soon as practicable after the Bank 

Closing Date, in accordance with the best information then available, shall provide to the 

Assuming Institution a Pro Forma statement reflecting any adjustments of such liabilities and 

assets as may be necessary. Such Pro Forma statement shall take into account, to the extent 

possible, (a) liabilities and assets of a nature similar to those contemplated by Section 2.1 or 

Section 3.1, respectively, which on the Bank Closing Date were carried in the Failed Bank's 

suspense accounts, (b) accruals as of the Bank Closing Date for all income related to the assets 

and business of the Failed Bank acquired by the Assuming Institution hereunder, whether or not 

such accruals were reflected on the Failed Bank Records in the normal course of its operations, 

and (c) adjustments to determine the Book Value of any investment in an Acquired Subsidiary 

and related accounts on the "bank only" (unconsolidated) balance sheet of the Failed Bank based 

on the equity method of accounting, whether or not the Failed Bank used the equity method of 

accounting for investments in subsidiaries, except that the resulting amount cannot be less than 

the Acquired Subsidiary's recorded equity as of the Bank Closing Date as reflected on the Failed 

Bank Records of the Acquired Subsidiary. Any Loan purchased by the Assuming Institution 

pursuant to Section 3.1 which the Failed Bank charged off during the period beginning the day 

after the Bid Valuation Date to the date of the Bank Closing Date shall be deemed not to be 

charged off for the purposes of the Pro Forma statement, and the purchase price shall be 

determined pursuant to Section 3.2. 

8.2. Correction of Errors and Omissions; Other Liabilities. 

(a) Adjustments to Correct Errors. In the event any bookkeeping omissions or 

errors are discovered in preparing any Pro Forma statement or in completing the transfers and 

assumptions contemplated hereby, the parties hereto agree to correct such errors and omissions, 

it being understood that, as far as practicable, all adjustments will be made consistent with the 

judgments, methods, policies or accounting principles utilized by the Failed Bank in preparing 

and maintaining Failed Bank Records, except that adjustments made pursuant to this Section 

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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 

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

accordance with Section 8.1 or Section 8.2. 

8.4. Interest. Any amounts paid under Section 8.3 or Section 8.5 shall bear interest 

for the period from and including the day following the Bank Closing Date to and including the 

day preceding the payment at the Settlement Interest Rate. 

8.5. Subsequent Adjustments. In the event that the Assuming Institution or the 

Receiver discovers any errors or omissions as contemplated by Section 8.2 or any error with 

respect to the payment made under Section 8.3 after the Settlement Date, the Assuming 

Institution and the Receiver agree to promptly correct any such errors or omissions, make any 

payments and effect any transfers or assumptions as may be necessary to reflect any such 

correction plus interest as provided in Section 8.4. 

ARTICLE IX. CONTINUING COOPERATION. 

9.1. General Matters. The parties hereto will, in good faith and with their best 

efforts, cooperate with each other to carry out the transactions contemplated by this Agreement 

and to effect the purposes hereof 

9.2. Additional Title Documents. The Receiver, the Corporation and the Assuming 

Institution each shall, at any time, and from time to time, upon the request of any party hereto, 

execute and deliver such additional instruments and documents of conveyance as shall be 

reasonably necessary to vest in the appropriate party its full legal or equitable title in and to the 

property transferred pursuant to this Agreement or to be transferred in accordance herewith. The 

Assuming Institution shall prepare such instruments and documents of conveyance (in form and 

substance satisfactory to the Receiver) as shall be necessary to vest title to the Assets in the 

Assuming Institution. The Assuming Institution shall be responsible for recording such 

instruments and documents of conveyance at its own expense. 

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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. 

9.4. Payment of Deposits. In the event any depositor does not accept the obligation 

of the Assuming Institution to pay any Deposit liability of the Failed Bank assumed by the 

Assuming Institution pursuant to this Agreement and asserts a claim against the Receiver for all 

or any portion of any such Deposit liability, the Assuming Institution agrees on demand to 

provide to the Receiver funds sufficient to pay such claim in an amount not in excess of the 

Deposit liability reflected on the books of the Assuming Institution at the time such claim is 

made. Upon payment by the Assuming Institution to the Receiver of such amount, the Assuming 

Institution shall be discharged from any further obligation under this Agreement to pay to any 

such depositor the amount of such Deposit liability paid to the Receiver. 

9.5. Withheld Payments. At any time, the Receiver or the Corporation may, in its 

discretion, determine that all or any portion of any deposit balance assumed by the Assuming 

Institution pursuant to this Agreement does not constitute a "Deposit" (or otherwise, in its 

discretion, determine that it is the best interest of the Receiver or Corporation to withhold all or 

any portion of any deposit), and may direct the Assuming Institution to withhold payment of all 

or any portion of any such deposit balance. Upon such direction, the Assuming Institution agrees 

to hold such deposit and not to make any payment of such deposit balance to or on behalf of the 

depositor, or to itself, whether by way of transfer, set-off or otherwise. The Assuming Institution 

agrees to maintain the "withheld payment" status of any such deposit balance until directed in 

writing by the Receiver or the Corporation as to its disposition. At the direction of the Receiver 

or the Corporation, the Assuming Institution shall return all or any portion of such deposit 

balance to the Receiver or the Corporation, as appropriate, and thereupon the Assuming 

Institution shall be discharged from any further liability to such depositor with respect to such 

returned deposit balance. If such deposit balance has been paid to the depositor prior to a demand 

for return by the Corporation or the Receiver, and payment of such deposit balance had not been 

previously withheld pursuant to this Section 9.5, the Assuming Institution shall not be obligated 

to return such deposit balance to the Receiver or the Corporation. The Assuming Institution shall 

be obligated to reimburse the Corporation or the Receiver, as the case may be, for the amount of 

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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 

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 .I. 

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 

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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 party consents 

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

connection with the execution, delivery or performance by the Assuming Institution of this 

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

11.3. Execution and Enforceability. This Agreement has been duly executed and 

delivered by the Assuming Institution and when this Agreement has been duly authorized, 

executed and delivered by the Corporation and the Receiver, this Agreement will constitute the 

legal, valid and binding obligation of the Assuming Institution, enforceable in accordance with 

its terms. 

11.4. Compliance with Law. 

(a) No Violations. Neither the Assuming Institution nor any of its 

Subsidiaries is in violation of any statute, regulation, order, decision, judgment or decree of, or 

any restriction imposed by, the United States of America, any State, municipality or other 

political subdivision or any agency of any of the foregoing, or any court or other tribunal having 

jurisdiction over the Assuming Institution or any of its Subsidiaries or any assets of any such 

Person, or any foreign government or agency thereof having such jurisdiction, with respect to the 

conduct of the business of the Assuming Institution or of any of its Subsidiaries, or the 

ownership of the properties of the Assuming Institution or any of its Subsidiaries, which, either 

individually or in the aggregate with all other such violations, would materially and adversely 

affect the business, operations or condition (financial or otherwise) of the Assuming Institution 

or the ability of the Assuming Institution to perform, satisfy or observe any obligation or 

condition under this Agreement. 

(b) No Conflict. Neither the execution and delivery nor the performance by 

the Assuming Institution of this Agreement will result in any violation by the Assuming 

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. 

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11.5. Insured or Guaranteed Loans. If any Loans being transferred pursuant to this 

Agreement are insured or guaranteed by any department or agency of any governmental unit, 

federal, state or local, Assuming Institution represents that Assuming Institution has been 

approved by such agency and is an approved lender or mortgagee, as appropriate, if such 

approval is required. The Assuming Institution further assumes full responsibility for 

determining whether or not such insurance or guarantees are in full force and effect on the date 

of this Agreement and with respect to those Loans whose insurance or guaranty is in full force 

and effect on the date of this Agreement, Assuming Institution assumes full responsibility for 

doing all things necessary to insure such insurance or guarantees remain in full force and effect. 

Assuming Institution agrees to assume all of the obligations under the contract(s) of insurance or 

guaranty and agrees to cooperate with the Receiver where necessary to complete forms required 

by the insuring or guaranteeing department or agency to effect or complete the transfer to 

Assuming Institution. 

11.6. Representations Remain True. The Assuming Institution represents and 

warrants that it has executed and delivered to the Corporation a Purchaser Eligibility 

Certification and Confidentiality Agreement and that all information provided and 

representations made by or on behalf of the Assuming Institution in connection with this 

Agreement and the transactions contemplated hereby, including, but not limited to, the Purchaser 

Eligibility Certification and Confidentiality Agreement (which are affirmed and ratified hereby) 

are and remain true and correct in all material respects and do not fail to state any fact required to 

make the information contained therein not misleading. 

11.7. No Reliance; Independent Advice. The Assuming Institution is not relying on 

the Receiver or the Corporation for any business, legal, tax, accounting, investment or other 

advice in connection with this Agreement and the Exhibits hereto and documents delivered in 

connection with the foregoing, and has had adequate opportunity to consult with advisors of its 

choice in connection therewith. 

ARTICLE XII. INDEMNIFICATION. 

12.1. Indemnification of Indemnitees. From and after the Bank Closing Date and 

subject to the limitations set forth in this Section 12.1 and Section 12.6 and compliance by the 

Indemnitees with Section 12.2, the Receiver agrees to indemnify and hold harmless the 

Indemnitees against any and all costs, losses, liabilities, expenses (including attorneys' fees) 

incurred prior to the assumption of defense by the Receiver pursuant to Section 12.2(d), 

judgments, fines and amounts paid in settlement actually and reasonably incurred in connection 

with claims against any Indemnitee based on liabilities of the Failed Bank that are not assumed 

by the Assuming Institution pursuant to this Agreement or subsequent to the execution hereof by 

the Assuming Institution or any Subsidiary or Affiliate of the Assuming Institution for which 

indemnification is provided: 

(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; 

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(ii) claims based on the rights of any creditor as such of the Failed 

Bank, or any creditor as such of any director, officer, employee or agent of the Failed 

Bank, with respect to any indebtedness or other obligation of the Failed Bank arising 

prior to the Bank Closing Date; 

(iii) claims based on the rights of any present or former director, 

officer, employee or agent as such of the Failed Bank or of any Subsidiary or Affiliate of 

the Failed Bank; 

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

Date of the Failed Bank, its directors, officers, employees or agents as such, or any 

Subsidiary or Affiliate of the Failed Bank, or the directors, officers, employees or agents 

as such of such Subsidiary or Affiliate; 

(v) claims based on any malfeasance, misfeasance or nonfeasance of 

the Failed Bank, its directors, officers, employees or agents with respect to the trust 

business of the Failed Bank, if any; 

(vi) claims based on any failure or alleged failure (not in violation of 

law) by the Assuming Institution to continue to perform any service or activity previously 

performed by the Failed Bank which the Assuming Institution is not required to perform 

pursuant to this Agreement or which arise under any contract to which the Failed Bank 

was a party which the Assuming Institution elected not to assume in accordance with this 

Agreement and which neither the Assuming Institution nor any Subsidiary or Affiliate of 

the Assuming Institution has assumed subsequent to the execution hereof; 

(vii) claims arising from any action or inaction of any Indemnitee, 

including for purposes ofthis Section 12.1(a)(vii) the former officers or employees ofthe 

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 

12.1(a)(vii) and (viii), no indemnification will be provided under this Agreement for any: 

(i) judgment or fine against, or any amount paid in settlement 

(without the written approval of the Receiver) by, any Indemnitee in connection with any 

action that seeks damages against any Indemnitee (a "Counterclaim") arising with 

respect to any Asset and based on any action or inaction of either the Failed Bank, its 

directors, officers, employees or agents as such prior to the Bank Closing Date, unless 

any such judgment, fine or amount paid in settlement exceeds the greater of (A) the 

Repurchase Price of such Asset, or (B) the monetary recovery sought on such Asset by 

the Assuming Institution in the cause of action from which the Counterclaim arises; and 

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in such event the Receiver will provide indemnification only in the amount of such 

excess; and no indemnification will be provided for any costs or expenses other than any 

costs or expenses (including attorneys' fees) which, in the determination of the Receiver, 

have been actually and reasonably incurred by such Indemnitee in connection with the 

defense of any such Counterclaim; and it is expressly agreed that the Receiver reserves 

the right to intervene, in its discretion, on its behalf and/or on behalf of the Receiver, in 

the defense of any such Counterclaim; 

(ii) claims with respect to any liability or obligation of the Failed Bank 

that is expressly assumed by the Assuming Institution pursuant to this Agreement or 

subsequent to the execution hereof by the Assuming Institution or any Subsidiary or 

Affiliate of the Assuming Institution; 

(iii) claims with respect to any liability of the Failed Bank to any 

present or former employee as such of the Failed Bank or of any Subsidiary or Affiliate 

of the Failed Bank, which liability is expressly assumed by the Assuming Institution 

pursuant to this Agreement or subsequent to the execution hereof by the Assuming 

Institution or any Subsidiary or Affiliate of the Assuming Institution; 

(iv) claims based on the failure of any Indemnitee to seek recovery of 

damages from the Receiver for any claims based upon any action or inaction of the Failed 

Bank, its directors, officers, employees or agents as fiduciary, agent or custodian prior to 

the Bank Closing Date; 

(v) claims based on any violation or alleged violation by any 

Indemnitee of the antitrust, branching, banking or bank holding company or securities 

laws of the United States of America or any State thereof; 

(vi) claims based on the rights of any present or former creditor, 

customer, or supplier as such of the Assuming Institution or any Subsidiary or Affiliate of 

the Assuming Institution; 

(vii) claims based on the rights of any present or former shareholder as 

such of the Assuming Institution or any Subsidiary or Affiliate of the Assuming 

Institution 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; 

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(xi) except as expressly provided in this Article XII, claims based on 

any action or inaction of any Indemnitee, and nothing in this Agreement shall be 

construed to provide indemnification for (i) the Failed Bank, (ii) any Subsidiary or 

Affiliate of the Failed Bank, or (iii) any present or former director, officer, employee or 

agent of the Failed Bank or its Subsidiaries or Affiliates; provided that the Receiver, in its 

sole and absolute discretion, may provide indemnification hereunder for any present or 

former director, officer, employee or agent of the Failed Bank or its Subsidiaries or 

Affiliates who is also or becomes a director, officer, employee or agent of the Assuming 

Institution or its Subsidiaries or Affiliates; 

(xii) claims or actions which constitute a breach by the Assuming 

Institution of the representations and warranties contained in Article XI; 

(xiii) claims arising out of or relating to the condition of or generated by 

an Asset arising from or relating to the presence, storage or release of any hazardous or 

toxic substance, or any pollutant or contaminant, or condition of such Asset which violate 

any applicable Federal, State or local law or regulation concerning environmental 

protection; and 

(xiv) claims based on, related to or arising from any asset, including a 

loan, acquired or liability assumed by the Assuming Institution, other than pursuant to 

this Agreement. 

12.2. Conditions Precedent to Indemnification. It shall be a condition precedent to 

the obligation of the Receiver to indemnify any Person pursuant to this Article XII that such 

Person shall, with respect to any claim made or threatened against such Person for which such 

Person is or may be entitled to indemnification hereunder: 

(a) give written notice to the 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 

Module 1 -Whole Bank w/ Optional Shared Loss Agreements 3 7 Western Springs National Bank and Trust 

Version 3.01- PURCHASE AND ASSUMPTION AGREEMENT Western Springs, Illinois 

December ~. 2010 
amount of any such costs or expenses unless such costs or expenses were incurred upon the 

written direction of the Receiver; 

(f) not release or settle such claim or make any payment or admission with 

respect thereto, unless the Receiver consents thereto; provided that the Receiver shall not be 

obligated to reimburse the amount of any such settlement or payment unless such settlement or 

payment was effected upon the written direction of the Receiver; and 

(g) take such reasonable action as the Receiver may request in writing as 

necessary to preserve, protect or enforce the rights of the Indemnitee against any Primary 

Indemnitor. 

12.3. No Additional Warranty. Nothing in this Article XII shall be construed or 

deemed to (a) expand or otherwise alter any warranty or disclaimer thereof provided under 

Section 3.3 or any other provision of this Agreement with respect to, among other matters, the 

title, value, collectability, genuineness, enforceability, documentation, condition or freedom from 

liens or encumbrances, of any (i) Asset, or (ii) asset of the Failed Bank purchased by the 

Assuming Institution subsequent to the execution of this Agreement by the Assuming Institution 

or any Subsidiary or Atliliate of the Assuming Institution, or (b) create any warranty not 

expressly provided under this Agreement with respect thereto. 

12.4. Indemnification of Receiver and Corporation. From and after the Bank 

Closing Date, the Assuming Institution agrees to indemnify and hold harmless the Corporation 

and the Receiver and their respective directors, officers, employees and agents from and against 

any and all costs, losses, liabilities, expenses (including attorneys' fees), judgments, fines and 

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 

Module 1 -Whole Bank w/ Optional Shared Loss Agreements 38 Western Springs National Bank and Trust 

Version 3.01- PURCHASE AND ASSUMPTION AGREEMENT Western Springs, Illinois 

December ~. 2010 
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 ofthe Receiver's (or 

Corporation's) payments to the extent of such excess. 

12.6. Criminal Claims. Notwithstanding any prov1s10n 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 ofliability 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 

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 ofthe Indemnitee against any other Person to the extent of such payment. 

ARTICLE XIII. MISCELLANEOUS. 

13.1. Costs, Fees, and Expenses. All fees, costs and expenses incurred by a party in 

connection with this Agreement (including the performance of any obligations or the exercise of 

any rights hereunder) shall be borne by such party unless expressly otherwise provided; provided 

that the Assuming Institution shall pay all fees, costs and expenses (other than attorneys' fees 

incurred by the Receiver) incurred in connection with the transfer to it of any Assets or 

Liabilities Assumed hereunder or in accordance herewith. 

13.2. WAIVER OF JURY TRIAL. EACH PARTY HEREBY IRREVOCABLY 

AND UNCONDITIONALLY 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 

Module 1 -Whole Bank w/ Optional Shared Loss Agreements 39 Western Springs National Bank and Trust 

Version 3.01- PURCHASE AND ASSUMPTION AGREEMENT Western Springs, Illinois 

December ~. 2010 
unless expressly otherwise provided, shall not be unreasonably withheld or delayed. When a 

determination or decision is to be made by a party under this Agreement, that party shall make 

such determination or decision in its reasonable discretion unless expressly otherwise provided. 

13.4. Rights Cumulative. Except as expressly otherwise provided herein, the rights of 

each of the parties under this Agreement are cumulative, may be exercised as often as any party 

considers appropriate and are in addition to each such party's rights under this Agreement, any of 

the agreements related thereto or under applicable law. Any failure to exercise or any delay in 

exercising any of such rights, or any partial or defective exercise of such rights, shall not operate 

as a waiver or variation of that or any other such right, unless expressly otherwise provided. 

13.5. References. References in this Agreement to Recitals, Articles, Sections, 

Schedules and Exhibits are to Recitals, Articles, Sections, Schedules and Exhibits of this 

Agreement, respectively, unless the context indicates that a Shared-Loss Agreement is intended. 

References to parties are to the parties to this Agreement. Unless expressly otherwise provided, 

references to days and months are to calendar days and months respectively. Article and Section 

headings are for convenient reference and shall not affect the meaning of this Agreement. 

References to the singular shall include the plural, as the context may require, and vice versa. 

13.6. Notice. 

(a) Form of Notices. All notices shall be given in writing and provided in 

accordance with the provisions of this Section 13.6, unless expressly otherwise provided. 

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

this Agreement: 

Federal Deposit Insurance Corporation as Receiver for 

Western Springs National Bank and Trust 

200 North Martingale Road, Suite 200 

Schaumburg, Illinois 60173 

Attention: Settlement Agent 

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

Resolutions and Closings Manager, ORE Department (David Dewey) 

Federal Deposit Insurance Corporation as Receiver for 

Western Springs National Bank and Trust 

200 North Martingale Road, Suite 200 

Schaumburg, Illinois 60173 

Module 1 -Whole Bank w/ Optional Shared Loss Agreements 40 Western Springs National Bank and Trust 

Version 3.01- PURCHASE AND ASSUMPTION AGREEMENT Western Springs, Illinois 

December ~. 2010 
In addition, with respect to notice under Article XII: 

Regional Counsel (Litigation Branch) 

Federal Deposit Insurance Corporation as Receiver for 

Western Springs National Bank and Trust 

1601 Bryan Street, Suite 1700 

Dallas, Texas 75201 

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

Attention: Interim Servicing Manager 

Federal Deposit Insurance Corporation as Receiver for 

Western Springs National Bank and Trust 

200 North Martingale Road, Suite 200 

Schaumburg, Illinois 60173 

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

Agreement: 

Heartland Bank and Trust Company 

40 1 North Hershey Road 

P. 0. Box 67 

Bloomington, Illinois 61702 

Attention: Fred L. Drake, Chairman and Chief Executive Officer 

13.7. Entire Agreement. This Agreement and the Shared-Loss Agreements, if any, 

including the Schedules and Exhibits hereto and thereto, embody the entire agreement of the 

parties hereto in relation to the subject matter herein and supersede all prior understandings or 

agreements, oral or written, between the parties. 

13.8. Counterparts. This Agreement may be executed in any number of counterparts 

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

each of which when so executed shall be deemed to be an original and all of which when taken 

together shall constitute one and the same Agreement. 

13.9. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND 

OBLIGATIONS HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN 

ACCORDANCE WITH THE FEDERAL LAW OF THE UNITED STATES OF AMERICA, 

AND TN THE ABSENCE OF CONTROLLING FEDERAL LAW, TN ACCORDANCE WITH 

THE LAWS OF THE STATE IN WHICH THE MAIN OFFICE OF THE FAILED BANK IS 

LOCATED. 

13.10. Successors. All terms and conditions of this Agreement shall be binding on the 

successors and assigns of the Receiver, the Corporation and the Assuming Institution. Except as 

otherwise specifically provided in this Agreement, nothing expressed or referred to in this 

Agreement is intended or shall be construed to give any Person other than the Receiver, the 

Module 1 -Whole Bank w/ Optional Shared Loss Agreements 41 Western Springs National Bank and Trust 

Version 3.01- PURCHASE AND ASSUMPTION AGREEMENT Western Springs, Illinois 

December ~. 2010 
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 

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] 

Module 1 -Whole Bank w/ Optional Shared Loss Agreements 42 Western Springs National Bank and Trust 

Version 3.01- PURCHASE AND ASSUMPTION AGREEMENT Western Springs, Illinois 

December ~. 2010 
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be 

executed by their duly authorized representatives as of the date frrst above written. 

FEDERAL DEPOSIT INSURANCE CORJ>ORATION, 

RECEIVER OF WESTERN SPRINGS NATIONAL 

BANK AND TRUST, WESTERN SPRINGS, LLINOIS 

[ 

Attest: I 

BY ! = = = = J_ 


NAME: Daniel M. Bell 

TITLE: Receiver In Charge 

FEDERAL DEPOSIT INSURA~CE CORPORATION 

BYr~,.....--__--,--_..___­

7 

NAME: Daniel M. Bell 

TITLE: Attorney In Fact 

HEARTLAND BANK TRUST COMPANY

BY: 


NAME: Fred L Drake 


TITLE: Chairman and ChiefExecutive Officer 


Western Spnngs Na1iooal Bank and Trust

Module 43 I - W'oole Baolc w/ Optloo:U ShMC<ll<>$:5 AgreementS Western Springs, Olinois Vets10n 3.01 .fiJ.IC:!jASE A!':!!) r\SSL'MPDON AG~ 

December 8. 20 l 0 
SCHEDULE 2.1(a) 


EXCLUDED DEPOSIT LIABILITY ACCOUNTS 


As of the Bid Valuation Date, Western Springs National Bank and Trust had no deposits 

associated with the Depository Organization ("DO") Cede & Co as Nominee for DTC. DO 

accounts do not pass to the Assuming Institution and are excluded from the transaction as 

described in Section 2.1 of the Purchase and Assumption Agreement. 

Schedule 2.l(a) DO Detail Report identifies the DO accounts as of the Bid Valuation Date. This 

schedule will be updatedpost closing with data as ofthe Bank Closing Date. 

Module 1 -Whole Bank w/ Optional Shared Loss Agreements 44 Western Springs National Bank and Trust 

Version 3.01- PURCHASE AND ASSUMPTION AGREEMENT Western Springs, Illinois 

December ~. 2010 
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 Boxes and related business, 

safekeeping business and trust business, if 

any: 

(g) 	 Records and other documents: 

(h) 	 Other Real Estate: 

(i) 	 boats, motor vehicles, aircraft, trailers, fire 

arms, and repossessed collateral 

G) 	 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) 


Module 1 -Whole Bank w/ Optional Shared Loss Agreements 45 Western Springs National Bank and Trust 

Version 3.01- PURCHASE AND ASSUMPTION AGREEMENT Western Springs, Illinois 

December ~. 2010 
(o) rights of the Failed Bank to have mortgage 

servicing provided to the Failed Bank by 

others and related contracts: 

Book Value 

(q) Personal Computers and Owned Data 

Management Equipment: 

Fair Market Value 

Assets subject to an option to purchase: 

(a) Bank Premises: Fair Market Value 

(b) Furniture and Equipment: Fair Market Value 

(c) Fixtures: Fair Market Value 

(d) Other Equipment: Fair Market Value 

Module 1 -Whole Bank w/ Optional Shared Loss Agreements 46 Western Springs National Bank and Trust 

Version 3.01- PURCHASE AND ASSUMPTION AGREEMENT Western Springs, Illinois 

December ~. 2010 
SCHEDULE 3.5(1) 


EXCLUDED SECURITIES 


NONE 


Module 1 -Whole Bank w/ Optional Shared Loss Agreements 47 Western Springs National Bank and Trust 

Version 3.01- PURCHASE AND ASSUMPTION AGREEMENT Western Springs, Illinois 

December ~. 2010 
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Module 1 -Whole Bank w/ Optional Shared Loss Agreements 49 Western Springs National Bank and Trust Version 3.01- PURCHASE AND ASSUMPTION AGREEMENT Western Springs, Illinois December ~. 2010 
SCHEDULE 7 


Accounts Excluded from Calculation of Deposit Franchise Bid 


Premium 


Western Springs National Bank and Trust 


Western Springs, IL 


The accounts identified below will pass to the Assuming Bank (unless otherwise noted). When calculating the premium 

to be paid on Assumed Deposits in a P&A transaction, the FDIC will exclude the following categories of deposit accounts: 

I Non- DO Brokered Deposits $0 

II CDARS $0 

Ill Market Place Deposits $0 

Total deposits excluded from Calculation of premium LQ 

Category Description 

I Brokered Deposits 

Brokered deposit accounts are accounts for which the "depositor of record" is an agent, nominee, or custodian who 

deposits funds for a principal or principals to whom "pass-through" deposit insurance coverage may be extended. The 

FDIC separates brokered deposit accounts into 2 categories: 1) Depository Organization (DO) Brokered Deposits and 

2) Non-Depository Organization (Non-DO) Brokered Deposits. This distinction is made by the FDIC to facilitate our role 

as Receiver and Insurer. These terms will not appear on other "brokered deposit" reports generated by the institution. 

Non-DO Brokered Deposits pass to the Assuming Bank, but are excluded from Assumed Deposits when the deposit 

premium is calculated. Please see the attached "Schedule 7 Non-DO Broker Deposit Detail Report" for a listing of these 

accounts. This list will be updated post closing with balances as of Bank Closing date. 

DO Brokered Deposits (Cede & Co as Nominee for DTC), are typically excluded from Assumed Deposits in the P&A 

transaction. A list of these accounts is provided on "Schedule 2.1 DO Broke red Deposit Detail Report". If, however, the 

terms of a particular transaction are altered and the DO Brokered Deposits pass to the Assuming Bank, they will not be 

included in Assumed Deposits for purposes of calculating the deposit premium. 

II CDARS 

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

calculated. 

Western Springs National Bank and Trust 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 P&A Agreement. 

Ill Market Place Deposits 

"Market Place Deposits" is a description given to deposits that may have been solicited via a money desk, internet 

subscription service (for example, Qwickrate), or similar programs. 

This schedule provides a snapshot of account categories and balances as of the date of the deposit download. The 

deposit franchise bid premium will be calculated using account categories and balances as of Bank Closing Date that are 

reflected in the general ledger or subsystem as described above. The final numbers for Schedule 7 will be provided post 

closing. 

Module 1 -Whole Bank w/ Optional Shared Loss Agreements 50 Western Springs National Bank and Trust 

Version 3.01- PURCHASE AND ASSUMPTION AGREEMENT Western Springs, Illinois 

December ~. 2010 
EXHIBIT 2.3A 


FINAL LEGAL NOTICE 


Claiming Requirements for Deposits 


Under 12 U.S.C. 1822(c) 


[Date] 


[Name of Unclaimed Depositor] 

[Address of Unclaimed Depositor] 

[Anytown, USA] 

Subject: 	 [XXXXX- Name of Bank 

City, State] - In Receivership 

Dear [Sir/Madam]: 

As you may know, on [Date: Closing Date], the [Name of Bank ("The Bank")] was 

closed and the Federal Deposit Insurance Corporation ("FDIC") transferred [The Bank's] accounts to 

[Name of Acquiring Institution]. 

According to federal law under 12 U.S.C., 1822(e), on [Date: eighteen months from the 

Closing Date], [Name of Acquiring Institution] must transfer the funds in your account(s) back to the 

FDIC if you have not claimed your account(s) with [Name of Acquiring Institution]. Based on the 

records recently supplied to us by [Name of Acquiring Institution], your account(s) currently fall into 

this category. 

This letter is your formal Legal Notice that you have until [Date: eighteen months from 

the Closing Date], to claim or arrange to continue your account(s) with [Name of Acquiring 

Institution]. There are several ways that you can claim your account(s) at [Name of Acquiring 

Institution]. It is only necessary for you to take any one of the following actions in order for your 

account(s) at [Name of Acquiring Institution] to be deemed claimed. In addition, if you have more than 

one account, your claim to one account will automatically claim all accounts: 

1. 	 Write to [Name of Acquiring Institution] and notify them that you wish to keep your account(s) 

active with them. Please be sure to include the name of the account(s), the account number(s), the 

signature of an authorized signer on the account(s), name, and address. [Name of Acquiring 

Institution] address is: 

[ 123 Main Street 


Anytown, USA] 


2. 	 Execute a new signature card on your account(s), enter into a new deposit agreement with [Name of 

Acquiring Institution], change the ownership on your account(s), or renegotiate the terms of your 

certificate of deposit account( s) (if any). 

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. 

Module I -Whole Bank w/ Optional Shared Loss Agreements 51 Western Springs National Bank and Trust 

Version 3.01- PURCHASE AND ASSUMPTION AGREEMENT Western Springs, Illinois 

December ~. 2010 
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). Ifthe 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] 

Module 1 -Whole Bank w/ Optional Shared Loss Agreements 52 Western Springs National Bank and Trust 

Version 3.01- PURCHASE AND ASSUMPTION AGREEMENT Western Springs, Illinois 

December ~. 2010 
EXHIBIT 2.3B 


AFFIDAVIT OF MAILING 


AFFIDAVII OF MAILING 

State of 

COUNTY OF 

I am employed as a [Title of Office] by the [Name of Acquiring Institution]. 

This will attest that on [Date of mailing], I caused a true and correct copy of the Final Legal Notice, 

attached hereto, to owners of unclaimed deposits of [Name of Failed Bank], City, State, to be prepared 

for deposit in the mail of the United States of America on behalf of the Federal Deposit Insurance 

Corporation. A list of depositors to whom the notice was mailed is attached. This notice was mailed to 

the depositor's last address as reflected on the books and records of the [Name of Failed Bank] as of the 

date 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 

Module 1 -Whole Bank w/ Optional Shared Loss Agreements 53 Western Springs National Bank and Trust 

Version 3.01- PURCHASE AND ASSUMPTION AGREEMENT Western Springs, Illinois 

December ~. 2010 
EXHIBIT 3.2(c) 


VALUATION OF CERTAIN 


QUALIFIED FINANCIAL CONTRACTS 


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"), during the term of this Arrangement the 

Assuming Institution shall, with respect to the Pool Assets: 

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

record; 

(ii) reverse and return insufficient funds checks; 

(iii) pay (A) participation payments to participants in Loans, as and when 

received; (B) tax and insurance bills, as they come due, out of any escrow funds maintained for 

such purposes; and (C) unfunded commitments and protective advances out of any escrow funds 

created for such purposes; 

(iv) process funding draws under Loans and protective advances in connection 

with collateral and acquired property, in each case, as and to the extent authorized and funded by 

the Receiver; 

(v) maintain in use all data processing equipment and systems and other 

systems of record on which any activity with respect to any Pool Assets are, or prior to the Bank 

Closing Date, were, recorded, and maintain all historical data on any such systems as of the Bank 

Closing Date and not, without the express consent of the Receiver (which consent must be 

sought at least sixty (60) days prior to taking any action), decouvert, remove, transfer or 

otherwise discontinue use of any of the Failed Bank's systems of record with respect to any Pool 

Asset; 

(vi) maintain accurate records reflecting (A) payments received by the 

Assuming Institution, (B) information received by the Assuming Institution concerning changes 

in the address or identity of any Obligor and (C) other servicing actions taken by the Assuming 

Institution, including checks returned for insufficient funds; 

(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) 

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notices to Obligors who are in default on Loans (in the same manner as the Failed Bank or as are 

requested by the Receiver); 

(viii) employ a sufficient number of qualified employees to provide the services 

required to be provided by the Assuming Institution pursuant to this Arrangement (with the 

number and qualifications of such employees to be not less than the number and qualifications of 

employees employed by the Failed Bank to perform such functions as of the Bank Closing Date); 

(ix) hold in trust any Credit Files and any servicing files in the possession or 

on the premises of the Assuming Institution for the Receiver or the Successor Owner (as 

applicable) and segregate from the other books and records of the Assuming Institution and 

appropriately mark such Credit Files and servicing files to clearly reflect the ownership interest 

of the Receiver or the successor owner (as applicable); 

(x) send to the Receiver (indicating closed bank name and number), Attn: 

Interim Servicing Manager, at the email address provided in Section 13.6 of the Purchase and 

Assumption Agreement, or to such other person at such address as the Receiver may designate, 

via overnight delivery: (A) on a weekly basis, weekly reports, including, without limitation, 

reports reflecting collections and trial balances, and (B) any other reports, copies or information 

as may be requested from time to time by the Receiver, including, if requested, copies of (1) 

checks or other remittances received, (2) insufficient funds checks returned, (3) checks or other 

remittances for payment to participants or for taxes, insurance, funding advances and protective 

advances, ( 4) pay -off requests, and ( 5) notices to defaulted Obligors; 

(xi) remit on a weekly basis to the Receiver (indicating closed bank name and 

number), Attn: DRR Cashier Unit, Business Operations Support Branch, in the same manner as 

provided in paragraph (a)(x), via wire transfer to the account designated by the Receiver, or to 

such other person at such other address and/or account as the Receiver may designate, all 

payments received; 

(xii) prepare and timely file all information reports with appropriate tax 

authorities, and, if requested by the Receiver, prepare and file tax returns and remit taxes due on 

or before the due date; 

(xiii) provide and furnish such other services, operations or functions, including, 

without limitation, with regard to any business, enterprise or agreement which is a Pool Asset, as 

may be requested by the Receiver; 

(xiv) establish a custodial account for the Receiver and for each successor 

owner at the Assuming Institution, each of which shall be interest bearing, titled in the name of 

Assuming Institution, in trust for the Receiver or the successor owner (as applicable), in each case 

as the owner, and segregate and hold all funds collected and received with respect to the Pool Assets 

separate and apart from any ofthe 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. 

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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 

Arrangement, the Receiver agrees to reimburse the Assuming Institution for actual, reasonable 

and necessary expenses incurred in connection with the performance of its duties pursuant to this 

Arrangement, including expenses of photocopying, postage and express mail, data processing 

and amounts paid for employee services (based upon the number of hours spent performing 

servicing duties). 

(c) The Assuming Institution shall provide the services described herein for a term of 

up to three hundred sixty-five (365) days after the Bank Closing Date. The Receiver may 

terminate the Arrangement at any time upon not less than sixty (60) days notice to the Assuming 

Institution without any liability or cost to the Receiver other than the fees and expenses due to 

the Assuming Institution as ofthe termination date pursuant to paragraph (b) above. 

(d) At any time during the term of this Arrangement, the Receiver may, upon not less 

than thirty (30) days prior written notice to the Assuming Institution, remove one or more Pool 

Assets, and at the time of such removal the Assuming Institution's responsibility with respect 

thereto shall tenninate. 

(e) At the expiration of this Arrangement or upon the termination of the Assuming 

Institution's responsibility with respect to any Pool Asset pursuant to paragraph (d) hereof, the 

Assuming Institution shall: 

(i) deliver to the Receiver (or its designee) all of the Credit Documents and 

records relating to the Pool Assets; and 

(ii) cooperate with the Receiver to facilitate the orderly transition of managing 

the Pool Assets to the Receiver or its designees (including, without limitation, its 

contractors and persons to which any Pool Assets are conveyed). 

(f) At the request of the Receiver, the Assuming Institution shall perform such 

transitional services with regard to the Pool Assets as the Receiver may request. Transitional 

services may include, without limitation, assisting in any due diligence process deemed 

necessary by the Receiver and providing to the Receiver and its designees (including, without 

limitation, its contractors and any actual or potential successor owners) (i) information and data 

regarding the Pool Assets, including, without limitation, system reports and data downloads 

sufficient to transfer the Pool Assets to another system or systems and to facilitate due diligence 

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 

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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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EXHIBIT 4.15A 


SINGLE FAMILY SHARED-LOSS AGREEMENT 


INTENTIONALLY OMITTED 


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EXHIBIT 4.15B 


COMMERCIAL SHARED-LOSS AGREEMENT 


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EXHIBIT 4.15B 


ARTICLE 1. GENERAL................................................ I 


1.1 	 Purpose ..................................................................... l 


1.2 	 Relationship with Purchase and Assumption 


Agreement ................................................................ 1 


1.3 	 Defined Tenus .......................................................... 1 


ARTICLE 2. SHARED-LOSS ARRANGEMENT ....... 1 


2.1 	 Accounting for and Management of Shared-Loss 


Assets ....................................................................... 1 


2.2 	 Payments with Respect to Shared-Loss Assets ......... 2 


2.3 	 Payments Applicable to Shared-Loss Quarters ........ 2 


2.4 	 Payments Applicable to Recovery Quarters ............. 3 


2.5 	 True-Up Payment and Calculation ........................... 3 


2.6 	 Limitation on Payments ............................................ 4 


2.7 	 Expenses ................................................................... 5 


2.8 	 Permitted Advances and Amendments ..................... 8 


2.9 	 Recovery ................................................................... 9 


2.10 	 Treatment as a Shared-Loss Asset.. ........................ 12 


2.11 	 Receiver's Option to Purchase ............................... 13 


ARTICLE 3. ADMINISTRATION OF SHAREDLOSS ASSETS .................................................... 14 


3.1 	 Management Standards Regarding Administration 14 


3.2 	 Assuming Institution's Responsibilities and Duties 14 


3.3 	 Third Party Servicers and Affiliates ....................... 15 


3.4 	 Utilization by the Assuming Institution of Special 


Receivership Powers .............................................. 16 


3.5 	 Tax Ruling .............................................................. 17 


ARTICLE 4 SALE OF CERTAIN SHARED-LOSS 


ASSETS............................................................. 17 


4.1 	 Sales of Shared-Loss Assets ................................... 17 


4.2 	 Calculation of Gain or Loss on Sale ....................... 17 


4.3 	 Sale of ORE, Additional ORE or Subsidiary ORE.18 

ARTICLE 5. CERTIFICATES, REPORTS AND 


RECORDS......................................................... 18 


5.1 	 Reporting Obligations of the Assuming Institution 18 


5.2 	 Quarterly Certificates ............................................. 18 


5.3 	 Notification of Certain Transactions ...................... 19 


5.4 	 Notification of Related Loans ................................. 20 


5.5 	 Auditor's Report; Right to Audit... ......................... 20 


COMMERCIAL SHARED-LOSS AGREEMENT 


TABLE OF CONTENTS 


5.6 Accounting Principles ............................................ 21 


5.7 Records and Reports ............................................... 21 


ARTICLE6. MISCELLANEOUS......................... 22 


6.1 Expenses................................................................. 22 


6.2 Successors and Assigns .......................................... 22 


6.3 Waiver of Jury Trial ............................................... 23 


6.4 No Third Party Beneficiary .................................... 23 


6.5 Consent; Determination ofDiscretion .................... 23 


6.6 Rights Cumulative .................................................. 23 


6.7 References .............................................................. 23 


6.8 Notice ..................................................................... 23 


ARTICLE 7. DISPUTE RESOLUTION ..................... 24 


7.1 	 Methods of Resolution ........................................... 24 


7.2 	 Informal Resolution ................................................ 24 


7.3 	 Resolution by Non-Binding Dispute Resolution 


Proceeding .............................................................. 24 


7.4 	 Confidentiality of Compromise Negotiations ......... 25 


7.5 	 Payment Resulting from Compromise 


Negotiations ........................................................... 25 


7.6 	 Formal Resolution .................................................. 25 


7.7 	 Limitation on FDIC Party ....................................... 26 


7.8 	 Effectiveness of Agreement Pending Dispute ........ 26 


7.9 	 Governing Rules and Law ...................................... 26 


7.10 	 Review Board Proceedings .................................... 26 


7.11 	 Impartiality ............................................................. 28 


7.12 	 Schedule ................................................................. 28 


7.13 	 Written Award ........................................................ 28 


7.14 	 Interest Rate on Award ........................................... 28 


7.15 	 Payments ................................................................ 29 


7.16 	 Fees, Costs andE.x:penses ....................................... 29 


7.17 	 Binding and Conclusive Nature .............................. 29 


7.18 	 No Precedent.. ........................................................ 29 


7.19 	 Confidentiality; Proceedings, Information and 


Documents.............................................................. 29 


7.20 	 Confidentiality of Arbitration Award ..................... 30 


7.21 	 E.\.1cnsion of Time Periods ..................................... 30 


7.22 	 Venue ..................................................................... 30 


ARTICLES. DEFINITIONS ....................................... 30 


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EXHIBITS 


Page 


True-Up ................................................................................................................................................ Exhibit 2.5 38 


Exclusion from Reimbursable Expenses .............................................................................................. Exhibit 2.7 39 


Interest Income as a Recovery .............................................................................................................. Exhibit 2.9 40 


Form of Quarterly Certificates .............................................................................................................. Exhibit 5.2 41 


SCHEDULES 

Page 


Loans Subject to Loss-Sharing under the Commercial Shared-Loss Agreement .......................... Schedule 4.15B 45 


Shared-Loss Subsidiaries ............................................................................................................... Schedule 4.15D 46 


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EXHIBIT 4.15B 

COMMERCIAL SHARED-LOSS AGREEMENT 

A. This Commercial Shared-Loss Agreement and the Exhibits attached hereto and 

incorporated herein by this reference (collectively, the "Agreement") 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 Agreement is attached. 

B. This Agreement shall apply only if the Assuming Institution has purchased Shared-Loss 

Assets (as defined herein) pursuant to the Purchase and Assumption Agreement. Subject to the 

provisions of this Agreement, it is the intention ofthe parties that the Receiver and the Assuming 

Institution shall share certain losses, expenses and Recoveries (as defined herein). 

AGREEMENT 

ARTICLE 1. GENERAL. 

1.1. Purpose. The purpose of this Agreement is to set forth requirements regarding, 

among other things, management of Shared-Loss Assets by the Assuming Institution and 

procedures for notices, consents, reporting and payments. In administering the Shared-Loss 

Assets, the Assuming Institution shall at all times comply with the Management Standards set 

forth in Article 3. 

1.2. Relationship with Purchase and Assumption Agreement. To the extent that 

any inconsistencies may arise between the terms of the Purchase and Assumption Agreement and 

this Agreement with respect to the subject matter of this Agreement, the terms of this Agreement 

shall control. 

1.3. Defined Terms. The capitalized terms used in this Agreement have the meanings 

defined or referenced in Article 8. 

ARTICLE 2. SHARED-LOSS ARRANGEMENT. 

2.1. Accounting for and Management of Shared-Loss Assets. 

(a) Initial Values. The Assuming Institution shall record the Shared-Loss 

Assets on its Accounting Records at their respective Book Values as of the Commencement 

Date. 

(b) Adjustments. After the Commencement Date, the Assuming Institution 

shall adjust the Book Values of the Shared-Loss Assets in accordance with this Agreement, the 

Examination Criteria and Article VIII of the Purchase and Assumption Agreement. 

(c) Management. The Assuming Institution shall manage and account for the 

Shared-Loss Assets in accordance with this Agreement. 

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2.2. Payments with Respect to Shared-Loss Assets. 

(a) Calculation and Method of Payments. Subject to the conditions of this 

Agreement, the parties shall make the payments set forth in this Article 2. All payments made 

by a party under this Agreement shall be made by wire transfer. 

(b) Timing of Payments. 

(i) Payments by the Receiver under this Article 2 shall be made within 

thirty (30) days following the date on which the Receiver receives the Quarterly 

Certificate with respect to each Shared-Loss Quarter or Recovery Quarter, provided that 

the Quarterly Certificate is complete, accurate, timely and in compliance with the 

requirements of this Agreement. 

(ii) Payments by the Assuming Institution under this Article 2 shall be 

made on or before the due date for the Quarterly Certificate for each Shared-Loss Quarter 

or Recovery Quarter, as applicable. 

(c) Source of Receiver's Funds. Payment obligations of the Receiver with 

respect to this Agreement shall be treated as administrative expenses of the Receiver pursuant to 

12 U.S.C § 1821(d)(ll). To the extent that the Receiver requires funds to make payments 

relating to Shared-Loss Assets pursuant to this Agreement, the Receiver shall request funds 

under the Master Loan and Security Agreement between the FDIC in its corporate capacity and 

the FDIC in its receivership capacity, with respect to any receivership, dated as ofMay 21, 2009, 

as amended. 

(d) Shared-Loss Subsidiaries. Covered Losses with respect to Subsidiary 

Shared-Loss Loans and Subsidiary ORE shall not exceed the Applicable Percentage of the 

Investment in Subsidiary of each Shared-Loss Subsidiary, if any, identified on Schedule 4.15D 

as the owner of each such Subsidiary Shared-Loss Loans or Subsidiary ORE. 

2.3. Payments Applicable to Shared-Loss Quarters. For each Shared-Loss Quarter, 

pursuant to the applicable Quarterly Certificate, one of the payments described at (a) or (b) 

below shall be made, as appropriate, with respect to Shared-Loss Assets: 

(a) Covered Loss Payments by the Receiver. The Receiver shall pay to the 

Assuming Institution the "Covered Loss" which is an amount equal to: 

(i) the sum of the Applicable Percentage of: 

(A) Charge-Offs; plus 

(B) Reimbursable Expenses attributable to Shared-Loss Assets; 

minus 

(C) Recoveries; and 

(ii) fifty per cent (50%) of collections on Fully Charged-Off Assets 

less fifty per cent (50%) of any expenses attributable to such Fully Charged-Off Assets, 

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provided and only to the extent that such expenses would be Reimbursable Expenses if 

such Fully Charged-Off Assets were Shared-Loss Assets. 

(b) Covered Gain Payments by the Assuming Institution. If the result of the 

calculation described in Section 2.3(a) is a negative amount (the "Covered Gain"), the 

Assuming Institution shall pay such amount to the Receiver. 

2.4. Payments Aoolicable to Recoverv Quarters. For each Recovery Quarter, 

pursuant to the applicable Quarterly Certificate, the payments described at (a) and (b) below 

shall be made, as appropriate, with respect to Shared-Loss Assets: 

(a) Payments by the Receiver. The Receiver shall pay to the Assuming 

Institution an amount equal to the Applicable Percentage of any Reimbursable Expenses, for the 

period through and including the last Shared-Loss Quarter, which are specified on the Quarterly 

Certificate for the first Recovery Quarter. 

(b) Payments by the Assuming Institution. The Assuming Institution shall 

pay to the Receiver: 

(i) an amount equal to the Applicable Percentage of Net Recoveries 

for each Recovery Quarter; plus 

(ii) an amount equal to fifty per cent (50%) of any collections on Fully 

Charged-Off Assets minus fifty per cent (50%) of any Reimbursable Expenses 

attributable to such Fully Charged-Off Assets. 

(c) Net Recoveries. "Net Recoveries" means gross Recoveries during any 

Calendar Quarter minus Reimbursable Expenses during such Calendar Quarter. 

(d) Negative Net Recoveries. If Net Recoveries received in a Recovery 

Quarter is a negative amount, then the amount of such Net Recoveries shall be offset against the 

amount of gross Recoveries received in the following Recovery Quarter to determine the amount 

of Net Recoveries for that following Recovery Quarter. If, after applying the preceding 

provisions, Net Recoveries received in any subsequent Recovery Quarter is also a negative 

amount, the provisions of this Section 2.4( d) shall continue to apply to determine the amount of 

Net Recoveries in each such subsequent Recovery Quarter. 

2.5. True-Up Payment and Calculation. 

(a) Payment Obligation of the Assuming Institution. If the Assuming 

Institution's Bid Amount, as set forth in Article VII of the Purchase and Assumption Agreement, 

includes an "Asset discount bid" which represents five percent (5%) or more of the purchase 

price of the Assets determined in accordance with Article III of the Purchase and Assumption 

Agreement, the Assuming Institution shall pay to the Receiver on the True-Up Date any positive 

amount resulting from the calculation set forth in Exhibit 2.5. 

(b) Reporting of Calculation. On or before the True-Up Date the Assuming 

Institution shall deliver to the Receiver a schedule, signed by the chief executive officer or the 

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chief financial officer of the Assuming Institution, setting forth in reasonable detail the 

calculation described in Exhibit 2.5, including the calculation of the Net Loss Amount. 

2.6. Limitation on Payments. 

(a) Failure to Administer. If the Assuming Institution fails to administer any 

Shared-Loss Asset in accordance with the provisions of Article 3, the Receiver may determine 

that such asset will not be treated as a Shared-Loss Asset pursuant to this Agreement. 

(b) Receiver's Right to Withhold Payment. Notwithstanding any other 

provision of this Article 2, the Receiver may withhold all or any portion of a payment to the 

Assuming Institution of the amount requested in a Quarterly Certificate if the Receiver 

determines that: 

(i) the Quarterly Certificate is incomplete, inaccurate or untimely; 

(ii) based upon the Examination Criteria, a Charge-Off of a SharedLoss Asset should not have been effected by the Assuming Institution; 

(iii) there is a reasonable basis under the terms of this Agreement for 

denying the eligibility of amounts included in a Quarterly Certificate for which 

reimbursement or payment is sought; 

(iv) with respect to a particular Shared-Loss Asset, the Assuming 

Institution has not complied or is not complying with the Management Standards; 

(v) the Assuming Institution has failed to comply with the 

requirements set forth in Section 5.5 including, but not limited to permitting the Receiver, 

its agents, contractors and/or employees to determine compliance with this Agreement 

pursuant to Section 5.5(c); or 

(vi) a retroactive accounting adjustment is to be made by the Receiver 

pursuant to Section 5.5(c). 

(c) Opportunity to Cure; Payment. 

(i) In the event that a determination is made to withhold an amount 

pursuant to Section 2.6(b ), the Receiver shall provide the Assuming Institution with 

notice detailing the grounds for withholding such amount and the Assuming Institution 

shall cure any deficiency within a reasonable period of time. 

(ii) If the Assuming Institution demonstrates to the satisfaction of the 

Receiver that the grounds for withholding a payment, or any part thereof, no longer exist 

or have been cured, the Receiver shall pay the Assuming Institution the amount which the 

Receiver determines is eligible for payment within thirty (30) days following the date of 

such determination. 

(iii) If the Assuming Institution does not cure any such deficiency 

within a reasonable period of time, the Receiver may withhold payment as described in 

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Section 2.6 (b) with respect to the affected Shared-Loss Asset(s ), but such withholding 

will not affect the Receiver's obligation to make any other payment properly due 

pursuant to this Agreement. 

(d) Adjustments. In the event that the Receiver withholds payment with 

respect to a Charge-Off of a Shared-Loss Asset or determines pursuant to Section 2.6(b) that a 

payment was improperly made, the Assuming Institution and the Receiver shall, upon final 

resolution of such issue, make such accounting adjustments and payments as may be necessary 

to give retroactive effect to such actions. 

(e) Interest on Payments. Any payment by the Receiver pursuant to Section 

2.6(d) shall be made together with interest on the amount thereof that accrues with effect from 

five (5) Business Days after the date on which payment was agreed or determined to be due until 

such amount is paid. The annual interest rate shall be determined by the Receiver based on the 

coupon equivalent of the three (3)-month U.S. Treasury Bill Rate in effect as of the first Business 

Day of each Calendar Quarter during which such interest accrues as reported in the Federal 

Reserve Board Statistical Release for Selected Interest Rates HIS opposite the caption 

"Treasury bills (secondary market), 3-Month" or, if not so reported for such day, for the next 

preceding Business Day for which such rate was so reported. 

(f) Determination of Disputes. Any dispute arising under this Section 2.6 

shall be resolved pursuant to the dispute resolution procedures of Article 7. 

2.7. Expenses. 

(a) Reimbursable Expenses. Reimbursable Expenses incurred by the 

Assuming Institution for a product, service or activity may be reimbursable or recoverable by the 

Assuming Institution and may be included for the purpose of calculating payments relating to 

Shared-Loss Assets. "Reimbursable Expenses" means actual, reasonable and necessary out-ofpocket expenses incurred in the usual, prudent and lawful management of a Shared-Loss Asset 

which are paid to third parties by or on behalf of the Assuming Institution or its Affiliates for a 

Shared-Loss Quarter or a Recovery Quarter, as applicable, in respect of the following 

expenditure: 

(i) expenses to recover amounts owed with respect to: 

(A) Shared-Loss Assets as to which a Charge-Off was effected 

prior to the end of the final Shared-Loss Quarter as reflected on the Accounting 

Records of the Assuming Institution; and 

(B) Failed Bank Charge-Offs; 

(ii) expenses to recover amounts described in paragraph (i) which 

relate to an Environmental Assessment and any environmental conditions relating to the 

Shared-Loss Assets, including remediation expenses for any pollutant or contaminant and 

fees for consultants retained to assess the presence, storage or release of any hazardous or 

toxic substance or any pollutant or contaminant relating to the collateral securing a 

Shared-Loss Asset that has been fully or partially charged-off, in each case up to a 

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maximum of $200,000 per Shared-Loss Asset, except as provided in the last paragraph of 

this Section 2.7(a); 

(iii) ORE Expenses to the extent that such amount exceeds any ORE 

Income; 

(iv) reasonable and necessary litigation expenses with respect to 

maximizing Recoveries of Shared-Loss Assets but excluding amounts, if any, incurred 

with respect to any alleged improper conduct ofthe Assuming Institution; 

(v) fees incurred for attorneys, appraisers and other independent 

professional consultants engaged as necessary to assist in collections of Shared-Loss 

Assets, up to a maximum of $100,000 per Shared-Loss Asset, except as provided in the 

last paragraph of this Section 2.7(a); 

(vi) a proportion of expenses for collections by or on behalf of the 

Assuming Institution on an Asset other than a Shared-Loss Asset with a Book Value 

greater than zero which are applied to both that Book Value and to a Failed Bank ChargeOff, equal to the collections on such Asset which are applied to the Failed Bank ChargeOff divided by the total collections on such Asset; and 

(vii) with respect to the final Recovery Quarter, Reimbursable Expenses 

may include (A) a Net ORE Loss Carryforward if applicable and to the extent set forth in 

Section 2.9(g)(iii) and (B) any ORE Expenses to the extent that such amount exceeds 

ORE Income. 

If the Assuming Institution estimates in good faith that required expenditures for 

the purposes described (A) in paragraph (ii) may exceed $200,000 or (B) in paragraph (v) may 

exceed $100,000 with respect to a particular Shared-Loss Asset, and provides the Receiver with 

advance notice and details thereof prior to incurring any such expenditure, the Receiver may, in 

its sole and absolute discretion, consent to such greater amount being deemed a Reimbursable 

Expense for purposes of this Agreement. 

(b) Exclusions. Reimbursable Expenses do not include the following: 

(i) Capitalized Expenditures; 

(ii) amounts paid to Affiliates of the Assuming Institution; 

(iii) with respect to Shared-Loss Assets with prior Failed Bank ChargeOffs or Charge-Offs or write-downs for which the Assuming Institution is recognizing 

interest income as described in Section 2.9( d), the portion of the expense attributable to 

that Shared-Loss Loan which is derived by applying the calculation set forth in 

Exhibit 2. 7; 

(iv) Federal, State or local income taxes and expenses related thereto; 

(v) salaries, other compensation and related benefits of employees of 

the Assuming Institution and its Affiliates including, without limitation, bonus, 

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comm1ss10n or severance arrangements, training, payroll taxes, dues and travel- or 

relocation-related expenses; 

(vi) the cost of space occupied by the Assuming Institution or its 

Affiliates and their respective staff and the rental and maintenance of furniture and 

equipment; 

(vii) expenses for data processmg, including the purchase or 

enhancement of data processing systems; 

(viii) except as expressly permitted in Sections 2.7(a)(ii) and 2.7(a)(v), 

fees for accounting and other independent professional consultants; 

(ix) allocated portions of any other overhead or general and 

administrative expense for services of a type which the Assuming Institution does not 

normally perform internally; 

(x) expenses not incurred in good faith and/or with the same degree of 

care that the Assuming Institution normally would exercise in the collection of troubled 

assets in which it alone had an interest; 

(xi) servicing fees payable to a third party (including a Third Party 

Servicer which is an Affiliate of the Assuming Institution), if the Assuming Institution 

would have provided those services had the relevant Shared-Loss Assets not been subject 

to this Agreement; 

(xii) in a Recovery Quarter, ORE Expenses to the extent that such 

amount exceeds ORE Income; and 

(xiii) expenses which exceed the amount of Recoveries made m any 

Recovery Quarter. 

(c) Reimbursable Expenses Incurred in Shared-Loss Quarters. Reimbursable 

Expenses for Shared-Loss Quarters shall be submitted to the Receiver in each Quarterly 

Certificate, and in any event on or before the end of the first Recovery Quarter. 

(d) Reimbursable Expenses Incurred in Recoverv Quarters. Reimbursable 

Expenses for Recovery Quarters shall be submitted to the Receiver in the Quarterly Certificate 

for each Recovery Quarter, and in any event on or before the Termination Date. 

(e) Notification of Certain Expenditures. 

(i) Under certain circumstances the Assuming Institution may 

determine that, in order to maximize collection of a Shared-Loss Asset or an Asset on 

which a Failed Bank Charge-Off has been effected, there is a substantial likelihood that 

funds will need to be expended after the Bank Closing Date by or on behalf of the 

Assuming Institution to a third party for a specified purpose, which do not otherwise 

constitute Reimbursable Expenses. If such expenditure is estimated to exceed ten percent 

(10%) of the Book Value of such Shared-Loss Asset or Asset, respectively, and that 

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Shared-Loss Asset or Asset has a Legal Balance on the Accounting Records of the 

Assuming Institution of $1,000,000 or more, then the Assuming Institution shall 

promptly report such proposed expenditure to the Receiver, and may request that such 

expenditure be treated as a Permitted Expense. 

(ii) Within thirty (30) days following receipt of a notice pursuant to 

Section 2.7(e)(i), the Receiver will advise the Assuming Institution whether the Receiver 

grants or withholds its consent to the qualification of the proposed expenditures as a 

Reimbursable Expense. If consent is withheld, the Assuming Institution shall not be 

required to make such expenditures and otherwise shall continue to administer such 

Shared-Loss Asset in accordance with the Management Standards. 

2.8. Permitted Advances and Amendments. Pursuant to this Agreement, certain 

advances in respect of a Shared-Loss Loan and certain amendments in respect of a Shared-Loss 

Loan or a Shared-Loss Loan Commitment made by the Assuming Institution may be permissible 

additions to the Book Value of the Shared-Loss Assets, and entitle such Shared-Loss Assets to 

retain their status as such, if they satisfy certain criteria, as set forth below: 

(a) Permitted Advance. A "Permitted Advance" is an advance on a SharedLoss Loan which is made by the Assuming Institution in good faith, justified by 

contemporaneous supporting documentation in the Credit File, in accordance with the applicable 

requirements set forth in Article 3 and with the then effective written internal credit policy 

guidelines of the Assuming Institution and which meets the following criteria: 

(i) it is an advance made by the Assuming Institution, or a legally 

binding commitment by the Assuming Institution to advance funds and, in either case, 

funds are advanced fully within one (1) year from the Commencement Date; and 

(A) the sum of the following is less than 110% of the Book 

Value of such Shared-Loss Loan after such advance has been made: 

(1) the Book Value of such Shared-Loss Loan; plus 

(2) the unfunded amount of the legally binding 

commitment referred to at Section 2.8(a)(i) with respect to 

that Shared-Loss Loan; 

(B) the Assuming Institution has not taken a Charge-Off with 

respect to that Shared-Loss Loan; and 

(C) no Shared-Loss Loan Commitment exists for such SharedLoss Loan; or 

(ii) it is an advance made by the Assuming Institution which the 

Assuming Institution determines is necessary to preserve or secure the value of the 

collateral for a Shared-Loss Loan. In making such determination, the Assuming 

Institution shall apply the same criteria as it would if the Shared-Loss Assets were owned 

by the Assuming Institution or any of its Affiliates, and subject to the limitation on 

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expenses related to the remediation, presence, storage or release of any hazardous or 

toxic substance, pollutant or contaminant as set forth in Section 2.7(a)(ii). 

(b) Permitted Amendment. A "Permitted Amendment" is, with respect to 

any Shared-Loss Loan Commitment or Shared-Loss Loan, any amendment, modification, 

renewal or extension thereof, or any waiver of any term, right or remedy thereunder which is 

made by the Assuming Institution in good faith, justified by contemporaneous supporting 

documentation in the Credit File, in accordance with the applicable requirements set forth in 

Article 3 and with the then effective written internal credit policy guidelines of the Assuming 

Institution. A Permitted Amendment must also satisfy the following criteria: 

(i) the sum of the following is less than 110% of the Book Value of 

such Shared-Loss Loan after such amendment or modification has been made: 

(A) the Book Value of such Shared-Loss Loan; plus 

(B) the unfunded amount of any applicable Shared-Loss Loan 

Commitment, inclusive of amounts advanced pursuant to such amendment, 

modification, renewal or extension; and 

(ii) with respect to a Shared-Loss Loan Commitment or Shared-Loss 

Loan which is not a revolving line of credit, it does not increase the amount of principal 

(A) then remaining available to be advanced by the Assuming Institution under the 

Shared-Loss Loan Commitment or (B) then outstanding under the Shared-Loss Loan 

beyond the limit provided in Section 2.8(b)(i); or 

(iii) with respect to a Shared-Loss Loan Commitment or Shared-Loss 

Loan which is a revolving line of credit, it does not increase the maximum amount of 

principal authorized as of the Bank Closing Date to be outstanding at any one time under 

the underlying revolving line of credit relationship with the debtor beyond the limit 

provided in Section 2.8(b )(i) (regardless of the extent to which such revolving line of 

credit may have been funded as of the Bank Closing Date or may subsequently have been 

funded and/or repaid); and 

(iv) it does not extend the term of such Shared-Loss Loan Commitment 

or Shared-Loss Loan beyond the end of the final Shared-Loss Quarter or, if later, beyond 

the term which existed as of the Bank Closing Date. 

2.9. Recovery. 

(a) Calculation of a Recoverv. A "Recovery" is the sum of the following 

amounts (without duplication) for any period, subject to the limitations and exceptions set forth 

in Section 2.9(b): 

(i) collections by or on behalf of the Assuming Institution on ChargeOffs of a Shared-Loss Asset effected by the Assuming Institution prior to the end of the 

final Shared-Loss Quarter; 

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(ii) collections by or on behalf of the Assuming Institution on Failed 

Bank Charge-Offs; 

(iii) collections by or on behalf of the Assuming Institution on any 

Asset on which a Failed Bank Charge-Off has been effected, to the extent that such 

collections exceed the Book Value of such Asset; 

(iv) ORE Income; 

(v) collections by or on behalf of the Assuming Institution of any 

Reimbursable Expenses; 

(vi) any gain received on a sale or other disposition of a Shared-Loss 

Loan or Shared-Loss Subsidiary by or on behalf of the Assuming Institution; 

(vii) the amount of any fee or other consideration received by or on 

behalf of the Assuming Institution for any amendment, modification, renewal, extension, 

refinance, restructure, commitment, sale or other similar action with respect to a SharedLoss Loan as to which there exists a Failed Bank Charge-Off or as to which a Charge-Off 

has been effected by the Assuming Institution during or prior to such period, not 

exceeding the total of any related Failed Bank Charge-Offs, Charge-Offs and 

Reimbursable Expenses made with respect to the particular Shared-Loss Loan; and 

(viii) interest income, if any, pursuant to Section 2. 9(d). 

(b) Limitations and Exceptions. In calculating a Recovery, the following shall 

not be included: 

(i) amounts paid to the Assuming Institution by the Receiver pursuant 

to Article 2; 

(ii) amounts received by or on behalf of the Assuming Institution with 

respect to Charge-Offs effected by the Assuming Institution after the final Shared-Loss 

Quarter; 

(iii) the amount of any gain with respect to Shared-Loss Loans, ORE, 

Additional ORE or Subsidiary ORE included in a Recovery which exceeds the total 

amount of any Failed Bank Charge-Offs, Charge-Offs and Reimbursable Expenses made 

with respect to the particular Shared-Loss Asset; and 

(iv) after the final Shared-Loss Quarter, ORE Income except to the 

extent that aggregate ORE Income exceeds ORE Expenses. 

(c) Order of Application. For the purpose of calculating Recoveries, the 

Assuming Institution shall apply any collections received on an Asset not otherwise applied to 

reduce the Book Value of such Asset, if applicable, in the following order: 

(i) to Charge-Offs and Failed Bank Charge-Offs; 

(ii) to Reimbursable Expenses; 

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(iii) to interest income; and 

(iv) to other expenses incurred by the Assuming Institution which are 

not Reimbursable Expenses. 

(d) Interest Income as a Recovery. In the event that (i) there is any 

amendment, modification, renewal, extension, refinance, restructure, commitment, sale or other 

similar action with respect to a Shared-Loss Loan as to which there exists a Failed Bank ChargeOff or as to which a Charge-Off has been effected by the Assuming Institution during or prior to 

a Recovery Period and (ii) as a result, the Assuming Institution recognizes interest income for 

financial accounting purposes on that Shared-Loss Loan, then a Recovery shall also include the 

portion of such interest income recognized by the Assuming Institution which is derived by 

applying the calculation set forth in Exhibit 2.9, subject to the limitations set forth in 

Section 2.9(e). 

(e) Maximum Amount of Interest Income. The amount of any interest income 

included as a Recovery with respect to a Shared-Loss Loan subject to Section 2.9(d) shall not 

exceed the total of the following: 

(i) Failed Bank Charge-Offs; 

(ii) Charge-Offs effected by the Assuming Institution during or prior 

to the period in which the amount of a Recovery is being determined; and 

(iii) Reimbursable Expenses paid to the Assuming Institution pursuant 

to this Agreement during or prior to the period in which the amount of a Recovery is 

being determined, all with respect to that particular Shared-Loss Loan. 

(f) Application of Collections. Any collections on a Shared-Loss Loan that 

are not applied to reduce Book Value of principal or recognized as interest income shall be 

applied pursuant to Section 2.9(c). 

(g) Treatment of Net ORE Loss Carryforward. To determine whether the 

Assuming Institution is entitled to apply a Net ORE Loss Carryforward at the end of the final 

Recovery Quarter, the Assuming Institution shall calculate and report the following information 

with respect to Recovery Quarters: 

(i) For any Recovery Quarter other than the final Recovery Quarter, 

Net ORE Income is calculated as the amount of ORE Income received during such 

Recovery Quarter less (A) ORE Expenses paid to third parties during such Recovery 

Quarter and (B) if applicable, Net ORE Loss Carryforward. Any positive Net ORE 

Income shall be reported as a Recovery on the Quarterly Certificate for such Recovery 

Quarter. 

(ii) For the final Recovery Quarter, Net ORE Income is calculated as 

the amount of ORE Income received during the final Recovery Quarter less ORE 

Expenses from the beginning of the final Recovery Quarter up to the date the Assuming 

Institution is required to deliver the Final Recovery Certificate pursuant to this 

Agreement. 

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(iii) If there is a Net ORE Loss Carryforward at the end of the final 

Recovery Quarter, an amount equal to the Net ORE Loss Carryforward up to but not 

exceeding the total Net ORE Income reported as a Recovery on Quarterly Certificates for 

all Recovery Quarters may be included as a Recovery Expense on the Final Recovery 

Certificate. 

2.10. Treatment as a Shared-Loss Asset. 

(a) Loss of Right to Receive Shared-Loss Asset Payments. The Assuming 

Institution shall not be entitled to payments relating to a Shared-Loss Asset pursuant to Section 

2.2 if the Assuming Institution or any Affiliate of the Assuming Institution: 

(i) sells or otherwise transfers that Shared-Loss Asset or any interest 

therein (whether with or without recourse) to any Person, other than in compliance with 

this Agreement; 

(ii) makes any additional advance, commitment or increase in the 

amount of a commitment with respect to that Shared-Loss Loan that does not constitute a 

Permitted Advance or a Shared-Loss Loan Commitment Advance, in which case the 

entire Shared-Loss Loan will not be entitled to such payments; 

(iii) makes any amendment, modification, renewal or extension of that 

Shared-Loss Loan that does not constitute a Permitted Amendment; 

(iv) manages, administers or collects any Related Loan in a manner 

which would increase the amount of any collections with respect to that Related Loan to 

the detriment of the Shared-Loss Asset to which such loan is related; or 

(v) fails to administer that Shared-Loss Asset pursuant to the 

Management Standards, including, without limitation, consistent failure to provide 

complete, accurate and timely certificates and reports pursuant to Article 5. 

(b) Effective Date of Loss of Shared-Loss Asset Treatment. If any of the 

actions described in Section 2.10(a) occur with respect to a Shared-Loss Asset, the Receiver shall 

not be obligated to make any payments to the Assuming Institution with respect to any affected 

Shared-Loss Loan after the date of occurrence of such action. In the event that the Receiver 

withholds payment pursuant to the foregoing provisions, the Assuming Institution and the 

Receiver shall make such accounting adjustments and payments as may be necessary to give 

retroactive effect to such actions. 

(c) Treatment of Recoveries. Notwithstanding Sections 2.10(a) and (b), a 

Shared-Loss Loan which has been the subject of Charge-Offs prior to the occurrence of any 

action described in Section 2.10(a) shall be treated as a Shared-Loss Asset for the purpose of 

calculating Recoveries on such Charge-Offs, provided that the amount of Recoveries shall be 

limited to the amount of such Charge-Offs. 

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2.11. Receiver's Option to Purchase. 

(a) Exercise of Option to Purchase. At any time on or prior to the 

Termination Date, the Receiver shall have the option, exercisable by notice to the Assuming 

Institution, to purchase a Shared-Loss Asset or an Asset on which a Failed Bank Charge-Off has 

been effected which meets any of the following criteria: 

(i) if the Shared-Loss Asset has been fully or partially charged-off or 

written down and the Receiver determines that the Assuming Institution is not diligently 

pursuing collection efforts with respect to such Shared-Loss Asset; 

(ii) if the Shared-Loss Asset is the subject of a request pursuant to 

Section 2.7(e), notwithstanding any prior consent by the Receiver with respect to any 

requested expenditures; 

(iii) if it is an Asset on which a Failed Bank Charge-Off has been 

effected; and 

(iv) if the Shared-Loss Asset is a Related Loan required to be included 

in a schedule pursuant to Section 5.4. 

(b) Transfer by the Assuming Institution. Within ten (1 0) Business Days 

following the date upon which the Assuming Institution receives notice pursuant to 

Section 2.11(a), the Assuming Institution shall transfer to the Receiver such Shared-Loss Asset 

or Asset and all Credit Files and Accounting Records relating thereto and shall take all such 

other actions as may be necessary and appropriate to assign, transfer and convey such SharedLoss Asset or Asset to the Receiver. 

(c) Payment by the Receiver. Within fifteen (15) Business Days after the date 

upon which the Assuming Institution transfers the Shared-Loss Asset or Asset pursuant to 

Section 2.11 (b), the Receiver shall pay to the Assuming Institution a purchase price equal to: 

(i) the principal amount of such Shared-Loss Asset, any fees or 

penalties due from an Obligor and any Accrued Interest (subject to the limitations set 

forth at Section 2.11(d)), as stated on the Accounting Records of the Assuming 

Institution, as of the date such price is determined (in the case of a Shared-Loss Loan, 

regardless of the Legal Balance thereof) plus all Reimbursable Expenses incurred up to 

and through the transfer date of such Shared-Loss Asset pursuant to Section 2.ll(b) 

which have not previously been paid to the Assuming Institution; minus 

(ii) the Related Liability Amount applicable to any Related Liabilities 

related to such Shared-Loss Asset or Asset. 

(d) Limitations on Payment by the Receiver. In the case of the purchase of a 

Shared-Loss Loan: 

(i) the price paid pursuant to Section 2.ll(c) shall not include any 

Accrued Interest accruing during the ninety (90) day period prior to the purchase date 

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pursuant to Section 2.11(b ), except to the extent that such Accrued Interest is included in 

the Book Value of such Shared-Loss Loan; 

(ii) the Receiver shall be entitled to any collections received by the 

Assuming Institution after the purchase date, which shall be paid by the Assuming 

Institution forthwith upon receipt and in any event no later than simultaneously with 

delivery of the next Quarterly Certificate; and 

(iii) for the purposes of determining the amount of unpaid interest 

which accrued during a given period with respect to a variable-rate Shared-Loss Loan, all 

collections of interest shall be deemed to be applied to unpaid interest in the 

chronological order (oldest first) in which such interest accrued. 

(e) Receiver's Assumption of Related Liabilities. The Receiver shall assume 

all Related Liabilities with respect to any Shared-Loss Asset or Asset repurchased pursuant to 

this Section 2.11 with effect from the date of transfer of such Shared-Loss Asset or Asset. 

ARTICLE3. ADMINISTRATION OF SHARED-LOSS ASSETS. 

3.1. Management Standards Regarding Administration. During the term of this 

Agreement the Assuming Institution shall manage, administer and collect all Shared-Loss Assets 

while owned by it or any of its Affiliates in accordance with the rules, requirements and 

standards regarding management, administration and collection of Shared-Loss Assets set forth 

in this Article 3 (the "Management Standards"). Failure to comply with the Management 

Standards shall constitute a material breach of this Agreement. If the Receiver determines in its 

sole and absolute discretion that the Assuming Institution is not in compliance with the 

Management Standards, it may notify the Assuming Institution of the breach and may take action 

pursuant to this Agreement including, without limitation, as provided in Sections 2.6(a) and (b). 

3.2. Assuming Institution's Responsibilities and Duties. 

(a) Covenants of the Assuming Institution. The Assuming Institution shall: 

(i) be responsible to the Receiver and the Corporation in the 

performance of this Agreement, whether performed by the Assuming Institution, an 

Affiliate or a Third Party Servicer; 

(ii) provide to the Receiver and the Corporation such certificates, 

notifications and reports as the Receiver or the Corporation reasonably deems advisable, 

including but not limited to the certificates, notifications and reports required by Article 

5;and 

(iii) permit the Receiver and the Corporation to monitor the Assuming 

Institution's performance of its duties hereunder at all times. 

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(b) Duties of the Assuming Institution with Respect to Shared-Loss Assets. In 

the performance of duties in accordance with the Management Standards, the Assuming 

Institution shall at all times exercise its best business judgment and shall: 

(i) manage, administer, collect and effect Charge-Offs and Recoveries 

with respect to each Shared-Loss Asset in a manner consistent with the following: 

(A) usual and prudent business and banking practices; and 

(B) the Assuming Institution's (or, if applicable, a Third Party 

Servicer' s) practices and procedures including, without limitation, all applicable 

law, the written internal credit policy guidelines of the Assuming Institution (or, if 

applicable, of a Third Party Servicer) in effect from time to time, with respect to 

the management, administration and collection of and taking of Charge-Offs and 

write-downs with respect to loans, ORE and repossessed collateral that do not 

constitute Shared-Loss Assets; 

(ii) use its best efforts to maximize collections with respect to, and 

manage and administer, Shared-Loss Assets without favored treatment for any assets 

owned by the Assuming Institution or any of its Affiliates that are not Shared-Loss 

Assets; 

(iii) adopt and implement accounting, reporting, record-keeping and 

similar systems with respect to the Shared-Loss Assets, as provided in Sections 5.6 and 

5.7; 

(iv) retain sufficient staff to perform its duties hereunder; 

(v) not manage, administer or collect a Related Loan in a manner 

which would have the effect of increasing the amount of any collections with respect to 

the Related Loan to the detriment of the Shared-Loss Asset to which such loan is related; 

and 

(vi) cause any of its Affiliates to which it transfers any Shared-Loss 

Assets and any Third Party Servicer to act in accordance with the Management 

Standards. 

3.3. Third Party Servicers and Affiliates. 

(a) Appointment of Third Party Servicers. 

(i) With the prior consent of the Receiver, the Assuming Institution 

may perform any of its obligations and/or exercise any of its rights under this Agreement 

through one or more Third Party Servicers. The Assuming Institution shall notify the 

Receiver at least forty ( 40) days prior to the proposed appointment of a Third Party 

Servicer. Such notice will include information regarding the Third Party Servicer's 

relevant experience, qualifications, financial strength and any pending litigation in 

relation to servicing activities. In the case of a Third Party Servicer that is an Affiliate of 

the Assuming Institution, the notice shall include an express statement that the Third 

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Party Servicer is an Affiliate. The Receiver may object to the proposed appointment of a 

Third Party Servicer by giving the Assuming Institution notice that it so objects within 

thirty (30) days following the Receiver's receipt of the notice of the proposed 

appointment. The appointment of a Third Party Servicer by the Assuming Institution 

shall not release the Assuming Institution from any obligation or liability hereunder. 

(ii) The Assuming Institution shall provide to the Receiver written 

notification immediately following the execution of any contract pursuant to which a 

Third Party Servicer or any third party (other than an Affiliate of the Assuming 

Institution) will manage, administer or collect any of the Shared-Loss Assets. 

(b) Actions of and Expenses Incurred by Third Party Servicers. The 

Assuming Institution shall ensure that the practices, procedures and guidelines of any Third Party 

Servicer comply with the obligations of the Assuming Institution under this Agreement. The 

Assuming Institution shall provide to the Receiver a copy of the Assuming Institution's written 

agreement with each Third Party Servicer and shall ensure compliance by each Third Party 

Servicer with the Assuming Institution's obligations under this Agreement, including, without 

limitation, amending such agreement with each Third Party Servicer to the extent necessary. 

Subject to the foregoing and to the other provisions of this Agreement, a Third Party Servicer 

may take actions and incur expenditures in the same manner as the Assuming Institution, and 

out-of-pocket expenses incurred by a Third Party Servicer on behalf of the Assuming Institution 

shall be Reimbursable Expenses if such out-of-pocket expenses would qualify as Reimbursable 

Expenses if incurred by the Assuming Institution. 

(c) Duties with Respect to Affiliates. The Assuming Institution shall provide 

to the Receiver prior written notification of any transaction with or by any Affiliate of the 

Assuming Institution with respect to any Shared-Loss Asset including, without limitation, the 

execution of any contract pursuant to which an Affiliate of the Assuming Institution will own, 

manage, administer or collect amounts owing with respect to a Shared-Loss Asset. The 

Assuming Institution shall notify the Receiver at least forty ( 40) days prior to a proposed 

transaction with an Affiliate which is not on an arm's length basis or commercially reasonable 

terms. Such notice will include information regarding the Affiliate's relevant experience, 

qualifications and financial strength. The Receiver may object to the proposed transaction with 

an Affiliate in such circumstances by giving the Assuming Institution notice that it so objects 

within thirty (30) days following the Receiver's receipt of the notice of the proposed transaction. 

3.4. Utilization by the Assuming Institution of Special Receivership Powers. 

(a) Notice and Request to Receiver. Upon timely notice to and with the prior 

consent of the Receiver, which may be granted or withheld in its sole discretion, to the extent 

permitted by applicable law, the Assuming Institution may utilize in a legal action any special 

legal power or right which the Assuming Institution derives as a result of having acquired a 

Shared-Loss Asset from the Receiver. 

(b) Use of Special Legal Powers. The Receiver may direct usage by the 

Assuming Institution of any special legal powers of the Receiver or the Corporation. The 

Assuming Institution shall: 

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(i) comply in all respects with any direction from the Receiver or the 

Corporation and with any protocols, directives or interpretive memoranda issued from 

time to time by the Receiver or the Corporation; 

(ii) upon request of the Receiver, notify the Receiver of the status of 

any legal action in which any special legal power or right is utilized; and 

(iii) immediately notify the Receiver of any judgment or significant 

order in any legal action involving any of such special powers or rights. 

3.5. 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 pursuant to this Agreement. 

ARTICLE 4. SALE OF CERTAIN SHARED-LOSS ASSETS. 

4.1. Sales of Shared-Loss Assets. All sales of Shared-Loss Assets are subject to the 

prior written approval of the Receiver, except as provided in Section 4.3: 

(a) Sales with the Receiver's Consent. After the fourth anniversary of the 

Commencement Date and with the prior consent of the Receiver, the Assuming Institution may 

conduct sales to liquidate for cash consideration, in one or more transactions, all or a portion of 

the Shared-Loss Assets (individually or in portfolio transactions) then held by the Assuming 

Institution. The Assuming Institution shall provide the Receiver with at least sixty (60) days 

notice prior to any such proposed sale and the notice shall set forth the sale details and the 

proposed sale schedule. 

(b) Sales Required by the Receiver. During the twelve (12) month period 

immediately prior to the Termination Date the Receiver may, in its sole and absolute discretion, 

require the Assuming Institution to liquidate for cash consideration, in one or more transactions, 

all Shared-Loss Assets then held by the Assuming Institution. If the Receiver exercises such 

right, it shall give notice to the Assuming Institution setting forth the time period within which 

the Assuming Institution shall be required to offer to sell the Shared-Loss Assets. The Assuming 

Institution shall make a good faith effort to sell the Shared-Loss Assets and to otherwise comply 

with the provisions of the Receiver's notice. 

(c) Conduct of Sales. Any sale pursuant to this Section 4.1 shall be conducted 

by means of sealed bid, to third parties, which may not include any Affiliates of the Assuming 

Institution, any contractors of the Assuming Institution or any Affiliates of contractors of the 

Assuming Institution. The Assuming Institution shall notify the Receiver prior to the proposed 

appointment of any financial advisor or other third party broker or sales agent for the liquidation 

of the remaining Shared-Loss Assets pursuant to Section 4.1(b ). The Receiver may object to 

such proposed appointment by giving the Assuming Institution notice that it so objects within 

thirty (30) days following the Receiver's receipt of the notice of the proposed appointment. 

4.2. Calculation of Gain or Loss on Sale. The gain or loss on sales conducted in 

accordance with the provisions of Section 4.1 will be calculated based on the gross sale price 

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received by the Assuming Institution less the Book Value of the Shared-Loss Assets which are 

sold. 

4.3. Sale of ORE, Additional ORE or Subsidiary ORE. Notwithstanding the 

provisions of Section 4.1, the Assuming Institution may sell or otherwise dispose of ORE, 

Additional ORE or Subsidiary ORE at any time to a Person other than an Affiliate, a contractor 

of the Assuming Institution or any Affiliate of a contractor of the Assuming Institution, provided 

that such sale is conducted in an arm's length, commercially reasonable and prudent manner. 

ARTICLE 5. CERTIFICATES, REPORTS AND RECORDS. 

5.1. Reporting Obligations of the Assuming Institution. 

(a) Records, Notifications and Reports. The Assuming Institution shall 

maintain such records, provide such notifications and deliver such reports as are required 

pursuant to this Agreement, including, without limitation, the records, notifications and reports 

as provided in the following provisions of this Article 5. Nothing contained in this Agreement 

shall be deemed to modify any laws, regulations or orders that are otherwise applicable to the 

Assuming Institution. 

(b) Certification of Accuracy and Completeness. Every submission by the 

Assuming Institution to the Receiver of a Quarterly Certificate, the Final Recovery Certificate 

and any other document or information shall constitute a certification from the Assuming 

Institution that the information provided in such submission is correct, complete and in 

compliance with this Agreement. 

5.2. Quarterly Certificates. 

(a) Shared-Loss Quarters. Within thirty (30) days after the end of each 

Shared-Loss Quarter, the Assuming Institution shall deliver to the Receiver a Quarterly 

Certificate setting forth the following information with respect to each such Shared-Loss 

Quarter, in such form and detail as the Receiver may specify from time to time: 

(i) Charge-Offs with respect to Shared-Loss Assets; 

(ii) Recoveries; 

(iii) collections on Assets on which a Failed Bank Charge-Off has been 

effected; 

(iv) aggregate Charge-Otis less Recoveries; 

(v) Reimbursable Expenses; and 

(vi) ORE Income. 

(b) Recovery Quarters. Not later than thirty (30) days after the end of each 

Recovery Quarter, the Assuming Institution shall deliver to the Receiver a Quarterly Certificate 

setting forth the information specified in Section 5.2(a) and the following information with 

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respect to each Recovery Quarter, in such form and detail as the Receiver may specify from time 

to time: 

(i) Recoveries and Reimbursable Expenses; 

(ii) on the Quarterly Certificate for the first Recovery Quarter only, the 

Assuming Institution may report as a separate item any Reimbursable Expenses which 

were: (A) paid prior to or during the final Shared-Loss Quarter, (B) not included in a 

Quarterly Certificate for any Shared-Loss Quarter because they were not paid by or on 

behalf of the Assuming Institution during a Shared-Loss Quarter and (C) paid by or on 

behalf of the Assuming Institution during the first Recovery Quarter; and 

(iii) ORE Income, ORE Expenses and Net ORE Income. 

(c) Final Recovery Certificate. In addition to the information specified in 

Sections 5.2(a) and 5.2(b ), in the Final Recovery Certificate the Assuming Institution shall 

include any Recoveries which were not included in a Quarterly Certificate for a Recovery 

Quarter and may include any Reimbursable Expenses which were: (A) incurred prior to or during 

the final Recovery Quarter, (B) not included in a Quarterly Certificate for any Recovery Quarter 

because they were not paid by or on behalf of the Assuming Institution during a Recovery 

Quarter and (C) paid by or on behalf of the Assuming Institution prior to the date the Assuming 

Institution is required to deliver the Final Recovery Certificate to the Receiver pursuant to 

Section 5.2(b ). 

(d) Completeness of Information. The Assuming Institution shall provide to 

the Receiver complete and accurate information, except to the extent that it is unable to do so as 

a result of the failure of the Failed Bank or the Receiver to provide requested information. 

(e) Limitations. The Assuming Institution may claim each Charge-Off and 

each item of expenditure, income, gain or loss only on the Quarterly Certificate for the period in 

which such Charge-Off, expenditure, income, gain or loss was incurred. The inclusion of 

information regarding Reimbursable Expenses in a Quarterly Certificate or other documentation 

does not create any reimbursement obligation of the Receiver if the Assuming Institution is not 

otherwise in compliance with this Agreement. 

(f) True-Up Date. The Assuming Institution shall deliver the schedule 

required pursuant to Section 2.5(b) on or before the True-Up Date. 

5.3. Notification of Certain Transactions. Prior to the Termination Date the 

Assuming Institution shall notify the Receiver within fifteen (15) days following any of the 

following becoming fully or partially charged-off: 

(a) a Shared-Loss Loan having a Legal Balance (or, in the case of more than 

one (1) Shared-Loss Loan made to the same Obligor, a combined Legal Balance) of $5,000,000 

or more in circumstances in which a legal claim against the relevant Obligor survives; and 

(b) a Shared-Loss Loan made to a director, an "executive officer" as defined 

in 12 C.F.R. § 215.2(d), a "principal shareholder" as defined in 12 C.F.R. § 215.2(1), or an 

Affiliate of the Assuming Institution. 

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5.4. Notification of Related Loans. In addition to maintaining records of all Related 

Loans, the Assuming Institution shall prepare and deliver to the Receiver, on a semi-annual 

basis, together with the Quarterly Certificates for all Shared-Loss Quarters and Recovery 

Quarters ending on June 30 and December 31, schedules of all Related Loans which are 

commercial loans or commercial real estate loans which have Legal Balances of $5,000,000 or 

more on the Accounting Records of the Assuming Institution as of June 30 and December 31, to 

the extent that more than one of such loans are to the same Obligor on Related Loans of 

$5,000,000 or more. 

5.5. Auditor's Report; Right to Audit. 

(a) Independent Auditor's Report. 

(i) Within the time period permitted for the examination audit 

pursuant to 12 C.P.R. § 363 following the end of each fiscal year, from and including the 

fiscal year during which the Bank Closing Date occurs, up to and including the calendar 

year during which the Termination Date occurs, the Assuming Institution shall deliver to 

the Receiver and the Corporation a report signed by its independent public accountants 

stating that such accountants have reviewed this Agreement and that, in the course of 

their annual audit of the Assuming Institution's books and records, nothing has come to 

their attention suggesting that any computations required to be made by the Assuming 

Institution during each such year were not made in accordance with this Agreement. 

(ii) In the event that the Assuming Institution cannot comply with the 

provisions of Section 5.5(a)(i), within seven (7) days following the end of the time period 

permitted for the examination audit pursuant to 12 C.P.R. § 363, the Assuming Institution 

shall submit to the Receiver corrected computations together with a report signed by its 

independent public accountants stating that, after giving effect to such corrected 

computations, nothing has come to the attention of such accountants suggesting that any 

computations required to be made by the Assuming Institution during such year were not 

made by the Assuming Institution in accordance with this Agreement. In such event, the 

Assuming Institution and the Receiver shall make all such accounting adjustments and 

payments as may be necessary to give effect to each correction reflected in such corrected 

computations, retroactive to the date on which the corresponding incorrect computation 

was made. It is the intention of this provision to align the timing of the audit required 

under this Agreement with the examination audit required pursuant to 12 C.P.R. § 363. 

(b) Assuming Institution's Internal Audit. The Assuming Institution shall 

perform on an annual basis an internal audit of its compliance with this Agreement and shall 

provide the Receiver and the Corporation with: 

(i) copies of all internal audit reports and access to all related internal 

audit work papers; and 

(ii) a certificate signed by the chief executive officer or chief financial 

officer of the Assuming Institution certifying that the Assuming Institution IS m 

compliance with this Agreement or identifying any areas of non-compliance. 

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(c) 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 (1 0) 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. 

(d) Authority to Advisors and Representatives. The Assuming Institution 

shall, and shall cause its Affiliates, contractors and Third Party Servicers to, allow its advisors 

and representatives to discuss its (and any Affiliates', contractors' or Third Party Servicers') 

affairs, finances and accounts as they relate to Shared-Loss Assets, or any other matters relating 

to this Agreement or the rights and obligations hereunder, with the Receiver and authorizes such 

advisors and representatives to so discuss such affairs, finances and accounts with the Receiver. 

5.6. Accounting Principles. 

(a) Maintenance of Books and Records. The Assuming Institution shall at all 

times during the term of this Agreement keep books and records which fairly present all dealings 

and transactions carried out in connection with its business and affairs. 

(b) Accounting Principles. Except as otherwise provided for in the Purchase 

and Assumption Agreement or this Agreement, the Assuming Institution shall keep all financial 

books and records in accordance with generally accepted accounting principles, which shall be 

consistently applied for the periods involved. 

(c) Change in Accounting Principles. The Assuming Institution shall not 

make any change in its accounting principles which adversely affects the value of the SharedLoss Assets, unless it obtains the prior written approval of the Corporation or if required by a 

change in generally accepted accounting principles. The Assuming Institution shall notify the 

Corporation of any change in its accounting principles that is required by a change in generally 

accepted accounting principles which would affect any Shared-Loss Asset, the accounting for 

any Shared-Loss Asset or the amount of any loss, gain, expense, cost or other item of 

reimbursement that may be due to or from the Assuming Institution. 

5.7. Records and Reports. 

(a) Content of Records. The Assuming Institution shall establish and 

maintain records on a separate general ledger, and on such subsidiary ledgers as may be 

appropriate, in such form and detail as the Receiver or the Corporation may specify, to account 

for the Shared-Loss Assets and to enable the Assuming Institution to prepare and deliver such 

reports as the Receiver or the Corporation may from time to time request pursuant to this 

Article 5. Without limitation, such books and records shall be kept in such a manner that 

information will be readily available to determine and document compliance with this 

Agreement and the Purchase and Assumption Agreement. 

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(b) Additional Information. The Assuming Institution shall promptly provide 

to the Receiver or the Corporation such information as the requesting party may request from 

time to time, including financial statements, computations and information as the Receiver or the 

Corporation deems necessary or appropriate in connection with monitoring compliance with this 

Agreement, certified as correct by the chief executive officer or chief financial officer of the 

Assuming Institution if so requested. The Assuming Institution shall provide to the Receiver all 

such loan-level data and cumulative information regarding the Shared-Loss Assets as the 

Receiver may request from time to time. 

ARTICLE 6. MISCELLANEOUS. 

6.1. Expenses. All costs and expenses incurred by a party in connection with this 

Agreement (including the performance of any obligations or the exercise of any rights 

hereunder) shall be borne by such party unless expressly otherwise provided, whether or not the 

transactions contemplated herein are consummated. 

6.2. Successors and Assigns. 

(a) Binding on Successors and Assigns: Assignment. This Agreement, and all 

of the terms and provisions hereof shall be binding upon and shall inure to the benefit of the 

parties hereto and their respective permitted successors and assigns only. The Receiver may 

assign or otherwise transfer this Agreement and the rights and obligations of the Receiver 

hereunder (in whole or in part) to the Corporation in its corporate capacity without the consent of 

the Assuming Institution. Notwithstanding anything to the contrary contained in this Agreement, 

the Assuming Institution may not assign or otherwise transfer this Agreement or any of the 

Assuming Institution's rights or obligations hereunder (in whole or in part) or sell or transfer any 

subsidiary of the Assuming Institution holding title to Shared-Loss Assets without the prior 

written consent of the Receiver, which consent may be granted or withheld by the Receiver in its 

sole and absolute discretion. An assignment or transfer of this Agreement includes: 

(i) a merger or consolidation of the Assuming Institution with or into 

another Person, if the shareholders of the Assuming Institution will own less than sixtysix and two/thirds percent (66.66%) of the equity of the consolidated entity; 

(ii) a merger or consolidation of the Assuming Institution's Holding 

Company with or into another Person, if the shareholders of the Holding Company will 

own less than sixty-six and two/thirds percent (66.66%) of the equity ofthe consolidated 

entity; 

(iii) the sale of all or substantially all of the assets of the Assuming 

Institution to another Person; or 

(iv) a sale of Shares by any one or more shareholders that will effect a 

change in control of the Assuming Institution, as determined by the Receiver with 

reference to the standards set forth in the Change in Bank Control Act, 12 U.S. C. 1817G). 

Any transaction under this Section 6.2 that requires the Receiver's consent that is 

made without such consent will relieve the Receiver of its obligations under this Agreement. 

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(b) No Recognition of Loss. No loss shall be recognized under this 

Agreement as a result of any accounting adjustments that are made due to or as a result of any 

assignment or transfer of this Agreement or any merger, consolidation, sale or other transaction 

to which the Assuming Institution, its Holding Company or any Affiliate is a party, regardless of 

whether the Receiver consents to such assignment or transfer in connection with such transaction 

pursuant to this Section 6.2. 

6.3. WAIVER OF JURY TRIAL. EACH PARTY HEREBY IRREVOCABLY 

AND UNCONDITIONALLY 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. 

6.4. No Third Party Beneficiary. This Agreement is for the sole and exclusive 

benefit of the parties and their respective permitted successors and permitted assigns and there 

shall be no other third party beneficiaries. Nothing in this Agreement shall be construed to grant 

to any other Person any right, remedy or claim under or in respect of this Agreement or any 

provision hereof 

6.5. 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. 

6.6. 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 the Purchase and 

Assumption 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. 

6.7. References. References in this Agreement to Recitals, Articles, Sections and 

Exhibits are to Recitals, Articles, Sections and Exhibits of this Agreement, respectively, unless 

the context indicates that the Purchase and Assumption Agreement is intended. References to 

parties are to the parties to this Agreement. Unless expressly otherwise provided, references to 

days and months are to calendar days and months respectively. Article and Section 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. 

6.8. Notice. 

(a) Form of Notices. All notices shall be given in writing to the parties at the 

addresses set forth in Sections 6.8(b) and 6.8(c) and sent in accordance with the provisions of 

Section 13.6 ofthe Purchase and Assumption Agreement, unless expressly otherwise provided. 

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(b) Notice to FDIC (Division of Resolutions and Receiverships). With respect 

to a notice under this Agreement, other than pursuant to Section 3.4(a): 

Federal Deposit Insurance Corporation 

Division of Resolutions and Receiverships 

550 17th Street, N.W. 

Washington, D.C. 20429 

Attention: Assistant Director, Franchise and Asset Marketing 

(c) Notice to FDIC (Legal Division). With respect to a notice under 

Section 3.4(a): 

Federal Deposit Insurance Corporation Legal Division 

1601 Bryan Street 

Dallas, Texas 75201 

Attention: Regional Counsel 

with a copy to: 

Federal Deposit Insurance Corporation Legal Division 

Virginia Square, L. William Seidman Center 

3501 Fairfax Drive, VS-E-7056 

Arlington, Virginia 22226 

Attention: Senior Counsel (Special Issues Group) 

ARTICLE 7. DISPUTE RESOLUTION. 

7.1. Methods of Resolution. The methods of resolving a dispute arising pursuant to 

this Agreement shall be as follows: 

(a) Charge-Offs. Any dispute as to whether a Charge-Off of a Shared-Loss 

Asset was made in accordance with the Examination Criteria shall be finally resolved by the 

Assuming Institution's Chartering Authority. 

(b) Other Disputes. Any other dispute (a "Dispute Item") shall be resolved in 

accordance with the following provisions of this Article 7. 

7.2. Informal Resolution. The Receiver or the Corporation, as appropriate, (the 

"FDIC Party") and the Assuming Institution shall negotiate in good faith to resolve any Dispute 

Item within thirty (30) Business Days following receipt of information concerning the Dispute 

Item. 

7.3. Resolution by Non-Binding Dispute Resolution Proceeding. If informal 

resolution of the Dispute Item pursuant to Section 7.2 is unsuccessful, the FDIC Party, on the 

one hand, and the Assuming Institution, on the other hand, may submit to the other party written 

notification of a Dispute Item (a "Notice of Dispute"). The Notice of Dispute shall contain a 

description of the dispute, an estimate of the amount in issue and any other information required 

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pursuant to this Article 7. The parties shall make good faith efforts to resolve the dispute by 

mutual agreement within thirty-five (35) Business Days following receipt of the Notice of 

Dispute. In furtherance of these efforts, the parties should consider the mutually agreed upon use 

of less formal dispute resolution techniques, which may include, but are not limited to, 

mediation, settlement conference, early neutral evaluation and any other dispute resolution 

proceedings (as defined in§ 571(6) ofthe Administrative Dispute Resolution Act ("ADRA"), 5 

U.S.C. § 571 et seq.), as amended). 

7.4. Confidentialitv of Compromise Negotiations. All good faith attempts to 

resolve or compromise a dispute pursuant to Sections 7.2 or 7.3 will be confidential. All such 

compromise negotiations, including any statements made or documents prepared by any party, 

attorney or other participant, are inadmissible as evidence in other proceedings and may not be 

construed for any purpose as admissions against interest. 

7.5. Payment Resulting from Compromise Negotiations. If the FDIC Party and the 

Assuming Institution resolve a Dispute Item to their mutual satisfaction pursuant to Sections 7.2 

or 7.3, including any dispute pursuant to Section 2.6, then within thirty (30) days following such 

resolution, the appropriate party shall make payment or take action as agreed by the parties. 

7.6. Formal Resolution. 

(a) Arbitration Matters. Any Dispute Item which has an estimated amount in 

issue not exceeding $1,000,000 per Asset may be proposed by the party seeking relief (the 

"Claimant Party") for arbitration pursuant to the provisions of this Section 7.6. No more than 

three Dispute Items may be submitted for any single arbitration, provided that, by mutual 

agreement pursuant to Section 7.6(c), the parties may agree to submit any Dispute ltem(s) to 

arbitration. 

(b) Proposal to Arbitrate. If the FDIC Party and the Assuming Institution do 

not resolve a Dispute Item pursuant to Sections 7.2 and 7.3, then within ten (10) Business Days 

following the expiration of the period provided in Section 7.3, the Claimant Party may propose 

to submit the unresolved Dispute Item to arbitration by notifying the other party (the 

"Respondent Party") in writing. 

(c) Submission to Arbitration. The Respondent Party may agree to the 

Claimant Party's proposal of arbitration by responding in writing within ten (10) Business Days 

following receipt of such proposal. Within five (5) Business Days following receipt of the 

Respondent Party's agreement to arbitrate, the Claimant Party may submit the Dispute Item to 

the American Arbitration Association ("AAA") for arbitration. No Dispute Item may be 

submitted for arbitration without the consent of both parties. 

(d) Waiver of Arbitration. If the Claimant Party does not (i) propose to submit 

the Dispute Item to arbitration within the period set forth in Section 7.6(b) or (ii) submit the 

Dispute Item to AAA within the period set forth in Section 7.6(c), then the Claimant Party shall 

be deemed to have waived submission of the Dispute Item to arbitration. 

(e) Litigation Matters. If the FDIC Party and the Assuming Institution do not 

agree to submit the Dispute Item to arbitration, the Dispute Item may be resolved by litigation in 

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accordance with Federal or state law, as provided in Section 13.10 of the Purchase and 

Assumption Agreement. Any litigation shall be filed in a United States District Court in the 

proper district. 

(f) Arbitration Administrator. The FDIC Party may, in its discretion, appoint 

an organization other than AAA for administration of arbitration pursuant to this Section 7.6, in 

which case this Article 7 and the rules and procedures set forth herein, including the Commercial 

Arbitration Rules as referred to in Section 7.9, shall govern the arbitration. AAA or such other 

organization appointed pursuant to this Section 7.6(±) shall be referred to in this Agreement as 

the "Arbitration Administrator." 

7.7. Limitation on FDIC Party. Nothing in this Article 7 shall be interpreted as 

obligating the FDIC Party to submit to a dispute resolution proceeding (as defined in ADRA at 

§ 571(6)) any Dispute Item described in (i) ADRA, § 572(b) or (ii) the FDIC's Statement of 

Policy Regarding Binding Arbitration, 66 Fed. Reg. 18632 (April 10, 2001), as amended, as a 

dispute for which an agency shall consider not using a dispute resolution proceeding. 

7.8. Effectiveness of Agreement Pending Dispute. Notwithstanding anything in this 

Agreement to the contrary, in the event that a Notice of Dispute is provided to a party under this 

Article 7 prior to the Termination Date, the terms of this Agreement shall remain in effect with 

respect to the items set forth in such notice until the dispute with respect to such items has been 

finally resolved, and such dispute shall be resolved in accordance with the provisions of this 

Agreement even if that resolution occurs after the Termination Date. 

7.9. Governing Rules and Law for Arbitration. Any arbitration shall be 

substantively governed by 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. The arbitration shall be procedurally governed by the Commercial 

Arbitration Rules (the "Commercial Arbitration Rules") established by AAA to the extent that 

such rules are not inconsistent with this Article 7, the Federal Arbitration Act, 9 U.S.C. § 1 et 

seq. ("Federal Arbitration Act"), and ADRA., as each may be in effect at the time that the 

arbitration is initiated, except that the Commercial Arbitration Rules' Expedited Procedures shall 

not apply unless the FDIC Party and Claimant Party otherwise agree in writing. The Review 

Board (as defined below) may modify the procedures set forth in such rules from time to time 

with the prior written approval of the Claimant Party and the Respondent Party. 

7.10. Review Board Proceedings. The arbitration of a dispute shall be conducted by a 

review board (a "Review Board") which shall consist of either one (1) or three (3) members 

(each, a "Member") with such expertise as the Claimant Party and Respondent Party agree is 

relevant. The Claimant Party shall specify, in its Notice of Dispute, the number of Members 

which it proposes for the Review Board. 

(a) Selection ofMembers. 

(i) Claimant Party Proposes One Member. If the Dispute Item(s) are 

less than $500,000 in total, the Claimant Party may propose that the Review Board shall 

consist of one Member, and shall state, in its Notice of Dispute, the name and address of 

the Member that it proposes for the Review Board. If the Respondent Party agrees, in its 

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response to the Notice of Dispute, the Member suggested by the Claimant Party shall 

comprise the Review Board. If the Respondent Party agrees, in its response to the Notice 

of Dispute, that the Review Board shall consist of one Member, but states the name and 

address of a different proposed Member for the Review Board, then that Member shall be 

deemed acceptable to the Claimant Party if it submits the Notice of Dispute to the 

Arbitration Administrator, provided that, before the Respondent Party responds to the 

Notice of Dispute with a different proposed Member, the parties may also mutually agree 

upon one Member. If the Respondent Party proposes that the Review Board shall consist 

of three Members, then the Members shall be selected in accordance with Section 

7.10(a)(iv). 

(ii) Claimant Party Proposes Three Members. If the Dispute Items 

exceed $500,000 in total, or if the Respondent Party proposes that the Review Board shall 

consist of three Members, then the Claimant Party shall state the name and address of the 

first of three Members in its Notice of Dispute. If the Respondent Party agrees that the 

Review Board shall consist of three Members, the Respondent Party shall state the name 

and address of the second Member in its response to the Notice of Dispute. Each such 

Member shall be considered a "Party-Appointed Arbitrator" ("Party-Appointed 

Arbitrator"), consistent with Commercial Arbitration Rule R-12. If the Claimant Party 

subsequently submits the Notice of Dispute to the Arbitration Administrator as provided 

in Section 7.6(c), then within ten (10) Business Days of such submission, the PartyAppointed Arbitrators shall select a neutral third Member (the "Neutral Member") in 

accordance with Commercial Arbitration Rules R-11 and R-13, except that the Neutral 

Member need not be from the National Roster of Commercial Arbitrators. If the 

Respondent Party proposes that the Review Board shall consist of one Member, then the 

Member shall be selected in accordance with Section 7.10(a)(iii). 

(iii) Respondent Party Proposes One Member. If the Claimant Party 

proposes that the Review Board shall consist of three Members, but the Respondent Party 

proposes that the Review Board shall consist of one Member in its response to the Notice 

of Dispute, then the Member proposed by the Claimant Party in the Notice of Dispute 

shall comprise the Review Board unless the Respondent Party states the name and 

address of a different proposed Member in its response to the Notice of Dispute. If the 

Respondent Party proposes a different Member in its response to the Notice of Dispute, 

then that Member shall be deemed acceptable to the Claimant Party if it submits the 

Notice of Dispute to the Arbitration Administrator. 

(iv) Respondent Party Proposes Three Members. If the Claimant Party 

proposes that the Review Board shall consist of one Member, but the Respondent Party 

proposes, in its response to the Notice of Dispute, that the Review Board shall consist of 

three Members, then the Member proposed by the Claimant Party in the Notice of 

Dispute shall comprise the first Member of the Review Board. The Respondent Party 

shall state the name and address of the second Member in its response to the Notice of 

Dispute. Each such Member shall be considered a Party-Appointed Arbitrator. lf the 

Claimant Party subsequently submits the Notice of Dispute to the Arbitration 

Administrator, a Neutral Member shall be selected in accordance with the procedure set 

forth in Section 7.10(a)(ii). 

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(b) Removal of Members. A Party-Appointed Arbitrator may be removed at 

any time by the party who appointed that Member upon five (5) Business Days notice to the 

other party of the selection of a replacement Member. The Neutral Member may be removed by 

unanimous action of the Party-Appointed Arbitrators or unanimous action of the parties after five 

(5) Business Days notice to the Claimant Party and the Respondent Party and the Arbitration 

Administrator of the selection of a replacement Neutral Member. 

(c) Vacancies. Any vacancy on the Review Board prior to or after the 

commencement of the hearing of evidence and argument (the "Arbitration Hearing") shall be 

handled in accordance with Commercial Arbitration Rule R-19, except that if a vacancy arises 

after the Arbitration Hearing has commenced, a substitute Member shall be selected in 

accordance with the rules under which the original Member was selected. 

7.11. Impartiality. As a condition of serving on the Review Board, within five (5) 

Business Days after being selected, each Member shall provide a written oath, under penalty of 

perjury, containing a statement that the Member does not have any conflicts of interest (whether 

official, financial, personal or otherwise) with respect to the issues or parties in controversy, and 

that each Member agrees to be bound by the provisions of this Article 7 as applicable to the 

Members. If a Member has any potential conflict of interest, the Member shall fully disclose 

such interest in writing to the Claimant Party and the Respondent Party and the Member shall not 

serve on the Review Board, unless the Claimant Party and the Respondent Party agree otherwise. 

The Cont1icts Committee of the Legal Division of the Corporation shall review any potential 

conflicts of interest for potential waiver. None of the Members may serve as counsel, advisor, 

witness or representative to any party to the arbitration. 

7.12. Schedule. The Review Board shall assume control of the arbitration process and 

shall schedule all events as expeditiously as possible. The Arbitration Hearing shall commence 

within ninety (90) Business Days after receipt of the Notice of Dispute by the Arbitration 

Administrator. 

7.13. Written Award. Within twenty (20) Business Days following closing of the 

Arbitration Hearing, as determined by Commercial Arbitration Rule R-35, the Review Board 

shall determine the prevailing party and award the prevailing party its proposed award/award any 

remedy or relief that the arbitrator deems just and equitable and within the scope of this Article 

7, but in no event may an award of the Review Board (inclusive of all claims and counterclaims) 

exceed the maximum amount set forth in Section 7.6(a) of this Agreement. If the Review Board 

consists of three (3) Members, the determination of any two (2) Members shall constitute the 

Review Board's determination. The Review Board shall present to the Claimant Party and the 

Respondent Party a written award regarding the dispute. The written award shall contain a brief, 

informal discussion of the factual and legal basis for the award and need not contain formal 

findings of facts and law. 

7.14. Interest Rate on Award. Any award amounts ultimately determined to be 

payable pursuant to the Review Board's written award shall bear interest at the Settlement 

Interest Rate from a beginning date specified by the Review Board in its written award and until 

the date on which payment is made. 

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7.15. Payments. All payments required to be made under this Article 7 shall be made 

by wire transfer and within fifteen (15) Business Days following the date on which the award 

becomes final, as provided by ADRA at§ 580(b). The Review Board will have no authority to 

award any punitive, consequential, special or exemplary damages. 

7.16. Fees, Costs and Expenses. The Review Board will have no authority to award 

attorneys' fees or costs incurred by either party to the arbitration. Each party will bear the fees, 

costs, and expenses which it incurs in connection with the submission of any dispute to a Review 

Board, including the fees and expenses of the Member which it selected in accordance with the 

Arbitration Administrator's fee schedule. The Claimant Party and the Respondent Party will 

share equally the fees and expenses of the Neutral Member and any administrative fees of the 

arbitration (which shall not include the fees and expenses of the Members). No fees, costs or 

expenses incurred by or on behalf of the Assuming Institution shall be subject to reimbursement 

by the Receiver under this Article 7 or otherwise. 

7.17. Binding and Conclusive Nature. Arbitration of a dispute pursuant to this Article 

7 shall be final, conclusive and binding on the parties and not subject to further dispute or 

review, and judgment upon the award made by the Review Board may be entered in accordance 

with applicable law in any court having jurisdiction thereof Other than as provided by the 

Federal Arbitration Act and ADRA, no review, appeal or reconsideration of the Review Board's 

determination shall be permitted, including review, appeal or reconsideration by the Review 

Board or any other arbitrators. The parties agree to faithfully observe the provisions of this 

Article 7 and the Commercial Arbitration Rules, and the parties agree to abide by and perform 

any award rendered by the Review Board. 

7.18. No Precedent. No decision, interpretation, determination, analysis, statement, 

award or other pronouncement of a Review Board shall constitute precedent in regard to any 

subsequent proceeding (whether or not such proceeding involves dispute resolution under this 

Agreement), nor shall any Review Board be bound to follow any decision, interpretation, 

determination, analysis, statement, award or other pronouncement rendered by any previous 

Review Board or any other previous dispute resolution panel that may have convened in 

connection with a transaction involving other failed financial institutions or Federal assistance 

transactions. 

7.19. Confidentialitv; Proceedings, Information and Documents. No arbitration 

held pursuant to this Article 7 shall be public or accessible to any person other than the parties 

and their representatives, the Review Board and witnesses participating in the arbitration (and 

then, only to the extent of their participation). Each party and each Member shall strictly 

maintain the confidentiality of all issues, disputes, arguments, positions and interpretations of 

any such proceeding, as well as all testimony, pleadings, filings, discovery, information, 

attachments, enclosures, exhibits, summaries, compilations, studies, analyses, notes, documents, 

statements, schedules and other similar items associated therewith ("Confidential 

Information"), in accordance with the provisions of ADRA. In the event that disclosure of 

Confidential Information is required pursuant to law, rule or regulation, or in the event that 

disclosure is required pursuant to statute or court determination as provided by ADRA, then to 

the extent reasonably practicable, the person required to make the disclosure shall provide the 

other party or parties with written notice of such disclosure within one (1) Business Day 

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following the request that it make such disclosure, and in any event prior to making such 

disclosure, so that the other party or parties may seek a protective order. 

7.20. Confidentiality of Arbitration Award. Notwithstanding the prov1s10ns of 

Section 7.19, no party has any duty of confidentiality with respect to any arbitration award made 

pursuant to this Article 7. 

7.21. Extension of Time Periods. The parties may extend any period of time provided 

in this Article 7 by mutual agreement. 

7.22. Venue. The arbitration shall take place at such location as the parties thereto may 

mutually agree, but if they cannot agree, then it will take place at the offices of the Corporation 

in Washington, D.C., or Arlington, Virginia. 

ARTICLE 8. DEFINITIONS. The capitalized terms used in this Agreement have the 

meanings defined or referenced in this Article 8. 

"AAA" has the meaning set forth in Section 7.6(c). 

"Accounting Records" means Records including, but not limited to, corporate minutes, 

general ledger and subsidiary ledgers and schedules which support general ledger balances. 

"Accrued Interest" means, for any Shared-Loss Loan, Permitted Advance or SharedLoss Loan Commitment Advance at any time, the amount of accrued earned and unpaid interest, 

taxes, credit life and/or disability insurance premiums (if any) payable by the Obligor, all as 

ret1ected on the Accounting Records of the Failed Bank or the Assuming Institution (as 

applicable), but excluding any amount accrued after the applicable Asset has been placed on 

non-accrual or nonperforming status by either the Failed Bank or the Assuming Institution (as 

applicable), for no more than a maximum of ninety (90) days. 

"Additional ORE" means Shared-Loss Loans that become ORE after the Bank Closing 

Date. 

"ADRA" has the meaning set forth in Section 7.3. 

"Affiliate" has the meaning set forth in the Purchase and Assumption Agreement; 

provided that, for purposes of this Agreement, no Third Party Servicer appointed by an Affiliate 

shall be deemed to be an Affiliate of the Assuming Institution solely by virtue of that 

appointment. 

"Agreement" has the meaning set forth in Recital A. 

"Applicable Percentage" is eighty percent (80%) for the Tranche 1 Amount and 

eighty percent (80%) for the Tranche 2 Amount. 

"Arbitration Administrator" has the meaning set forth in Section 7.6(f). 

"Arbitration Hearing" has the meaning set forth in Section 7.10(a)(iii). 

"Assets" has the meaning set forth in the Purchase and Assumption Agreement. 

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"Assuming Institution" has the meamng set forth in the Purchase and Assumption 

Agreement. 

"Bank Closing Date" has the meamng set forth m the Purchase and Assumption 

Agreement. 

"Bank Premises" has the meaning set forth in the Purchase and Assumption Agreement. 

"Bid Valuation Date" has the meaning set forth in the Purchase and Assumption 

Agreement. 

"Book Value" has the meaning set forth in the Purchase and Assumption Agreement. 

"Business Day" has the meaning set forth in the Purchase and Assumption Agreement. 

"Calendar Quarter" means a period of three months in any year, commencing on the 

first day of each January, April, July or October, and each successive three-month period 

thereafter, except that the first such period shall commence on the Commencement Date and end 

on the last day of March, June, September or December, whichever is the first to occur after the 

Commencement Date. 

"Capitalized Expenditures" means those expenditures that (a) would be capitalized 

under generally accepted accounting principles and (b) are incurred with respect to Shared-Loss 

Loans, ORE, Additional ORE or Subsidiary ORE, but excluding expenses related to 

environmental conditions including, but not limited to, remediation, storage or disposal of any 

hazardous or toxic substances or any pollutant or contaminant. 

"Charge-OfT' means, for any period with respect to a particular Shared-Loss Asset, the 

amount of a loan or portion of a loan classified as "Loss" under the Examination Criteria as 

effected by the Assuming Institution and reflected on its Accounting Records for such period, 

consisting solely of a charge-off of the following: 

(a) the principal amount of such Shared-Loss Asset net of unearned interest; 

(b) a write-down associated with Shared-Loss Assets, ORE or Additional 

ORE or loan modification(s); 

(c) Accrued Interest for no more than a maximum of ninety (90) days; plus 

(d) Capitalized Expenditures. 

Losses incurred on the sale or other disposition of Shared-Loss Assets to any 

Person shall not constitute Charge-Offs except for: (i) sales duly conducted in accordance with 

the provisions of Sections 4.1(a) and 4.1(b), (ii) the sale or other disposition of ORE or 

Additional ORE to a Person other than an Affiliate of the Assuming Institution which was 

conducted in a commercially reasonable and prudent manner and (iii) other sales or dispositions, 

if any, with respect to which the Receiver granted prior consent. 

"Chartering Authority" has the meaning set forth in the Purchase and Assumption 

Agreement. 

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"Claimant Party" has the meaning set forth in Section 7.6(a). 

"Commencement Date" means the first day following the Bank Closing Date. 

"Commercial Arbitration Rules" has the meaning set forth in Section 7.9. 

"Commitment" has the meaning set forth in the Purchase and Assumption Agreement. 

"Confidential Information" has the meaning set forth in Section 7.19. 

"Consumer Loans" means loans to individuals for household, family and other personal 

expenditures, that are not secured by real estate, including but not limited to loans for (a) 

purchase of private automobiles, pickup trucks, household appliances, furniture, trailers and 

boats; (b) repairs or improvements to a borrower's residence; (c) educational expenses, including 

student loans, whether or not guaranteed by the United States or any state; (d) medical expenses; 

(e) taxes; (f) vacations; (g) personal (non-business) debt consolidation; and (h) purchase of a 

mobile home to be used as a residence which is not combined with real property. Consumer 

Loans may be installment loans, demand loans or single payment time loans, regardless of size 

or maturity and regardless of whether the loans are made by the consumer loan department or by 

any other department of the Failed Bank. Consumer Loans also include retail installment sales 

paper purchased by the Failed Bank from merchants or dealers, finance companies and others 

and extensions of credit pursuant to a credit card plan or debit card plan. 

"Corporation" has the meaning set forth in the Purchase and Assumption Agreement. 

"Covered Gain" has the meaning set forth in Section 2.3(b ). 

"Covered Loss" has the meaning set forth in Section 2.3(a). 

"Credit File" has the meaning set forth in the Purchase and Assumption Agreement. 

"Dispute Item" has the meaning set forth in Section 7.l(b). 

"Environmental Assessment" means an assessment relating to the presence, storage or 

release of any hazardous or toxic substance, pollutant or contaminant with respect to the 

collateral securing a Shared-Loss Loan that has been fully or partially charged-off. 

"Examination Criteria" means the loan classification criteria employed by, and any 

applicable regulations of, the Assuming Institution's Chartering Authority at the time an action is 

taken, as such criteria may be amended from time to time. 

"Failed Bank" has the meaning set forth in the Purchase and Assumption Agreement. 

"Failed Bank Charge-Offs" means, with respect to any Asset, an amount equal to the 

aggregate reversals or charge-offs of Accrued Interest and charge-offs and write-downs of 

principal effected by the Failed Bank with respect to that Asset as reflected on the Accounting 

Records of the Failed Bank, excluding any Fully-Charged-Off Assets. 

"Federal Arbitration Act" has the meaning set forward in Section 7.9. 

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"Final Recovery Certificate" means the Quarterly Certificate for the final Recovery 

Quarter. 

"Fixtures" has the meaning set forth in the Purchase and Assumption Agreement. 

"FDIC" means the Federal Deposit Insurance Corporation, in any capacity, as 

appropriate. 

"FDIC Party" has the meaning set forth in Section 7.2. 

"Fully Charged-Off Assets" means Assets subject to Failed Bank Charge-Offs that were 

completely charged-off by the Failed Bank and had a Book Value of zero on the Bank Closing 

Date. 

"Holding Company" means any company owning Shares of the Assuming Institution 

that is a holding company pursuant to the Bank Holding Company Act of 1956, 12 U.S.C. 1841 

et seq. or the Home Owners' Loan Act, 12 U.S. C. 1461 et seq. 

"Investment in Subsidiary" means the amount of the Failed Bank's direct and indirect 

investment in a Shared-Loss Subsidiary, including any amounts due from that Shared-Loss 

Subsidiary to the Failed Bank that were acquired by the Assuming Institution, calculated as of 

the Commencement Date. 

"Intrinsic Loss Estimate" is twenty-six million dollars ($26,000,000.00). 

"Legal Balance" has the meaning set forth in the Purchase and Assumption Agreement. 

"Loan" has the meaning set forth in the Purchase and Assumption Agreement. 

"Management Standards" has the meaning set forth in Section 3 .1. 

"Member" has the meaning set forth in Section 7.10. 

"Net Loss Amount" means the sum of all Covered Losses less all Covered Gains and, if 

the Purchase and Assumption Agreement includes a Single Family Agreement, the Cumulative 

Loss Amount under and as defined in the Single Family Agreement. 

"Net ORE Income" means the extent to which aggregate ORE Income exceeds ORE 

Expenses, as described in Section 2.9(g)(i) or (ii), as appropriate. 

"Net ORE Loss Carryforward" means the amount of any ORE Income in any Recovery 

Quarter that is a negative number. 

"Net Recoveries" has the meaning set forth in Section 2.4( c). 

"Neutral Member" has the meaning set forth in Section 7.1 O(a)(ii). 

"New Shared-Loss Loans" means loans that would otherwise be subject to loss sharing 

under this Agreement that were originated after the Bid Valuation Date and before the Bank 

Closing Date. 

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"Notice of Dispute" has the meaning set forth in Section 7.3. 

"Obligor" has the meaning set forth in the Purchase and Assumption Agreement. 

"ORE" means the following that (a) are owned by the Failed Bank as of the Bank 

Closing Date and purchased pursuant to the Purchase and Assumption Agreement or (b) have 

been acquired subsequent to the Bank Closing Date from the collection or settlement by the 

Assuming Institution of a Shared-Loss Loan, including, without limitation, any assets which 

have been fully or partially charged-off on the books and records of the Failed Bank or the 

Assuming Institution: 

(a) interests in real estate (other than Bank Premises and Fixtures), including 

but not limited to mineral rights, leasehold rights, condominium and cooperative interests, air 

rights and development rights; and 

(b) other assets (whether real property, furniture, fixtures or equipment and, at 

the option of the Receiver, other personal property) acquired by foreclosure of ORE or in full or 

partial satisfaction ofjudgments or indebtedness. 

"ORE Expenses" means the aggregate expenses paid to third parties by or on behalf of 

the Assuming Institution after the final Shared-Loss Quarter to manage, operate and maintain 

ORE, Additional ORE and Subsidiary ORE, which may include property taxes, insurance and 

sales commissions, provided that such commissions are of an amount customary for the type and 

location of the asset. 

"ORE Income" means income received by or on behalf ofthe Assuming Institution or its 

Affiliate(s) from the operation, and any gains recognized by the Assuming Institution on the 

disposition, of ORE, Additional ORE and Subsidiary ORE. 

"Party-Appointed Arbitrator" has the meaning set forth in Section 7.1 O(a)(ii). 

"Permitted Advance" has the meaning set forth in Section 2.8(a). 

"Permitted Amendment" has the meaning set forth in Section 2.8(b ). 

"Person" has the meaning set forth in the Purchase and Assumption Agreement. 

"Purchase and Assumption Agreement" has the meaning set forth in Recital A. 

"Quarterly Certificate" means a certificate or certificates, signed by an officer of the 

Assuming Institution involved in, or responsible for, the administration and servicing of the 

Shared-Loss Assets, whose name appears on a list provided to the Receiver (as updated by the 

Assuming Institution as needed from time to time) of servicing officers and the related 

supporting documentation setting forth in such form and detail as the Receiver may specify from 

time to time the items listed at Section 5.2(a), in the form set forth in Exhibit 5.2 and delivered as 

set forth in Article 5 of this Agreement. 

"Receiver" has the meaning set forth in the Purchase and Assumption Agreement. 

"Record" has the meaning set forth in the Purchase and Assumption Agreement. 

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"Recovery" has the meaning set forth in Section 2.9. 

"Recovery Quarter" means a Calendar Quarter commencing with and including the first 

Calendar Quarter following the final Shared-Loss Quarter and ending on the Termination Date. 

"Reimbursable Expenses" has the meaning set forth in Section 2. 7(a). 

"Related Liability" has the meaning set forth in the Purchase and Assumption 

Agreement. 

"Related Liability Amount" has the meaning set forth in the Purchase and Assumption 

Agreement. 

"Related Loan" means a loan or extension of credit held by the Assuming Institution at 

any time on or prior to the end of the final Recovery Quarter that is: 

(a) made to the same Obligor with respect to a Loan that is a Shared-Loss 

Asset or with respect to a Loan from which ORE, Additional ORE or Subsidiary ORE derived; 

or 

(b) attributable to the same primary Obligor with respect to any Loan 

described at paragraph (a) under the applicable rules of the Assuming Institution's Chartering 

Authority concerning the legal lending limits of financial institutions organized under its 

jurisdiction as in effect on the Commencement Date. 

"Respondent Party" has the meaning set forth in Section 7.6(b ). 

"Review Board" has the meaning set forth in Section 7.1 0. 

"Settlement Interest Rate" has the meaning set forth in the Purchase and Assumption 

Agreement. 

"Shared-Loss Assets" means Shared-Loss Loans, Subsidiary Shared-Loss Loans, ORE, 

Additional ORE, Subsidiary ORE and Capitalized Expenditures. 

"Shared-Loss Loan Commitment" means (a) a Commitment to make a further 

extension of credit or a further advance with respect to an existing Shared-Loss Loan or (b) a 

Shared-Loss Loan in respect of which the Assuming Institution has made a Permitted 

Amendment. 

"Shared-Loss Loan Commitment Advance" means an advance pursuant to a SharedLoss Loan Commitment with respect to which the Assuming Institution has not made a 

Permitted Advance. 

"Shared-Loss Loans" means the following: 

(a) Loans purchased by the Assuming Institution pursuant to the Purchase and 

Assumption Agreement set forth on Schedule 4.15B thereto; 

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(b) New Shared-Loss Loans purchased by the Assuming Institution pursuant 

to the Purchase and Assumption Agreement; 

(c) Permitted Advances; 

(d) Shared-Loss Loan Commitment Advances, if any; and 

(e) Shared-Loss Loans (as described at paragraphs (b) through (d) above) with 

respect to which the Assuming Institution has made a Permitted Amendment; 

but does not include: 

(i) Consumer Loans; or 

(ii) Loans, New Shared-Loss Loans, Permitted Advances or 

Shared-Loss Loan Commitment Advances with respect to which a Shared-Loss 

Subsidiary is an Obligor. 

"Shared-Loss Quarter" means a Calendar Quarter commencing with the initial Calendar 

Quarter and ending with and including the Calendar Quarter in which the fifth (5th) anniversary 

of the Commencement Date occurs. 

"Shared-Loss Subsidiary" and "Shared-Loss Subsidiaries" mean the Subsidiary or 

Subsidiaries, if any, listed on Schedule 4.15D, as applicable. 

"Shares" means common stock and any instrument which by is, or which may become, 

convertible into common stock. 

"Single Family Agreement" means, if any, the Single Family Shared-Loss Agreement 

and the Exhibits thereto attached as Exhibit 4.15A to the Purchase and Assumption Agreement 

and entered into of even date with this Agreement among the Receiver, the Corporation and the 

Assuming Institution. 

"Subsidiary" has the meaning set forth in the Purchase and Assumption Agreement. 

"Subsidiary ORE" means ORE listed on Schedule 4.15D and owned by the Shared-Loss 

Subsidiary identified on that Schedule 4.15D as the owner of such ORE. 

"Subsidiary Shared-Loss Loans" means Shared-Loss Loans listed on Schedule 4.15D 

owned by the Shared-Loss Subsidiary identified on that Schedule 4.15D as the owner of such 

Shared-Loss Loans. 

"Termination Date" means the last day of the Calendar Quarter in which the eighth (8th) 

anniversary of the Commencement Date occurs. 

"Third Party Servicer" means any servicer appointed from time to time by the 

Assuming Institution, which may include an Affiliate of the Assuming Institution, to service the 

Shared-Loss Assets on behalf of the Assuming Institution. 

"Tranche 1 Amount" means a Net Loss Amount up to and including twenty-six million 

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dollars ($26,000,000.00). 

"Tranche 2 Amount" means a Net Loss Amount in excess of the Tranche 1 Amount. 

"True-Up Date" means the date which is forty-five (45) days after the latest to occur of 

the Termination Date of this Agreement, the Termination Date of the Single Family Agreement, 

if applicable, or disposition of all Assets pursuant to this Agreement or the Single Family 

Agreement, if applicable. 

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EXHIBIT 2.5 

TRUE-UP 

Pursuant to Section 2.5 of this Agreement, the following calculation applies to determine 

any payment due by the Assuming Institution to the Receiver on the True-Up Date. All 

capitalized terms used in this Exhibit 2.5 have the meanings defined or referenced in 

Article 8 ofthis Agreement. 

X= A-(B+C+D) 

2 

Where: 

X= the amount payable to the Receiver pursuant to Section 2.5 

A = 20% ofthe Intrinsic Loss Estimate 

B = 20% of the Net Loss Amount 

C = 25% of the Asset discount bid, expressed in dollars, oftotal Shared-Loss Assets on 

Schedules 4.15A and 4.15B as of the Bank Closing Date 

D = 3.5% of total Shared-Loss Assets on Schedules 4.15A and 4.15B as of the Bank 

Closing Date 

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EXHIBIT 2.7 

EXCLUSION FROM REIMBURSABLE EXPENSES 

Pursuant to Section 2.7(b )(iii) of this Agreement, the following calculation applies to 

determine the proportion of the expense attributable, for financial accounting purposes, to 

the reduction of the Book Value of a Shared-Loss Loan which may not be included as a 

Permitted Expense. All capitalized terms used in this Exhibit 2.7 have the meanings 

defined or referenced in Article 8 of this Agreement. 

X= E * [1- (A+B+C)J 


(A+B+D) 


Where: 

X = the proportion of expense not allowed as a Permitted Expense pursuant to Section 

2. 7(b)(iii) 

A = the total amount of all Failed Bank Charge-Offs of principal on the Shared-Loss 

Loan (excluding reversals or charge-offs of Accrued Interest) 

B =the total of all Charge-Offs effected by the Assuming Institution of principal on the 

Shared-Loss Loan amount (excluding reversals or charge-offs of Accrued Interest) 

C = the amount of principal on the Shared-Loss Loan that has not yet been charged-off 

but has been placed on non-accrual status, all of which occurred during the period in 

which the expenses represented byE were recognized 

D =the total amount of principal indebtedness due from the Obligor on the Shared-Loss 

Loan after any amendment, modification, renewal, extension, refinance, restructure, 

commitment, sale or other similar action 

E = the portion of the expense attributable, for financial accounting purposes, to the 

reduction of the Book Value of the Shared-Loss Loan 

However, in the event that the portion derived from the calculation represented by: 

[1- (A+B+C)J 

(A+B+D) 

is a negative number, the value of: (A+B+C) 

(A+B+D) 

shall be deemed to be 1 and accordingly the value of X shall be zero. 

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EXHIBIT 2.9 

INTEREST INCOME AS A RECOVERY 

Pursuant to Section 2.9(d) of this Agreement, the following calculation applies to 

determine the proportion of interest income recognized by the Assuming Institution for 

financial accounting purposes with respect to a Shared-Loss Loan which may be included 

as a Recovery subject to the limit in Section 2.9( e). All capitalized terms used in this 

Exhibit 2.9 have the meanings defined or referenced in Article 8 of this Agreement. 

X=((A+B+C)ID) *E 

Where: 

X =the allowable proportion of interest income recognized by the Assuming Institution 

on the Shared-Loss Loan pursuant to Section 2.9(d) provided that such portion may not 

exceed one hundred percent (100%) of E. 

A = the total amount of all Failed Bank Charge-Offs of principal on the Shared-Loss 

Loan (excluding reversals or charge-offs of Accrued Interest) 

B = the total amount of all Charge-Offs effected by the Assuming Institution of principal 

on the Shared-Loss Loan (excluding reversals or charge-otis of Accrued Interest) 

C = the amount of principal on the Shared-Loss Loan that has not yet been charged-off 

but has been placed on non-accrual status, all of which occurred at any time prior to or 

during the period in which the interest income represented byE was recognized 

D = the total amount of principal indebtedness (including all Failed Bank Charge-Offs 

and Charge-Offs as described at A and B) due from the Obligor on the Shared-Loss Loan 

after any amendment, modification, renewal, extension, refinance, restructure, 

commitment, sale or other similar action 

E = the total amount of interest income recognized by the Assuming Institution for 

financial accounting purposes with respect to the Shared-Loss Loan 

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EXHIBIT 5.2 


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Version 3.01- COMMERCIAL SHARED-LOSS AGREEMENT Western Springs, Illinois 

December ~. 2010 
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Page 3 of3 

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SCHEDULE 4.15B 


LOANS SUBJECT TO LOSS SHARING UNDER THE 


COMMERCIAL SHARED-LOSS AGREEMENT 


This information will be provided post-closing with data as ofthe Bank Closing Date. 

Module 1 -Whole Bank w/ Optional Shared Loss Agreements C-45 Western Springs National Bank and Trust 

Version 3.01- COMMERCIAL SHARED-LOSS AGREEMENT Western Springs, Illinois 

December ~. 2010 
SCHEDULE 4.15D 


SHARED-LOSS SUBSIDIARIES 


NONE 


Module 1 -Whole Bank w/ Optional Shared Loss Agreements C-46 Western Springs National Bank and Trust 

Version 3.01- COMMERCIAL SHARED-LOSS AGREEMENT Western Springs, Illinois 

December ~. 2010