PURCHASE AND ASSUMPTION AGREEMENT 

WHOLE BANK 

ALL DEPOSITS 

AMONG 

FEDERAL DEPOSIT INSURANCE CORPORATION, 

RECEIVER OF THE FIRST STATE BANK, 

BARBOURSVILLE, WEST VIRGINIA 

FEDERAL DEPOSIT INSURANCE CORPORATION 

AND 

MVB BANK, INC., FAIRMONT, WEST VIRGINIA 

DATED AS OF 

APRIL 3, 2020 

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PURCHASE AND ASSUMPTION AGREEMENT 

TABLE OF CONTENTS 

6.3 Preservation of Failed Bank Records ................... 29 ARTICLE I. GENERAL ..............................................1 

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

1.2 [Reserved]...............................................................1 

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

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

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

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

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

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

3.3 Manner of Conveyance; Limited Warranty; 

Nonrecourse; Etc. .................................................13 

3.4 Puts of Assets to the Receiver...............................13 

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

3.6 Retention or Repurchase of Assets Essential to 

Receiver ................................................................17 

3.7 Receiver’s Offer to Sell Withheld Loans..............18 

ARTICLE IV. ASSUMPTION OF CERTAIN DUTIES 

AND OBLIGATIONS.......................................................18 

4.1 Continuation of Banking Business........................18 

4.2 Credit Card Business ............................................19 

4.3 Safe Deposit Business...........................................19 

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

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

4.6 Bank Premises ......................................................20 

4.7 Agreement with Respect to Leased Data 

Management Equipment.......................................24 

4.8 Certain Existing Agreements................................25 

4.9 Informational Tax Reporting ................................26 

4.10 Insurance...............................................................26 

4.11 Office Space for Receiver and Corporation; Certain 

Payments...............................................................26 

4.12 Continuation of Group Health Plan Coverage for 

Former Employees of the Failed Bank .................27 

4.13 Interim Asset Servicing ........................................28 

ARTICLE V. DUTIES WITH RESPECT TO 

DEPOSITORS OF THE FAILED BANK ......................28 

5.1 Payment of Checks, Drafts, Orders and Deposits.28 

5.2 Certain Agreements Related to Deposits..............28 

5.3 Notice to Depositors.............................................29 

ARTICLE VI. RECORDS ............................................29 

6.1 Transfer of Failed Bank Records..........................29 

6.2 [Reserved].............................................................29 

6.4 Access to Failed Bank Records; Copies............... 30 

ARTICLE VII. BID; INITIAL PAYMENT ................. 31 

ARTICLE VIII. ADJUSTMENTS.................................. 31 

8.1 Pro Forma Statement ............................................ 31 

8.2 Correction of Errors and Omissions; Adjustments 

for Certain Liabilities ........................................... 31 

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

8.4 Interest.................................................................. 32 

8.5 Subsequent Adjustments ...................................... 32 

ARTICLE IX. CONTINUING COOPERATION ...... 32 

9.1 General Matters.................................................... 32 

9.2 Additional Title Documents ................................. 32 

9.3 Claims and Suits................................................... 33 

9.4 Payment of Deposits............................................. 33 

9.5 Withheld Payments .............................................. 34 

9.6 Proceedings with Respect to Certain Assets and 

Liabilities.............................................................. 34 

9.7 Information........................................................... 35 

9.8 Tax Ruling............................................................ 35 

9.9 Limited Power of Attorney................................... 35 

ARTICLE X. CONDITION PRECEDENT............... 35 

ARTICLE XI. REPRESENTATIONS AND 

WARRANTIES OF THE ASSUMING INSTITUTION35 

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

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

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

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

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

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

11.7 No Reliance; Independent Advice........................ 37 

ARTICLE XII. INDEMNIFICATION ......................... 37 

12.1 Indemnification of Indemnitees............................ 37 

12.2 Conditions Precedent to Indemnification ............. 39 

12.3 No Additional Warranty....................................... 40 

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

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

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

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

12.8 Subrogation .......................................................... 41 

ARTICLE XIII. MISCELLANEOUS............................. 41 

13.1 Expenses............................................................... 41 

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

13.3 Consent; Determination or Discretion.................. 42 

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13.4 Rights Cumulative ................................................42 13.12 Manner of Payment .............................................. 44 

44 

44 

44 

45 

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

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

13.7 Entire Agreement..................................................43 13.15 Term of Agreement .............................................. 

13.8 Counterparts..........................................................43 13.16 Survival of Covenants, Etc................................... 

13.9 Governing Law .....................................................43 13.17 Right of Receiver or Corporation to Audit........... 45 

13.10 Successors and Assigns ........................................43 

13.11 Modification .........................................................44 

SCHEDULES 

Page 

Excluded Deposit Liability Accounts ................................................................................................Schedule 2.1(a) 48 

Purchase Price of Acquired Assets......................................................................................................... Schedule 3.2 49 

Excluded Securities............................................................................................................................ Schedule 3.5(l) 51 

Excluded Other Real Estate and Excluded Other Real Estate Subsidiaries ..................................... Schedule 3.5(m) 52 

Bank Premises in Underserved Areas ............................................................................................... Schedule 4.1(b) 53 

Data Retention Catalog .......................................................................................................................... Schedule 6.3 56 

Accounts Excluded from Calculation of Deposit Franchise Bid Premium ............................................... Schedule 7 58 

EXHIBITS 

Page 

Final Legal Notice.................................................................................................................................. Exhibit 2.3A 59 

Affidavit of Mailing ............................................................................................................................... Exhibit 2.3B 61 

Interim Asset Servicing Arrangement.....................................................................................................Exhibit 4.13 62 

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PURCHASE AND ASSUMPTION AGREEMENT 

WHOLE BANK 

ALL DEPOSITS 

THIS AGREEMENT, made and entered into as of the 3rd day of April, 2020, by and 

among the FEDERAL DEPOSIT INSURANCE CORPORATION, RECEIVER of THE 

FIRST STATE BANK, BARBOURSVILLE, WEST VIRGINIA (the “Receiver”), MVB 

BANK, INC., organized under the laws of the state of West Virginia, and having its principal 

place of business in Fairmont, West Virginia (the “Assuming Institution”), and the FEDERAL 

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

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

“Corporation”). 

RECITAL S 

A. On the Bank Closing Date, the Chartering Authority closed THE FIRST STATE BANK, 

Barboursville, West Virginia (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: 

AGREEMEN T 

ARTICLE I. GENERAL. 

1.1. Purpose. The purpose of this Agreement is to set forth requirements regarding, 

among other things, the terms and conditions on which the Assuming Institution purchases certain 

assets and assumes certain liabilities of the Failed Bank. 

1.2. [Reserved.] 

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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. 

“Accounting Records” means the general ledger and subsidiary ledgers and supporting 

schedules which support the general ledger balances. 

“Acquired Assets” means all assets of the Failed Bank purchased pursuant to this 

Agreement. Assets owned by Subsidiaries of the Failed Bank are not “Acquired Assets” within 

the meaning of this definition by virtue of being owned by such Subsidiaries. 

“Acquired Subsidiary” or “Acquired Subsidiaries” means one or more, as applicable, 

Subsidiaries of the Failed Bank acquired pursuant to Section 3.1, if any. 

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

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

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

is defined in § 2(k) of the Bank Holding Company Act of 1956, as amended, 12 U.S.C. § 1841. 

“Agreement” means this Purchase and Assumption Agreement by and among the 

Assuming Institution, the Corporation and the Receiver, as amended or otherwise modified from 

time to time. 

“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 (together with fixtures located on any of the foregoing) that are owned or leased 

by the Failed Bank and that have formerly been utilized, are currently utilized, or as of the Bank 

Closing Date, are intended to be utilized in the future by the Failed Bank as shown on the Failed 

Bank Records. 

“Bank Premises Operating Costs” means expenses related to Bank PremisesFurniture 

and Equipment, and Specialty Assets, including, without limitation, all taxes, fees, charges, 

maintenance, utilities, waste disposal, insurance, and assessments, to the extent not included in 

the rental rate or rent. 

“Bank Premises Surrender Date” means, with respect to each specific Bank Premises, 

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

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

for surrender of such Bank Premises set forth in this Agreement have been met; provided that, 

unless otherwise provided in this Agreement, such date shall not be more than 150 days after the 

Bank Closing Date. 

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

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“Bid Form” means Exhibit “A” to the bid instructions provided to the Assuming 

Institution. 

“Bid Valuation Date” means January 31, 2020. 

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

“Book Value” means, with respect to any Acquired Asset and any Liability Assumed, the 

dollar amount thereof stated on the Failed Bank Records. The Book Value of any item shall be 

determined as of the Bank Closing Date after adjustments made by the Receiver for differences in 

accounts, suspense items, unposted debits and credits and other similar adjustments, charge-off 

adjustments as provided in Section 8.1, or corrections and for setoffs, whether voluntary or 

involuntary. 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 Acquired Asset shall not include any adjustment for loan 

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

reserves on the Failed Bank Records. 

“Business Day” means a day other than a Saturday, Sunday, federal legal holiday or legal 

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

office of the Corporation is closed. 

“Chartering Authority” means (i) with respect to a national bank, a federal savings 

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

bank or savings institution chartered by a state, the agency of such state charged with primary 

responsibility for regulating and/or closing banks or savings institutions, as the case may be, (iii) 

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

(iv) the appropriate federal banking agency in accordance with 12 U.S.C. § 1821(c)(9). 

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

reflected on the Failed Bank Records to make an extension of credit (or additional advances with 

respect to a Loan) that was legally binding on the Failed Bank as of the Bank Closing Date, other 

than extensions of credit pursuant to the credit card business and overdraft protection plans of the 

Failed Bank, if any. 

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

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

“Credit Documents” means the agreements, instruments, certificates or other documents 

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

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

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

agreements, currency exchange agreements, repurchase agreements, reverse repurchase 

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

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

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

all amendments, modifications, renewals, extensions, rearrangements, and substitutions with 

respect to any of the foregoing. 

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

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

Affiliates, relating to an Acquired Asset or a Loan included in a Put Notice, or copies of any such 

documents. 

“Deposit” means a deposit as defined in 12 U.S.C. § 1813(l), including without limitation, 

outstanding cashier’s checks and other official checks and all uncollected items included in the 

depositors’ balances and credited on the Failed Bank Records; 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. 

“Eligible Overdraft” means a customer overdraft that (i) was in existence on the Bank 

Closing Date with (ii) a balance of greater than $500, and (iii) was not made pursuant to an 

overdraft protection plan or similar extension of credit. 

“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 Assessment Area” means the most recent Community Reinvestment Act 

(“CRA”) assessment area of the Failed Bank reflected in the Information Package. 

“Failed Bank Records” means records as defined in 12 C.F.R. § 360.11(a)(3). 

“Fair Market Value” means the probable price at which relevant personal property would 

change hands between a willing buyer and a willing seller (neither being under any compulsion to 

buy or sell and both having reasonable knowledge of relevant facts) as determined as of the Bank 

Closing Date by an appraiser chosen by the Receiver. 

“FDIC Office Space” means adequate and suitable office space (including parking 

facilities and vault space), furniture, equipment (including photocopying and telecopying 

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machines), email accounts, network access and technology resources (such as shared drive), and 

utilities (including local telephone service and fax machines) at the Bank Premises occupied by 

the Assuming Institution (or other location acceptable to the Receiver) for the Receiver and the 

Corporation to use in the discharge of their respective functions with respect to the Failed Bank. 

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

“Furniture and Equipment” means the furniture and equipment (other than Personal 

Computers, Owned Data Management Equipment, Specialty Assets, and motor vehicles), leased 

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

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

furniture, office machinery, shelving, office supplies, telephone, surveillance and security systems, 

ancillary equipment and artwork. 

“GSE” means a government sponsored enterprise. 

“Indemnitees” means, except as provided in Section 12.1(b)(xi), (i) the Assuming 

Institution, (ii) the Subsidiaries and Affiliates of the Assuming Institution, other than any 

Subsidiaries or Affiliates of the Failed Bank that are or become Subsidiaries or Affiliates of the 

Assuming Institution, and (iii) the directors, officers, employees and agents of the Assuming 

Institution and its Subsidiaries and Affiliates who are not also present or former directors, officers, 

employees or agents of the Failed Bank or of any Subsidiary or Affiliate of the Failed Bank. 

“Information Package” means the most recent compilation of financial and other data 

with respect to the Failed Bank, including any amendments or supplements thereto, provided to 

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

Failed Bank to potential acquirers. 

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

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

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

the aggregate purchase price of the Acquired Assets (including any Bank Premises, Other Real 

Estate and Other Real Estate Subsidiaries purchased via the Bid Form) as determined pursuant to 

Section 3.2 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 Acquired Assets (including any Bank Premises, Other Real Estate, 

and Other Real Estate Subsidiaries purchased via the Bid Form). The Initial Payment shall be 

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

than the sum of the positive Bid Amount and the aggregate purchase price of the Acquired Assets, 

or if (ii) the sum of the Liabilities Assumed and the negative Bid Amount are greater than the 

aggregate purchase price of the Acquired Assets. 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 aggregate purchase price of the Acquired Assets, or if (ii) the sum of 

the Liabilities Assumed and the negative Bid Amount is less than the aggregate purchase price of 

the Acquired Assets. 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 

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

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

“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 Acquired Asset, including any 

conditional sale agreement or capital lease or other title retention agreement relating to such 

Acquired Asset. 

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

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

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

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

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

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

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

credit, Commitments, United States and/or state-guaranteed student loans and lease financing 

contracts; 

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

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

for the benefit of, the holder of the obligations or instruments referred to in clause (a) above, 

including but not limited to those arising under or based upon Credit Documents, casualty 

insurance policies and binders, standby letters of credit, mortgagee title insurance policies and 

binders, payment bonds and performance bonds at any time and from time to time existing with 

respect to any of the obligations or instruments referred to in clause (a) above; and 

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

refundings of or for any of the foregoing. 

“Market Value” has the meaning given in the regulation prescribing the standards for real 

estate appraisals used in federally related transactions, 12 C.F.R. § 323.2(g), and, accordingly, 

means the most probable price which an interest in real 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 are the assumed consummation of a sale as of a specified date and the passing of title 

from seller to buyer under conditions whereby: 

(a) Buyer and seller are typically motivated; 

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

consider their own best interests; 

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

(d) Payment is made in terms of cash in U.S. dollars or in terms of financial 

arrangements comparable thereto; and 

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

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

associated with the sale; 

as determined as of the Bank Closing Date by an appraiser chosen by the Receiver. With 

respect to Bank Premises purchased using this valuation method, the Receiver will select the 

appraiser within seven days after the Bank Closing Date and will pay any costs and fees associated 

with such determination. The Market Value will be determined no later than 60 days after the Bank 

Closing Date. 

“New Loan” means a Loan made by the Failed Bank after the Bid Valuation Date that is 

not (i) a continuation, amendment, modification, renewal, extension, refinancing, restructuring or 

refunding of or for any then-existing Loan or (ii) a customer overdraft. 

“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), 

including but not limited to mineral estates, leasehold rights, condominium and cooperative 

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

Bank as of Bid Valuation Date. 

“Other Real Estate Subsidiaries” means those Subsidiaries listed on the Bid Form, if 

any. 

“Owned Data Management Equipment” means any equipment, computer hardware, 

computer software, computer networking equipment, printers, fax machines, copiers, document 

scanners, data tape systems, data tapes, DVDs, CDs, flash drives, telecommunications and check 

processing equipment and any other electronic storage media owned by the Failed Bank at Bank 

Closing Date 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 

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and officers liability policy or any Person issuing a financial institution bond or banker’s blanket 

bond. 

“Pro Forma” means a balance sheet that reflects a reasonably accurate financial statement 

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

both the Assuming Institution and the Receiver. 

“Proprietary Software” means computer software developed for and owned by the Failed 

Bank for its own purpose and use. 

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

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

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

“Qualified Financial Contract” means a qualified financial contract as defined in 12 

U.S.C. § 1821(e)(8)(D). 

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

“Related Liability” with respect to any Acquired 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 

Acquired Asset, (ii) ad valorem taxes applicable to such Acquired Asset and (iii) any other 

obligation determined by the Receiver to be directly related to such Acquired 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 Acquired Asset, the amount of such Related 

Liability shall be allocated among such Acquired Assets for the purpose of determining the Related 

Liability Amount with respect to any one of such Acquired Assets. 

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

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

Records of the entity that owns such Acquired Asset. 

“Repurchase Price” means, with respect to any Acquired Asset, an amount equal to the 

sum of (i) the purchase price of the Acquired Asset as determined pursuant to Section 3.2 and 

either (ii) minus the pro rata Acquired Asset discount or plus the pro rata Acquired Asset premium, 

if any, (ii) adjusted (A) for any advances and interest on such Acquired Asset after the Bank 

Closing Date and (B) by subtracting the total amount received by the Assuming Institution for 

such Acquired Asset after the Bank Closing Date, regardless of how applied (iii) plus total 

disbursements of principal made by the Receiver not otherwise included in the Book Value. For 

(x) New Loans, Deposit Secured Loans and Eligible Overdrafts put back to the Receiver pursuant 

to Section 3.4 or (y) Acquired Assets sold pursuant to Section 3.7 and repurchased by the Receiver 

pursuant to Section 3.6, the Repurchase Price shall not take into account the pro rata Acquired 

Asset discount or premium, if any. The Repurchase Price for Eligible Overdrafts shall include 

adjustments for credits or deposits received after the Bank Closing Date and prior to the date of 

put back. 

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

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

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

discretion, may extend the Settlement Date. 

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

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

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

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

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

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

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

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

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

Treasury on the TreasuryDirect.gov website. 

“Specialty Assets” means assets owned by the Failed Bank, reflected on the Failed Bank 

Records as of the Bank Closing Date, located on or at Bank Premises, and with a greater value 

than more traditional furniture and equipment and similar assets, including without limitation fine 

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

boats, jewelry, collectible firearms, cultural artifacts, sculptures, and Proprietary Software. 

“Specialty Assets” does not include repossessed collateral. 

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

“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. 

“Underserved Area” means a census track designated as an underserved middle-income 

nonmetropolitan track on the most recent List of Middle-Income Non-Metropolitan Distressed or 

Underserved Geographies as published by the Federal Financial Institutions Examination Council 

(“FFIEC”) on the FFIEC website. A list of Bank Premises, if any, located in an Underserved 

Market is attached as Schedule 4.1(b). 

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 Acquired 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 Acquired Assets, if any, are insufficient 

to properly secure such Deposits; 

(b) liabilities for indebtedness incurred by the Failed Bank, reflected on the 

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Accounting Records of the Failed Bank on the Bank Closing Date, and secured by any perfected 

Lien on or affecting any Acquired Asset; provided, that the amount of any liability assumed 

pursuant to this Section 2.1(b) (x) shall be limited to the market value (as determined by the 

Receiver) of the Acquired Assets securing such liability and (y) is not subject to adjustment 

pursuant to Article VIII; 

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

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

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

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

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

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

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

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

liability pursuant to this Section 2.1(c) shall be limited to the market value of the assets securing 

such liability as determined by the Receiver; and overdrafts, debit balances, service charges, 

reclamations and adjustments to accounts with the Federal Reserve Banks as reflected on the books 

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

if any; 

(d) ad valorem taxes (prorated through the Bank Closing Date), whether or not 

reflected on the Failed Bank Records, applicable to any Acquired Asset; 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 Acquired 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 Acquired 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 Acquired 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 by the Failed Bank in connection with an Acquired Asset, 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 Records, credit card business, debit card 

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

safekeeping business and trust business, if any; 

(j) liabilities, if any, for Commitments with respect to Loans that are purchased 

pursuant to this Agreement; 

(k) reserved; 

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(l) reserved; 

(m) duties and obligations under any contract pursuant to which the Failed Bank 

provides loan servicing for others regarding (i) Loans which are participated and the Failed Bank 

owns an interest, (ii) any Federal Home Loan Bank Loans, and (iii) the sold portion of Loans 

guaranteed by the Small Business Administration, but no other liabilities, duties or obligations 

regarding servicing loans for others; and 

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

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

4.2, 4.3, 4.4, or 4.5 of this Agreement, excluding any deferred income or revenue relative to FASB 

91 – Loan Fees and Costs associated with originating or acquiring Loans and initial direct costs of 

leases. 

2.2. Interest on Deposit Liabilities. The Assuming Institution agrees that, from and 

after the Bank Closing Date, it will accrue and pay interest on Assumed Deposits pursuant to 

Section 2.1 at a rate(s) it shall determine; provided, that for non-transaction Deposit liabilities such 

rate(s) shall not be less than the lowest rate offered by the Assuming Institution to its depositors 

for non-transaction deposit accounts. The Assuming Institution shall permit each depositor to 

withdraw, without penalty for early withdrawal, all or any portion of such depositor’s Deposit, 

whether or not the Assuming Institution elects to pay interest in accordance with any deposit 

agreement formerly existing between the Failed Bank and such depositor; and further provided, 

that if such Deposit has been pledged to secure an obligation of the depositor or other party, any 

withdrawal thereof shall be subject to the terms of the agreement governing such pledge. The 

Assuming Institution shall give notice to such depositors as provided in Section 5.3 of the rate(s) 

of interest which it has determined to pay and of such withdrawal rights. 

2.3. Unclaimed Deposits. 

(a) Final Legal Notice. Fourteen (14) 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 fifteen (15) 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 Failed Bank Records previously transferred to the Assuming Institution 

and other records generated or maintained by the Assuming Institution pertaining to such Deposits. 

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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, 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 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. The Assuming Institution purchases all Acquired Assets subject to all 

liabilities for indebtedness collateralized by Liens affecting such Acquired Assets to the extent 

provided in Section 2.1. 

3.2. Asset Purchase Price. 

(a) Determination of Asset Purchase Price. All Acquired 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 Acquired Asset for 

which no purchase price is specified on Schedule 3.2 or otherwise herein shall be purchased at its 

Book Value. 

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

than the Federal Home Loan Bank stock) purchased under Section 3.1 by the Assuming Institution 

shall consist of the market price (as defined below) of the security as of the Bank Closing Date, 

multiplied by the bank’s ownership interest in the security (see Calculation of Purchase Price 

below) and shall include accrued interest, where applicable, as noted below. 

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

be (i) the market price for that security quoted at the close of the trading day effective on 

the Bank Closing Date as published electronically by Bloomberg, L.P., or alternatively, at 

the discretion of the Receiver, by IDC/Financial Times (FT) Interactive Data; (ii) provided 

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

submit a written purchase price bid for such security within three days of notification/bid 

request by the Receiver (unless a different time period is agreed to by the Assuming 

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

accept or reject each such purchase price bid; (iii) further provided that in the absence of 

an acceptable bid from the Assuming Institution, or in the event that a security is deemed 

essential to the Receiver as determined by the Receiver in its discretion (see Section 3.6 

Retention or Repurchase of Assets Essential to the Receiver), such security shall not pass 

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to the Assuming Institution and shall be deemed to be an excluded asset hereunder and 

listed on Schedule 3.5(l). 

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

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

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

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

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

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

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

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

a non-equity security shall be an amount equal to the applicable market price (expressed as 

a decimal), multiplied by the par value for such security (based on the payment factor most 

recently widely available). The purchase price also shall include accrued interest as 

calculated below (see Calculation of Accrued Interest), except to the extent the parties may 

otherwise expressly agree, pursuant to clause (ii) of the preceding paragraph. If the factor 

used to determine the par value of any security for purposes of calculating the purchase 

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

for that security shall be subject to adjustment post-closing based on a “cancel and correct” 

procedure. Under this procedure, after such current factor becomes publicly available, the 

Receiver will recalculate the purchase price utilizing the current factor and related interest 

rate, and will notify the Assuming Institution of any difference and of the applicable 

amount due from one party to the other. Such amount will then be paid as part of the 

settlement process pursuant to Article VIII. 

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

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

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

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

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

Bank Closing Date occurs, through the Bank Closing Date. 

3.3. Manner of Conveyance; Limited Warranty; Nonrecourse; Etc. THE 

CONVEYANCE OF ALL ACQUIRED 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 

ACQUIRED 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 or 40 Days After the Bank Closing Date. 

(i) During the thirty (30)-day period following the Bank Closing Date 

(which thirty (30)-day period may be extended in writing in the sole and absolute discretion 

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of the Receiver for any Loan), in accordance with this Section 3.4, the Assuming Institution 

may require the Receiver to purchase (x) any Deposit Secured Loan transferred to the 

Assuming Institution pursuant to Section 3.1 which is not fully secured by Assumed 

Deposits or deposits at other insured depository institutions due to either insufficient 

Assumed Deposit or deposit collateral or deficient documentation regarding such collateral 

or (y) any New Loan; provided that, the Assuming Institution may not require the purchase 

of a Deposit Secured Loan that is secured by an Assumed Deposit until any Deposit setoff 

determination, whether voluntary or involuntary, has been made. 

(ii) During the forty (40)-day period following the Bank Closing Date, 

the Assuming Institution may require the Receiver to purchase, any Eligible Overdraft 

transferred to the Assuming Institution pursuant to Section 3.1 which existed on the 

thirtieth (30th) day following the Bank Closing Date. 

(iii) Notwithstanding the foregoing, the Assuming Institution may not 

require the Receiver to purchase any Loan pursuant to Section 3.4(a) if 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 caused an increase in the amount of a 

Related Liability with respect to such Loan; 

(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). 

(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 may require the Receiver to purchase any Acquired 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 may not require the Receiver to purchase any Acquired 

Asset with respect to which the Assuming Institution has taken any action referred to in Section 

3.4(a)(iii) with respect to such Acquired Asset. The Assuming Institution shall transfer all such 

Acquired 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 Acquired Asset, as provided in Section 12.4. 

(c) Notices to the Receiver. If the Assuming Institution elects to require the 

Receiver to purchase one or more Acquired Assets pursuant to this Section 3.4, the Assuming 

Institution shall deliver to the Receiver a notice (“Put Notice”) which shall include: 

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(i) a list of all Acquired Assets that the Assuming Institution requires 

the Receiver to purchase; 

(ii) a list of all Related Liabilities with respect to the Acquired Assets 

identified in the Put Notice; and 

(iii) a statement of the estimated Repurchase Price of each Acquired 

Asset identified in the Put Notice as of the applicable Put Date (defined below). 

The Put Notice shall be in the form prescribed by the Receiver or such other form to which 

the Receiver has consented. As provided in Section 9.6, the Assuming Institution shall deliver to 

the Receiver all documents, Credit Files and additional information relating to the subject matter 

of the Put Notice as the Receiver may request and shall provide the Receiver with full access to all 

other relevant books and records. 

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

are specified in the Put Notice and shall assume Related Liabilities with respect to such Acquired 

Assets. The transfer of such Acquired 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 Acquired Asset purchased by the 

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

of such Acquired Asset minus the Related Liability Amount applicable to such Acquired Asset, in 

each case determined as of the applicable Put Date. If the difference between the Repurchase Price 

and the Related Liability Amount is positive, then the Receiver shall pay to the Assuming 

Institution the amount of the difference; if the difference between such amounts is negative, then 

the Assuming Institution shall pay to the Receiver the amount of the difference. The Assuming 

Institution or the Receiver, as the case may be, shall pay the amount determined pursuant to this 

Section 3.4 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 on which payment is made. 

(f) Servicing. The Assuming Institution shall administer and manage any 

Acquired Asset subject to purchase by the Receiver in accordance with usual and prudent banking 

standards and business practices until the Receiver purchases such Acquired Asset. 

(g) Reversals. If the Receiver purchases an Acquired 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 Acquired 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 Acquired Asset pursuant to this Section 3.4. 

(h) Transfer to Receiver without Recourse. The Assuming Institution shall 

transfer any Acquired Asset pursuant to this Section 3.4 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 Acquired Asset, as provided in Section 12.4. 

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

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

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

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(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) except for those Bank Premises for which the Assuming Institution 

exercised the option to purchase pursuant to the Bid Form, leased or owned Bank Premises and 

Furniture and Equipment, and Specialty Assets, if any; provided that the Assuming Institution does 

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

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

contain environmentally hazardous substances; 

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

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

and other intangibles (other than intellectual property); 

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

Bank; 

(j) any and all prepaid fees or any other income as shown on the Failed Bank 

Records, but not taken into income as of the Bank Closing Date, associated with a line of business 

of the Failed Bank which is not assumed pursuant to this Agreement; 

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

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

provided that FHLB stock shall be an Acquired Asset; 

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(m) Other Real Estate and Other Real Estate Subsidiaries listed on Schedule 

3.5(m), and any other Assets listed on that Schedule; 

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

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

has an option to assume under Section 4.8; 

(o) except with respect to (i) Loans which are participated and the Failed Bank 

owns an interest, (ii) any Federal Home Loan Bank Loans and (iii) any sold portion of any Loan 

guaranteed by the Small Business Administration, any contract pursuant to which the Failed Bank 

provides loan servicing for others; 

(p) reserved; 

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

Receiver under this Agreement; 

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

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

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

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

(s) any asset not shown on the Failed Bank Records as of the Bank Closing 

Date and discovered after the Settlement Date; 

(t) Subsidiaries, whether active, inactive, dissolved or terminated, as of the 

Bank Closing Date; and 

(u) Qualified Financial Contracts and any contract or agreement of the Failed 

Bank requiring the repurchase of mortgage loans previously sold by the Failed Bank to a third 

party. 

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 Acquired 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 Acquired 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; 

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(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. 

(b) Each such Acquired 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 Acquired Asset or asset, in each case determined 

as of the date of the notice provided by the Receiver pursuant to Section 3.6(a). The Receiver shall 

pay the Assuming Institution not later than the twentieth (20th) Business Day following receipt of 

related Credit Documents and Credit Files together with interest on such amount at the Settlement 

Interest Rate for the period from and including the date of receipt of such documents to and 

including the day preceding the day on which payment is made. The Assuming Institution agrees 

to administer and manage each such Acquired Asset or asset in accordance with usual and prudent 

banking standards and business practices until each such Acquired Asset or asset is purchased by 

the Receiver. All transfers with respect to Acquired Asset or assets under this Section 3.6 shall be 

made as provided in Section 9.6. The Assuming Institution shall transfer all such Acquired 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 Acquired 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, in its sole and absolute 

discretion, sell any Loan withheld from sale pursuant to Section 3.5 or Section 3.6 of this 

Agreement that the Assuming Institution desires to purchase. Any Loan sold pursuant to this 

section will, at the sole and absolute discretion of the Receiver, either (x) be treated as if initially 

sold pursuant to Section 3.1 of this Agreement, or (y) sold pursuant to the standard loan sale 

agreement used by the Receiver for the sale of loan pools. 

(a) If treated as if initially sold pursuant to Section 3.1 of this Agreement, the 

purchase price for such Loan shall be the Book Value as of the Bank Closing Date, adjusted (i) for 

any advances and interest on such Loan after the Bank Closing Date, (ii) by subtracting the total 

amount received by the Assuming Institution for such Loan after the Bank Closing Date, and (iii) 

by adding total disbursements of principal made by the Receiver and not otherwise included in the 

Book Value. The sale will be subject to all applicable terms of this Agreement, except that any 

Loan purchased pursuant to this Section 3.7 shall not be included in the calculation of the pro rata 

Acquired Asset discount or pro rata Acquired Asset premium utilized for the repurchase of other 

Acquired Assets. Payment for any such Loan will be handled through the settlement process 

pursuant to Article VIII. 

(b) Any Loan sold pursuant to the standard loan sale agreement shall be 

governed by and paid for in accordance with that document. 

ARTICLE IV. ASSUMPTION OF CERTAIN DUTIES AND OBLIGATIONS. 

4.1. Continuation of Banking Business. 

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(a) Full Service Banking. The Assuming Institution will (i) provide full service 

banking in the Failed Bank Assessment Area for at least 90 days commencing on the first Business 

Day after the Bank Closing Date and (ii) satisfy applicable regulatory or statutory requirements 

before it ceases to provide full service banking in the Failed Bank Assessment Area. At the option 

of the Assuming Institution, it may provide such full service banking at one or more Bank Premises 

or Assuming Institution branches located within the Failed Bank Assessment Area. The Assuming 

Institution may close or sell any Bank Premises during this period with the prior written consent 

of the Receiver (which consent may be withheld in Receiver’s sole discretion) and after receipt of 

all necessary regulatory approvals and satisfaction of applicable regulatory or statutory 

requirements; provided that the Assuming Institution (or its successors) continues to provide full 

service banking in the Failed Bank Assessment Area for the period required to comply with this 

Section 4.1(a). 

(b) Bank Premises Located in an Underserved Area. If a currently utilized Bank 

Premises is located in an Underserved Area, the Receiver will not consent to the Assuming 

Institution’s closing or selling such Bank Premises, unless the Assuming Institution provides full 

service banking at one or more Bank Premises or Assuming Institution branches located within in 

the same Underserved Area. 

(c) Failure to Exercise Option to Purchase Bank Premises. If a currentlyutilized owned Bank Premises is located in an Underserved Area and the Assuming Institution 

does not exercise its option under Section 4.6(a) with respect to that Bank Premises, the Receiver 

will continue to rent any such owned Bank Premises to the Assuming Institution for the amount 

provided in Section 4.6(e) in order to comply with Section 4.1(a). 

(d) Sale of Bank Premises. The Assuming Institution will pay to the Receiver, 

upon the sale of any Bank Premises within twelve months following the Bank Closing Date, fifty 

percent (50%) of the amount by which (a) the proceeds of such sale attributable to any franchise 

or deposit premium (without deducting any expenses related to such sale) exceed (b) the deposit 

premium paid by the Assuming Institution with respect to each Bank Premises sold. 

4.2. Credit Card Business. The Assuming Institution will honor and perform, from 

and after the Bank Closing Date, all duties and obligations with respect to the Failed Bank’s credit 

card business (including issuer or merchant acquirer) debit card business, stored value and gift 

card business, and/or processing related to credit cards, if any, and assumes all extensions of credit 

or balances outstanding as of the Bank Closing Date with respect to these lines of business. The 

obligations undertaken pursuant to this Section do not include loyalty, reward, affinity, or other 

similar programs related to the credit and debit card businesses. 

4.3. Safe Deposit Business. The Assuming Institution will honor and 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 under customer safe deposit box rental agreements. The 

Assuming Institution may relocate the safe deposit boxes of the Failed Bank to any office of the 

Assuming Institution located in the Failed Bank Assessment Area in which such safe deposit boxes 

were located. The Assuming Institution will (a) locate and maintain the safe deposit boxes in the 

Failed Bank Assessment Area for at least 90 days commencing on the first Business Day after the 

Bank Closing Date and (b) satisfy applicable regulatory or statutory requirements before it ceases 

to maintain the safe deposit boxes in the Failed Bank Assessment Area. 

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4.4. Safekeeping Business. The Receiver transfers, conveys and delivers to the 

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

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

Assuming Institution will 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 will 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 Assuming 

Institution will (a) hold for safekeeping and maintain in the Failed Bank Assessment Area for at 

least 90 days commencing on the first Business Day after the Bank Closing Date the assets held 

and maintained by the Failed Bank for safekeeping and (b) satisfy applicable regulatory or 

statutory requirements before it ceases to hold for safekeeping and maintain such assets in the 

Failed Bank Assessment Area. 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 the Failed Bank 

Assessment Area. The Assuming Institution shall be entitled to all rights and benefits which accrue 

after the Bank Closing Date with respect to securities and other items held in safekeeping. 

4.5. Trust Business. 

(a) Assuming Institution as Successor. The Assuming Institution shall, without 

further transfer, substitution, act or deed, to the full extent permitted by law, succeed to the rights, 

obligations, properties, assets, investments, deposits, agreements, and trusts of the Failed Bank 

under trusts, executorships, administrations, guardianships, and agencies, and other fiduciary or 

representative capacities, all to the same extent as though the Assuming Institution had assumed 

the same from the Failed Bank prior to the Bank Closing Date; provided, that any liability based 

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

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

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

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

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

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

or may be named or appointed by any other instrument. 

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

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

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

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

transfer. 

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

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

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

4.6. Bank Premises. 

(a) Option to Purchase. 

(i) Subject to Section 3.5, the Receiver hereby grants to the Assuming 

Institution an exclusive option for the period of sixty (60) days commencing the day after 

the Bank Closing Date with respect to Bank Premises for which the Assuming Institution 

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

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

other owned Bank Premises to purchase any or all owned 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 owned 

Bank Premises will be consummated as soon as practicable thereafter (and no later than 

the Settlement Date). 

(ii) The Receiver may, in its sole and absolute discretion, manage and 

maintain any owned Bank Premises with one or more tenants (other than the Assuming 

Institution) during the period from the Bank Closing Date until the date the Receiver 

receives the purchase price for such Bank Premises from the Assuming Institution. 

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

exclusive option for the period of sixty (60) days commencing the day after the Bank Closing 

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

Premises, if any, to the extent such leases can be assigned; provided that the exercise of this 

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

To the extent the lease payments provided for in any assigned lease are minimal in relation to the 

current market rate as determined by the Receiver, the Assuming Institution shall pay the 

Receiver the Market Value of the Receiver’s interest in any such assigned lease. The Assuming 

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

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

The Assuming Institution shall assume all leases assigned (or enter into new leases in lieu thereof) 

pursuant to this Section 4.6. 

(c) Facilitation. The Receiver shall facilitate the assumption, assignment, or 

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

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

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

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

parties. 

(d) Notice of Surrender of Bank Premises. The Assuming Institution shall give 

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

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

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

Premises Surrender Date and shall terminate the Assuming Institution’s option with respect to 

such Bank Premises. 

(e) Occupancy Costs. 

(i) The Assuming Institution shall pay the following amounts to the 

Receiver (or to appropriate third parties at the direction of the Receiver): (A) for owned 

Bank Premises, the rental rate, as determined by the Receiver, and all Bank Premises 

Operating Costs (each for the space not occupied by other tenants) for the period from the 

Bank Closing Date until (1) the date the Receiver receives written notice from the 

Assuming Institution of its election to purchase such Bank Premises under Section 4.6(a) 

or (2) the Bank Premises Surrender Date for owned Bank Premises the Assuming 

Institution elects not to purchase; and (B) for leased Bank Premises, rent, as provided in 

the applicable lease, and all Bank Premises Operating Costs for the period from the Bank 

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Closing Date until (1) the date the Receiver receives written notice from the Assuming 

Institution of its election to accept assignment of the lease for such Bank Premises under 

Section 4.6(b), or (2) the Bank Premises Surrender Date for leased Bank Premises for 

which the Assuming Institution does not elect to assume the lease. The Assuming 

Institution shall comply with the terms of applicable leases on leased Bank Premises, 

including without limitation, the timely payment of all rent. 

(ii) The Assuming Institution shall pay the following amounts to the 

Receiver (or to appropriate third parties at the direction of the Receiver): rent for the period 

from the Bank Closing Date until the Bank Premises Surrender Date for all owned or leased 

Furniture and Equipment, and all Specialty Assets located in space not occupied by other 

tenants and on or at either (A) owned Bank Premises the Assuming Institution elects not to 

purchase or (B) leased Bank Premises for which the Assuming Institution does not elect to 

assume the lease. Rent for such property owned by the Failed Bank shall be its rental rate, 

as determined by the Receiver no later than 60 days after the Bank Closing Date. Rent for 

such property leased by the Failed Bank shall be an amount equal to all rent and other 

amounts which the Receiver incurs or accrues as an obligation or is obligated to pay for 

such period pursuant to all leases and contracts with respect to such property. 

(iii) Subject to Section 4.1, if the Assuming Institution gives notice of its 

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

or not to purchase one or more of the owned Bank Premises, within two Business Days of 

the Bank Closing Date, and the Receiver is satisfied that all of the conditions for surrender 

of such Bank Premises set forth in this Agreement have been met within fifteen (15) days 

of the Bank Closing Date, the Assuming Institution shall not be liable for any of the costs 

imposed by Sections 4.6(e)(i) or 4.6(e)(ii). 

(f) Certain Requirements as to Furniture and Equipment and Certain Specialty 

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

Premises purchased at the fixed price shown on the Bid Form) as provided in Section 4.6(a) or 

(ii) 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(b), or (iii) does not exercise either such option, 

but within twelve (12) months following the Bank Closing Date obtains the right to occupy all or 

any portion of any Bank Premises, whether by assignment, lease, sublease, purchase, or 

otherwise, other than in accordance with Section 4.6(a) or Section 4.6(b) (each of the preceding, 

a “Subsequently Occupied Space”), the Assuming Institution shall (A) effective as of the Bank 

Closing Date, purchase from the Receiver, at the item’s purchase price specified on Schedule 3.2, 

all Specialty Assets with an appraised value (as determined in accordance with Section 4.6(j)) of 

less than $10,000, and all Furniture and Equipment owned by the Failed Bank and located on or 

at the Subsequently Occupied Space as of the Bank Closing Date, (B) accept an assignment or a 

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

Bank and located on or at the Subsequently Occupied Space, and (C) if applicable, accept an 

assignment or a sublease of any ground lease or negotiate a new ground lease with respect to any 

land on which the Subsequently Occupied Space is located; provided that the Receiver has not 

previously disposed of such Furniture and Equipment or Specialty Assets or repudiated the leases 

referred to in clause (B) or clause (C). 

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(g) Surrendering Bank Premises. 

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

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

Bank Premises Surrender Date. The Assuming Institution shall be responsible for promptly 

relinquishing and releasing to the Receiver such Bank Premises , the Furniture and 

Equipment, and the Specialty Assets located there on the Bank Closing Date, in the same 

condition as on 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 

purchase price specified on Schedule 3.2. By remaining in any such Bank Premises more 

than 150 days after the Bank Closing Date, 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 located 

thereon and any ground lease with respect to the land on which such Bank Premises is 

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

Bank and located on or at the Bank Premises as of the Bank Closing Date at the purchase 

price specified on Schedule 3.2. 

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

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

with Section 4.6(b) shall specify the Bank Premises Surrender Date. The Assuming 

Institution shall be responsible for promptly relinquishing and releasing to the Receiver 

such Bank Premises, the Furniture and Equipment, and the Specialty Assets located there 

on the Bank Closing Date, in the same condition as on 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 purchase price specified on Schedule 3.2. By failing to 

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

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

more than 150 days after the Bank Closing Date, the Assuming Institution shall, at the 

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

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

which such Bank Premises is located), leased Furniture and Equipment located thereonin 

accordance with this Section 4.6 (unless the Receiver previously repudiated any such 

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

Bank and located on or at the Bank Premises as of the Bank Closing Date at the purchase 

price specified on Schedule 3.2. 

(h) Furniture and Equipment. The Receiver hereby grants to the Assuming 

Institution an option to purchase all Furniture and Equipment owned by the Failed Bank and 

located at any leased or owned Bank Premises at the item’s purchase price specified on Schedule 

3.2 (i) that the Assuming Institution does not elect to purchase pursuant to Section 4.6(a) or (ii) 

for which Assuming Institution does not elect to take assignment of its lease pursuant to Section 

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

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

such Bank Premises. 

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(i) Option to Put Bank Premises and 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, if any, and the 

purchase price paid by the Receiver shall be the 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, if any, 

the Assuming Institution shall also have the option, exercisable within the same ninety (90) 

day time period, to require the Receiver to purchase any Furniture and Equipment, and any 

Specialty Assets that are owned, directly or indirectly, by an Acquired Subsidiary, if any, 

and are located on or at such Bank Premises and were utilized by the Failed Bank for 

banking purposes. The purchase price paid by the Receiver shall be the purchase price 

specified on Schedule 3.2. 

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

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

described in Section 4.6(e) and shall surrender the Bank Premises in accordance with 

Section 4.6(g)(i). 

(iv) Reserved. 

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

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

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

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

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

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

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

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

4.7. Agreement with Respect to Leased Data Management Equipment. 

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

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

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 and ending on the date which is thirty (30) days after 

the Assuming Institution has given notice to the Receiver of its election not to assume such lease, 

to pay to the Receiver or to appropriate third parties at the direction of the Receiver all operating 

costs with respect thereto and to comply with all relevant terms of any existing Leased Data 

Management Equipment leases entered into by the Failed Bank, including without limitation the 

timely payment of all rent, taxes, fees, charges, maintenance, utilities, insurance and assessments. 

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

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

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

Equipment, in the same condition as at Bank Closing Date, 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 ninety (90) days after the Bank Closing Date, the 

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

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

Assuming Institution agrees to comply with the terms of each such agreement for a period 

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

that provides for the rendering of services by the Failed Bank, the date which is ninety (90) days 

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

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

given notice to the Receiver of its election not to assume such agreement; provided that the 

Receiver can reasonably make such service agreements available to the Assuming Institution. The 

Assuming Institution shall be deemed by the Receiver to have assumed agreements for which no 

notification is timely given. The Receiver agrees to assign, transfer, convey and deliver to the 

Assuming Institution all right, title and interest of the Receiver, if any, in and to agreements the 

Assuming Institution assumes hereunder. In the event the Assuming Institution elects not to accept 

an assignment of any lease (or sublease) or negotiate a new lease for leased Bank Premises under 

Section 4.6 and does not otherwise occupy such premises, the provisions of this Section 4.8(a) 

shall not apply to service agreements related to such premises. The Assuming Institution agrees, 

during the period it has the use or benefit of any such agreement, promptly to pay to the Receiver 

or to appropriate third parties at the direction of the Receiver all operating costs with respect thereto 

and to comply with all relevant terms of such agreement. 

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

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

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

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

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MERSCORP, Inc., or its wholly owned subsidiary, Mortgage Electronic Registration Systems, 

Inc., (iii) agreements that are subject to Sections 4.1 through 4.7 and any insurance policy or bond 

referred to in Section 3.5(a) or other agreement specified in Section 3.5, (iv) consulting, 

management or employment agreements, if any, between the Failed Bank and its employees or 

other Persons, and (v) any contract or agreement under which the Failed Bank is the lessor of Bank 

Premises or Other Real Estate. Except as otherwise expressly set forth elsewhere in this 

Agreement, the Assuming Institution does not assume any liabilities or acquire any rights under 

any of the agreements described in this Section 4.8(b). 

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

obligations of the Failed Bank with respect to federal and state income tax informational reporting 

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

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

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

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

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

4.10. Insurance. 

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

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

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

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

Premises, and (ii) Furniture and Equipment, Specialty Assets and Leased Data Management 

Equipment located on or at those Bank Premises. The Assuming Institution’s obligation to insure 

and to maintain the Receiver as an additional insured on Bank Premises insurance coverage shall 

cease upon either: (x) Bank Premises Surrender Date or (y) the date the Assuming Institution 

receives a deed from the Receiver for owned Bank Premises or assumes the lease for leased Bank 

Premises. 

(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 4.10(b). 

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

(a) FDIC Office Space. For the period commencing on the day following the 

Bank Closing Date and ending on the one hundred fiftieth (150th) day following the Bank Closing 

Date, the Assuming Institution will provide to the Receiver and the Corporation, without charge, 

FDIC Office Space. 

(b) Receiver’s Right to Extend. Upon written notice by the Receiver or the 

Corporation, for the period commencing on the one hundred fifty-first (151st) day following the 

Bank Closing Date and ending no later than the three hundred and sixty-fifth (365th) day following 

the Bank Closing Date, the Assuming Institution will continue to provide to the Receiver and the 

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Corporation FDIC Office Space. During the period from the 151st 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 rate as determined by the Receiver for the FDIC Office 

Space if located at owned Bank Premises or (B) the actual rent paid for the FDIC Office Space if 

located at leased Bank Premises or other location. 

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

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

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

Office Space and the costs of relocation shall be borne by the Assuming Institution. Any rental 

and utility costs shall be paid in accordance with Sections 4.11(a) or 4.11(b), as applicable. 

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

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

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

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

to be retained by the Assuming Institution. The Assuming Institution shall offer to the Failed Bank 

employees it retains employment benefits comparable to those the Assuming Institution, offers its 

current employees. In the event the Receiver utilizes the services of any Failed Bank employee, 

the Receiver shall reimburse the Assuming Institution for such cost through the settlement process 

described in Article VIII. 

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

benefit of the parties to this Agreement, and for the benefit of no other Person (including any 

former employee of the Failed Bank or any Subsidiary thereof, Eligible 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. 

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

5.1. Payment of Checks, Drafts, Orders and Deposits. Subject to Section 9.5, the 

Assuming Institution agrees to pay all properly drawn checks, drafts, withdrawal orders and 

Assumed Deposits of depositors of the Failed Bank presented for payment, whether drawn on the 

check or draft forms provided by the Failed Bank or by the Assuming Institution, to the extent that 

the Deposit balances to the credit of the respective makers or drawers assumed by the Assuming 

Institution under this Agreement are sufficient to permit the payment thereof, and in all other 

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

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

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

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

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

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

assumed by the Assuming Institution pursuant to this Agreement. 

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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. 

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

Assuming Institution shall provide the Receiver (i) an Affidavit of Publication attesting that it 

complied with the publication requirements outlined in Section 5.3 and (ii) an Affidavit of Mailing 

(in a form similar to Exhibit 2.3B) attesting that it mailed the notice to depositors as required by 

Section 5.3. 

ARTICLE VI. FAILED BANK RECORDS. 

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

Receiver assigns, transfers, conveys and delivers to the Assuming Institution, wherever located, 

any and all Failed Bank Records, other than the following: 

(a) Failed Bank 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 Failed Bank 

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 

Failed Bank Records to the Assuming Institution; 

(b) Failed Bank Records pertaining to (i) any asset or liability of the Failed 

Bank retained by the Receiver, and (ii) any asset of the Failed Bank acquired by the Receiver 

pursuant to this Agreement; and 

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

6.2. [Reserved.] 

6.3. Preservation of Failed Bank Records. 

(a) Assuming Institution Failed Bank Records Retention. The Assuming 

Institution will preserve and maintain, at its sole expense, for the joint benefit of the Receiver, the 

Corporation and the Assuming Institution, all Failed Bank Records, regardless of whether the 

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Failed Bank Records were transferred to the Assuming Institution under Section 6.1 or retained by 

the Receiver under Sections 6.1(a) through (c), except those Failed Bank Records which the 

Receiver, in its sole and absolute discretion, chooses to physically take. 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 Failed Bank Records 

of which it has custody. If the Assuming Institution receives a subpoena addressed to the Assuming 

Institution seeking any Failed Bank Records of which it has custody, but are Failed Bank Records 

retained by the Receiver, the Assuming Institution will promptly provide the Receiver with a copy 

of that subpoena by delivering a copy to the Regional Counsel, as provided in Section 13.6(b). 

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 after the Bank Closing Date. With respect 

to Electronically Stored Information, the Assuming Institution must maintain those Failed Bank 

Records in an easily accessible and useable format. If such Failed Bank Records are maintained 

by a third party vendor, the Assuming Institution is responsible for ensuring that the third party 

complies with this Article. 

(b) Destruction of Certain Failed Bank Records. With regard to all Failed Bank 

Records of which the Assuming Institution has custody which are at least ten (10) years old as of 

the date of the appointment of the Receiver, the Assuming Institution will request written 

permission to destroy such Failed Bank Records by submitting a written request to destroy, 

specifying precisely which Failed Bank Records are included in the request, to the address 

indicated in Section 13.6(b) for those requests. 

(c) Destruction of Failed Bank Records after Six Years. With regard to all 

Failed Bank Records of which the Assuming Institution has custody which have been maintained 

in its custody after six (6) years from the date of the appointment of the Receiver, the Assuming 

Institution will request written permission to destroy such Failed Bank Records by submitting a 

written request to destroy, specifying precisely which Failed Bank Records are included in the 

request, to the address indicated in Section 13.6(b) for those requests. 

6.4. Access to Failed Bank Records; Copies. The Assuming Institution will permit 

the Receiver and the Corporation access to all Failed Bank Records of which the Assuming 

Institution has custody, and to use, inspect, make extracts from or request copies of any such Failed 

Bank Records in the manner and to the extent requested, and to duplicate, in the discretion of the 

Receiver or the Corporation, any Failed Bank Record; provided that if the Failed Bank maintained 

one or more duplicate copies of such Failed Bank Records, the Assuming Institution hereby 

assigns, transfers, and conveys to the Corporation one such duplicate copy of each such Failed 

Bank Record without cost to the Corporation, and will deliver to the Corporation all Failed Bank 

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 Failed Bank Record 

shall bear the cost (based on standard accepted industry charges to the extent applicable, as 

determined by the Receiver) for providing such duplicate Failed Bank Record. A copy of each 

Failed Bank Record requested shall be provided upon the request of the Receiver. If the Receiver 

or Corporation is seeking access to a Failed Bank Record from the Assuming Institution, the 

Receiver or Corporation need not provide a subpoena to obtain access to the Failed Bank Records 

in the Assuming Institution’s custody. 

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ARTICLE VII. BID; INITIAL PAYMENT. 

The Assuming Institution has submitted to the Receiver a Deposit premium bid of 0% and 

an Acquired Asset premium (discount) bid of $(28,183,000) (the “Bid Amount”). The Deposit 

premium bid will be applied to the total of all Assumed Deposits except for brokered, CDARS®, 

and any market place or similar subscription services Deposits as reflected on Schedule 7. On the 

Payment Date, the Assuming Institution will pay to the Corporation, or the Corporation will pay 

to the Assuming Institution, as the case may be, the Initial Payment, together with interest on 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; SETTLEMENT PROCESS. 

8.1. Pro Forma Statement. The Receiver, as soon as practicable after the Bank 

Closing Date, in accordance with the best information then available, shall provide to the 

Assuming Institution a Pro Forma statement reflecting any adjustments of such liabilities and 

assets as may be necessary. Such Pro Forma statement shall take into account, to the extent 

possible, (a) liabilities and assets of a nature similar to those contemplated by Section 2.1 or 

Section 3.1, respectively, which on the Bank Closing Date were carried in the Failed Bank’s 

suspense accounts and (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. 

Any Acquired Asset purchased by the Assuming Institution pursuant to Section 3.1 which was 

partially or wholly charged off during the period beginning the day after the Bid Valuation Date 

to the date of the Bank Closing Date shall be deemed not to be charged off for the purposes of the 

Pro Forma statement, and the purchase price shall be determined pursuant to Section 3.2. 

8.2. Correction of Errors and Omissions; Adjustments for Certain Liabilities. 

(a) Adjustments to Correct Errors. In the event any bookkeeping omissions or 

errors are discovered in preparing any Pro Forma statement or in completing the transfers and 

assumptions contemplated hereby, the parties hereto agree to correct such errors and omissions, it 

being understood that, as far as practicable, all adjustments will be made consistent with the 

judgments, methods, policies or accounting principles utilized by the Failed Bank in preparing and 

maintaining Failed Bank Records, except that adjustments made pursuant to this Section 8.2(a) are 

not intended to bring the Failed Bank Records into accordance with generally accepted accounting 

principles. 

(b) Adjustments for Certain Liabilities. 

(i) If the Receiver discovers at any time subsequent to the date of this 

Agreement that any claim exists against the Failed Bank which is of such a nature that it 

would have been included in the liabilities assumed under Article II had the existence of 

such claim or the facts giving rise thereto been known as of the Bank Closing Date, the 

Receiver may, in its discretion, at any time, require that such claim be assumed by the 

Assuming Institution in a manner consistent with the intent of this Agreement. The 

Receiver will make appropriate adjustments to the Pro Forma statement provided by the 

Receiver to the Assuming Institution pursuant to Section 8.1 as may be necessary. 

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(ii) If the Assuming Institution returns all or a portion of any Deposit to 

the Receiver or the Corporation at the direction of the Receiver or the Corporation pursuant 

to Section 9.5, the Receiver will make appropriate adjustments pursuant to Article VIII for 

the portion of the Bid Amount applicable to that returned Deposit and any related Deposit 

premium. 

(c) Other Adjustments. If the Failed Bank transferred, after the Bid Valuation 

Date, an asset to a Subsidiary that is not an Acquired Subsidiary and the Assuming Institution 

would have purchased that asset under Section 3.1 but for that transfer, the Receiver will make an 

adjustment to the Initial Payment (or subsequent payments) in an amount equal to (i) the Book 

Value of that transferred asset divided by (ii) the Book Value of all Acquired Assets plus the Book 

Value of that transferred asset plus the Book Value of other similarly transferred assets, then 

multiplied by (iii) the Acquired Asset premium (discount) bid set forth in Article VII. This 

adjustment will be as a credit to the Assuming Institution in the case of an Acquired Asset premium 

bid and a credit to the Receiver in the case of an Acquired Asset discount bid. For purposes of this 

Section 8.2(c), Book Value means, solely with respect to the applicable asset transferred to as 

Subsidiary that is not an Acquired Subsidiary, that value stated on the Failed Bank Records as of 

the Bid Valuation Date. 

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. 

(a) Mutual Cooperation. 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 

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property conveyed pursuant to this Agreement or to be conveyed 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 Acquired Assets 

in the Assuming Institution. The Assuming Institution shall be responsible for preparing and 

recording such instruments and documents of conveyance at its own expense. 

(b) Timely Preparation and Recordation of Vesting Instruments/Deeds. 

Within thirty (30) days of either (i) the Bank Closing Date or (ii) the date the Assuming Institution 

exercises any option to acquire any Bank Premises or Other Real Estate, whichever is applicable 

under this Agreement, the Assuming Institution shall prepare and deliver to the Receiver for 

Receiver’s execution all necessary conveyance instruments and documents. No later than thirty 

(30) days after Assuming Institution’s receipt of any executed conveyance instrument or 

document from the Receiver, the Assuming Institution shall file it with the appropriate recording 

agencies and provide the Receiver with a copy of the document containing the recording 

information. If the Assuming Institution does not timely deliver to the Receiver executable 

conveyance instruments or documents and a copy of the recorded document with the recording 

information as contemplated by this Section for each Bank Premises and Other Real Estate to be 

acquired by the Assuming Institution, the Receiver may elect to prepare, execute, and file any 

such conveyance instruments or documents, and the Assuming Institution agrees to promptly 

reimburse the Receiver $1,000 for each conveyance instrument or document deemed desirable or 

necessary, in the Receiver’s sole discretion, to vest legal title in the Assuming Institution, plus all 

costs incurred by the Receiver to do so, including, but not limited to, outside counsel fees, title 

searches and reports, filing fees and taxes, transfer fees, and document stamps. 

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 

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Assuming Institution to the Receiver of such amount, the Assuming Institution shall be discharged 

from any further obligation under this Agreement to pay to any such depositor the amount of such 

Deposit liability paid to the Receiver. 

9.5. Withheld Payments. At any time, the Receiver or the Corporation may, in its 

discretion, determine that all or any portion of any deposit balance assumed by the Assuming 

Institution pursuant to this Agreement does not constitute a “Deposit” (or otherwise, in its 

discretion, determine that it is the best interest of the Receiver or Corporation to withhold all or 

any portion of any deposit), and may direct the Assuming Institution to withhold payment of all or 

any portion of any such deposit balance. Upon such direction, the Assuming Institution agrees to 

hold such deposit and not to make any payment of such deposit balance to or on behalf of the 

depositor, or to itself, whether by way of transfer, set-off or otherwise. The Assuming Institution 

agrees to maintain the “withheld payment” status of any such deposit balance until directed in 

writing by the Receiver or the Corporation as to its disposition. At the direction of the Receiver or 

the Corporation, the Assuming Institution shall return all or any portion of such deposit balance to 

the Receiver or the Corporation, as appropriate, and thereupon the Assuming Institution shall be 

discharged from any further liability to such depositor with respect to such returned deposit 

balance. If such deposit balance has been paid to the depositor prior to a demand for return by the 

Corporation or the Receiver, and payment of such deposit balance had not been previously 

withheld pursuant to this Section 9.5, the Assuming Institution shall not be obligated to return such 

deposit balance to the Receiver or the Corporation. The Assuming Institution shall be obligated to 

reimburse the Corporation or the Receiver, as the case may be, for the amount of any deposit 

balance or portion thereof paid by the Assuming Institution in contravention of any previous 

direction to withhold payment of such deposit balance or return such deposit balance the payment 

of which was withheld pursuant to this Section 9.5. 

9.6. Proceedings with Respect to Certain Assets and Liabilities. 

(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 (ii) its books and records 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 

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storage, card forms and printed copy) maintained by, owned by, or in the possession of the 

Assuming Institution or any Affiliate of the Assuming Institution relating to the transferred Loan. 

9.7. Information. The Assuming Institution promptly shall provide to the Corporation 

such other information, including financial statements and computations, relating to the 

performance of the provisions of this Agreement as the Corporation or the Receiver may request 

from time to time, and, at the request of the Receiver, make available employees of the Failed 

Bank employed or retained by the Assuming Institution to assist in preparation of the Pro Forma 

statement pursuant to Section 8.1. 

9.8. Tax Ruling. The Assuming Institution shall not at any time, without the 

Corporation’s prior consent, seek a private letter ruling or other determination from the Internal 

Revenue Service or otherwise seek to qualify for any special tax treatment or benefits associated 

with any payments made by the Receiver or Corporation pursuant to this Agreement. 

9.9. Limited Power of Attorney. The Receiver may, in its sole discretion, provide the 

Assuming Institution with a limited power of attorney designating certain employees of the 

Assuming Institution as the Receiver’s attorneys-in-fact for the purposes of (i) executing, on behalf 

of the Receiver, lien releases required by Section 6.3, and (ii) taking certain actions, on behalf of 

the Receiver, to vest title to the Acquired Assets in the Assuming Institution as required by Section 

9.2. The Assuming Institution shall use its best efforts to complete all actions required to vest title 

to the Acquired Assets in the Assuming Institution as quickly as possible, but no later than the 

earlier of (a) the second anniversary of the Bank Closing Date and (b) the date the Receiver 

chooses, in its sole discretion, to terminate the receivership of the Failed Bank. 

ARTICLE X. CONDITION PRECEDENT. 

The obligations of the parties to this Agreement are subject to the Receiver and the 

Corporation having received at or before the Bank Closing Date evidence reasonably satisfactory 

to each of any necessary approval, waiver, or other action by any governmental authority, the board 

of directors of the Assuming Institution, or other third party, with respect to this Agreement and 

the transactions contemplated hereby, the closing of the Failed Bank and the appointment of the 

Receiver, the chartering of the Assuming Institution, and any agreements, documents, matters or 

proceedings contemplated hereby or thereby. 

ARTICLE XI. REPRESENTATIONS AND WARRANTIES OF THE ASSUMING 

INSTITUTION. 

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

follows: 

11.1. Corporate Existence and Authority. The Assuming Institution (a) is duly 

organized, validly existing and in good standing under the laws of its Chartering Authority and has 

full power and authority to own and operate its properties and to conduct its business as now 

conducted by it, and (b) has full power and authority to execute and deliver this Agreement and to 

perform its obligations hereunder. The Assuming Institution has taken all necessary corporate (or 

other applicable governance) action to authorize the execution, delivery and performance of this 

Agreement and the performance of the transactions contemplated hereby. 

11.2. Third Party Consents. No governmental authority or other third party consents 

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

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connection with the execution, delivery or performance by the Assuming Institution of this 

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

11.3. Execution and Enforceability. This Agreement has been duly executed and 

delivered by the Assuming Institution and when this Agreement has been duly authorized, 

executed and delivered by the Corporation and the Receiver, this Agreement will constitute the 

legal, valid and binding obligation of the Assuming Institution, enforceable in accordance with its 

terms. 

11.4. Compliance with Law. 

(a) No Violations. Neither the Assuming Institution nor any of its Subsidiaries 

is in violation of any statute, regulation, order, decision, judgment or decree of, or any restriction 

imposed by, the United States of America, any state, municipality or other political subdivision or 

any agency of any of the foregoing, or any court or other tribunal having jurisdiction over the 

Assuming Institution or any of its Subsidiaries or any assets of any such Person, or any foreign 

government or agency thereof having such jurisdiction, with respect to the conduct of the business 

of the Assuming Institution or of any of its Subsidiaries, or the ownership of the properties of the 

Assuming Institution or any of its Subsidiaries, which, either individually or in the aggregate with 

all other such violations, would materially and adversely affect the business, operations or 

condition (financial or otherwise) of the Assuming Institution or the ability of the Assuming 

Institution to perform, satisfy or observe any obligation or condition under this Agreement. 

(b) No Conflict. Neither the execution and delivery nor the performance by the 

Assuming Institution of this Agreement will result in any violation by the Assuming Institution of, 

or be in conflict with, any provision of any applicable law or regulation, or any order, writ or 

decree of any court or governmental authority. 

11.5. Insured or Guaranteed Loans. If any Loans being transferred pursuant to this 

Agreement are insured or guaranteed by any department or agency of any governmental unit, 

federal, state or local, Assuming Institution represents that Assuming Institution has been approved 

by such agency and is an approved lender or mortgagee, as appropriate, if such approval is 

required. The Assuming Institution further assumes full responsibility for determining whether or 

not such insurance or guarantees are in full force and effect on the date of this Agreement and with 

respect to those Loans whose insurance or guaranty is in full force and effect on the date of this 

Agreement, Assuming Institution assumes full responsibility for doing all things necessary to 

insure such insurance or guarantees remain in full force and effect. Assuming Institution agrees to 

assume all of the obligations under the contract(s) of insurance or guaranty and agrees to cooperate 

with the Receiver where necessary to complete forms required by the insuring or guaranteeing 

department or agency to effect or complete the transfer to Assuming Institution. 

11.6. Representations Remain True. The Assuming Institution represents and warrants 

that it has executed and delivered to the Corporation a Purchaser Eligibility Certification and 

Confidentiality Agreement and that all information provided and representations made by or on 

behalf of the Assuming Institution in connection with this Agreement and the transactions 

contemplated hereby, including, but not limited to, the Purchaser Eligibility Certification and 

Confidentiality Agreement (which are affirmed and ratified hereby) 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. 

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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; 

(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; 

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(vii) claims arising from any action or inaction of any Indemnitee, 

including for purposes of this Section 12.1(a)(vii) the former officers or employees of the 

Failed Bank or of any Subsidiary or Affiliate of the Failed Bank that is taken upon the 

specific written direction of the Corporation or the Receiver, other than any action or 

inaction taken in a manner constituting bad faith, gross negligence or willful misconduct; 

and 

(viii) claims based on the rights of any depositor of the Failed Bank whose 

deposit has been accorded “withheld payment” status and/or returned to the Receiver or 

Corporation in accordance with Section 9.5 and/or has become an “unclaimed deposit” or 

has been returned to the Corporation or the Receiver in accordance with Section 2.3; 

(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 

Acquired 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 Acquired Asset, or (B) the monetary recovery sought on such Acquired Asset 

by the Assuming Institution in the cause of action from which the Counterclaim arises; and 

in such event the Receiver will provide indemnification only in the amount of such excess; 

and no indemnification will be provided for any costs or expenses other than any costs or 

expenses (including attorneys’ fees) which, in the determination of the Receiver, have been 

actually and reasonably incurred by such Indemnitee in connection with the defense of any 

such Counterclaim; and it is expressly agreed that the Receiver reserves the right to 

intervene, in its discretion, on its behalf and/or on behalf of the Receiver, in the defense of 

any such Counterclaim; 

(ii) claims with respect to any liability or obligation of the Failed Bank 

that is (A) expressly assumed by the Assuming Institution pursuant to this Agreement or 

(B) assumed by the Assuming Institution or any Subsidiary or Affiliate of the Assuming 

Institution subsequent to the execution hereof; 

(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 (A) expressly assumed by the Assuming Institution pursuant 

to this Agreement or (B) assumed by the Assuming Institution or any Subsidiary or 

Affiliate of the Assuming Institution subsequent to the execution hereof; 

(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; 

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(vi) claims based on the rights of any present or former creditor, 

customer, or supplier (as such) of any Indemnitee; 

(vii) claims based on the rights of any present or former shareholder (as 

such) of any Indemnitee; 

(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 Acquired Assets or Liabilities Assumed 

to any Subsidiary or Affiliate of the Assuming Institution; 

(xi) except as expressly provided in this Article XII, claims based on any 

action or inaction of any Indemnitee, and nothing in this Agreement shall be construed to 

provide indemnification for (i) the Failed Bank, (ii) any Subsidiary or Affiliate of the Failed 

Bank, or (iii) any present or former director, officer, employee or agent of the Failed Bank 

or its Subsidiaries or Affiliates; provided that the Receiver, in its sole and absolute 

discretion, may provide indemnification hereunder for any present or former director, 

officer, employee or agent of the Failed Bank or its Subsidiaries or Affiliates who is also 

or becomes a director, officer, employee or agent of the Assuming Institution or its 

Subsidiaries or Affiliates; 

(xii) claims or actions which constitute a breach by the Assuming 

Institution of the representations and warranties contained in Article XI; 

(xiii) claims arising out of or relating to the condition of or generated by 

an Acquired 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 

Acquired 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 acquired or 

liability assumed, 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 Indemnitee pursuant to this Article XII that such 

Indemnitee shall, with respect to any claim made or threatened against such Indemnitee for which 

such Indemnitee is or may be entitled to indemnification hereunder: 

(a) give written notice to the Supervisory Counsel (Resolution and 

Receivership 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; 

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(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 Indemnitee claiming 

indemnification in writing that such claim is a claim with respect to which such Indemnitee is 

entitled to indemnification under this Article XII; 

(e) not incur any costs or expenses in connection with any response or suit with 

respect to such claim, unless such costs or expenses were incurred upon the written direction of 

the Receiver; provided that the Receiver shall not be obligated to reimburse the amount of any 

such costs or expenses unless such costs or expenses were incurred upon the written direction of 

the Receiver; 

(f) not release or settle such claim or make any payment or admission with 

respect thereto, unless the Receiver consents thereto; provided that the Receiver shall not be 

obligated to reimburse the amount of any such settlement or payment unless such settlement or 

payment was effected upon the written direction of the Receiver; and 

(g) take such reasonable action as the Receiver may request in writing as 

necessary to preserve, protect or enforce the rights of the Indemnitee against any Primary 

Indemnitor. 

12.3. No Additional Warranty. Nothing in this Article XII shall be construed or 

deemed to (a) expand or otherwise alter any warranty or disclaimer thereof provided under Section 

3.3 or any other provision of this Agreement with respect to, among other matters, the title, value, 

collectability, genuineness, enforceability, documentation, condition or freedom from liens or 

encumbrances, of any (i) Acquired Asset, or (ii) asset of the Failed Bank purchased by the 

Assuming Institution subsequent to the execution of this Agreement by the Assuming Institution 

or any Subsidiary or Affiliate of the Assuming Institution, or (b) create any warranty not expressly 

provided under this Agreement with respect thereto. 

12.4. Indemnification of Receiver and Corporation. From and after the Bank Closing 

Date, the Assuming Institution agrees to indemnify and hold harmless the Corporation and the 

Receiver and their respective directors, officers, employees and agents from and against any and 

all costs, losses, liabilities, expenses (including attorneys’ fees), judgments, fines and 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); 

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(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 Acquired 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 of the Assuming Institution to comply with any 

provision of 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 Indemnitee 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 Indemnitee being 

indemnified shall notify the Receiver thereof and, upon the request of the Receiver, shall promptly 

pay to the Receiver, or the Corporation as appropriate, the amount of the Receiver’s (or 

Corporation’s) payments to the extent of such excess. 

12.6. Criminal Claims. Notwithstanding any provision of this Article XII to the 

contrary, in the event that any Indemnitee 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 Indemnitee 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) such Indemnitee is successful on the merits or otherwise in the defense against any 

such action, suit or proceeding, or (b) such action, suit or proceeding is terminated without the 

imposition of liability on such Indemnitee. 

12.7. Limited Guaranty of the Corporation. The Corporation hereby guarantees 

performance of the Receiver’s obligation to indemnify any Indemnitee as set forth in this Article 

XII. It is a condition to the Corporation’s obligation hereunder that each Indemnitee 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 of the Indemnitee against any other Person to the extent of such payment. 

ARTICLE XIII. MISCELLANEOUS. 

13.1. Costs, Fees, and Expenses. All fees, costs and expenses incurred by a party in 

connection with this Agreement (including the performance of any obligations or the exercise of 

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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 Acquired Assets or 

Liabilities Assumed hereunder or in accordance herewith. Further, the Assuming Institution shall 

be responsible for the payment of MERS routine transaction charges. 

13.2. WAIVER OF JURY TRIAL. EACH PARTY HEREBY IRREVOCABLY AND 

UNCONDITIONALLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY 

APPLICABLE LAW, ALL RIGHT TO TRIAL BY JURY IN OR TO HAVE A JURY 

PARTICIPATE IN RESOLVING ANY DISPUTE, ACTION, PROCEEDING OR 

COUNTERCLAIM, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, 

ARISING OUT OF OR RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR 

ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY. 

13.3. Consent; Determination or Discretion. When the consent or approval of a party 

is required under this Agreement, such consent or approval shall be obtained in writing and unless 

expressly otherwise provided, shall not be unreasonably withheld or delayed. When a 

determination or decision is to be made by a party under this Agreement, that party shall make 

such determination or decision in its reasonable discretion unless expressly otherwise provided. 

13.4. Rights Cumulative. Except as expressly otherwise provided herein, the rights of 

each of the parties under this Agreement are cumulative, may be exercised as often as any party 

considers appropriate and are in addition to each such party’s rights under this Agreement, any of 

the agreements related thereto or under applicable law. Any failure to exercise or any delay in 

exercising any of such rights, or any partial or defective exercise of such rights, shall not operate 

as a waiver or variation of that or any other such right, unless expressly otherwise provided. 

13.5. References. References in this Agreement to Recitals, Articles, Sections, 

Schedules and Exhibits are to Recitals, Articles, Sections, Schedules and Exhibits of this 

Agreement, respectively. References to parties are to the parties to this Agreement. Unless 

expressly otherwise provided, references to days and months are to calendar days and months 

respectively. In any case where a notice or other action is due on a day which is not a Business 

Day, such notice or other action may be delayed until the next-succeeding Business Day. Article 

and Section headings are for convenient reference and shall not affect the meaning of this 

Agreement. References to the singular shall include the plural, as the context may require, and vice 

versa. 

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 

1601 Bryan Street 

Dallas, Texas 75201 

Attention: Settlement Agent 

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

In addition, with respect to notices under Article XII: 

Supervisory Counsel (Resolution and Receivership Counsel) 

1601 Bryan Street 

Dallas, TX 75201 

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

And with respect to written requests to destroy Failed Bank Records under 

Sections 6.3 (b) and 6.3(c), to: 

DRR– Records Manager 

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

Agreement: 

MVB Bank, Inc. 

301 Virginia Avenue 

Fairmont, WV 26554 

Attention: Don Robinson, SVP 

with a copy to: Larry Mazza, President and CEO 

13.7. Entire Agreement. This Agreement, including the Schedules and Exhibits hereto 

and thereto, embody the entire agreement of the parties hereto in relation to the subject matter 

herein and supersede all prior understandings or agreements, oral or written, between the parties. 

13.8. Counterparts. This Agreement may be executed in any number of counterparts 

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

of which when so executed shall be deemed to be an original and all of which when taken together 

shall constitute one and the same Agreement. 

13.9. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND 

OBLIGATIONS HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN 

ACCORDANCE WITH THE FEDERAL LAW OF THE UNITED STATES OF AMERICA, 

AND IN THE ABSENCE OF CONTROLLING FEDERAL LAW, IN ACCORDANCE WITH 

THE LAWS OF THE STATE IN WHICH THE MAIN OFFICE OF THE FAILED BANK IS 

LOCATED. 

13.10. Successors and Assigns. 

(a) Binding on Successors and Assigns; Assignment. All terms and conditions 

of this Agreement shall be binding on the successors and assigns of the Receiver, the Corporation 

and the Assuming Institution. The Receiver may assign or otherwise transfer this Agreement and 

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the rights and obligations of the Receiver hereunder (in whole or in part) to the Corporation in its 

corporate capacity without the consent of 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) without the prior written consent of the Receiver, which consent may be granted 

or withheld by the Receiver in its sole and absolute discretion. 

(b) No Third Party Beneficiaries. Nothing expressed or referred to in this 

Agreement is intended or shall be construed to give any Person other than the Receiver, the 

Corporation and the Assuming Institution any legal or equitable right, remedy or claim under or 

with respect to this Agreement or any provisions contained herein, it being the intention of the 

parties hereto that this Agreement, the obligations and statements of responsibilities hereunder, 

and all other conditions and provisions hereof are for the sole and exclusive benefit of the Receiver, 

the Corporation and the Assuming Institution and for the benefit of no other Person. 

13.11. Modification. No amendment or other modification, rescission or release of any 

part of this Agreement 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 sixth (6th) 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. 

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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. 

13.17. Right of Receiver or Corporation to Audit. The Receiver or the Corporation, 

their respective agents, contractors and employees, may (but are not required to) perform an audit 

to determine the Assuming Institution’s compliance with this Agreement at any time, by providing 

not less than ten (10) Business Days’ prior notice. The scope and duration of any such audit shall 

be at the discretion of the Receiver or the Corporation, as the case may be. The Receiver or the 

Corporation, as the case may be, shall bear the expense of any such audit. In the event that any 

corrections are necessary as a result of such an audit, the Assuming Institution and the Receiver 

shall make such accounting adjustments, payments and withholdings as may be necessary to give 

retroactive effect to such corrections. 

[Signature Page Follows] 

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SCHEDULE 2.1(a) 

EXCLUDED DEPOSIT LIABILITY ACCOUNTS 

The First State Bank has deposits associated with the Depository Organization (DO) Cede & Co as 

Nominee for DTC. The DO accounts do not pass to the Assuming Bank and are excluded from the 

transaction as described in section 2.1 of the P&A Agreement. The Detail Report below identifies the DO 

accounts as of 1/31/2020. This Schedule will be updated post closing with data as of Bank Closing date. 

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SCHEDULE 3.2 

PURCHASE PRICE OF ACQUIRED ASSETS 

(a) cash and receivables from depository 

institutions, including cash items in the 

process of collection, plus interest thereon: 

Book Value 

(b) securities (exclusive of the FHLB stock), 

plus interest thereon: As provided in Section 3.2(b) 

(c) federal funds sold and repurchase 

agreements, if any, including interest 

thereon: 

Book Value 

(d) Loans, other than those in Optional Loan 

Pools: Book Value 

(e) credit card business: 36.81% of Book Value 

(f) safe deposit business, safekeeping business 

and trust business, if any: Book Value 

(g) Failed Bank Records and other documents: Book Value 

(h) Other Real Estate: As set forth on the Bid Form 

(i) Other Real Estate with purchase price not 

set forth on the Bid Form: Book Value 

(j) Loans in Optional Loan Pools: As set forth on the Bid Form 

(k) all repossessed collateral, such as boats, 

motor vehicles, aircraft, trailers, and 

firearms: 

Book Value 

(l) FHLB stock: Book Value 

(m) reserved: Book Value 

(n) assets securing Deposits of public money, to 

the extent not otherwise purchased 

hereunder: 

Book Value 

(o) overdrafts of customers: Book Value 

(p) reserved: As provided in Section 3.2(c) 

(q) reserved: Book Value 

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

(s) Bank Premises with a fixed price: As set forth on the Bid Form 

(t) All other Bank Premises: Market Value 

(u) automated teller machines: Book Value 

(v) Furniture and Equipment: Book Value* 

(w) Specialty Assets: Fair Market Value 

* Please note that the Book Value of the Furniture and Equipment for each individual Bank 

Premises is not available in the Records of the Bank. Therefore, the Book Value for Schedule 

3.2 (v) will be calculated for the Furniture and Equipment at each bank premise purchased or 

leased premise assumed based on the square footage of the bank premise purchased or leased 

premise assumed, divided by the sum of the total square footage of all premises owned or leased 

by the bank to determine the percentage to be applied. The percentage calculated for each 

premises shall be applied to the total Book Value (net of depreciation) of all Furniture and 

Equipment. 

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SCHEDULE 3.5(l) 

EXCLUDED SECURITIES 

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SCHEDULE 3.5(m) 

EXCLUDED OTHER REAL ESTATE AND 

EXCLUDED OTHER REAL ESTATE SUBSIDIARIES, AND OTHER EXCLUDED 

ASSETS 

Loans 

Loan # Current Balance 

Other Real Estate 

Asset ID # Property Address Current Book 

Value 

Repossessed Property 

OSI # Book 

Value 

Property Description 

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Other Assets – Accounts Receivable - FHLMC

GL Current Balance 

Other Assets – All Mortgage Servicing Rights and Other Intangible Assets 

GL # Description Proforma Jacket Balance 

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Total Mortgage Servicing Rights 

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SCHEDULE 4.1(b) 

BANK PREMISES IN UNDERSERVED AREAS 

None 

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SCHEDULE 6.3 

DATA RETENTION CATALOG 

Failed Institution

 Name

 Data Center Address 

Assuming Institution

 Name

 Address 

DRC Preparation Date 

DRC Preparer's Contact

 Name

 Designation

 Phone

 Email 

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

 Name

 Phone

 Email 

Acquirer Data Retention Catalog 

FDIC Failed Bank Data Services (FBDS) 

Version 3.01 

Instructions 

1. Provide preparer’s contact information and Bank information on the “Cover Page” tab. 

2. Provide point of contact and desired procedure for data requests on the "Data Request Procedure" Tab. 

3. Provide the requested application retention details on "Data Retention" tab of this workbook.

 a. Update provided application list with any additional systems that were not included

If you need additional clarification while recording the information, please call or 

. Send the final copy of this document to . 

 b. Select the most appropriate value from the drop down list when the list is provided with applicable column. 

Whole Bank 55 The First State Bank 

Version 11.1 – PURCHASE AND ASSUMPTION AGREEMENT Barboursville, WV 
Example of Information Required 

Application Classification 

Explain if

Application

Name 

SubCategory Business 

Usage Vendor 

Data exists 

in the Core 

Banking

partial

data exists 

in Core 

Hosting

Platform 

application? Banking

application 

Provide the Select the Describe the Provide Indicate Provide an Select the 

name of the most business the whether the explanation deployment 

application. appropriate 

category 

uses and key 

processes 

name 

of the 

application 

data also 

if partial 

data exist 

model of the 

application. 

represented supported by vendor. exists in the in the core 

by the the core banking banking 

application. application. application application 

Time Duration for 

Application in Operation 

Time Duration for 

Online Data 

Time Duration for 

Offline Data Offline Data 

Details From To From To From To 

Provide the time duration 

(Month & Year) for which 

the application is 

operation. 

Provide the time duration 

(Month & Year) for which 

data is available online. 

Provide the time duration 

(Month & Year) for which 

data is available offline 

Select the 

appropriate 

mechanism 

representing the 

offline data. 

Electronic Data Retention Plan 

Acquirer Plan Migration Details Decommission 

Schedule Comments 

Select the most 

appropriate option 

that defines the 

acquirer plan for the 

application. 

Provide the 

details of data 

being migrated 

to the target 

system ( type of 

data, volume 

and date range ). 

Provide 

details of 

the data 

not being 

migrated to 

the target 

system. 

Select the appropriate 

timeline if application 

decommissioning is 

planned in future. 

Provide any 

additional 

comments related 

to the retention 

plans associated 

with the 

application's data 

Whole Bank 56 The First State Bank 

Version 11.1 – PURCHASE AND ASSUMPTION AGREEMENT Barboursville, WV 
 

SCHEDULE 7 

NOT APPLICABLE (no Deposit premium provided in bid) 

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EXHIBIT 2.3A 

FINAL LEGAL NOTICE 

Claiming Requirements for Deposits 

Under 12 U.S.C. 1822(e) 

[Date] 

[Name of Unclaimed Depositor] 

[Address of Unclaimed Depositor] 

[Anytown, USA] 

Subject: [XXXXX – Name of Bank 

City, State] – In Receivership 

Dear [Sir/Madam]: 

As you may know, on [Date: Closing Date], the [Name of Bank (“The Bank”)] was 

closed and the Federal Deposit Insurance Corporation (“FDIC”) transferred [The Bank’s] accounts to 

[Name of Assuming Institution]. 

According to federal law under 12 U.S.C., 1822(e), on [Date: eighteen months from the 

Closing Date], [Name of Assuming Institution] must transfer the funds in your account(s) back to the 

FDIC if you have not claimed your account(s) with [Name of Assuming Institution]. Based on the records 

recently supplied to us by [Name of Assuming 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 Assuming Institution]. 

There are several ways that you can claim your account(s) at [Name of Assuming Institution]. It is only 

necessary for you to take any one of the following actions in order for your account(s) at [Name of 

Assuming 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 Assuming 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 Assuming 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 

Assuming 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 Assuming Institution] with a change of address form. 

4. Make a deposit to or withdrawal from your account(s). This includes writing a check on any account 

or having an automatic direct deposit credited to or an automatic withdrawal debited from an account. 

If you do not want to continue your account(s) with [Name of Assuming Institution] for 

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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 Assuming 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 Assuming Institution by 

Date: eighteen months from the Closing Date] federal law requires [Name of Assuming Institution] to 

return your deposits to the FDIC, which will deliver them as unclaimed property to the state indicated in 

your address in the Failed Institution’s records. If your address is outside of the United States, the FDIC 

will deliver the deposits to the state in which the Failed Institution had its main office. 12 U.S.C. § 1822(e). 

If the state accepts custody of your deposits, you will have 10 years from the date of delivery to claim your 

deposits from the state. After 10 years you will be permanently barred from claiming your deposits. 

However, if the state refuses to take custody of your deposits, you will be able to claim them from the FDIC 

until the receivership is terminated. If you have not claimed your insured deposits before the receivership 

is terminated, and a receivership may be terminated at any time, all of your rights in those deposits will be 

barred. 

If you have any questions or concerns about these items, please contact [Bank Employee] 

at [Name of Assuming Institution] by phone at [(XXX) XXX-XXXX]. 

Sincerely, 

[Name of Claims Specialist] 

[Title] 

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______________________________________ 

______________________ ________________________________ 

EXHIBIT 2.3B 

AFFIDAVIT OF MAILING 

AFFIDAVIT OF MAILING 

State of 

COUNTY OF 

I am employed as a [Title of Office] by the [Name of Assuming Institution]. 

This will attest that on [Date of mailing], I caused a true and correct copy of the Final Legal Notice, attached 

hereto, to owners of unclaimed deposits of [Name of Failed Bank], City, State, to be prepared for deposit 

in the mail of the United States of America on behalf of the Federal Deposit Insurance Corporation. A list 

of depositors to whom the notice was mailed is attached. This notice was mailed to the depositor’s last 

address as reflected on the books and records of the [Name of Failed Bank] as of the date of failure. 

[Name] 

[Title of Office] 

[Name of Assuming Institution] 

Subscribed and sworn to before me this _______day of [Month, Year]. 

My commission expires: 

[Name], Notary Public 

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EXHIBIT 4.13 

INTERIM ASSET SERVICING ARRANGEMENT 

This Interim Asset Servicing Arrangement is made pursuant to and as of the date of that 

certain Purchase and Assumption Agreement (the “Purchase and Assumption Agreement”) 

among the Receiver, the Assuming Institution and the Corporation, to which this Arrangement is 

attached. Capitalized terms used and not otherwise defined in this Exhibit 4.13 shall have the 

meanings assigned to such terms in the Agreement. 

(a) With respect to each asset or liability designated from time to time by the Receiver 

to be serviced by the Assuming Institution pursuant to this Interim Asset Servicing Arrangement 

(the “Arrangement”), including any assets or liabilities sold or conveyed by the Receiver to any 

party other than the Assuming Institution (any such party, a “Successor Owner”) but with respect 

to which the Receiver has an obligation to service or provide servicing support (such assets and 

liabilities, the “Pool Assets”), for certain loans (the “Loans”) during the term of this Arrangement 

the Assuming Institution shall service or provide servicing support to the Pool Assets as described 

in this Exhibit 4.13. 

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

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

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

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

Institution is not an approved or qualified servicer for a GSE or the Loans are not owned by a GSE, 

then the Assuming Institution shall service or provide servicing support for the Loans in 

accordance with the following: 

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

record; 

(ii) reverse and return insufficient funds checks; 

(iii) pay (A) participation payments to participants in Loans, as and when 

received; (B) tax and insurance bills, as they come due, out of any escrow funds maintained for 

such purposes; and (C) unfunded commitments and protective advances out of any escrow funds 

created for such purposes; 

(iv) process funding draws under Loans and protective advances in connection 

with collateral and acquired property, in each case, as and to the extent authorized and funded by 

the Receiver; 

(v) maintain in use all data processing equipment and systems and other 

systems of record on which any activity with respect to any Pool Assets are, or prior to the Bank 

Closing Date, were, recorded, and maintain all historical data on any such systems as of the Bank 

Closing Date and not, without the express consent of the Receiver (which consent must be sought 

at least sixty (60) days prior to taking any action), deconvert, remove, transfer or otherwise 

discontinue use of any of the Failed Bank’s systems of record with respect to any Pool Asset; 

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(vi) maintain accurate records reflecting (A) payments received by the 

Assuming Institution, (B) information received by the Assuming Institution concerning changes 

in the address or identity of any Obligor and (C) other servicing actions taken by the Assuming 

Institution, including checks returned for insufficient funds; 

(vii) send (A) billing statements to Obligors on Pool Assets (to the extent that 

such statements were sent by the Failed Bank or as are requested by the Receiver) and (B) notices 

to Obligors who are in default on Loans (in the same manner as the Failed Bank or as are requested 

by the Receiver); 

(viii) employ a sufficient number of qualified employees to provide the services 

required to be provided by the Assuming Institution pursuant to this Arrangement (with the number 

and qualifications of such employees to be not less than the number and qualifications of 

employees employed by the Failed Bank to perform such functions as of the Bank Closing Date); 

(ix) hold in 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, 

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and segregate and hold all funds collected and received with respect to the Pool Assets separate and 

apart from any of the Assuming Institution’s own funds and general assets; and 

(xv) no later than the end of the second Business Day following receipt thereof, 

deposit into the applicable custodial account and retain therein all funds collected and received 

with respect to the Pool Assets. 

Notwithstanding anything to the contrary in this Exhibit, the Assuming Institution shall not be 

required to initiate litigation or other collection proceedings against any Obligor or any collateral 

with respect to any defaulted Loan. The Assuming Institution shall promptly notify the Receiver, 

at the address referred to above in paragraph (a)(x), of any claims or legal actions regarding any 

Pool Asset. 

(b) In consideration for the provision of the services provided pursuant to this 

Arrangement, the Receiver agrees to reimburse the Assuming Institution for the actual, reasonable 

and necessary expenses incurred in connection with the performance of its duties pursuant to this 

Arrangement, including shared services of photocopying, postage, express mail, core data 

processing (allocated on a per loan basis based on historical actual costs) and amounts paid for 

employee services (based upon the number of hours spent performing servicing duties). 

(c) The Assuming Institution shall provide the services described herein for a term of 

up to three hundred sixty-five (365) days after the Bank Closing Date. The Receiver may terminate 

the Arrangement at any time upon not less than sixty (60) days’ notice to the Assuming Institution 

without any liability or cost to the Receiver other than the fees and expenses due to the Assuming 

Institution as of the termination date pursuant to paragraph (b) above. 

(d) At any time during the term of this Arrangement, the Receiver may, upon not less 

than thirty (30) days’ prior written notice to the Assuming Institution, remove one or more Pool 

Assets, and at the time of such removal the Assuming Institution’s responsibility with respect 

thereto shall terminate. 

(e) At the expiration of this Arrangement or upon the termination of the Assuming 

Institution’s responsibility with respect to any Pool Asset pursuant to paragraph (d) hereof, the 

Assuming Institution shall: 

(i) deliver to the Receiver (or its designee) all of the Credit Documents and 

records relating to the Pool Assets; and 

(ii) cooperate with the Receiver to facilitate the orderly transition of managing 

the Pool Assets to the Receiver or its designees (including, without limitation, its 

contractors and persons to which any Pool Assets are conveyed). 

(f) At the request of the Receiver, the Assuming Institution shall perform such 

transitional services with regard to the Pool Assets as the Receiver may request. Transitional 

services may include, without limitation, assisting in any due diligence process deemed necessary 

by the Receiver and providing to the Receiver and its designees (including, without limitation, its 

contractors and any actual or potential successor owners) (i) information and data regarding the 

Pool Assets, including, without limitation, system reports and data downloads sufficient to transfer 

the Pool Assets to another system or systems and to facilitate due diligence by actual and potential 

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successor owners, and (ii) access to employees of the Assuming Institution involved in the 

management of, or otherwise familiar with, the Pool Assets. 

(g) Until such time as the Arrangement expires or is terminated, without limitation of 

its obligations set forth above or in the Purchase and Assumption Agreement and without any 

additional consideration (other than that set forth in paragraph (b) above), the Assuming Institution 

shall provide the Receiver and its designees (including, without limitation, its contractors and 

actual and potential successor owners) with the following, as the same may be requested: 

(i) access to and the ability to obtain assistance and information from personnel 

of the Assuming Institution, including former personnel of the Failed Bank and personnel 

of third party consultants; 

(ii) access to and the ability to use and download information from data 

processing systems and other systems of record on which information regarding Pool 

Assets or any assets transferred to or liabilities assumed by the Assuming Institution is 

stored or maintained (regardless of whether information with respect to other assets or 

liabilities is also stored or maintained thereon); and 

(iii) access to and the ability to use and occupy office space (including parking 

facilities and vault space), facilities, utilities (including local telephone service and 

facsimile machines), furniture, equipment (including photocopying and facsimile 

machines), and technology and connectivity (including email accounts, network access and 

technology resources such as shared drives) in the Bank Premises occupied by the 

Assuming Institution. 

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Version 11.1 – PURCHASE AND ASSUMPTION AGREEMENT Barboursville, WV