PURCHASE AND ASSUMPTION AGREEMENT
 

ALL DEPOSITS 

AMONG
 

FEDERAL DEPOSIT INSURANCE CORPORATION, 

RECEIVER OF BANKFIRST, 

SIOUX FALLS, SOUTH DAKOTA 

FEDERAL DEPOSIT INSURANCE CORPORATION 

and 

ALERUS FINANCIAL, N.A. 

DATED AS OF 

July 17, 2009 
 

TABLE OF CONTENTS
 

ARTICLE I DEFINITIONS .......................................................................................... 2 

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

2.1 Liabilities Assumed by Assuming Bank......................................................9 

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

2.3 Unclaimed Deposits...................................................................................10 

2.4 Employee Benefit Plans.............................................................................10 

ARTICLE III PURCHASE OF ASSETS .......................................................................11 

3.1 Assets Purchased by Assuming Bank........................................................11 

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

3.3 Manner of Conveyance; Limited Warranty; 

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

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

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

3.6 Assets Essential to Receiver. .....................................................................16 

ARTICLE IV ASSUMPTION OF CERTAIN DUTIES AND OBLIGATIONS........17 

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

4.2 Agreement with Respect to Credit Card Business.....................................17 

4.3 Agreement with Respect to Safe Deposit Business ...................................17 

4.4 Agreement with Respect to Safekeeping Business....................................18 

4.5 Agreement with Respect to Trust Business ...............................................18 

4.6 Agreement with Respect to Bank Premises...............................................19 

4.7 Agreement with Respect to Leased Data 

Processing Equipment....................................................................21 

4.8 Agreement with Respect to Certain 

Existing Agreements......................................................................22 

4.9 Informational Tax Reporting .....................................................................23 

4.10 Insurance....................................................................................................23 

4.11 Services for Receiver and Corporation......................................................23 

4.12 Agreement with Respect to Continuation of 

Group Health Plan Coverage for 

Former Employees of the Failed Bank ..........................................23 

4.13 Agreement with Respect to Interim Asset Servicing ................................24 

4.13 Agreement with Respect to Interim Asset Servicing 

 and Interim Management ...............................................................24 

4.14 Agreement with Respect to Option to Purchase Loan Pools .....................25 

4.15 Agreement with Respect to Supplemental Overhead ................................26 

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ARTICLE V DUTIES WITH RESPECT TO DEPOSITORS 

OF THE FAILED BANK.......................................................................25 

5.1 Payment of Checks, Drafts and Orders......................................................25 

5.2 Certain Agreements Related to Deposits ...................................................25 

5.3 Notice to Depositors ..................................................................................25 

ARTICLE VI RECORDS................................................................................................26
 

6.1 Transfer of Records....................................................................................26 

6.2 Delivery of Assigned Records ...................................................................27 

6.3 Preservation of Records .............................................................................27 

6.4 Access to Records; Copies.........................................................................27 

ARTICLE VII BID; INITIAL PAYMENT .....................................................................28
 

ARTICLE VIII ADJUSTMENTS......................................................................................28 

8.1 Pro Forma Statement..................................................................................28 

8.2 Correction of Errors and Omissions; Other Liabilities 

8.3 Payments....................................................................................................29 

8.4 Interest........................................................................................................29 

8.5 Subsequent Adjustments............................................................................29 

ARTICLE IX CONTINUING COOPERATION..........................................................29 

9.1 General Matters..........................................................................................29 

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

9.3 Claims and Suits ........................................................................................30 

9.4 Payment of Deposits ..................................................................................30 

9.5 Withheld Payments ....................................................................................30 

9.6 Proceedings with Respect to Certain Assets 

and Liabilities.................................................................................31 

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

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

ARTICLE XI REPRESENTATIONS AND WARRANTIES OF THE 

ASSUMING BANK .................................................................................32
 

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ARTICLE XII INDEMNIFICATION .............................................................................33 

12.1 Indemnification of Indemnitees .................................................................33 

12.2 Conditions Precedent to Indemnification...................................................36 

12.3 No Additional Warranty ............................................................................37 

12.4 Indemnification of Corporation and Receiver ...........................................37 

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

12.6 Criminal Claims.........................................................................................38 

12.7 Limited Guaranty of the Corporation ........................................................38 

12.8 Subrogation................................................................................................38 

ARTICLE XIII MISCELLANEOUS ................................................................................38

 13.1 Entire Agreement.......................................................................................38 

13.2 Headings ....................................................................................................39 

13.3 Counterparts...............................................................................................39 

13.4 Governing Law ..........................................................................................39 

13.5 Successors..................................................................................................39 

13.6 Modification; Assignment .........................................................................39 

13.7 Notice.........................................................................................................39 

13.8 Manner of Payment....................................................................................40 

13.9 Costs, Fees and Expenses ..........................................................................40 

13.10 Waiver........................................................................................................40 

13.11 Severability ................................................................................................41 

13.12 Term of Agreement....................................................................................41 

13.13 Survival of Covenants, Etc. .......................................................................41 

SCHEDULES 

2.1 Certain Liabilities Assumed.......................................................................43 

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

3.1 Certain Assets Purchased...........................................................................45 

3.1(e) Loans Fully Secured by Assumed Deposits...............................................46 

3.1(i) Acquired Subsidiaries ................................................................................47 

3.2 Purchase Price of Assets or assets .............................................................48 

3.5(k) Securities Not Purchased ...........................................................................50

7 Calculation of Deposit Premium................Error! Bookmark not defined.
 

EXHIBITS 

4.13 Interim Asset Servicing Arrangement .......................................................53 

4.13A Interim Management Arrangement............................................................56 

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PURCHASE AND ASSUMPTION AGREEMENT

 ALL DEPOSITS 

THIS AGREEMENT, made and entered into as of July 17, 2009, by and among 

the FEDERAL DEPOSIT INSURANCE CORPORATION, RECEIVER of 

BANKFIRST, SIOUX FALLS, SOUTH DAKOTA (the "Receiver"), ALERUS 

FINANCIAL, organized under the laws of the United States of America, and having its 

principal place of business in Grand Forks, North Dakota (the "Assuming Bank"), 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"). 

WITNESSETH: 

WHEREAS, on Bank Closing, the Chartering Authority closed BankFirst (the 

"Failed Bank") pursuant to applicable law and the Corporation was appointed Receiver 

thereof; and 

WHEREAS, the Assuming Bank desires to purchase certain assets and assume 

certain deposit and other liabilities of the Failed Bank on the terms and conditions set 

forth in this Agreement; and 

WHEREAS, pursuant to 12 U.S.C. Section 1823(c)(2)(A), the Corporation may 

provide assistance to the Assuming Bank to facilitate the transactions contemplated by 

this Agreement, which assistance may include indemnification pursuant to Article XII; 

and 

WHEREAS, the Board of Directors of the Corporation (the "Board") has 

determined to provide assistance to the Assuming Bank on the terms and subject to the 

conditions set forth in this Agreement; and 

WHEREAS, the Board has determined pursuant to 12 U.S.C. Section 

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: 
ARTICLE I 

 DEFINITIONS
 

Capitalized terms used in this Agreement shall have the meanings set forth in this Article 

I, or elsewhere in this Agreement. 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 Subsidiaries" has the meaning provided in Section 3.1. 

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

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

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

term "affiliate" is defined in Section 2 of the Bank Holding Company Act of 1956, as amended, 

12 U.S.C. Section 1841. 

"Agreement" means this Purchase and Assumption Agreement by and among 

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

time to time. 

"Assets" means all assets of the Failed Bank purchased pursuant to Section 3.1. 

Assets owned by Subsidiaries of the Failed Bank are not "Assets" within the meaning of this 

definition. 

"Assumed Deposits" means Deposits. 

"Bank Closing" 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 houses, drive-in banking facilities, and 

teller facilities (staffed or automated) together with appurtenant parking, storage and service 

facilities and structures connecting remote facilities to banking houses, and land on which the 

foregoing are located, that are owned or leased by the Failed Bank and that are occupied by the 

Failed Bank as of Bank Closing. 

"Bid Amount" has the meaning provided in Article VII. 

"Book Value" means, with respect to any Asset and any Liability Assumed, the 

dollar amount thereof stated on the Accounting Records of the Failed Bank. The Book Value of 

any item shall be determined as of Bank Closing after adjustments made by the Receiver for 

differences in accounts, suspense items, unposted debits and credits, and other similar 

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

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an Acquired Subsidiary shall be determined from the investment in subsidiary and related 

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

equity method of accounting. Without limiting the generality of the foregoing, (i) the Book 

Value of a Liability Assumed shall include all accrued and unpaid interest thereon as of Bank 

Closing, 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 Bank Closing, 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 Bank Closing, 

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

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

premiums, discounts or any related deferred income or fees, or general or specific reserves on the 

Accounting Records of the Failed Bank. 

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

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

which the principal office of the Corporation is closed. 

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

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

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

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

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

12 U.S.C. Section 1821(c), with regard to self appointment, or (v) the appropriate Federal 

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

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

commitment reflected on the books and records of the Failed Bank to make an extension of 

credit (or additional advances with respect to a Loan) that was legally binding on the Failed Bank 

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

overdraft protection plans of the Failed Bank, if any. 

"Credit Documents" mean the agreements, instruments, certificates or other 

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

with or as security for, a Loan, including without limitation notes, bonds, loan agreements, letter 

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

agreements, currency exchange agreements, repurchase agreements, reverse repurchase 

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

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

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

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

substitutions with respect to any of the foregoing. 

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

insurance documents in the possession or custody of the Assuming Bank, or any of its 

Subsidiaries or Affiliates, relating to an Asset or a Loan included in a Put Notice, or copies of 

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any thereof. 

"Data Processing Lease" means any lease or licensing agreement, binding on 

the Failed Bank as of Bank Closing, the subject of which is data processing equipment or 

computer hardware or software used in connection with data processing activities. A lease or 

licensing agreement for computer software used in connection with data processing activities 

shall constitute a Data Processing Lease regardless of whether such lease or licensing agreement 

also covers data processing equipment. 

"Deposit" means a deposit as defined in 12 U.S.C. Section 1813(l), including, 

without limitation, outstanding cashier's checks and other official checks and all uncollected 

items included in the depositors' balances and credited on the books and records of the Failed 

Bank; provided, that the term "Deposit" shall not include all or any portion of those deposit 

balances which, in the discretion of the Receiver or the Corporation, (i) may be required to 

satisfy it for any liquidated or contingent liability of any depositor arising from an unauthorized 

or unlawful transaction, or (ii) may be needed to provide payment of any liability of any 

depositor to the Failed Bank or the Receiver, including the liability of any depositor as a director 

or officer of the Failed Bank, whether or not the amount of the liability is or can be determined 

as of Bank Closing. 

"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 credit life 

insurance, accident and health insurance, and vendor's single interest insurance. 

"Fair Market Value" means (i)(a) “Market Value” as defined in the regulation 

prescribing the standards for real estate appraisals used in federally related transactions, 12 

C.F.R. § 323.2(g), and accordingly shall mean the most probable price which a property should 

bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and 

seller each acting prudently and knowledgeably, and assuming the price is not affected by undue 

stimulus. Implicit in this definition is the consummation of a sale as of a specified date and the 

passing of title from seller to buyer under conditions whereby: 

(1) Buyer and seller are typically motivated; 

(2) Both parties are well informed or well advised, and acting in what they consider their 

own best interests; 

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

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

comparable thereto; and 

(5) 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 Bank Closing by an appraiser mutually acceptable to the Receiver and the 

Assuming Bank; any costs and fees associated with such determination shall be shared equally 

by the Receiver and the Assuming Bank, and (b) which, with respect to Bank Premises (to the 

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extent, if any, that Bank Premises are purchased utilizing this valuation method), shall be 

determined not later than sixty (60) days after Bank Closing by an appraiser selected by the 

Receiver and the Assuming Bank within seven (7) days after Bank Closing; or (ii) with respect to 

property other than Bank Premises purchased utilizing this valuation method, the price therefor 

as established by the Receiver and agreed to by the Assuming Bank, or in the absence of such 

agreement, as determined in accordance with clause (i)(a) above. 

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

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

installed or purchased at the expense of the Failed Bank, regardless of the holder of legal title 

thereto as of Bank Closing. 

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

Safe Deposit Boxes, motor vehicles and leased data processing equipment, including hardware 

and software), leased or owned by the Failed Bank and reflected on the books of the Failed Bank 

as of Bank Closing, including without limitation automated teller machines, carpeting, furniture, 

office machinery (including personal computers), shelving, office supplies, telephone, 

surveillance and security systems, and artwork. 

"Indemnitees" means, except as provided in paragraph (11) of Section 12.1(b), 

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

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

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

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 Bank 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 Bank Closing), the amount of which shall be either (i) if the 

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

the aggregate purchase price of the Assets and assets purchased and the positive Bid Amount, or 

(ii) if the Bid Amount is negative, the sum of the aggregate Book Value of the Liabilities 

Assumed and the negative Bid Amount minus the aggregate purchase price of the Assets and 

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

if (i) the Liabilities Assumed are greater than the sum of the positive Bid Amount and the Assets 

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

are greater than the Assets and assets purchased. The Initial Payment shall be payable by the 

Assuming Bank to the Corporation if (i) the Liabilities Assumed are less than the sum of the 

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

Assumed and the negative Bid Amount is less than the Assets and assets purchased. Such Initial 

Payment shall be subject to adjustment as provided in Article VIII. 

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

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

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

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

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

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

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

Asset. 

"Loans" means all of the following owed to or held by the Failed Bank as of 

Bank Closing: 

(i) loans, 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, United States and/or State-guaranteed student loans, and 

lease financing contracts; 

(ii) 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 (i) 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 (i) above; and 

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

refundings of or for any of the foregoing; provided, that there shall be excluded from the 

definition of Loans (a) any portion of the foregoing which the Failed Bank or the Assuming 

Bank (or any of their respective Subsidiaries) holds not for its own account but solely as agent or 

fiduciary for, or otherwise as representative of, any other Person, (b) any loans which have been 

charged off the Accounting Records of the Failed Bank in whole or in part prior to the date of the 

most recent pertinent data made available to the Assuming Bank as part of the Information 

Package, and (c) Commitments. 

"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. 

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

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

association, joint-stock company, trust, unincorporated organization, or government or any 

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agency or political subdivision thereof, excluding the Corporation. 

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

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

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

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

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

banker's blanket bond. 

"Put Date" has the meaning provided in Section 3.4. 

"Put Notice" has the meaning provided in Section 3.4. 

"Qualified Financial Contract" means a qualified financial contract as defined 

in 12 U.S.C. Section 1821(e)(8)(D). 

"Record" means any document, microfiche, microfilm and computer records 

(including but not limited to magnetic tape, disc storage, card forms and printed copy) of the 

Failed Bank generated or maintained by the Failed Bank that is owned by or in the possession of 

the Receiver at Bank Closing. 

"Related Liability" with respect to any Asset means any liability existing and 

reflected on the Accounting Records of the Failed Bank as of Bank Closing for (i) indebtedness 

secured by mortgages, deeds of trust, chattel mortgages, security interests or other liens on or 

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

determined by the Receiver to be directly related to such Asset. 

"Related Liability Amount" with respect to any Related Liability on the books 

of the Assuming Bank, means the amount of such Related Liability as stated on the Accounting 

Records of the Assuming Bank (as maintained in accordance with generally accepted accounting 

principles) as of the date as of which the Related Liability Amount is being determined. With 

respect to a liability that relates to more than one asset, the amount of such Related Liability shall 

be allocated among such assets for the purpose of determining the Related Liability Amount with 

respect to any one of such assets. Such allocation shall be made by specific allocation, where 

determinable, and otherwise shall be pro rata based upon the dollar amount of such assets stated 

on the Accounting Records of the entity that owns such asset. 

"Repurchase Price" means with respect to any Asset or asset, which shall be 

determined by the Receiver, the lesser of (a) or (b): 

(a) the amount paid by the Assuming Bank, decreased by the amount of any 

money received with respect thereto since Bank Closing and, if the Asset is a Loan or other 

interest bearing or earning asset, the resulting amount shall then be increased or decreased, as the 

case may be, by interest or discount (whichever is applicable) accrued from and after Bank 

Closing at the lower of: (i) the contract rate with respect to such Asset, or (ii) the Settlement 

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Interest Rate; net proceeds received by or due to the Assuming Bank from the sale of collateral, 

any forgiveness of debt, or otherwise shall be deemed money received by the Assuming Bank; or 

(b) the dollar amount thereof stated on the Accounting Records of the Assuming 

Bank as of the date as of which the Repurchase Price is being determined, as maintained in 

accordance with generally accepted accounting principles, and, if the asset is a Loan, regardless 

of the Legal Balance thereof and adjusted in the same manner as the Book Value of a Failed 

Bank Loan would be adjusted hereunder. 

Provided, however, (b), above, shall not be applicable for Loans repurchased pursuant to Section 

3.4(a). 

If any Asset or asset is purchased as part of a group of Assets or assets for Book Value and/or as 

a percentage of Book Value, the amount paid by the Assuming Bank, for purposes of (a), above, 

shall be the Book Value, as of the date of Bank Closing, of the individual Asset or asset being 

repurchased multiplied, if applicable, by the percentage paid. 

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

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

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

keys and combinations thereto. 

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

which is one hundred eighty (180) days after Bank Closing, or such other date prior thereto as 

may be agreed upon by the Receiver and the Assuming Bank. 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 

equivalent coupon issue yield on six (6)-month United States Treasury Bills in effect as of Bank 

Closing as published in The Wall Street Journal; provided, that if no such equivalent coupon 

issue yield is available as of Bank Closing, the equivalent coupon issue yield for such Treasury 

Bills most recently published in The Wall Street Journal prior to Bank Closing shall be used. 

Thereafter, the rate shall be adjusted to the rate determined by the Receiver to be equal to the 

equivalent coupon issue yield on such Treasury Bills in effect as of the first day of each 

succeeding calendar quarter during which interest accrues as published in The Wall Street 

Journal. 

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

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

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ARTICLE II 

ASSUMPTION OF LIABILITIES
 

2.1 Liabilities Assumed by Assuming Bank. The Assuming Bank 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 Bank Closing, 

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 Bank agrees to properly secure such Deposits with such of the 

Assets as appropriate which, prior to Bank Closing, were pledged as security 

therefor by the Failed Bank, or with assets of the Assuming Bank, if such securing 

Assets, if any, are insufficient to properly secure such Deposits; 

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

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

provided, that the assumption of any liability pursuant to this paragraph shall be 

limited to the market value of the Assets securing such liability as determined by 

the Receiver; 

(c) 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 Bank Closing, if 

any; 

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

any ad valorem taxes pursuant to this paragraph shall be limited to an amount 

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

the Receiver; 

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

overdrafts in accounts maintained with other depository institutions (including 

any accrued and unpaid interest thereon computed to and including Bank 

Closing); provided, that the assumption of any liability pursuant to this paragraph 

shall be limited to the market value of the Assets securing such liability as 

determined by the Receiver; 

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

(g) liabilities for any acceptance or commercial letter of credit (other than "standby 

letters of credit" as defined in 12 C.F.R. Section 337.2(a)); provided, that the 

assumption of any liability pursuant to this paragraph shall be limited to the 

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

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(h) duties and obligations assumed pursuant to this Agreement including without 

limitation those relating to the Failed Bank's credit card business, overdraft 

protection plans, safe deposit business, safekeeping business or trust business, if 

any; and 

(i) liabilities, if any, for amounts owed to any Acquired Subsidiary. 

Schedule 2.1 attached hereto and incorporated herein sets forth certain categories of 

Liabilities Assumed and the aggregate Book Value of the Liabilities Assumed in such categories. 

Such schedule is based upon the best information available to the Receiver and may be adjusted 

as provided in Article VIII. 

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

Bank Closing, it will accrue and pay interest on Deposit liabilities assumed pursuant to Section 

2.1 at a rate(s) it shall determine; provided, that for nontransaction Deposit liabilities such rate(s) 

shall not be less than the lowest rate offered by the Assuming Bank to its depositors for 

nontransaction deposit accounts. The Assuming Bank 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 Bank 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 Bank 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. If, within eighteen (18) months after Bank Closing, any 

depositor of the Failed Bank does not claim or arrange to continue such depositor's Deposit 

assumed pursuant to Section 2.1 at the Assuming Bank, the Assuming Bank shall, within fifteen 

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

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

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

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

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

Assuming Bank and other records generated or maintained by the Assuming Bank pertaining to 

such Deposits. During such eighteen (18)-month period, at the request of the Corporation, the 

Assuming Bank promptly shall provide to the Corporation schedules of unclaimed deposits in 

such form as may be prescribed by the Corporation. 

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

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

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bonus, vacation, pension, profit sharing or stock purchase plans or similar plans, if any, unless 

the Receiver and the Assuming Bank agree otherwise subsequent to the date of this Agreement. 

ARTICLE III 

PURCHASE OF ASSETS
 

3.1 Assets Purchased by Assuming Bank. Subject to Sections 3.5 and 3.6, the 

Assuming Bank hereby purchases from the Receiver, and the Receiver hereby sells, assigns, 

transfers, conveys, and delivers to the Assuming Bank, all right, title, and interest of the Receiver 

in and to all of the following: 

(a) cash and receivables from depository institutions (including Federal Reserve 

Banks and Federal Home Loan Banks), including cash items in the process of 

collection, plus any accrued interest thereon computed to and including Bank 

Closing; 

(b) securities (other than the capital stock of Subsidiaries of the Failed Bank and 

those securities referred to in Section 3.5(k), if any), plus any accrued interest 

thereon computed to and including Bank Closing; 

(c) federal funds sold and repurchase agreements, if any, including any accrued 

interest thereon computed to and including Bank Closing; 

(d) Omitted; 

(e)	 Loans secured, in whole or in part, by Assumed Deposits or deposits at other 

depository institutions, but only such of those Loans which also are listed on 

Schedule 3.1(e), if any (including any such Loan that the Failed Bank charged-off 

in whole or in part during the period from the date of the most recent pertinent 

data made available to the Assuming Bank as part of the Information Package to 

and including Bank Closing); 

(f) credit card business, if any, including all outstanding extensions of credit, subject 

to Section 4.2; 

(g) Safe Deposit Boxes and related business, safekeeping business and trust business, 

if any, subject to Section 4.3, 4.4 or 4.5, respectively; 

(h) Records and other documents as provided in Section 6.1; 

(i) assets securing Deposits of public money, to the extent not otherwise purchased 

hereunder; and 

(j) overdrafts of customers (including but not limited to overdrafts made pursuant to 

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an overdraft protection plan or similar extensions of credit in connection with a 

deposit account). 

Schedule 3.1 attached hereto and incorporated herein sets forth certain categories of Assets. Such 

schedule(s) is based upon the best information available to the Receiver and may be adjusted as 

provided in Article VIII. Assets are purchased hereunder by the Assuming Bank subject to all 

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

Section 2.1. 

3.2 Asset Purchase Price. 

(a) All Assets and assets of the Failed Bank subject to an option to purchase by the 

Assuming Bank shall be purchased for the amount, or the amount resulting from the method 

specified for determining the amount, as specified on Schedule 3.2, except as otherwise may be 

provided herein. Any Asset, asset of the Failed Bank subject to an option to purchase or other 

asset purchased for which no purchase price is specified on Schedule 3.2 or otherwise herein 

shall be purchased at its Fair Market Value. 

(b) The purchase price for securities (other than the capital stock of any Acquired 

Subsidiary) purchased under Section 3.1 by the Assuming Bank shall be the market value thereof 

as of Bank Closing, which market value shall be (i) the market price for each such security 

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

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

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

Assuming Bank will submit a bid for each such security within three days of notification/bid 

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

the Receiver) and the Receiver, in its sole discretion will accept or reject each such bid; and 

(iii) further provided in the absence of an acceptable bid from the Assuming Bank, each such 

security shall not pass to the Assuming Bank and shall be deemed to be an excluded asset 

hereunder. 

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

CONVEYANCE OF ALL ASSETS, INCLUDING REAL AND PERSONAL PROPERTY 

INTERESTS, PURCHASED BY THE ASSUMING BANK UNDER THIS AGREEMENT 

SHALL BE MADE, AS NECESSARY, BY RECEIVER'S DEED OR RECEIVER'S BILL OF 

SALE, "AS IS", "WHERE IS", WITHOUT RECOURSE AND, EXCEPT AS OTHERWISE 

SPECIFICALLY PROVIDED IN THIS AGREEMENT, WITHOUT ANY WARRANTIES 

WHATSOEVER WITH RESPECT TO SUCH ASSETS, EXPRESS OR IMPLIED, WITH 

RESPECT TO TITLE, ENFORCEABILITY, COLLECTIBILITY, DOCUMENTATION OR 

FREEDOM FROM LIENS OR ENCUMBRANCES (IN WHOLE OR IN PART), OR ANY 

OTHER MATTERS. 

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3.4	 Puts of Assets to the Receiver. 

(a) Puts Within 30 Days After Bank Closing. During the thirty (30)-day period 

following Bank Closing and only during such period (which thirty (30)-day period may be 

extended in writing in the sole absolute discretion of the Receiver for any Loan), in accordance 

with this Section 3.4, the Assuming Bank shall be entitled to require the Receiver to purchase 

any Loan transferred to the Assuming Bank pursuant to Section 3.1(e) which is not fully secured 

by Assumed Deposits or deposits at other insured depository institutions due to either 

insufficient Assumed Deposit or deposit collateral or deficient documentation regarding such 

collateral; provided with regard to any Loan secured by an Assumed Deposit, no such purchase 

may be required until any Deposit setoff determination, whether voluntary or involuntary, has 

been made; and, 

at the end of the thirty (30)-day period following Bank Closing and at that time only, in 

accordance with this Section 3.4, the Assuming Bank shall be entitled to require the Receiver to 

purchase any remaining overdraft transferred to the Assuming Bank pursuant to 3.1(l) which 

both was made after May 31, 2009 and was not made pursuant to an overdraft protection plan or 

similar extension of credit. 

Notwithstanding the foregoing, the Assuming Bank shall not have the right to require the 

Receiver to purchase any Loan if (i) the Obligor with respect to such Loan is an Acquired 

Subsidiary, or (ii) the Assuming Bank has: 

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

otherwise with respect to such Loan; 

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

respect to such Loan over the amount of such liability immediately prior to 

the time of such action; 

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

indebtedness for money borrowed or which constitutes a conditional sales 

agreement, capital lease or other title retention agreement; 

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

permitted any modification or amendment to, any waiver or extension 

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

related Credit Documents or collateral, including, without limitation, any 

act or omission which diminished such collateral; or 

(E) sold, assigned or transferred all or a portion of such Loan to a third party 

(whether with or without recourse). 

The Assuming Bank shall transfer all such Loans to the Receiver without recourse, and shall 

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

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the Assuming Bank with respect to any such Loan, as provided in Section 12.4. 

(b) Puts Prior to the Settlement Date. During the period from Bank Closing to and 

including the Business Day immediately preceding the Settlement Date, the Assuming Bank 

shall be entitled to require the Receiver to purchase any Asset which the Assuming Bank can 

establish is evidenced by forged or stolen instruments as of Bank Closing; provided, that, the 

Assuming Bank shall not have the right to require the Receiver to purchase any such Asset with 

respect to which the Assuming Bank has taken any action referred to in Section 3.4(a)(ii) with 

respect to such Asset. The Assuming Bank shall transfer all such Assets to the Receiver without 

recourse, and shall indemnify the Receiver against any and all claims of any Person claiming by, 

through or under the Assuming Bank with respect to any such Asset, as provided in Section 12.4. 

(c) Notices to the Receiver. In the event that the Assuming Bank elects to require the 

Receiver to purchase one or more Assets, the Assuming Bank shall deliver to the Receiver a 

notice (a "Put Notice") which shall include: 

(i) a list of all Assets that the Assuming Bank requires the Receiver to purchase; 

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

(i) above; and 

(iii) a statement of the estimated Repurchase Price of each Asset identified 

pursuant to (i) above as of the applicable Put Date. 

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

Receiver shall consent. As provided in Section 9.6, the Assuming Bank shall deliver to the 

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

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

to all other relevant books and records. 

(d) Purchase by Receiver. The Receiver shall purchase Loans that are specified in 

the Put Notice and shall assume Related Liabilities with respect to such Loans, and the transfer 

of such Loans 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 Credit Files 

with respect to such Loans (the "Put Date"). 

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

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

Loan less the Related Liability Amount applicable to such Loan, in each case determined as of 

the applicable Put Date. If the difference between such Repurchase Price and such Related 

Liability Amount is positive, then the Receiver shall pay to the Assuming Bank the amount of 

such difference; if the difference between such amounts is negative, then the Assuming Bank 

shall pay to the Receiver the amount of such difference. The Assuming Bank or the Receiver, as 

the case may be, shall pay the purchase price determined pursuant to this Section 3.4(e) not later 

than the twentieth (20th) Business Day following the applicable Put Date, together with interest 

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on such amount at the Settlement Interest Rate for the period from and including such Put Date 

to and including the day preceding the date upon which payment is made. 

(f) Servicing. The Assuming Bank shall administer and manage any Asset subject to 

purchase by the Receiver in accordance with usual and prudent banking standards and business 

practices until such time as such Asset is purchased by the Receiver. 

(g) Reversals. In the event that the Receiver purchases an Asset (and assumes the 

Related Liability) that it is not required to purchase pursuant to this Section 3.4, the Assuming 

Bank shall repurchase such Asset (and assume such Related Liability) from the Receiver at a 

price computed so as to achieve the same economic result as would apply if the Receiver had 

never purchased such Asset pursuant to this Section 3.4. 

3.5 Assets Not Purchased by Assuming Bank. The Assuming Bank does not 

purchase, acquire or assume, or (except as otherwise expressly provided in this Agreement) 

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

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

extended coverage insurance policy 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 Bank Closing 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 Bank 

Closing, 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 Bank Closing; 

(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) Federal Reserve Bank and Federal Home Loan Bank stock, if any; 

(f) amounts reflected on the Accounting Records of the Failed Bank as of Bank 

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

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(g) owned and leased Bank Premises and owned and leased Furniture and Equipment 

and Fixtures and data processing equipment (including hardware and software) located on Bank 

Premises, if any; provided, that the Assuming Bank does obtain an option under Section 4.6, 

Section 4.7 or Section 4.8, as the case may be, with respect thereto; 

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

contain environmentally hazardous substances; 

(i) any amounts owed to the Failed Bank by any Subsidiary of the Failed Bank other 

than an Acquired Subsidiary; 

(j) 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. Section 

304.4, and other intangibles; 

(k) any security if, in the discretion of the Receiver, the value of such security either 

cannot be determined or is determined to be zero pursuant to Section 3.2(b), all private label 

asset backed securities, including, but not limited to, those listed on Schedule 3.5(k), and any 

other security listed on Schedule 3.5(k), if any; and 

(l) any criminal restitution or forfeiture orders issued in favor of the Failed Bank. 

The Assuming Bank only acquires assets and rights as provided in this Agreement. The 

foregoing shall not be construed to imply that any particular asset or right listed otherwise would 

have been sold or assigned or that any asset or right not listed is sold or assigned. 

3.6 Assets Essential to Receiver. 

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

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

assign, transfer, convey, and deliver to the Receiver all of the Assuming Bank's right, title and 

interest in and to, any Asset or asset essential to the Receiver as determined by the Receiver in its 

discretion (together with all Credit Documents evidencing or pertaining thereto), which may 

include any Asset or asset that the Receiver determines to be: 

(i) made to an officer, director, or other Person engaging in the affairs of the 

Failed Bank, its Subsidiaries or Affiliates or any related entities of any of the foregoing; 

(ii) the subject of any investigation relating to any claim with respect to any item 

described in Section 3.5(a) or (b), or the subject of, or potentially the subject of, any legal 

proceedings; 

(iii) made to a Person who is an Obligor on a loan owned by the Receiver or the 

Corporation in its corporate capacity or its capacity as receiver of any institution; 

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(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 Bank 

under this Article III or any liability of the Failed Bank not assumed by the Assuming Bank 

under Article II. 

(b) Each such Asset or asset purchased by the Receiver shall be purchased at a price 

equal to the Repurchase Price thereof less the Related Liability Amount with respect to any 

Related Liabilities related to such Asset or asset, in each case determined as of the date of the 

notice provided by the Receiver pursuant to Section 3.6(a). The Receiver shall pay the Assuming 

Bank 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 Bank agrees to administer and 

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

business practices until each such Loan is purchased by the Receiver. All transfers with respect 

to Loans under this Section 3.6 shall be made as provided in Section 9.6. The Assuming Bank 

shall transfer all such Assets or assets and Related Liabilities to the Receiver without recourse, 

and shall indemnify the Receiver against any and all claims of any Person claiming by, through 

or under the Assuming Bank with respect to any such Asset or asset, as provided in Section 12.4. 

ARTICLE IV 

ASSUMPTION OF CERTAIN DUTIES AND OBLIGATIONS
 

The Assuming Bank agrees with the Receiver and the Corporation as follows: 

4.1 Continuation of Banking Business. The Assuming Bank agrees to provide full 

service banking in the trade area of the Failed Bank commencing on the first banking business 

day (including a Saturday) after Bank Closing and to maintain such presence until it has received 

all necessary regulatory approvals to cease providing such banking services in the trade area. At 

the option of the Assuming Bank, such banking services may be provided at any or all of the 

Bank Premises, or at other premises within such trade area. 

4.2 Agreement with Respect to Credit Card Business. The Assuming Bank agrees 

to honor and perform, from and after Bank Closing, all duties and obligations with respect to the 

Failed Bank's credit card business, and/or processing related to credit cards, if any, and assumes 

all outstanding extensions of credit with respect thereto. Fees related to the credit card business 

collected prior to Bank Closing shall be for the benefit of the Receiver and fees collected after 

Bank Closing shall be for the benefit of the Assuming Bank. 

4.3 Agreement with Respect to Safe Deposit Business. The Assuming Bank 

assumes and agrees to discharge, from and after Bank Closing, in the usual course of conducting 

a banking business, the duties and obligations of the Failed Bank with respect to all Safe Deposit 

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Boxes, if any, of the Failed Bank and to maintain all of the necessary facilities for the use of such 

boxes by the renters thereof during the period for which such boxes have been rented and the 

rent therefor paid to the Failed Bank, subject to the provisions of the rental agreements between 

the Failed Bank and the respective renters of such boxes; provided, that the Assuming Bank may 

relocate the Safe Deposit Boxes of the Failed Bank to any office of the Assuming Bank located 

in the trade area of the Failed Bank. Fees related to the safe deposit business earned prior to 

Bank Closing shall be for the benefit of the Receiver and fees earned after Bank Closing shall be 

for the benefit of the Assuming Bank. 

4.4 Agreement with Respect to Safekeeping Business. The Receiver transfers, 

conveys and delivers to the Assuming Bank and the Assuming Bank accepts all securities and 

other items, if any, held by the Failed Bank in safekeeping for its customers as of Bank Closing. 

The Assuming Bank assumes and agrees to honor and discharge, from and after Bank Closing, 

the duties and obligations of the Failed Bank with respect to such securities and items held in 

safekeeping. The Assuming Bank shall be entitled to all rights and benefits heretofore accrued or 

hereafter accruing with respect thereto; provided, that, fees related to the safe keeping business 

earned prior to Bank Closing shall be for the benefit of the Receiver and fees earned after Bank 

Closing shall be for the benefit of the Assuming Bank. The Assuming Bank shall provide to the 

Receiver written verification of all assets held by the Failed Bank for safekeeping within sixty 

(60) days after Bank Closing. 

4.5 Agreement with Respect to Trust Business. 

(a) The Assuming Bank 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 Bank had assumed the same from the Failed Bank prior to Bank 

Closing; 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. Fees related to the trust business collected prior to Bank Closing shall be for 

the benefit of the Receiver and fees collected after Bank Closing shall be for the benefit of the 

Assuming Bank. 

(b) The Assuming Bank 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) In the event additional proceedings of any kind are necessary to accomplish the 

transfer of such trust business, the Assuming Bank 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 Bank in accomplishing such transfer. 

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(d) The Assuming Bank 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 Bank 

Closing. 

4.6 Agreement with Respect to Bank Premises. 

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

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

Bank Closing to purchase any or all owned Bank Premises. The Assuming Bank shall give 

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

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

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

thereafter, and in no event later than the Settlement Date. 

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

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

Receiver to assign to the Assuming Bank any or all leases for leased Bank Premises, if any, 

which have been continuously occupied by the Assuming Bank from Bank Closing to the date it 

elects to accept an assignment of the leases with respect thereto to the extent such leases can be 

assigned; provided, that the exercise of this option with respect to any lease must be as to all 

premises or other property subject to the lease. If an assignment cannot be made of any such 

leases, the Receiver may, in its discretion, enter into subleases with the Assuming Bank 

containing the same terms and conditions provided under such existing leases for such leased 

Bank Premises or other property. The Assuming Bank shall give notice to the Receiver within 

the option period of its election to accept or not to accept an assignment of any or all leases (or 

enter into subleases or new leases in lieu thereof). The Assuming Bank agrees to assume all 

leases assigned (or enter into subleases or new leases in lieu thereof) pursuant to this Section 4.6. 

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

sublease of leases or the negotiation of new leases by the Assuming Bank; provided, that neither 

the Receiver nor the Corporation shall be obligated to engage in litigation, make payments to the 

Assuming Bank or to any third party in connection with facilitating any such assumption, 

assignment, sublease or negotiation or commit to any other obligations to third parties. 

(d) Occupancy. The Assuming Bank shall give the Receiver fifteen (15) days prior 

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

to which the Assuming Bank has not exercised the option provided in Section 4.6(b). Any such 

notice shall be deemed to terminate the Assuming Bank's option with respect to such leased 

Bank Premises. 

(e) Occupancy Costs. 

(i) The Assuming Bank agrees to pay to the Receiver, or to appropriate third 

parties at the direction of the Receiver, during and for the period of any occupancy by it of (x) 

owned Bank Premises the market rental value and all operating costs, and (y) leased Bank 

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Premises, all operating costs with respect thereto and to comply with all relevant terms of 

applicable leases entered into by the Failed Bank, including without limitation the timely 

payment of all rent. Operating costs include, without limitation all taxes, fees, charges, utilities, 

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

Bank elects to purchase any owned Bank Premises in accordance with Section 4.6(a), the amount 

of any rent paid (and taxes paid to the Receiver which have not been paid to the taxing authority 

and for which the Assuming Bank assumes liability) by the Assuming Bank with respect thereto 

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

(ii) The Assuming Bank agrees during the period of occupancy by it of owned or 

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

and Equipment and all owned or leased Fixtures located on such Bank Premises for the period of 

such occupancy. Rent for such property owned by the Failed Bank shall be the market rental 

value thereof, as determined by the Receiver within sixty (60) days after Bank Closing. Rent for 

such leased property shall be an amount equal to any and all rent and other amounts which the 

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

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

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

4.6(f) or 4.6(h), the amount of any rents paid by the Assuming Bank with respect thereto shall be 

applied as an offset against the purchase price thereof. 

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

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

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

4.6(a) or 4.6(b), or if the Assuming Bank does not exercise such option but within twelve (12) 

months following Bank Closing obtains the right to occupy such premises (whether by 

assignment, lease, sublease, purchase or otherwise), other than in accordance with Section 4.6(a) 

or (b), the Assuming Bank shall (i) effective as of the date of Bank Closing, purchase from the 

Receiver all Furniture and Equipment and Fixtures owned by the Failed Bank and located 

thereon as of Bank Closing, (ii) accept an assignment or a sublease of the leases or negotiate new 

leases for all Furniture and Equipment and Fixtures leased by the Failed Bank and located 

thereon, and (iii) if applicable, accept an assignment or a sublease of any ground lease or 

negotiate a new ground lease with respect to any land on which such Bank Premises are located; 

provided, that the Receiver shall not have disposed of such Furniture and Equipment and 

Fixtures or repudiated the leases specified in clause (ii) or (iii). 

(g) Vacating Premises. 

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

notice of such election in accordance with Section 4.6(a) shall specify the date upon which the 

Assuming Bank's occupancy of such premises shall terminate, which date shall not be later than 

ninety (90) days after the date of the Assuming Bank's notice not to exercise such option. The 

Assuming Bank promptly shall relinquish and release to the Receiver such premises and the 

Furniture and Equipment and Fixtures located thereon in the same condition as at Bank Closing, 

normal wear and tear excepted. By occupying any such premises after the expiration of such 

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ninety (90)-day period, the Assuming Bank shall, at the Receiver's option, (x) be deemed to have 

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

respect to leased Furniture and Equipment and leased Fixtures located thereon and any ground 

lease with respect to the land on which such premises are located, and (y) be required to purchase 

all Furniture and Equipment and Fixtures owned by the Failed Bank and located on such 

premises as of Bank Closing. 

(ii) If the Assuming Bank elects not to accept an assignment of the lease or 

sublease any leased Bank Premises, the notice of such election in accordance with Section 4.6(b) 

shall specify the date upon which the Assuming Bank's occupancy of such leased Bank Premises 

shall terminate, which date shall not be later than the date which is one hundred eighty (180) 

days after Bank Closing. Upon vacating such premises, the Assuming Bank shall relinquish and 

release to the Receiver such premises and the Fixtures and the Furniture and Equipment located 

thereon in the same condition as at Bank Closing, normal wear and tear excepted. By failing to 

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

specified in Section 4.6(b), or by occupying such premises after the one hundred eighty (180)-

day period specified above in this paragraph (ii), the Assuming Bank shall, at the Receiver's 

option, (x) be deemed to have assumed all leases, obligations and liabilities with respect to such 

premises (including any ground lease with respect to the land on which premises are located), 

and leased Furniture and Equipment and leased Fixtures located thereon in accordance with this 

Section 4.6 (unless the Receiver previously repudiated any such lease), and (y) be required to 

purchase all Furniture and Equipment and Fixtures owned by the Failed Bank and located on 

such premises as of Bank Closing. 

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

hereby grants to the Assuming Bank an option to purchase, effective as of the date of Bank 

Closing, all Furniture and Equipment or any telecommunications, data processing equipment 

(including hardware and software) and check processing and similar operating equipment owned 

by the Failed Bank and located at any owned or leased Bank Premises that the Assuming Bank 

elects to vacate or which it could have, but did not occupy, pursuant to this Section 4.6; 

provided, that, the Assuming Bank shall give the Receiver notice of its election to purchase such 

property at the time it gives notice of its intention to vacate such Bank Premises or within ten 

(10) days after Bank Closing for Bank Premises it could have, but did not, occupy. 

4.7 Agreement with Respect to Leased Data Processing Equipment. 

(a) The Receiver hereby grants to the Assuming Bank an exclusive option for the 

period of ninety (90) days commencing the day after Bank Closing to accept an assignment from 

the Receiver of any or all Data Processing Leases to the extent that such Data Processing Leases 

can be assigned. 

(b) The Assuming Bank shall (i) give written notice to the Receiver within the option 

period specified in Section 4.7(a) of its intent to accept an assignment or sublease of any or all 

Data Processing Leases and promptly accept an assignment or sublease of such Data Processing 

Leases, and (ii) give written notice to the appropriate lessor(s) that it has accepted an assignment 

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or sublease of any such Data Processing Leases. 

(c) The Receiver agrees to facilitate the assignment or sublease of Data Processing 

Leases or the negotiation of new leases or license agreements by the Assuming Bank; provided, 

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

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

assumption, assignment, sublease or negotiation. 

(d) The Assuming Bank agrees, during its period of use of any property subject to a 

Data Processing 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 the 

applicable Data Processing Leases entered into by the Failed Bank, including without limitation 

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

(e) The Assuming Bank shall, not later than fifty (50) days after giving the notice 

provided in Section 4.7(b), (i) relinquish and release to the Receiver all property subject to the 

relevant Data Processing Lease, in the same condition as at Bank Closing, normal wear and tear 

excepted, or (ii) accept an assignment or a sublease thereof or negotiate a new lease or license 

agreement under this Section 4.7. 

4.8 Agreement with Respect to Certain Existing Agreements. 

(a) Subject to the provisions of Section 4.8(b), with respect to agreements existing as 

of Bank Closing which provide for the rendering of services by or to the Failed Bank, within 

thirty (30) days after Bank Closing, the Assuming Bank 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 Bank agrees to comply with the terms of 

each such agreement for a period commencing on the day after Bank Closing 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 Bank Closing, 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 Bank 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 Bank. The Assuming Bank 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 Bank all right, title and interest of the Receiver, if any, in 

and to agreements the Assuming Bank assumes hereunder. In the event the Assuming Bank 

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 

Bank 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) The provisions of Section 4.8(a) shall not apply to (i) agreements pursuant to 

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which the Failed Bank provides mortgage servicing for others or mortgage servicing is provided 

to the Failed Bank by others, (ii) agreements that are subject to Sections 4.1 through 4.7 and any 

insurance policy or bond referred to in Section 3.5(a) or other agreement specified in Section 3.5, 

and (iii) consulting, management or employment agreements, if any, between the Failed Bank 

and its employees or other Persons. Except as otherwise expressly set forth elsewhere in this 

Agreement, the Assuming Bank 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 Bank agrees to perform all 

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

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

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

Closing, (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 Bank, as may be required by the Receiver. 

4.10 Insurance. The Assuming Bank agrees to obtain insurance coverage effective 

from and after Bank Closing, including public liability, fire and extended coverage insurance 

acceptable to the Receiver with respect to owned or leased Bank Premises that it occupies, and 

all owned or leased Furniture and Equipment and Fixtures and leased data processing equipment 

(including hardware and software) located thereon, in the event such insurance coverage is not 

already in force and effect with respect to the Assuming Bank as the insured as of Bank Closing. 

All such insurance shall, where appropriate (as determined by the Receiver), name the Receiver 

as an additional insured. 

4.11 Services for Receiver and Corporation. For the period commencing on the day 

following Bank Closing and ending on the one hundred eightieth (180th) day thereafter, the 

Assuming Bank agrees to provide to the Receiver and the Corporation, without charge, adequate 

and suitable office space (including parking facilities and vault space), furniture, equipment 

(including photocopying and telecopying machines), email accounts, network access and 

technology resources (such as shared drive) and utilities (including local telephone service and 

fax machines) at the Bank Premises occupied by the Assuming Bank for their use in the 

discharge of their respective functions with respect to the Failed Bank. In the event the Receiver 

and the Corporation determine that the space provided is inadequate or unsuitable, the Receiver 

and the Corporation may relocate to other quarters having adequate and suitable space and the 

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

the Receiver and the Corporation shall be borne by the Assuming Bank. Additionally, the 

Assuming Bank agrees to pay such bills and invoices on behalf of the Receiver and Corporation 

as the Receiver or Corporation may direct for the period beginning on the date of Bank Closing 

and ending on Settlement Date. Assuming Bank shall submit it requests for reimbursement of 

such expenditures pursuant to Article VIII of this Agreement. 

4.12 Agreement with Respect to Continuation of Group Health Plan Coverage for 

Former Employees of the Failed Bank. 

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(a) The Assuming Bank 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 Bank Closing, 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 FIA Continuation Coverage Plan which provides for health insurance continuation 

coverage to such Eligible Individuals who are qualified beneficiaries of the Failed Bank as 

defined in Section 607 of the Employee Retirement Income Security Act of 1974, as amended 

(respectively, "qualified beneficiaries" and "ERISA"). The Assuming Bank shall consult with the 

Receiver and not later than five (5) Business Days after Bank Closing 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 Section 603 of ERISA) has occurred and with respect 

to whom the Failed Bank's obligations under Part 6 of Subtitle B of Title I of ERISA have not 

been satisfied in full, and such other information as the Receiver may reasonably require. The 

Receiver shall cooperate with the Assuming Bank in order to permit it to prepare such notice and 

shall provide to the Assuming Bank such data in its possession as may be reasonably required for 

purposes of preparing such notice. 

(b) The Assuming Bank 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 FIA Continuation Coverage 

Plan as the Receiver may direct. All expenses incurred and paid by the Assuming Bank (i) in 

connection with the obligations of the Assuming Bank under this Section 4.12, and (ii) in 

providing health insurance continuation coverage to any Eligible Individuals who are hired by 

the Assuming Bank and such employees' qualified beneficiaries shall be borne by the Assuming 

Bank. 

(c) 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 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 or qualified beneficiary of 

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

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

4.13 Agreement with Respect to Interim Asset Servicing and Interim 

Management. At any time after Bank Closing, 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 Bank, including, without limitation, wholly unfunded Commitments and assets and 

liabilities which may be acquired, funded or originated by the Receiver subsequent to Bank 

Closing. 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 Bank 

agrees to service, administer, and collect such pool assets in accordance with and for the term set 

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forth in Exhibit 4.13 "Interim Asset Servicing Arrangement." 

4.14 Agreement with Respect to Option to Purchase Loan Pools. The Receiver 

hereby grants to the Assuming Bank an exclusive option for the period of 30 days commencing 

the day after the Bank Closing Date to establish and purchase loan pools at Book Value. The 

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

to establish and purchase any of the established pools. The pools shall be purchased pursuant to 

the FDIC’s loan sale agreement. 

4.15 Agreement with Respect to Expenses. Notwithstanding anything to the contrary 

in this Agreement, for the period of ninety (90) days commencing the day after Bank Closing 

(the “Free Rent Period”), the Receiver agrees to pay the overhead expenses, as determined by the 

Receiver, for owned and leased Bank Premises, which includes all taxes, lease payments (real 

and for Furniture and Equipment and leased Fixtures, utilities and Failed Bank’ employee and 

data processing costs associated with any Bank Premises. However, the Assuming Bank shall be 

responsible for providing its own insurance covering its occupancy of any Bank Premises 

including, without any limitation, that required by Section 4.10 hereof. Furthermore, the cost 

associated with any Assuming Bank employees shall not be included in any calculation of 

overhead expenses. At the conclusion of the Free Rent Period, this Section 4.15 shall have no 

further force or effect. 

ARTICLE V 

DUTIES WITH RESPECT TO DEPOSITORS OF THE FAILED BANK
 

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

Bank agrees to pay all properly drawn checks, drafts and withdrawal orders 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 Bank, to the extent that the Deposit balances to the credit of the 

respective makers or drawers assumed by the Assuming Bank 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 Bank under this Agreement. 

5.2 Certain Agreements Related to Deposits. Subject to Section 2.2, the Assuming 

Bank agrees to honor the terms and conditions of any written escrow or mortgage servicing 

agreement or other similar agreement relating to a Deposit liability assumed by the Assuming 

Bank pursuant to this Agreement. 

5.3 Notice to Depositors. 

(a) Within seven (7) days after Bank Closing, the Assuming Bank shall give (i) notice 

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to depositors of the Failed Bank of its assumption of the Deposit liabilities of the Failed Bank, 

and (ii) any notice required under Section 2.2, by mailing to each such depositor a notice with 

respect to such assumption and by advertising in a newspaper of general circulation in the county 

or counties in which the Failed Bank was located. The Assuming Bank agrees that it will obtain 

prior approval of all such notices and advertisements from counsel for the Receiver and that such 

notices and advertisements shall not be mailed or published until such approval is received. 

(b) The Assuming Bank shall give notice by mail to depositors of the Failed Bank 

concerning the procedures to claim their deposits, which notice shall be provided to the 

Assuming Bank by the Receiver or the Corporation. Such notice shall be included with the notice 

to depositors to be mailed by the Assuming Bank pursuant to Section 5.3(a). 

(c) If the Assuming Bank proposes to charge fees different from those charged by the 

Failed Bank before it establishes new deposit account relationships with the depositors of the 

Failed Bank, the Assuming Bank shall give notice by mail of such changed fees to such 

depositors. 

ARTICLE VI 

RECORDS
 

6.1 Transfer of Records. 

(a) In accordance with Section 3.1, the Receiver assigns, transfers, conveys and 

delivers to the Assuming Bank the following Records pertaining to the Deposit liabilities of the 

Failed Bank assumed by the Assuming Bank under this Agreement, except as provided in 

Section 6.4: 

(i) signature cards, orders, contracts between the Failed Bank and its depositors 

and Records of similar character; 

(ii) passbooks of depositors held by the Failed Bank, deposit slips, cancelled 

checks and withdrawal orders representing charges to accounts of depositors; 

and the following Records pertaining to the Assets: 

(iii) records of deposit balances carried with other banks, bankers or trust 

companies; 

(iv) Loan and collateral records and Credit Files and other documents; 

(v) deeds, mortgages, abstracts, surveys, and other instruments or records of title 

pertaining to real estate or real estate mortgages; 

(vi) signature cards, agreements and records pertaining to Safe Deposit Boxes, if 

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any; and 

(vii) records pertaining to the credit card business, trust business or safekeeping 

business of the Failed Bank, if any. 

(b) The Receiver, at its option, may assign and transfer to the Assuming Bank by a 

single blanket assignment or otherwise, as soon as practicable after Bank Closing, any other 

Records not assigned and transferred to the Assuming Bank as provided in this Agreement, 

including but not limited to loan disbursement checks, general ledger tickets, official bank 

checks, proof transactions (including proof tapes) and paid out loan files. 

6.2 Delivery of Assigned Records. The Receiver shall deliver to the Assuming Bank 

all Records described in (i) Section 6.1(a) as soon as practicable on or after the date of this 

Agreement, and (ii) Section 6.1(b) as soon as practicable after making any assignment described 

therein. 

6.3 Preservation of Records. The Assuming Bank agrees that it will preserve and 

maintain for the joint benefit of the Receiver, the Corporation and the Assuming Bank, all 

Records of which it has custody for such period as either the Receiver or the Corporation in its 

discretion may require, until directed otherwise, in writing, by the Receiver or Corporation. The 

Assuming Bank shall have the primary responsibility to respond to subpoenas, discovery 

requests, and other similar official inquiries with respect to the Records of which it has custody. 

6.4 Access to Records; Copies. The Assuming Bank agrees to permit the Receiver 

and the Corporation access to all Records of which the Assuming Bank has custody, and to use, 

inspect, make extracts from or request copies of any such Records in the manner and to the 

extent requested, and to duplicate, in the discretion of the Receiver or the Corporation, any 

Record in the form of microfilm or microfiche pertaining to Deposit account relationships; 

provided, that in the event that the Failed Bank maintained one or more duplicate copies of such 

microfilm or microfiche Records, the Assuming Bank hereby assigns, transfers, and conveys to 

the Corporation one such duplicate copy of each such Record without cost to the Corporation, 

and agrees to deliver to the Corporation all Records assigned and transferred to the Corporation 

under this Article VI as soon as practicable on or after the date of this Agreement. The party 

requesting a copy of any Record shall bear the cost (based on standard accepted industry charges 

to the extent applicable, as determined by the Receiver) for providing such duplicate Records. A 

copy of each Record requested shall be provided as soon as practicable by the party having 

custody thereof. 

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ARTICLE VII 

BID; INITIAL PAYMENT
 

The Assuming Bank has submitted to the Receiver a positive bid of .325% of the 

Assumed Deposits, as described in the transaction recap, for the Assets purchased and Liabilities 

Assumed hereunder (the "Bid Amount"). The Deposit bid will be applied to the total of all 

Assumed Deposits except for brokered, CDARS, and any market place or similar subscription 

services Deposits. On the Payment Date, the Assuming Bank will pay to the Corporation, or the 

Corporation will pay to the Assuming Bank, as the case may be, the Initial Payment, together 

with interest on such amount (if the Payment Date is not the day following the day of Bank 

Closing) from and including the day following Bank Closing to and including the day preceding 

the Payment Date at the Settlement Interest Rate. 

ARTICLE VIII 

 ADJUSTMENTS 

8.1 Pro Forma Statement. It is understood that the determination of the Initial Payment 

is based on the Receiver's best estimate of the Liabilities Assumed and the Assets at Bank 

Closing. The Receiver, as soon as practicable after Bank Closing, in accordance with the best 

information then available, shall provide to the Assuming Bank 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, (i) liabilities and assets of a nature similar to those 

contemplated by Section 2.1 or Section 3.1, respectively, which at Bank Closing were carried in 

the Failed Bank's suspense accounts, (ii) accruals as of Bank Closing for all income related to the 

assets and business of the Failed Bank acquired by the Assuming Bank hereunder, whether or not 

such accruals were reflected on the Accounting Records of the Failed Bank in the normal course 

of its operations, and (iii) adjustments to determine the Book Value of any investment in an 

Acquired Subsidiary and related accounts on the "bank only" (unconsolidated) balance sheet of 

the Failed Bank based on the equity method of accounting, whether or not the Failed Bank used 

the equity method of accounting for investments in subsidiaries, except that the resulting amount 

cannot be less than the Acquired Subsidiary's recorded equity as of Bank Closing as reflected on 

the Accounting Records of the Acquired Subsidiary. Any Loan purchased by the Assuming Bank 

pursuant to Section 3.1 which the Failed Bank charged off during the period from May 31, 2009 

to Bank Closing 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. 

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8.2 Correction of Errors and Omissions; Other Liabilities. 

(a) 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 Accounting 

Records, except that adjustments made pursuant to this Section 8.2(a) are not intended to bring 

the Accounting Records of the Failed Bank into accordance with generally accepted accounting 

principles. 

(b) 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 Bank Closing, the Receiver may, in its discretion, at any 

time, require that such claim be assumed by the Assuming Bank 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 Bank pursuant to Section 8.1 as may be 

necessary. 

8.3 Payments. The Receiver agrees to cause to be paid to the Assuming Bank, or the 

Assuming Bank 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 Bank 

agree to effect on the Settlement Date any further transfer of assets to or assumption of liabilities 

or claims by the Assuming Bank 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 Bank Closing to and including the day 

preceding the payment at the Settlement Interest Rate. 

8.5 Subsequent Adjustments. In the event that the Assuming Bank 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 Bank 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 agree that they will, in good faith and with 

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their best efforts, cooperate with each other to carry out the transactions contemplated by this 

Agreement and to effect the purposes hereof. 

9.2 Additional Title Documents. The Receiver, the Corporation and the Assuming 

Bank each agree, at any time, and from time to time, upon the request of any party hereto, to 

execute and deliver such additional instruments and documents of conveyance as shall be 

reasonably necessary to vest in the appropriate party its full legal or equitable title in and to the 

property transferred pursuant to this Agreement or to be transferred in accordance herewith. The 

Assuming Bank shall prepare such instruments and documents of conveyance (in form and 

substance satisfactory to the Receiver) as shall be necessary to vest title to the Assets in the 

Assuming Bank. The Assuming Bank shall be responsible for recording such instruments and 

documents of conveyance at its own expense. 

9.3 Claims and Suits. 

(a) The Receiver shall have the right, in its discretion, to (i) defend or settle any claim 

or suit against the Assuming Bank with respect to which the Receiver has indemnified the 

Assuming Bank 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 Bank 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 Bank Closing. The exercise by 

the Receiver of any rights under this Section 9.3(a) shall not release the Assuming Bank with 

respect to any of its obligations under this Agreement. 

(b) 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 coplaintiff, 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 Bank to pay any Deposit liability of the Failed Bank assumed by the Assuming 

Bank pursuant to this Agreement and asserts a claim against the Receiver for all or any portion 

of any such Deposit liability, the Assuming Bank 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 Bank at the time such claim is made. Upon payment by the Assuming 

Bank to the Receiver of such amount, the Assuming Bank 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 

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Bank 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 Bank to withhold payment of all or any portion of 

any such deposit balance. Upon such direction, the Assuming Bank 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 Bank 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 Bank shall return all or any portion of such deposit balance to the Receiver or the 

Corporation, as appropriate, and thereupon the Assuming Bank 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, the Assuming Bank shall not be obligated to return such deposit balance to the Receiver 

or the Corporation. The Assuming Bank 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 Bank 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. 

9.6 Proceedings with Respect to Certain Assets and Liabilities. 

(a) 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 Bank shall cooperate to the 

extent reasonably required by the Receiver. 

(b) In addition to its obligations under Section 6.4, the Assuming Bank shall provide 

representatives of the Receiver access at reasonable times and locations without other limitation 

or qualification to (i) its directors, officers, employees and agents and those of the Acquired 

Subsidiaries, and (ii) its books and records, the books and records of the Acquired Subsidiaries 

and all Credit Files, and copies thereof. Copies of books, records and Credit Files shall be 

provided by the Assuming Bank as requested by the Receiver and the costs of duplication thereof 

shall be borne by the Receiver. 

(c) 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 Bank to the Receiver pursuant to Section 

3.6, the Assuming Bank shall deliver to the Receiver such documents with respect to such Loan 

as the Receiver may request, including without limitation the following: (i) all related Credit 

Documents (other than certificates, notices and other ancillary documents), (ii) a certificate 

setting forth the principal amount on the date of the transfer and the amount of interest, fees and 

other charges then accrued and unpaid thereon, and any restrictions on transfer to which any such 

Loan is subject, and (iii) all Credit Files, and all documents, microfiche, microfilm and computer 

records (including but not limited to magnetic tape, disc storage, card forms and printed copy) 

maintained by, owned by, or in the possession of the Assuming Bank or any Affiliate of the 

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Assuming Bank relating to the transferred Loan. 

9.7 Information. The Assuming Bank 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 Bank to assist in preparation of the pro forma statement pursuant to 

Section 8.1. 

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 Bank Closing evidence reasonably satisfactory to each 

of any necessary approval, waiver, or other action by any governmental authority, the board of 

directors of the Assuming Bank, 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 Bank, and any agreements, documents, matters or 

proceedings contemplated hereby or thereby. 

ARTICLE XI 

REPRESENTATIONS AND WARRANTIES OF THE ASSUMING BANK 

The Assuming Bank represents and warrants to the Corporation and the Receiver as 

follows: 

(a) Corporate Existence and Authority. The Assuming Bank (i) 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 (ii) has full power and authority to execute and deliver this Agreement and 

to perform its obligations hereunder. The Assuming Bank has taken all necessary corporate 

action to authorize the execution, delivery and performance of this Agreement and the 

performance of the transactions contemplated hereby. 

(b) Third Party Consents. No governmental authority or other third party consents 

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

connection with the execution, delivery or performance by the Assuming Bank of this 

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

(c) Execution and Enforceability. This Agreement has been duly executed and 

delivered by the Assuming Bank 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 Bank, enforceable in accordance with its terms. 

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 (d) Compliance with Law. 

(i) Neither the Assuming Bank 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 Bank 

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 

Bank or of any of its Subsidiaries, or the ownership of the properties of the Assuming Bank 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 Bank or the ability of the Assuming Bank to perform, satisfy or 

observe any obligation or condition under this Agreement. 

(ii) Neither the execution and delivery nor the performance by the Assuming 

Bank of this Agreement will result in any violation by the Assuming Bank 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. 

e) Representations Remain True. The Assuming Bank 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 Bank 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. 

ARTICLE XII 

 INDEMNIFICATION
 

12.1 Indemnification of Indemnitees. From and after Bank Closing and subject to 

the limitations set forth in this Section 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 paragraph (d) of Section 12.2, 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 Bank pursuant to this Agreement or subsequent to the execution hereof by the 

Assuming Bank or any Subsidiary or Affiliate of the Assuming Bank for which indemnification 

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

of this Section 12.1: 

(a) 

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(1) claims based on the rights of any shareholder or former shareholder as such of 

(x) the Failed Bank, or (y) any Subsidiary or Affiliate of the Failed Bank; 

(2) 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 Bank Closing; 

(3) 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; 

(4) claims based on any action or inaction prior to Bank Closing 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; 

(5) 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; 

(6) claims based on any failure or alleged failure (not in violation of law) by the 

Assuming Bank to continue to perform any service or activity previously performed by the 

Failed Bank which the Assuming Bank 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 Bank 

elected not to assume in accordance with this Agreement and which neither the Assuming Bank 

nor any Subsidiary or Affiliate of the Assuming Bank has assumed subsequent to the execution 

hereof; 

(7) claims arising from any action or inaction of any Indemnitee, including for 

purposes of this Section 12.1(a)(7) 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 

(8) 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 paragraphs (7) and (8) 

of Section 12.1(a), no indemnification will be provided under this Agreement for any: 

(1) judgment or fine against, or any amount paid in settlement (without the written 

approval of the Receiver) by, any Indemnitee in connection with any action that seeks damages 

against any Indemnitee (a "counterclaim") arising with respect to any Asset and based on any 

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action or inaction of either the Failed Bank, its directors, officers, employees or agents as such 

prior to Bank Closing, unless any such judgment, fine or amount paid in settlement exceeds the 

greater of (i) the Repurchase Price of such Asset, or (ii) the monetary recovery sought on such 

Asset by the Assuming Bank 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; 

(2) claims with respect to any liability or obligation of the Failed Bank that is 

expressly assumed by the Assuming Bank pursuant to this Agreement or subsequent to the 

execution hereof by the Assuming Bank or any Subsidiary or Affiliate of the Assuming Bank; 

(3) claims with respect to any liability of the Failed Bank to any present or former 

employee as such of the Failed Bank or of any Subsidiary or Affiliate of the Failed Bank, which 

liability is expressly assumed by the Assuming Bank pursuant to this Agreement or subsequent 

to the execution hereof by the Assuming Bank or any Subsidiary or Affiliate of the Assuming 

Bank; 

(4) 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 Bank Closing; 

(5) 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; 

(6) claims based on the rights of any present or former creditor, customer, or 

supplier as such of the Assuming Bank or any Subsidiary or Affiliate of the Assuming Bank; 

(7) claims based on the rights of any present or former shareholder as such of the 

Assuming Bank or any Subsidiary or Affiliate of the Assuming Bank regardless of whether any 

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

(8) claims, if the Receiver determines that the effect of providing such 

indemnification would be to (i) expand or alter the provisions of any warranty or disclaimer 

thereof provided in Section 3.3 or any other provision of this Agreement, or (ii) create any 

warranty not expressly provided under this Agreement; 

(9) claims which could have been enforced against any Indemnitee had the 

Assuming Bank not entered into this Agreement; 

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(10) claims based on any liability for taxes or fees assessed with respect to the 

consummation of the transactions contemplated by this Agreement, including without limitation 

any subsequent transfer of any Assets or Liabilities Assumed to any Subsidiary or Affiliate of the 

Assuming Bank; 

(11) 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 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 Bank or its Subsidiaries or Affiliates; 

(12) claims or actions which constitute a breach by the Assuming Bank of the 

representations and warranties contained in Article XI; 

(13) claims arising out of or relating to the condition of or generated by an Asset 

arising from or relating to the presence, storage or release of any hazardous or toxic substance, or 

any pollutant or contaminant, or condition of such Asset which violate any applicable Federal, 

State or local law or regulation concerning environmental protection; and 

(14) claims based on, related to or arising from any asset, including a loan, 

acquired or liability assumed by the Assuming Bank, other than pursuant to this Agreement. 

12.2 Conditions Precedent to Indemnification. It shall be a condition precedent to 

the obligation of the Receiver to indemnify any Person pursuant to this Article XII that such 

Person shall, with respect to any claim made or threatened against such Person for which such 

Person is or may be entitled to indemnification hereunder: 

(a) give written notice to the Regional Counsel (Litigation Branch) of the 

Corporation in the manner and at the address provided in Section 13.7 of such claim as soon as 

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

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

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

claim as the Receiver may reasonably require; 

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

and protect any defense to such claim; 

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

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

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arbitration, settlements, compromises and appeals of any such claim, all of which shall be at the 

expense of the Receiver; provided, that the Receiver shall have notified the Person claiming 

indemnification in writing that such claim is a claim with respect to which the Person claiming 

indemnification 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 in writing thereto, which consent shall not be unreasonably 

withheld; 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 reasonable action as the Receiver may request in writing as necessary to 

preserve, protect or enforce the rights of the indemnified Person against any Primary Indemnitor. 

12.3 No Additional Warranty. Nothing in this Article XII shall be construed or 

deemed to (i) 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, collectibility, genuineness, enforceability or condition of any (x) Asset, or (y) asset 

of the Failed Bank purchased by the Assuming Bank subsequent to the execution of this 

Agreement by the Assuming Bank or any Subsidiary or Affiliate of the Assuming Bank, or (ii) 

create any warranty not expressly provided under this Agreement with respect thereto. 

12.4 Indemnification of Receiver and Corporation. From and after Bank Closing, 

the Assuming Bank 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 Bank pursuant to this Agreement or subsequent to the execution hereof by the 

Assuming Bank or any Subsidiary or Affiliate of the Assuming Bank, 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 paragraph (7) or (8) of Section 12.1(a); and 

(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 Bank with respect 

to Assets transferred to the Receiver pursuant to Section 3.4 or 3.6), other than any action or 

inaction of any Indemnitee as provided in paragraph (7) or (8) of Section 12.1(a). 

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12.5 Obligations Supplemental. The obligations of the Receiver, and the Corporation 

as guarantor in accordance with Section 12.7, to provide indemnification under this Article XII 

are to supplement any amount payable by any Primary Indemnitor to the Person indemnified 

under this Article XII. Consistent with that intent, the Receiver agrees only to make payments 

pursuant to such indemnification to the extent not payable by a Primary Indemnitor. If the 

aggregate amount of payments by the Receiver, or the Corporation as guarantor in accordance 

with Section 12.7, and all Primary Indemnitors with respect to any item of indemnification under 

this Article XII exceeds the amount payable with respect to such item, such Person being 

indemnified shall notify the Receiver thereof and, upon the request of the Receiver, shall 

promptly pay to the Receiver, or the Corporation as appropriate, the amount of the Receiver's (or 

Corporation's) payments to the extent of such excess. 

12.6 Criminal Claims. Notwithstanding any provision of this Article XII to the 

contrary, in the event that any Person being indemnified under this Article XII shall become 

involved in any criminal action, suit or proceeding, whether judicial, administrative or 

investigative, the Receiver shall have no obligation hereunder to indemnify such Person for 

liability with respect to any criminal act or to the extent any costs or expenses are attributable to 

the defense against the allegation of any criminal act, unless (i) the Person is successful on the 

merits or otherwise in the defense against any such action, suit or proceeding, or (ii) such action, 

suit or proceeding is terminated without the imposition of liability on such Person. 

12.7 Limited Guaranty of the Corporation. The Corporation hereby guarantees 

performance of the Receiver's obligation to indemnify the Assuming Bank as set forth in this 

Article XII. It is a condition to the Corporation's obligation hereunder that the Assuming Bank 

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 Entire Agreement. This Agreement embodies the entire agreement of the parties 

hereto in relation to the subject matter herein and supersedes all prior understandings or 

agreements, oral or written, between the parties. 

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13.2 Headings. The headings and subheadings of the Table of Contents, Articles and 

Sections contained in this Agreement, except the terms identified for definition in Article I and 

elsewhere in this Agreement, are inserted for convenience only and shall not affect the meaning 

or interpretation of this Agreement or any provision hereof. 

13.3 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. 

13.4 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. 

13.5 Successors. All terms and conditions of this Agreement shall be binding on the 

successors and assigns of the Receiver, the Corporation and the Assuming Bank. Except as 

otherwise specifically provided in this Agreement, nothing expressed or referred to in this 

Agreement is intended or shall be construed to give any Person other than the Receiver, the 

Corporation and the Assuming Bank 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 Bank and for the benefit of no other Person. 

13.6 Modification; Assignment. No amendment or other modification, rescission, 

release, or assignment of any part of this Agreement shall be effective except pursuant to a 

written agreement subscribed by the duly authorized representatives of the parties hereto. 

13.7 Notice. Any notice, request, demand, consent, approval or other communication 

to any party hereto shall be effective when received and shall be given in writing, and delivered 

in person against receipt therefor, or sent by certified mail, postage prepaid, courier service, telex 

or facsimile transmission to such party (with copies as indicated below) at its address set forth 

below or at such other address as it shall hereafter furnish in writing to the other parties. All such 

notices and other communications shall be deemed given on the date received by the addressee. 

Alerus Financial 

401 DeMers Ave. 

Grand Forks, ND 58201 

ATT: Randy L. Newman 

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Receiver and Corporation 

Federal Deposit Insurance Corporation, 

Receiver of BankFirst, Sioux Falls, SD 

1601 Bryan St. 

Dallas, Texas 75201 

Attention: Settlement Manager 

with copy to: Regional Counsel (Litigation Branch) 

and with respect to notices under Article XII: 

Federal Deposit Insurance Corporation 

Receiver of BankFirst, Sioux Falls, SD 

1601 Bryan St. 

Dallas, Texas 75201 

Attention: Regional Counsel (Litigation Branch) 

13.8 Manner of Payment. All payments due under this Agreement shall be in lawful 

money of the United States of America in immediately available funds as each party hereto may 

specify to the other parties; provided, that in the event the Receiver or the Corporation is 

obligated to make any payment hereunder in the amount of $25,000.00 or less, such payment 

may be made by check. 

13.9 Costs, Fees and Expenses. Except as otherwise specifically provided herein, 

each party hereto agrees to pay all costs, fees and expenses which it has incurred in connection 

with or incidental to the matters contained in this Agreement, including without limitation any 

fees and disbursements to its accountants and counsel; provided, that the Assuming Bank shall 

pay all fees, costs and expenses (other than attorneys' fees incurred by the Receiver) incurred in 

connection with the transfer to it of any Assets or Liabilities Assumed hereunder or in 

accordance herewith. 

13.10 Waiver. Each of the Receiver, the Corporation and the Assuming Bank 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 Bank 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 

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Assuming Bank 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. 

13.11 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. 

13.12 Term of Agreement. This Agreement shall continue in full force and effect until 

the sixth (6th) anniversary of Bank Closing; provided, that the provisions of Section 6.3 and 6.4 

shall survive the expiration of the term of this Agreement. Provided, however, the receivership of 

the Failed Bank may be terminated prior to the expiration of the term of this Agreement; 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. Expiration of the term of this 

Agreement shall not affect any claim or liability of any party with respect to any (i) amount 

which is owing at the time of such expiration, regardless of when such amount becomes payable, 

and (ii) breach of this Agreement occurring prior to such expiration, regardless of when such 

breach is discovered. 

13.13 Survival of Covenants, Etc. The covenants, representations, and warranties in 

this Agreement shall survive the execution of this Agreement and the consummation of the 

transactions contemplated hereunder. 

[Signature Page Follows] 

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

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

FEDERAL DEPOSIT INSURANCE CORPORATION, 


RECEIVER OF BANKFIRST, 


SIOUX FALLS, South Dakota 


BY: 

Martha C: ~un&, Receiver in Charge 

Attest: 

FEDERAL DEPOSIT INSURANCE CORPORATION 

BY: 

Martha C. ~unc&, ~ttb;me~ in Fact 

Attest: 

Michael V. Lombardo, FDIC 

ALERUS FINANCIAL, N.A. 

Randy p~ewman, Chairman and C.E.O. 

Michael V. Lombardo, FDIC 

Module 2 -P&A wl Loan Pools -P&A BANKFIRST 

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Redacted Redacted Redacted Redacted

Redacted

Redacted
SCHEDULE 2.1 - Certain Liabilities Assumed 

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SCHEDULE 2.1(a) – Excluded Deposit Liability Accounts 

To be provided. 

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SCHEDULE 3.1 - Certain Assets Purchased 

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SCHEDULE 3.1(e) - Loans Secured, In Whole Or In Part, By Assumed Deposits Or 

Deposits At Other Depository Institutions 

SEE ATTACHED LIST 

THE LIST(S), IF ANY, ATTACHED TO THIS SCHEDULE (OR SUBSCHEDULE(S)) 

AND THE INFORMATION THEREIN, IS AS OF THE DATE OF THE MOST RECENT 

PERTINENT DATA MADE AVAILABLE TO THE ASSUMING BANK AS PART OF 

THE INFORMATION PACKAGE. IT WILL BE ADJUSTED TO REFLECT THE 

COMPOSITION AND BOOK VALUE OF THE LOANS AS OF THE DATE OF BANK 

CLOSING. THE LIST(S), IF ANY, MAY BE REPLACED WITH A MORE ACCURATE 

LIST POST CLOSING. 

THE POST CLOSING LIST(S) MAY REFLECT ALL, SOME, OR NONE OF THE 

LOANS THAT MEET THE CRITERIA OF DEPOSIT SECURED LOANS AND MAY 

CONTAIN LOANS NOT PREVIOUSLY LISTED FOR THIS SCHEDULE, INCLUDING 

LOANS THAT MET THE CRITERIA OF DEPOSIT SECURED LOANS AS OF THE 

DATE OF THE MOST RECENT PERTINENT DATA MADE AVAILABLE TO THE 

ASSUMING BANK AS PART OF THE INFORMATION PACKAGE. 

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SCHEDULE 3.1(i) - Acquired Subsidiaries 

NONE 

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SCHEDULE 3.2 - Purchase Price of Assets or assets 

(a) cash and receivables from depository 

institutions, including cash items in the 

process of collection, plus 

interest thereon: 

 Book Value 

(b) securities (exclusive of the capital stock of 

Acquired Subsidiaries), 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) Omitted: Book Value 

(e) Loans purchased pursuant to Section 3.1(e): Book Value 

(f) credit card business, if any, including all 

outstanding extensions of credit: 

 Book Value 

(g) Safe Deposit Boxes and related business, 

safekeeping business and trust business, if 

any: 

Fair Market Value 

(h) Records and other documents: Book Value 

(i) assets securing Deposits of public money, to 

the extent not otherwise purchased 

hereunder: 

 Fair Market Value 

(j) Overdrafts of customers: Book Value 

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assets subject to an option to purchase: 

(a) Bank Premises: Fair Market Value 

(b) Furniture and Equipment: Fair Market Value 

(c) Fixtures: Fair Market Value 

(d) Other Equipment: Fair Market Value 

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SCHEDULE 3.5(k) - Securities Not Purchased 

AS SPECIFIED IN SECTION 3.5 

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Schedule 7 

Accounts Excluded from Calculation of Deposit Franchise Bid 

Premium
 

BANKFIRST
 

Sioux Falls, SD 

The accounts identified below will pass to the Assuming Bank (unless otherwise noted). When calculating the premium 

to be paid on Assumed Deposits in a P&A transaction, the FDIC will exclude the following categories of deposit accounts: 

Category Description Amount 

I 

II 

III 

Non- DO Brokered Deposits 

CDARS 

Market Place Deposits 

Total deposits excluded from Calculation of premium 

$_,___,__0_.00_ 

$_,___,__0_.00__ 

$ 23,479,432.52 

$ 23,479,432.52 

Category Description

I Brokered Deposits 

Brokered deposit accounts are accounts for which the “depositor of record” is an agent, nominee, or custodian who 

deposits funds for a principal or principals to whom “pass-through” deposit insurance coverage may be extended. The 

FDIC separates brokered deposit accounts into 2 categories: 1) Depository Organization (DO) Brokered Deposits and 

2) Non-Depository Organization (Non-DO) Brokered Deposits. This distinction is made by the FDIC to facilitate our role 

as Receiver and Insurer. These terms will not appear on other “brokered deposit” reports generated by the institution. 

Non-DO Brokered Deposits pass to the Assuming Bank, but are excluded from Assumed Deposits when the deposit 

premium is calculated. Please see the attached “Schedule 7 Non-DO Broker Deposit Detail Report” for a listing of these 

accounts. This list will be updated post closing with balances as of Bank Closing date. 

If this institution had any DO Brokered Deposits (Cede & Co as Nominee for DTC), they are excluded from Assumed 

Deposits in the P&A transaction. A list of these accounts is provided on “Schedule 2.1 DO Brokered Deposit Detail 

Report”. 

II CDARS 

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

calculated. 

BANKFIRST did not participate in the CDARS program as of the date of the deposit download. If CDARS deposits are 

taken between the date of the deposit download and the Bank Closing Date, they will be identified post closing and made 

part of Schedule 7 to the P&A Agreement. 

III Market Place Deposits 

“Market Place Deposits” is a description given to deposits that may have been solicited via a money desk, internet 

subscription service (for example, Qwickrate), or similar programs. 

BANKFIRST does have Qwickrate deposits as identified above. The Qwickrate deposits are reported as time deposits 

in the Call Report. BANKFIRST uses “Branch 3” on their system to identify Qwickrate deposits. Please see the 

attached Schedule 7 – Qwickrate Deposit Detail Report for a listing of these accounts as of July 13, 2009. This list will 

be updated post closing with balances as of Bank Closing date. 

This schedule provides account categories and balances as of the date of the deposit download, or as indicated. The 

deposit franchise bid premium will be calculated using account categories and balances as of Bank Closing Date that are 

reflected in the general ledger or subsystem as described above. The final numbers for Schedule 7 will be provided post 

closing. 

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EXHIBIT 4.13
 

INTERIM ASSET SERVICING ARRANGEMENT
 

(a) With respect to each asset (or liability) designated from time to time by the 

Receiver to be serviced by the Assuming Bank pursuant to this Arrangement (such being 

designated as "Pool Assets"), during the term of this Arrangement, the Assuming Bank shall: 

(i) Promptly apply payments received with respect to any Pool Assets; 

(ii) Reverse and return insufficient funds checks; 

(iii) Pay (A) participation payments to participants in Loans, as and when 

received; and (B) tax and insurance bills on Pool Assets as they come due, out of escrow funds 

maintained for purposes; 

(iv) Maintain accurate records reflecting (A) the payment history of Pool Assets, 

with updated information received concerning changes in the address or identity of the obligors 

and (B) usage of data processing equipment and employee services with respect to servicing 

duties;

 (v) Send billing statements to obligors on Pool Assets to the extent that such 

statements were sent by the Failed Bank; 

(vi) Send notices to obligors who are in default on Loans (in the same manner as 

the Failed Bank); 

(vii) Send to the Receiver, Attn: Managing Liquidator, at the address provided in 

Section 13.7 of the Agreement, via overnight delivery: (A) on a weekly basis, weekly reports for 

the Pool Assets, including, without limitation, reports reflecting collections and the trial 

balances, transaction journals and loan histories for Pool Assets having activity, together with 

copies of (1) checks received, (2) insufficient funds checks returned, (3) checks for payment to 

participants or for taxes and insurance, (4) pay-off requests, (5) notices to defaulted obligors, and 

(6) data processing and employee logs and (B) any other reports, copies or information as may 

be periodically or from time to time requested; 

(viii) Remit on a weekly basis to the Receiver, Attn: Division of Finance, Cashier 

Unit, Operations, at the address in (vii), via wire transfer to the account designated by the 

Receiver, all payments received on Pool Assets managed by the Assuming Bank or at such time 

and place and in such manner as may be directed by the Receiver; 

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(ix) prepare and timely file all information reports with appropriate tax 

authorities, and, if required by the Receiver, prepare and file tax returns and pay taxes due on or 

before the due date, relating to the Pool Assets; and 

(x) provide and furnish such other services, operations or functions as may be 

required with regard to Pool Assets, including, without limitation, as may be required with 

regard to any business, enterprise or agreement which is a Pool Asset, all as may be required by 

the Receiver. 

Notwithstanding anything to the contrary in this Section, the Assuming Bank 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 Bank shall promptly notify the Receiver, at 

the address provided above in subparagraph (a)(vii), of any claims or legal actions regarding any 

Pool Asset. 

(b) The Receiver agrees to reimburse the Assuming Bank for actual, reasonable and 

necessary expenses incurred in connection with the performance of duties pursuant to this 

Arrangement, including expenses of photocopying, postage and express mail, and data 

processing and employee services (based upon the number of hours spent performing servicing 

duties). 

(c) The Assuming Bank shall provide the services described herein for an initial 

period of ninety (90) days after Bank Closing. At the option of the Receiver, exercisable by 

notice given not later than ten (10) days prior to the end of such initial period or a renewal 

period, the Assuming Bank shall continue to provide such services for such renewal period(s) as 

designated by the Receiver, up to the Settlement Date. 

(d) At any time during the term of this Arrangement, the Receiver may, upon written 

notice to the Assuming Bank, remove one or more Pool Assets from the Pool, at which time the 

Assuming Bank's responsibility with respect thereto shall terminate. 

(e) At the expiration of this Agreement or upon the termination of the Assuming 

Bank's responsibility with respect to any Pool Asset pursuant to paragraph (d) hereof, the 

Assuming Bank shall: 

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

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 designee). 

(f) At the request of the Receiver, the Assuming Bank 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 or its designee(s) (x) information and data regarding the 

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Pool Assets, including, without limitation, system reports and data downloads sufficient to 

transfer the Pool Assets to another system or systems, and (y) access to employees of the 

Assuming Bank involved in the management of, or otherwise familiar with, the Pool Assets. 

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EXHIBIT 4.13A 

INTERIM MANAGEMENT ARRANGEMENT 

ARTICLE I 

DEFINITIONS 

Capitalized terms used in this Interim Management Arrangement (the "Arrangement") 

not otherwise defined in the Agreement or herein shall have the meanings set forth below. As 

used herein, words importing the singular include the plural and vice versa. 

"Adjusted Pool Value" means: 

(i) with respect to any of the Pool Assets, exclusive of any Pool Assets 

constituting trust business or credit card business, an amount (not less than zero) equal to the 

sum of: 

(A) the Base Pool Value of such Pool Asset; plus 

(B) the aggregate amount of any advances that are made with respect to 

such Pool Asset after its transfer to the Pool and that are made in accordance with this 

Arrangement; plus 

(C) the aggregate amount of any Capitalized Expenditures relating to such 

Pool Asset made after its transfer to the Pool; minus 

(D) the aggregate amount of all Collections which are not recognized as 

income or as offsets to expenses pursuant to the Receivership Accounting Requirements 

with respect to such Pool Asset after its transfer to the Pool; and 

(ii) with respect to any Pool Related Liability, the dollar amount thereof stated on 

the Pool Records as maintained in accordance with the Receivership Accounting Requirements. 

The Adjusted Pool Value of any Pool Asset shall be reduced to zero upon Final 

Disposition of such Pool Asset. 

"Average Pool Assets" means for any period the sum of the aggregate Adjusted 

Pool Values of all Pool Assets for each day of such period divided by the number of days in such 

period. 

"Base Pool Value" means, with respect to any Pool Asset or Pool Related 

Liability, the amount required to be reflected on the Pool Records pursuant to the Receivership 

Accounting Requirements as of the date such Pool Asset or Pool Related Liability is transferred 

to the Pool. However, such shall exclude any Pool Assets constituting trust business or credit 

card business for purposes of the definition of Adjusted Pool Value. 

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"Capitalized Expenditure" means an expense of $25,000 or more (or such other 

amount approved by the Receiver) which would be capitalized under generally accepted 

accounting principles. Expenditures of less than $25,000 do not constitute Capitalized 

Expenditures. 

"Collections" mean, subject to the limitations set forth below in this definition, 

all cash or monetary revenues such as payments of principal and interest, fees, net proceeds of 

sale, net proceeds of collateral liquidation, and net insurance proceeds received, including by 

offset or similar exchange, or derived from a Pool Asset or an asset that otherwise would 

constitute a Pool Asset except for the fact that Final Disposition of such asset has occurred. The 

following receipts, exchanges, or transactions do not constitute Collections: 

(i) the receipt of any promissory note, guarantee, or other obligation; 

(ii) the receipt by any Person managing the Pool on behalf of the Receiver of any 

payments, fees, or other amounts to which such Person is paid, or compensated, by the 

Corporation or the Receiver under the Agreement, this Arrangement or any other agreement or 

arrangement; and 

(iii) the receipt of consideration from the Assuming Bank or any Affiliate of the 

Assuming Bank for the purchase of any Pool Asset. 

Solely for purposes of Section 5.1 hereof, Collections shall be subject to the 

following limitations: 

(x) cash or monetary revenues derived from a loan that consists of revolving 

advances, revolving credit facilities, or similar credit arrangements that are received prior to 

Final Disposition of such loan and that would otherwise constitute Collections shall not 

constitute Collections until the earlier of (A) Final Disposition of such loan, or (B) the date upon 

which the duties of the Assuming Bank under this Arrangement are terminated. The amount of 

such cash or monetary revenues that shall be deemed to constitute Collections for such purpose 

shall be limited to the excess of the highest Adjusted Pool Value of such loan after its transfer to 

the Pool over the Adjusted Pool Value of such loan immediately prior to Final Disposition 

thereof or at the date the Assuming Bank's duties are terminated with respect thereto, as the case 

may be; 

(y) Collections shall be reduced by the amount of gross reductions in Pool Related 

Liabilities excluding reductions from non-monetary settlements of such Pool Related Liabilities; 

and 

(z) Collections derived from Excluded Subsidiaries shall be limited to those 

amounts actually paid to the Receiver as dividends or repayment of advances. Collections based 

on repayment of advances shall be subject to the same limitations as those with respect to loans 

that consist of revolving advances, revolving credit facilities and other similar credit 

arrangements as discussed in clause (x) above. Collections derived from any trust business or 

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credit card business shall be excluded. 

"Cost of Carry" means, for any calendar month, the one year "constant 

maturity" U.S. Treasury Rate as reported in The Wall Street Journal for the last Business Day of 

the preceding calendar month. 

"Counsel" has the meaning set forth in Section 2.2 hereof. 

"Current Settlement Account" has the meaning set forth in Section 4.2 hereof. 

"Excluded Subsidiary" means any subsidiary of the Failed Bank designated by 

the Receiver as a Pool Asset. 

"Final Disposition" means any event evidencing a legal or economic inability to 

produce further Collections for a Pool Asset, including full payment of the Legal Balance due 

under a Credit Document or, to the extent the following are effected in accordance with the 

procedures in the operations manual provided by the Receiver, a complete performance of final 

settlement agreements with Obligors, the sale of loans to the Corporation or to any third party or, 

with the approval of any oversight committee or other body established to oversee the 

management of the Pool, the voluntary and knowing abandonment of efforts to obtain further 

Collections. 

"Pool" means such assets and related liabilities as determined by the Receiver 

from time to time for purposes of Section 4.13 of the Agreement. 

"Pool Assets" means the assets as determined by the Receiver from time to time 

for purposes of Section 4.13 of the Agreement, to the extent designated by the Receiver as part 

of the Pool, including, without limitation, in whole or in part, the capital stock of Excluded 

Subsidiaries, any credit card business, and any trust business, if so designated, and related 

liabilities. 

"Pool Records" means the books and records of the Pool established and 

maintained as provided in Section 4.1 hereof. 

"Pool Related Liability" means any liability that is transferred to the Pool 

because it is a Related Liability with respect to a Pool Asset. 

"Receivership Accounting Requirements" mean the rules, regulations, policies, 

procedures and reporting requirements relating to accounting for the Pool as determined by the 

Receiver, in its sole discretion, and communicated to the Assuming Bank from time to time. 

Unless otherwise directed by the Receiver, such requirements shall reflect generally accepted 

accounting principles. 

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ARTICLE II
 

ASSET MANAGEMENT
 

2.1 Agreement with Respect to Management. The Assuming Bank shall serve as an 

independent contractor to manage, administer, collect and liquidate the Pool Assets during the 

term of this Arrangement. The Assuming Bank shall be responsible to the Receiver for the 

performance of its duties hereunder, shall provide to the Receiver such reports as the Receiver 

deems advisable, and shall permit the Receiver to oversee, monitor and audit at any time the 

Assuming Bank's performance of its duties hereunder. 

2.2 Assuming Bank's Duties. (a) In performance of its duties under this 

Arrangement, the Assuming Bank shall: 

(i) liquidate, collect and manage the Pool Assets solely in the best interest of the 

Receiver; 

(ii) exercise its best business judgment in managing the Pool Assets; 

(iii) use its best efforts to maximize the net present value of net Collections with 

respect to the Pool Assets; 

(iv) promptly advise the Receiver and its legal counsel (the "Counsel") of any 

situation (including but not limited to the initiation of any legal action) that may adversely affect 

any Pool Asset as provided in Article III hereof; 

(v) adopt and implement accounting, reporting, recordkeeping and similar 

systems with respect to the Pool Assets as provided in Article IV hereof; 

(vi) maintain fidelity bond coverage with respect to defalcations by its employees 

in connection with the services provided hereunder; 

(vii) within thirty (30) days after transfer of an asset to the Pool, provide by mail a 

written notification, in a format acceptable to the Receiver, advising all Obligors with respect to 

such asset that such asset is held by the Receiver and that checks submitted as payments should 

be made payable to the Federal Deposit Insurance Corporation as Receiver of the Failed Bank 

and directing such Obligors to continue making loan payments as instructed in such notification; 

(viii) comply in all respects with the operations manual provided by the Receiver; 

(ix) permit Persons designated by the Receiver to conduct due diligence review of 

the Credit Documents of Pool Assets; 

(x) provide adequate safekeeping for all Credit Documents of Pool Assets; 

(xi) retain sufficient staff to perform its duties hereunder; 

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(xii) provide to the Receiver clerical or similar support staff as may be reasonably 

requested by the Receiver for use during the term of this Arrangement; and 

(xiii) prepare and timely file all tax returns and information reports with 

appropriate tax authorities and pay taxes due on or before the due date, relating to the Pool and 

Pool Assets. 

(b) The Assuming Bank shall manage the Excluded Subsidiaries by (i) designating 

appropriate employees of the Assuming Bank to serve as officers subject to the approval of the 

board of directors of the Excluded Subsidiary, (ii) if the Receiver chooses to elect such 

employees, causing such employees to serve as directors of such Excluded Subsidiaries, and (iii) 

making such employees available for such periods as may be necessary to fulfill the duties of 

such offices. The officers of the Excluded Subsidiaries shall, in accordance with the laws of the 

relevant jurisdictions, manage the Excluded Subsidiaries at the direction of the duly elected 

directors of such Subsidiaries. Neither the Receiver nor any Excluded Subsidiary shall have any 

obligation to pay any compensation to the Assuming Bank or any of its employees for services 

provided pursuant to this Section 2.3(b). The Assuming Bank shall not be obligated under this 

Section 2.3(b) to pay any expense or liability of any Excluded Subsidiary other than the 

compensation and employment benefits of any employee of the Assuming Bank who serves as 

an officer or director of such Excluded Subsidiary pursuant to this Section 2.3(b). 

(c) In connection with the services provided by the Assuming Bank hereunder, the 

following shall be subject to the prior approval of the Receiver (whether or not reimbursable 

under Section 5.2 hereof): 

(i) all purchases by the Assuming Bank of any Pool Asset and any transaction 

involving the Pool or any Pool Asset with an Affiliate of the Assuming Bank; 

(ii) all compromises or settlements of loans that are Pool Assets, unless ninety 

percent (90%) or more of the Legal Balance is collected as a result of such compromise or 

settlement; 

(iii) all releases of collateral for a cash payment of less than ninety percent (90%) 

of the appraised value of the collateral based upon a current, independent appraisal; 

(iv) disposition of a Pool Asset that would result in a loss where the Adjusted 

Pool Value of such Pool Asset exceeds $25,000, other than a disposition which does not require 

approval as provided in Section 2.2(c)(ii) and (iii) hereof; 

(v) restructuring of any loan including but not limited to the waiver of payment 

defaults or other material defaults, and/or the release of guarantors; 

(vi) bulk sales of Pool Assets; 

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(vii) any expenditure in excess of $100,000, any Capitalized Expenditure, any 

proposed data processing conversions or changes in any existing data processing capabilities 

(including computer hardware and software), or any payment of a Pool Related Liability; 

(viii) all loan disbursements (whether or not pursuant to a Commitment) with 

respect to any Pool Asset; 

(ix) any subcontracting of the Assuming Bank's duties hereunder; 

(x) incurring any obligation on behalf of the Receiver; and 

(xi) the use of any employee of the Assuming Bank to (A) manage any Pool Asset 

for which he or she was the originating loan officer or for which he or she had personal and 

substantial involvement or responsibility (other than as a loan workout officer) as an employee of 

the Failed Bank or the Assuming Bank or in any other capacity; or (B) exercise supervisory 

responsibility over any other employee with respect to a Pool Asset that he or she would be 

prohibited from managing under clause (A) unless he or she is prohibited from making or 

influencing decisions with respect to such Pool Asset. 

2.3 Term and Termination. 

(a) The Assuming Bank shall provide the services described herein for an initial 

period of ninety (90) days after Bank Closing. At the option of the Receiver, exercisable by 

notice given not later than ten (10) days prior to the end of such initial period or a renewal 

period, the Assuming Bank shall continue to provide such services for such renewal period(s) as 

designated by the Receiver, up to the Settlement Date. 

(b) The Receiver may, upon written notice to the Assuming Bank, remove one or 

more Pool Assets from the Pool, at which time the Assuming Bank's responsibility with respect 

thereto shall terminate. 

(c) At the expiration of this Arrangement or upon the termination of the Assuming 

Bank's responsibility with respect to any Pool Asset pursuant to Section 2.4(b) hereof, the 

Assuming Bank shall: 

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

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 designee). 

(d) At the request of the Receiver, the Assuming Bank 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 in connection with the selection of a permanent servicer for the Pool and providing to 

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the Receiver or its designee(s) (x) information and data regarding the Pool and Pool Assets, 

including, without limitation, system reports and data downloads sufficient to transfer the Pool 

and Pool Assets to another system or systems, (y) access to employees of the Assuming Bank 

involved in the management of, or otherwise familiar with, the Pool Assets, and (z) office space 

and facilities sufficient to facilitate the due diligence process. 

ARTICLE III 

 LEGAL SERVICES
 

3.1 Agreement with Respect to Legal Services. The Assuming Bank shall perform 

the duties set forth in this Article III with respect to any dispute involving the Pool Assets and 

shall coordinate such matters with the Counsel. 

3.2 Assuming Bank's Duties. (a) Unless otherwise directed by the Counsel or 

provided herein, the Assuming Bank shall: 

(i) not commence any legal proceeding, or refer any dispute involving the Pool 

Assets to outside counsel without the prior approval of the Counsel; 

(ii) supervise all existing litigation or other legal proceedings with respect to the 

Pool Assets and, continue to use outside counsel retained prior to Bank Closing by the Failed 

Bank with respect to such matters; provided that, the Counsel may at any time direct the 

Assuming Bank to use only such outside counsel which are on the Corporation's List of Counsel 

Available; 

(iii) coordinate and oversee all disputes and related matters involving the Pool 

Assets; 

(iv) whenever the Assuming Bank selects outside counsel under this 

Arrangement, attempt to refer at least ten percent (10%) of the matters described in clause (i) to 

minority and women-owned law firms approved by the Corporation or identified in the List of 

Counsel Available; 

(v) monitor the performance of outside counsel; 

(vi) provide to the Counsel any information that the Counsel may request 

regarding pleadings, case strategies, the performance of outside counsel and any other 

information relating to any dispute involving the Pool Assets; 

(vii) immediately notify and forward to the Counsel any summons, complaint or 

any other legal document or service of process received by the Assuming Bank with respect to 

any Pool Asset or claim against the Corporation or the Receiver; provided that, the Assuming 

Bank is not an authorized agent of the Corporation or the Receiver upon which service of process 

may be made; 

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(viii) immediately notify the Counsel of any adverse order or judgment with 

respect to any Pool Asset and obtain the written approval of the Counsel prior to appealing or 

taking any other action with respect to such order or judgment; 

(ix) as directed by the Counsel, submit any dispute involving a Pool Asset to 

binding arbitration or other alternative dispute resolution procedure and immediately thereafter 

move to dismiss any pending litigation or other legal proceeding relating to such dispute; 

(x) to the extent not inconsistent with the terms of this Arrangement, comply with 

the requirements set forth in the Corporation's Guide For Outside Counsel, and assure that all 

outside counsel retained by the Assuming Bank pursuant to this Arrangement also comply with 

such requirements; 

(xi) take all necessary action to protect the privileges applicable to the 

Corporation and the Receiver, including but not limited to attorney-client and work product 

privileges; and 

(xii) preserve and protect the confidentiality of all information and documentation 

communicated to and received from the Corporation and the Receiver and Counsel and outside 

counsel. 

(b) The Assuming Bank shall submit to the Counsel on or before the fifteenth (15th) 

day of the next following calendar month a monthly legal services report which shall describe (i) 

each new matter referred by the Assuming Bank to outside counsel, including the identity of 

such outside counsel, the nature of the legal services to be provided and a description of the Pool 

Asset involved, and (ii) each matter concluded, terminated or otherwise withdrawn. 

(c) Upon written notice from the Counsel, allow the Receiver to audit compliance by 

the Assuming Bank with this Article III.

 3.3 Receiver's Rights. The Counsel may (a) consult directly with outside counsel 

regarding any litigation or dispute involving the Pool Assets and/or (b) direct or control, at the 

Receiver's sole cost and expense and upon written notice to the Assuming Bank, any legal action 

or services with respect to such litigation or dispute. 

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ARTICLE IV
 

POOL ACCOUNTING AND REPORTING

 4.1 Pool Records. The Assuming Bank shall immediately establish and maintain the 

Pool Records on a separate general ledger and on subsidiary ledgers as appropriate to account for 

Pool Assets and Pool Related Liabilities with such income and expense classifications as the 

Receiver may require. As of the end of each calendar month, the Assuming Bank shall deliver to 

the Receiver a report of the financial condition and operations of the Pool. Such report shall be 

prepared in accordance with the Receivership Accounting Requirements and include a balance 

sheet, income statement and cash flow statement, report of Collections, postings to the Current 

Settlement Account and such additional information as shall be required by the Receiver. The 

report shall include an invoice in a format acceptable to the Receiver for the amount due from 

the Receiver as reflected in the Current Settlement Account. The Assuming Bank shall deliver 

the report to the Receiver on or before the 15th day of the next following calendar month. Pool 

Assets shall be recorded on the Pool Records at their Base Pool Values, together with Pool 

Related Liabilities, as of the date of transfer to the Pool. Thereafter, Pool Assets and Pool 

Related Liabilities shall be reflected at their Adjusted Pool Values. Subsidiary ledgers shall 

include and permit an accounting for (a) income and expense tracking for each loan with respect 

to each Obligor, and (b) legal fees paid with respect to each Pool Asset by law firm, attorney and 

each attorney's hourly rate. All accounting records of the Pool shall be maintained by the 

Assuming Bank on the cash basis of accounting. 

4.2 Current Settlement Account. The Assuming Bank shall establish and maintain 

an account (the "Current Settlement Account") to which the amount of payments due to or from 

the Receiver shall be posted on a calendar month basis. 

4.3 Funding of Pool Asset Expenses. The Assuming Bank shall establish a deposit 

account acceptable to the Receiver for the payment of (a) Pool Related Liabilities (except 

payments under participation agreements which are paid from Collections) and advances with 

respect to Pool Assets, in either case to the extent permitted by Section 2.3 hereof, (b) 

Capitalized Expenditures and (c) other expenses reimbursable under Section 5.2 hereof. Such 

account shall be maintained in accordance with the operations manual provided by the Receiver. 

As of the end of each calendar month, the Assuming Bank shall post to the Current Settlement 

Account the amount funded in accordance with this Section 4.3, together with interest for such 

period on the average daily balance of the amount of such fundings outstanding at a rate per 

annum equal to the Cost of Carry plus fifty (50) basis points (0.50%). 

4.4 Payments. Payment of the invoice accompanying the monthly report provided for 

in Section 4.1 hereof shall be made no later than fifteen (15) Business Days after the date of 

receipt of such report by the Receiver. Payment made to the Assuming Bank shall be applied to 

reduce the amount due to the Assuming Bank pursuant to Section 4.3 hereof on the date of 

receipt of such payment. The Receiver may withhold payment if, in its judgment, a basis exists 

for denying eligibility for payment of any amount included in the invoice until the Assuming 

Bank, after notice by the Receiver, demonstrates that such amount is eligible for payment. Any 

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amount withheld shall be paid by the Receiver no later than fifteen (15) Business Days after the 

Receiver has approved such payment. 

4.5 Collections. The Assuming Bank shall establish and maintain in trust for the 

Receiver a deposit account acceptable to the Receiver to which all Collections shall be 

immediately deposited upon receipt thereof by the Assuming Bank. All collected funds in such 

account shall be wire transferred on a daily basis by the Assuming Bank to the bank account 

designated by the Receiver. Any amounts not promptly remitted to the Receiver pursuant to this 

Section 4.5 shall bear interest at a rate per annum equal to the Cost of Carry plus fifty (50) basis 

points (0.50%). 

ARTICLE V

 FEES AND EXPENSES
 

5.1 Payment for Services. 

(a) The Receiver agrees to pay the following monthly fees to the Assuming Bank: 

(i) a fee equal to the product of (A) one percent (1%) of the Average Pool Assets 

during the month and (B) the number of days this Arrangement is in effect during such month 

divided by three hundred sixty-five (365); and 

(ii) a fee equal to six percent (6%) of the amount of Collections during 

the month; 

(iii) with regard to any Pool Asset constituting a trust business, the amount of fees 

the Failed Bank would have collected attributable to the services rendered by the Assuming 

Bank, to the extent actually collected; 

(iv) with regard to any Pool Asset constituting a credit card business, the actual, 

reasonable and necessary expenses incurred in connection with the performance of duties 

pursuant to this Arrangement, including expenses of photocopying, postage and express mail, 

and data processing and employee services (based upon the number of hours spent performing 

servicing duties). 

(b) At the end of each calendar month, the Assuming Bank shall post to the Current 

Settlement Account the amount, if any, of fees due for such month. 

5.2 Reimbursable Expenses. 

(a) The Receiver agrees to reimburse the Assuming Bank for its actual direct asset 

expenses (i) incurred to secure, maintain or sell any Pool Asset (including legal expenses 

therefor), or (ii) incurred to enforce any rights under the Credit Documents. 

(b) Any expense otherwise reimbursable under this Section 5.2 shall not be 

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reimbursed if the Receiver determines: 

(i) such expense was not incurred (A) in good faith, (B) with the same degree of 

care that the Assuming Bank would exercise in the collection of troubled assets in its own 

portfolio, and (C) in accordance herewith; 

(ii) such expense was incurred for a product, service, or activity that is of an 

extravagant nature or design; or 

(iii) the approval of the Receiver for the payment of such expense (or for the contract or other arrangement under which it was incurred) was required under this Arrangement but 

was not obtained. 

(c) The following categories of expenses shall not be reimbursable under this Section 

5.2: 

(i) Federal, State, or local income taxes and expenses related thereto; 

(ii) salaries and related benefits of the Assuming Bank's employees, including any 

bonus or severance arrangements, training, payroll taxes, dues, or travel- or relocation-related 

expenses; 

(iii) the cost of space occupied by the Assuming Bank and its staff, the rental and 

maintenance of furniture and equipment, and expenses for data processing (including data 

processing conversions); 

(iv) except as otherwise provided herein, fees for accounting, legal and other 

independent professional consultants (including employees of the Assuming Bank); 

(v) out-of-pocket miscellaneous operating expenses incurred by the Assuming 

Bank or any Affiliate in the management of the Pool Assets; 

(vi) expenses related to any trust business except to the extent such are 

reimbursed by such trusts or third parties; 

(vii) expenses related to any credit card business (except as such may be paid 

under Section 5.1); and 

(vi) any other expenses that are not reimbursable under this Section 5.2. 

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ARTICLE VI 

ADDITIONAL INDEMNITY 

6.1 Additional Indemnity. The following additional indemnities are provided with 

regard to Pool Assets under this Arrangement in the same manner as if such appeared under 

Section 12.1(a) of the Agreement: 

(9) claims arising from any action or inaction in connection with the 

administration of any asset of the Failed Bank that is not acquired under Section 3.1 of the 

Agreement following a transfer to the Receiver of responsibility for such administration under 

any provision of the Arrangement; 

(10) claims arising in connection with any refusal of the Assuming Bank, acting 

pursuant to instructions given in writing by the Receiver pursuant to any provision of the 

Arrangement, or any similar arrangement pertaining to the management of any asset of the 

Failed Bank that is not acquired under Section 3.1 of the Agreement or any similar arrangement 

pertaining to the management of such assets, to advance funds under a commitment to an obligor 

on any loan included among such assets; 

(11) any action or inaction taken or omitted to be taken pursuant to this 

Arrangement in connection with the administration of any asset or the management of any 

Subsidiary of the Failed Bank that is not acquired under Section 3.1 of the Agreement (the 

"Management Services"), if such action or inaction is taken or omitted to be taken in good faith 

and in a manner reasonably believed to be in the best interests of the Receiver or such 

Subsidiary; and 

(12) any action or inaction in connection with the Management Services which is 

taken or omitted to be taken upon the specific written direction of the Corporation or the 

Receiver. 

6.2 Additional Exclusions From Indemnity. The following additional exclusions 

from indemnities are provided with regard to Pool Assets under this Arrangement in the same 

manner as if such appeared under Section 12.1(b) of the Agreement: 

(15) claims arising from any action or inaction by the Person claiming 

indemnification which constitutes bad faith, gross negligence or willful misconduct; 

(16) claims that could have been enforced against the Person claiming 

indemnification if the Assuming Bank had not agreed to perform the Management Services; 

(17) claims arising from any violation, as a result of action or inaction by the 

Assuming Bank, or any Subsidiary or Affiliate of the Assuming Bank of (x) any agreement or 

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6.3 Additional Indemnity For Receiver and Corporation. The following additional 

indemnity is provided with regard to Pool Assets under this Arrangement in the same manner as 

if such appeared under Section 12.4 of the Agreement: 

(3) claims arising from any action or inaction of any Indemnitee in connection 

with the Arrangement, if such action or inaction was taken or omitted in a manner constituting 

bad faith, gross negligence or willful misconduct. 

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