PURCHASE AND ASSUMPTION AGREEMENT
 

WHOLE BANK
 

ALL DEPOSITS
 

AMONG 

FEDERAL DEPOSIT INSURANCE CORPORATION, 

RECEIVER OF SONOMA VALLEY BANK,
 

FEDERAL DEPOSIT INSURANCE CORPORATION
 

and 

WESTAMERICA BANK, 

SAN RAFAEL, CALIFORNIA 

DATED AS OF
 

August 20, 2010 
 

 

 

 

 

 

TABLE OF CONTENTS
 

ARTICLE I DEFINITIONS ...........................................................................................5
 

ARTICLE II ASSUMPTION OF LIABILITIES.........................................................12

 2.1 Liabilities Assumed by Assuming Institution............................................12 

2.2 Interest on Deposit Liabilities....................................................................13 

2.3 Unclaimed Deposits...................................................................................14 

2.4 Employee Benefit Plans.............................................................................14 

ARTICLE III PURCHASE OF ASSETS .......................................................................14

 3.1 Assets Purchased by Assuming Institution................................................14 

3.2 Asset Purchase Price..................................................................................15 

3.3 Manner of Conveyance; Limited Warranty; 

 Nonrecourse; Etc............................................................................15 

3.4 Puts of Assets to the Receiver....................................................................16 

3.5 Assets Not Purchased by Assuming Institution.........................................18 

3.6 Assets Essential to Receiver ......................................................................19 

ARTICLE IV ASSUMPTION OF CERTAIN DUTIES AND OBLIGATIONS........20

 4.1 Continuation of Banking Business ............................................................20 

4.2 Agreement with Respect to Credit Card Business.....................................21 

4.3 Agreement with Respect to Safe Deposit Business ...................................21 

4.4 Agreement with Respect to Safekeeping Business....................................21 

4.5 Agreement with Respect to Trust Business ...............................................21 

4.6 Agreement with Respect to Bank Premises...............................................22 

4.7 Agreement with Respect to Leased Data 

 Processing Equipment....................................................................26 

4.8 Agreement with Respect to Certain 

 Existing Agreements......................................................................26 

4.9 Informational Tax Reporting .....................................................................27 

4.10 Insurance....................................................................................................27 

4.11 Office Space for Receiver and Corporation...............................................28 

4.12 Agreement with Respect to Continuation of Group 

Health Plan Coverage for Former Employees ...........................................28 

4.13 Agreement with Respect to Interim Asset Servicing.................................29 

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ARTICLE V 

5.1 

5.2 

5.3 

ARTICLE VI 

6.1 

6.2 

6.3 

6.4 

ARTICLE VII 

ARTICLE VIII 

8.1 

8.2 

8.3 

8.4 

8.5 

ARTICLE IX 

9.1 

9.2 

9.3 

9.4 

9.5 

9.6 

9.7 

ARTICLE X 

ARTICLE XI 

ARTICLE XII 

12.1 

12.2 

12.3 

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DUTIES WITH RESPECT TO DEPOSITORS 

 OF THE FAILED BANK........................................................................30

Payment of Checks, Drafts and Orders......................................................30 

Certain Agreements Related to Deposits ...................................................30 

Notice to Depositors ..................................................................................30 

RECORDS................................................................................................31

Transfer of Records....................................................................................31 

Delivery of Assigned Records ...................................................................31 

Preservation of Records .............................................................................31 

Access to Records; Copies.........................................................................31 

BID; INITIAL PAYMENT .....................................................................32
 

ADJUSTMENTS......................................................................................32

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

Correction of Errors and Omissions; Other Liabilities..............................32 

 Payments....................................................................................................33 

Interest .......................................................................................................33 

 Subsequent Adjustments............................................................................33 

CONTINUING COOPERATION..........................................................33
 

 General Matters..........................................................................................33 

Additional Title Documents.......................................................................33 

Claims and Suits ........................................................................................34 

Payment of Deposits ..................................................................................34 

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

Proceedings with Respect to Certain Assets 

 and Liabilities ................................................................................35 

 Information ................................................................................................35 

CONDITION PRECEDENT ..................................................................36
 

REPRESENTATIONS AND WARRANTIES OF THE 

 ASSUMING INSTITUTION ..................................................................36
 

INDEMNIFICATION .............................................................................37

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

Conditions Precedent to Indemnification ..................................................40 

No Additional Warranty ............................................................................41 

2
 Sonoma Valley Bank 

Sonoma, California 
 

 

 

 

 

 

 

 

 12.4 Indemnification of Corporation and Receiver ...........................................41 

12.5 Obligations Supplemental..........................................................................42 

12.6 Criminal Claims.........................................................................................42 

12.7 Limited Guaranty of the Corporation ........................................................42 

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

ARTICLE XIII MISCELLANEOUS ................................................................................43

 13.1 Entire Agreement.......................................................................................43 

13.2 Headings ....................................................................................................43 

13.3 Counterparts...............................................................................................43 

13.4 Governing Law ..........................................................................................43 

13.5 Successors..................................................................................................43 

13.6 Modification; Assignment .........................................................................43 

13.7 Notice ........................................................................................................43 

13.8 Manner of Payment....................................................................................44 

13.9 Costs, Fees and Expenses ..........................................................................44 

13.10 Waiver ........................................................................................................45 

13.11 Severability ................................................................................................45 

13.12 Term of Agreement....................................................................................45 

13.13 Survival of Covenants, Etc. .......................................................................45 

SCHEDULES

 2.1(a) Excluded Deposit Liability Accounts........................................................47 

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

3.5(l) Excluded Private Label Asset-Backed Securities......................................50 

6.3 Data Retention Catalog..............................................................................51 

7 Accounts Excluded from Calculation of Deposit Premium.............53
 

EXHIBITS 

2.3A Final Notice Letter .....................................................................................54 

2.3B Affidavit of Mailing...................................................................................56 

3.2(c) Valuation of Certain Qualified Financial Contracts ..................................57 

4.13 Interim Asset Servicing Arrangement .......................................................59 

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PURCHASE AND ASSUMPTION AGREEMENT

 WHOLE BANK

 ALL DEPOSITS

 THIS AGREEMENT, made and entered into as of the 20th day of August, 2010, by and 

among the FEDERAL DEPOSIT INSURANCE CORPORATION, RECEIVER of 

SONOMA VALLEY BANK, SONOMA, CALIFORNIA (the "Receiver"), 

WESTAMERICA BANK, organized under the laws of the California, and having its principal 

place of business in San Rafael, California (the "Assuming Institution"), and the FEDERAL 

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

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

"Corporation"). 

WITNESSETH: 

WHEREAS, on Bank Closing, the Chartering Authority closed Sonoma Valley Bank 

and 

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

assistance to the Assuming Institution to facilitate the transactions contemplated by this 

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

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

provide assistance to the Assuming Institution on the terms and subject to the conditions set forth 

in this Agreement; 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: 

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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" means Subsidiaries of the Failed Bank acquired 

pursuant to Section 3.1. 

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

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

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

term "affiliate" is defined in 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 Institution, the Corporation and the Receiver, as amended or otherwise modified 

from time to time. 

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

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

definition. 

"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 adjacent parking, storage and service 

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

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

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

the Failed Bank as shown on the Accounting Record of the Failed Bank as of Bank Closing. 

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

"Bid Valuation Date" means May 28, 2010. 

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 "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 

a Subsidiary of the Failed Bank acquired by the Assuming Institution 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-oninterest 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, fees or expenses, 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. 

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

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

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

any thereof. 

“Data Processing Equipment” means any equipment, computer hardware, or 

computer software (and the lease or licensing agreements related thereto) other than Personal 

Computers, owned or leased by the Failed Bank at Bank Closing, which is, was, or could have 

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

"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. 

"Deposit Secured Loan" means a loan in which the only collateral securing the 

loan is Assumed Deposits or deposits at other insured depository institutions 

“Electronically Stored Information” means any system backup tapes, any 

electronic mail (whether on an exchange or other similar system), any data on personal 

computers and any data on server hard drives. 

"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; 

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(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 Institution; any costs and fees associated with such determination shall be shared 

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

Premises (to the extent, if any, that Bank Premises are purchased utilizing this valuation 

method), shall be determined not later than sixty (60) days after Bank Closing by an appraiser 

selected by the Receiver and the Assuming Institution within seven (7) days after Bank Closing; 

or (ii) with respect to property other than Bank Premises purchased utilizing this valuation 

method, the price therefore as established by the Receiver and agreed to by the Assuming 

Institution, or in the absence of such agreement, as determined in accordance with clause (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, Personal Computers, and Data Processing Equipment), 

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, shelving, office supplies, telephone, surveillance and security systems, ancillary 

equipment, and artwork. Furniture and equipment located at a storage facility not adjacent to a 

Bank Premises are excluded from this definition. 

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

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

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

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

the Assuming Institution and its Subsidiaries and Affiliates who are not also present or former 

directors, officers, employees or agents of the Failed Bank or of any Subsidiary or Affiliate of 

the Failed Bank. 

"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 

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

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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 Institution to the Corporation if (i) the Liabilities Assumed are less 

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

of the Liabilities Assumed and the negative Bid Amount is less than the Assets and assets 

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

"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 (including loans which have been charged off the Accounting 

Records of the Failed Bank in whole or in part prior to the Bid Valuation Date), participation 

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

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

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

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

contracts; 

(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" amounts owing under 

Qualified Financial Contracts. 

"New Loans" means Loans made by the Failed Bank after the Bid Valuation 

Date that are not continuations, amendments, modifications, renewals, extensions, refinancings, 

restructurings, or refundings of or for any then existing Loan. 

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

performance of any Loan, whether such Person is obligated directly, indirectly, primarily, 

secondarily, jointly, or severally. 

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

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

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

"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 

agency or political subdivision thereof, excluding the Corporation. 

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

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

computer’s internal hard drive or attached peripheral. A personal computer can be found in 

various configurations such as laptops, net books, and desktops. 

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

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

(including payments on account of claims made against) to or on behalf of any Person in 

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

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

bond or banker's blanket bond. 

"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 Electronically Stored 

Information (including but not limited to magnetic tape, disc storage, card forms and printed 

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

possession of the Receiver at 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. 

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

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

Accounting Records of the Assuming Institution (as maintained in accordance with generally 

accepted accounting principles) as of the date as of which the Related Liability Amount is being 

determined. With respect to a liability that relates to more than one asset, the amount of such 

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

Liability Amount with respect to any one of such assets. Such allocation shall be made by 

specific allocation, where determinable, and otherwise shall be pro rata based upon the dollar 

amount of such assets stated on the 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) (i) in the event of a negative Bid Amount, the amount paid by the 

Assuming Institution, discounted by a percentage equal to the quotient produced by dividing the 

Assuming Institution's Bid Amount by the aggregate Book Value of the Risk Assets of the Failed 

Bank; 

(ii) in the event of a negative Bid Amount, the amount resulting from 

(a)(i), above, or in the event of a positive Bid Amount, the amount paid by the Assuming 

Institution, (x) for a Loan, shall be decreased by any portion of the Loan classified "loss" and by 

one-half of any portion of the Loan classified "doubtful" as of the Bid Valuation Date, and (y) 

for any Asset or asset, including a Loan, 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 Interest Rate; net proceeds 

received by or due to the Assuming Institution from the sale of collateral, any forgiveness of 

debt, or otherwise shall be deemed money received by the Assuming Institution; or 

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

Assuming Institution 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 and the Bid Amount shall be considered to 

have been positive for Loans repurchased pursuant to Section 3.4(a). 

"Risk Assets" means (i) all Loans purchased hereunder, excluding (a) New 

Loans and (b) Loans to the extent secured by Assumed Deposits (and not included in (i)(a)), plus 

(ii) the Accrued Interest Receivable, Prepaid Expense, Other Assets as set forth in the 

information provided in the marketing of the Failed Bank. 

"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), 

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

keys and combinations thereto. 

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

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

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

discretion, may extend the Settlement Date. 

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

thereof during which interest accrues, the rate determined by the Receiver to be equal to the 

equivalent coupon issue yield on twenty-six (26)-week 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. 

 ARTICLE II 

ASSUMPTION OF LIABILITIES

 2.1 Liabilities Assumed by Assuming Institution. The Assuming Institution 

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

pay, perform, and discharge all of the following liabilities of the Failed Bank as of 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 Institution agrees to properly secure such Deposits with such 

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

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

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

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

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

provided, that the 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 

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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; 

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

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

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

deposit business, safekeeping business, or trust business, if any; and 

(i) liabilities, if any, for Commitments; and 

(j) liabilities, if any, for amounts owed to any Subsidiary of the Failed Bank acquired 

under Section 3.1; 

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

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

provides mortgage servicing for others, or mortgage servicing is provided to the 

Failed Bank by others. 

2.2 Interest on Deposit Liabilities. The Assuming Institution 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 Institution to its 

depositors for nontransaction deposit accounts. The Assuming Institution shall permit each 

depositor to withdraw, without penalty for early withdrawal, all or any portion of such 

depositor's Deposit, whether or not the Assuming Institution elects to pay interest in accordance 

with any deposit agreement formerly existing between the Failed Bank and such depositor; and 

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further provided, that if such Deposit has been pledged to secure an obligation of the depositor or 

other party, any withdrawal thereof shall be subject to the terms of the agreement governing such 

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

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

2.3 Unclaimed Deposits. Fifteen (15) months following the Bank Closing Date, the 

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

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

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

form substantially similar to Exhibit 2.3A to the owner(s) of the unclaimed deposits reminding 

them of the need to claim or arrange to continue their account(s) with the Assuming Institution. 

The Assuming Institution will send the “Final Legal Notice” to the depositors within thirty (30) 

days following notification of the Receiver’s authorization. The Assuming Institution will 

prepare an Affidavit of Mailing and will forward the Affidavit of Mailing to the Receiver after 

mailing out the “Final Legal Notice” in a form substantially similar to Exhibit 2.3B to the 

owner(s) of unclaimed deposit accounts. 

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 Institution, the Assuming Institution shall, within fifteen (15) Business Days after the 

end of such eighteen (18) month period, (i) refund to the Receiver the full amount of each such 

deposit (without reduction for service charges), (ii) provide to the Receiver a schedule of all such 

refunded Deposits in such form as may be prescribed by the Receiver, and (iii) assign, transfer, 

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

and to the Records previously transferred to the Assuming Institution and other records 

generated or maintained by the Assuming Institution pertaining to such Deposits. During such 

eighteen (18) month period, at the request of the Receiver, the Assuming Institution promptly 

shall provide to the Receiver schedules of unclaimed deposits in such form as may be prescribed 

by the Receiver. 

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

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

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

unless the Receiver and the Assuming Institution agree otherwise subsequent to the date of this 

Agreement. 

 ARTICLE III 

PURCHASE OF ASSETS

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

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

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

Receiver in and to all of the assets (real, personal and mixed, wherever located and however 

acquired) of the Failed Bank whether or not reflected on the books of the Failed Bank as of Bank 

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

indebtedness collateralized by Liens affecting such Assets. 

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 3.2 Asset Purchase Price. 

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

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

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

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

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

shall be purchased at its Book Value. Loans or other assets charged off the Accounting Records 

of the Failed Bank on or prior to the Bid Valuation Date shall be purchased at a price of zero. 

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

Subsidiary and FRB stock and FHLB stock) purchased under Section 3.1 by the Assuming 

Institution 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 Institution will submit a bid for each such 

security within three days of notification/bid request by the Receiver (unless a different time 

period is agreed to by the Assuming Institution and the Receiver) and the Receiver, in its sole 

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

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

Institution and shall be deemed to be an excluded asset hereunder. 

(c) Qualified Financial Contracts shall be purchased at market value determined in 

accordance with the terms of Exhibit 3.2(c). Any costs associated with such valuation shall be 

shared equally by the Receiver and the Assuming Institution. 

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

CONVEYANCE OF ALL ASSETS, INCLUDING REAL AND PERSONAL PROPERTY 

INTERESTS, PURCHASED BY THE ASSUMING INSTITUTION UNDER THIS 

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

RECEIVER'S BILL OF SALE, "AS IS", "WHERE IS", WITHOUT RECOURSE AND, 

EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT, 

WITHOUT ANY WARRANTIES WHATSOEVER WITH RESPECT TO SUCH ASSETS, 

EXPRESS OR IMPLIED, WITH RESPECT TO TITLE, 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 and at 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) in accordance with this 

Section 3.4, the Assuming Institution shall be entitled to require the Receiver to purchase any 

New Loan that was transferred to the Assuming Institution pursuant to Section 3.1, and require 

the Receiver to purchase any Deposit Secured Loan transferred to the Assuming Institution 

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

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

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

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 Institution shall be entitled to require the 

Receiver to purchase any remaining overdraft transferred to the Assuming Institution pursuant to 

3.1 which both was made after the Bid Valuation Date and was not made pursuant to an 

overdraft protection plan or similar extension of credit. 

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

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

Subsidiary, or (ii) the Assuming Institution has: 

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

with respect to such Loan; 

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

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

action; 

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

indebtedness for money borrowed or which constitutes a conditional sales 

agreement, capital lease or other title retention agreement; 

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

modification or amendment to, any waiver or extension with respect to, or any 

renewal, refinancing or refunding of, such Loan or related Credit Documents or 

collateral, including, without limitation, any act or omission which diminished 

such collateral; or 

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

with or without recourse). 

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The Assuming Institution 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 the Assuming Institution 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 Institution 

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

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

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

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

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

the Receiver without recourse, and shall indemnify the Receiver against any and all claims of 

any Person claiming by, through or under the Assuming Institution with respect to any such 

Asset, as provided in Section 12.4. 

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

require the Receiver to purchase one or more Assets, the Assuming Institution shall deliver to the 

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

(i) a list of all Assets that the Assuming Institution 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 Institution shall deliver to the 

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

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

access to all other relevant books and records. 

(d) Purchase by Receiver. The Receiver shall purchase 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 Institution the amount 

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

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

the Receiver, as the case may be, shall pay the purchase price determined pursuant to this 

Section 3.4(e) not later than the twentieth (20th) Business Day following the applicable Put Date, 

together with interest on such amount at the Settlement Interest Rate for the period from and 

including such Put Date to and including the day preceding the date upon which payment is 

made. 

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

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

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

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

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

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

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

never purchased such Asset pursuant to this Section 3.4. 

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

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

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

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

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

the Failed Bank, or premium refund, unearned premium derived from cancellation, or any 

proceeds payable with respect to any of the foregoing; 

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

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

any Subsidiary of the Failed Bank on or prior to 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; 

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(e) Federal Home Loan Mortgage Corporation and Federal National Mortgage 

Association preferred 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; 

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

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

[or owned] Bank Premises, if any; provided, that the Assuming Institution 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 "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; 

(j) any criminal restitution or forfeiture orders issued in favor of the Failed Bank; 

and 

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

(l) all securities listed on the attached Schedule 3.5(l); and 

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

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

option to assume under Section 4.8. 

3.6	 Assets Essential to Receiver. 

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

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

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

Institution's right, title and interest in and to, any Asset or asset essential to the Receiver as 

determined by the Receiver in its discretion (together with all Credit Documents evidencing or 

pertaining thereto), which may include any Asset or asset that the Receiver determines to be: 

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

Failed Bank, its Subsidiaries or Affiliates or any related entities of any of 

the foregoing; 

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

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

subject of, any legal proceedings; 

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

the Corporation in its corporate capacity or its capacity as receiver of any 

institution; 

(iv) secured by collateral which also secures any asset owned by the Receiver; 

or 

(v) related to any asset of the Failed Bank not purchased by the Assuming 

Institution under this Article III or any liability of the Failed Bank not 

assumed by the Assuming Institution under Article II. 

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

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

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

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

Institution not later than the twentieth (20th) Business Day following receipt of related Credit 

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

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

preceding the day on which payment is made. The Assuming Institution agrees to administer and 

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

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

respect to Asset or assets under this Section 3.6 shall be made as provided in Section 9.6. The 

Assuming Institution shall transfer all such Asset or assets and Related Liabilities to the 

Receiver without recourse, and shall indemnify the Receiver against any and all claims of any 

Person claiming by, through or under the Assuming Institution with respect to any such Asset or 

asset, as provided in Section 12.4. 

 ARTICLE IV 

ASSUMPTION OF CERTAIN DUTIES AND OBLIGATIONS
 

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

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

Business Day after Bank Closing and ending no earlier than the first anniversary of Bank 

Closing, the Assuming Institution will provide full service banking in the trade area of the Failed 

Bank. Thereafter, the Assuming Institution may cease providing such banking services in the 

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

regulatory approvals. At the option of the Assuming Institution, such banking services may be 

provided at any or all of the Bank Premises, or at other premises within such trade area. The 

trade area shall be determined by the Receiver. For the avoidance of doubt, the foregoing shall 

not restrict the Assuming Institution from opening, closing or selling branches upon receipt of 

the necessary regulatory approvals, if the Assuming Institution or its successors continue to 

provide banking services in the trade area. Assuming Institution will pay to the Receiver, upon 

the sale of a branch or branches within the year following the date of this agreement, fifty 

percent (50%) of any franchise premium in excess of the franchise premium paid by the 

Assuming Institution with respect to such branch or branches. 

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 4.2 Agreement with Respect to Credit Card Business. The Assuming Institution 

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

to the Failed Bank's credit card business (including issuer or merchant acquirer) debit card 

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

assumes all outstanding extensions of credit or balances with respect to these lines of business. 

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

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 

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

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

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

located in the trade area of the Failed Bank. The Safe Deposit Boxes shall be located and 

maintained in the trade area of the Failed Bank for a minimum of one year from Bank Closing. 

The trade area shall be determined by the Receiver. Fees related to the safe deposit business 

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

after the Bank Closing Date shall be for the benefit of the Assuming Institution. 

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

conveys and delivers to the Assuming Institution and the Assuming Institution accepts all 

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

Bank Closing. The Assuming Institution 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 Institution shall be entitled to all rights and 

benefits heretofore accrued or hereafter accruing with respect thereto. The Assuming Institution 

shall provide to the Receiver written verification of all assets held by the Failed Bank for 

safekeeping within sixty (60) days after Bank Closing. The assets held for safekeeping by the 

Failed Bank shall be held and maintained by the Assuming Institution in the trade area of the 

Failed Bank for a minimum of one year from Bank Closing. At the option of the Assuming 

Institution, the safekeeping business may be provided at any or all of the Bank Premises, or at 

other premises within such trade area. The trade area shall be determined by the Receiver. Fees 

related to the safekeeping business earned prior to the Bank Closing Date shall be for the benefit 

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

Assuming Institution. 

4.5 Agreement with Respect to Trust Business. 

(a) The Assuming Institution shall, without further transfer, substitution, act or deed, 

to the full extent permitted by law, succeed to the rights, obligations, properties, assets, 

investments, deposits, agreements, and trusts of the Failed Bank under trusts, executorships, 

administrations, guardianships, and agencies, and other fiduciary or representative capacities, all 

to the same extent as though the Assuming Institution had assumed the same from the Failed 

Bank prior to Bank Closing; provided, that any liability based on the misfeasance, malfeasance 

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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 Institution. 

(b) The Assuming Institution shall, to the full extent permitted by law, succeed to, 

and be entitled to take and execute, the appointment to all executorships, trusteeships, 

guardianships and other fiduciary or representative capacities to which the Failed Bank is or may 

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

appointed by any other instrument. 

(c) In the event additional proceedings of any kind are necessary to accomplish the 

transfer of such trust business, the Assuming Institution agrees that, at its own expense, it will 

take whatever action is necessary to accomplish such transfer. The Receiver agrees to use 

reasonable efforts to assist the Assuming Institution in accomplishing such transfer. 

(d) The Assuming Institution shall provide to the Receiver written verification of the 

assets held in connection with the Failed Bank's trust business within sixty (60) days after 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 Institution 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 Institution shall 

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

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

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

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

notice of its election not to purchase one or more of the owned Bank Premises within seven (7) 

days of Bank Closing, then, not withstanding any other provision of this Agreement to the 

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

appraisals for such Bank Premises and associated Fixtures, Furniture and Equipment. 

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

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

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

Premises, if any, which have been continuously occupied by the Assuming Institution from 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 Institution containing the same terms and conditions provided under such existing 

leases for such leased Bank Premises or other property. The Assuming Institution shall give 

notice to the Receiver within the option period of its election to accept or not to accept an 

assignment of any or all leases (or enter into subleases or new leases in lieu thereof). The 

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Assuming Institution agrees to assume all leases assigned (or enter into subleases or new leases 

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

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

within seven (7) days of Bank Closing, then, not withstanding any other provision of this 

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

fees associated with appraisals for the Fixtures, Furniture and Equipment located on such leased 

Bank Premises. 

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

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

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

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

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

parties. 

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

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

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

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

respect to such leased Bank Premises. 

(e) Occupancy Costs. 

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

third parties at the direction of the Receiver, during and for the period of any occupancy by it of 

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

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

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

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

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

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

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

authority and for which the Assuming Institution assumes liability) by the Assuming Institution 

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

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

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

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

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

rental value thereof, as determined by the Receiver within sixty (60) days after 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 

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

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

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

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

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

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

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

twelve (12) months following 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 Institution 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 Institution elects not to purchase any owned Bank 

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

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

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

exercise such option. The Assuming Institution promptly shall be responsible for relinquishing 

and releasing to the Receiver such premises and the Furniture and Equipment and Fixtures 

located thereon in the same condition as at Bank Closing and at the premises where it was 

inventoried at Bank Closing, normal wear and tear excepted. Any of the aforementioned which is 

missing will be charged to the Assuming Institution at the item’s Fair Market Value as set out in 

accordance with this Agreement. By occupying any such premises after the expiration of such 

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

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

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

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

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

such premises as of Bank Closing. 

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

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

4.6(b) shall specify the date upon which the Assuming Institution's occupancy of such leased 

Bank Premises shall terminate, which date shall not be later than ninety (90) days after the date 

of the Assuming Institution's notice not to exercise such option. Upon vacating such premises, 

the Assuming Institution shall be liable for relinquishing and releasing to the Receiver such 

premises and the Fixtures and the Furniture and Equipment located thereon which existed at the 

time of Bank Closing, in the same condition as at Bank Closing, and at the premises where it was 

inventoried at Bank closing, normal wear and tear excepted. Any of the aforementioned which is 

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missing will be charged to the Assuming Institution at the item’s Fair Market Value as set out in 

accordance with this Agreement. By failing to provide notice of its intention to vacate such 

premises prior to the expiration of the option period specified in Section 4.6(b), or by occupying 

such premises after the one hundred eighty (180)-day period specified above in this paragraph 

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

leases, obligations and liabilities with respect to such premises (including any ground lease with 

respect to the land on which premises are located), and leased Furniture and Equipment and 

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

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

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

premises as of Bank Closing. 

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

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

and/or all telecommunications, and check processing equipment owned by the Failed Bank and 

located at any owned or leased Bank Premises that the Assuming Institution elects to vacate or 

which it could have, but did not occupy, pursuant to this Section 4.6; provided, that, the 

Assuming Institution shall give the Receiver notice of its election to purchase such property at 

the time it gives notice of its intention to vacate such Bank Premises or within ten (10) days after 

Bank Closing for Bank Premises it could have, but did not, occupy. 

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

Equipment. 

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

Institution shall be entitled to require the Receiver to purchase any Bank Premises that is owned, 

directly or indirectly, by an Acquired Subsidiary and the purchase price paid by the Receiver 

shall be the Fair Market Value of the Bank Premises. 

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

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

Institution shall also have the option, exercisable within the same ninety (90) day time period, to 

require the Receiver to purchase any Fixtures, Furniture and Equipment that is owned, directly or 

indirectly, by an Acquired Subsidiary and which is located on such Bank Premises. The 

purchase price paid by the Receiver shall be the Fair Market Value of the Fixtures, Furniture and 

Equipment. 

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

this subparagraph, the Assuming Institution shall pay to the Receiver occupancy costs in 

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

4.6(g)(i). 

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

under this subparagraph, the purchase price for the Acquired Subsidiary shall be adjusted by the 

difference between the Fair Market Value of the Bank Premises and Fixtures, Furniture and 

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

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

4.7 Agreement with Respect to Data Processing Equipment and Leases. 

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

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

assignment from the Receiver of all leased Data Processing Equipment and (ii) purchase at Fair 

Market Value from the Receiver all owned Data Processing Equipment. The Assuming 

Institution’s election under this option applies to both owned and leased Data Processing 

Equipment. 

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

option period specified in Section 4.7(a) of its intent to accept or decline an assignment or 

sublease of all leased Data Processing Equipment and promptly accept an assignment or sublease 

of such Data Processing Equipment, (ii) give written notice to the appropriate lessor(s) that it has 

accepted an assignment or sublease of any such Data Processing Equipment that is subject to a 

lease, and (iii) give written notice to the Receiver within the option period specified in Section 

4.7(a) of its intent to purchase all owned Data Processing Equipment and promptly pay the 

Receiver for the purchase of such Data Processing Equipment. 

(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 Institution; 

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

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

facilitating any such assumption, assignment, sublease or negotiation. 

(d) The Assuming Institution agrees, during its period of use of any Data Processing 

Equipment, to pay to the Receiver or to appropriate third parties at the direction of the Receiver 

all operating costs with respect thereto and to comply with all relevant terms of any existing 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 Institution shall, not later than fifty (50) days after giving the 

notice provided in Section 4.7(b), (i) relinquish and release to the Receiver all Data Processing 

Equipment, in the same condition as at Bank Closing, normal wear and tear excepted, or (ii) 

accept an assignment or a sublease of any existing data processing lease or negotiate a new lease 

or license agreement under this Section 4.7 with respect to leased Data Processing Equipment, 

and (iii) accept ownership of all Data Processing Equipment purchased from the Receiver. 

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 Institution shall give the Receiver written 

notice specifying whether it elects to assume or not to assume each such agreement. Except as 

may be otherwise provided in this Article IV, the Assuming Institution agrees to comply with the 

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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 Institution has given notice to the Receiver of its election not to 

assume such agreement; provided, that the Receiver can reasonably make such service 

agreements available to the Assuming Institution. The Assuming Institution shall be deemed by 

the Receiver to have assumed agreements for which no notification is timely given. The Receiver 

agrees to assign, transfer, convey, and deliver to the Assuming Institution all right, title and 

interest of the Receiver, if any, in and to agreements the Assuming Institution assumes 

hereunder. In the event the Assuming Institution elects not to accept an assignment of any lease 

(or sublease) or negotiate a new lease for leased Bank Premises under Section 4.6 and does not 

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

agreements related to such premises. The Assuming Institution agrees, during the period it has 

the use or benefit of any such agreement, promptly to pay to the Receiver or to appropriate third 

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

with all relevant terms of such agreement. 

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

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 Institution does not assume any liabilities or acquire any rights under 

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

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

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

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

closed and loans that were paid off or collateral obtained with respect thereto prior to 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 Institution, as may be required by the Receiver. 

4.10 Insurance. The Assuming Institution 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 Institution 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. 

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4.11 Office Space for Receiver and Corporation. 

(a) Office Space for Receiver and Corporation. 

(i) For the period commencing on the day following Bank Closing 

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

Institution will provide to the Receiver and the Corporation, without charge, adequate and 

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

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

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

fax machines) (collectively, “FDIC Office Space”) at the Bank Premises occupied by the 

Assuming Institution for the Receiver use in the discharge of their respective functions with 

respect to the Failed Bank. 

(ii) Upon written notice by the Receiver or the Corporation, for the 

period commencing on the one hundred eighty first (181st) day following Bank Closing and 

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

Assuming Institution will continue to provide to the Receiver and the Corporation FDIC Office 

Space at the Bank Premises. During the period from the 181st day following Bank Closing until 

the day the FDIC and the Corporation vacate FDIC Office Space, the Receiver and the 

Corporation will pay to the Assuming Institution their respective pro rata share (based on square 

footage occupied) of (A) the market rental value for the applicable owned Bank Premises or (B) 

actual rent paid for applicable leased Bank Premises. 

(iii) If the Receiver or the Corporation determine that the space 

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

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

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

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

(b) Certain Payments on behalf of Receiver and Corporation. The Assuming Institution 

will pay such bills and invoices on behalf of the Receiver and the Corporation as the Receiver or 

the Corporation may direct for the period beginning on the date of 

Bank Closing and ending on Settlement Date. The Assuming Institution shall submit its requests 

for reimbursement of such expenditures pursuant to Article VIII of this Agreement. 

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

Former Employees of the Failed Bank. 

(a) The Assuming Institution agrees to assist the Receiver, as provided in this Section 

4.12, in offering individuals who were employees or former employees of the Failed Bank, or 

any of its Subsidiaries, and who, immediately prior to 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 

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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 Institution 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 Institution in order to permit it to 

prepare such notice and shall provide to the Assuming Institution such data in its possession as 

may be reasonably required for purposes of preparing such notice. 

(b) The Assuming Institution shall take such further action to assist the Receiver in 

offering the Eligible Individuals who are qualified beneficiaries of the Failed Bank the 

opportunity to obtain health insurance coverage in the Corporation's FIA Continuation Coverage 

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

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

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

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

Assuming Institution. 

(c) No later than five (5) Business Days after Bank Closing, the Assuming Institution 

shall provide the Receiver with a list of all Failed Bank employees the Assuming Institution will 

not hire. Unless otherwise agreed, the Assuming Institution pays all salaries and payroll costs 

for all Failed Bank Employees until the list is provided to the Receiver. The Assuming 

Institution shall be responsible for all costs and expenses (i.e. salary, benefits, etc.) associated 

with all other employees not on that list from and after the date of delivery of the list to the 

Receiver. The Assuming Institution shall offer to the Failed Bank employees it retains 

employment benefits comparable to those the Assuming Institution offers its current employees. 

(d) 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 Institution 

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. 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 Institution, 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 

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remove assets (and liabilities) from or add assets (and liabilities) to such pool(s) at any time in its 

discretion. At the option of the Receiver, the Assuming Institution agrees to service, administer, 

and collect such pool assets in accordance with and for the term set forth in Exhibit 4.13 "Interim 

Asset Servicing Arrangement". 

 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 

Institution 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 Institution, to the extent that the Deposit balances to the 

credit of the respective makers or drawers assumed by the Assuming Institution under this 

Agreement are sufficient to permit the payment thereof, and in all other respects to discharge, in 

the usual course of conducting a banking business, the duties and obligations of the Failed Bank 

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

by the Assuming Institution under this Agreement. 

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

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

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

Institution pursuant to this Agreement. 

5.3 Notice to Depositors. 

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

notice by mail to each depositor of the Failed Bank of (i) the assumption of the Deposit liabilities 

of the Failed Bank, and (ii) the procedures to claim Deposits (the Receiver shall provide item (ii) 

to Assuming Institution). The Assuming Institution shall also publish notice of its assumption of 

the Deposit liabilities of the Failed Bank in a newspaper of general circulation in the county or 

counties in which the Failed Bank was located. 

(b) Within seven (7) days after Bank Closing, the Assuming Institution shall give 

notices by mail to each depositor of the Failed Bank, as required under Section 2.2. 

(c) If the Assuming Institution proposes to charge fees different from those fees 

formerly charged by the Failed Bank, the Assuming Institution shall include its fee schedule in 

its mailed notice. 

(d) The Assuming Institution shall obtain approval of all notices and publications 

required by this Section 5.3 from counsel for the Receiver prior to mailing or publication. 

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 ARTICLE VI 

RECORDS

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

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

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

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

(a) Records pertaining to former employees of the Failed Bank who were no longer 

employed by the Failed Bank as of Bank Closing and Records pertaining to employees of the 

Failed Bank who were employed by the Failed Bank as of Bank Closing and for whom the 

Receiver is unable to obtain a waiver to release such Records to the Assuming Institution; 

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

Receiver, or (ii) any asset of the Failed Bank acquired by the Receiver pursuant to this 

Agreement; and 

(c) Any other Records as determined by the Receiver. 

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

Institution all Records described in Section 6.1 as soon as practicable on or after the date of this 

Agreement. 

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

and maintain for the joint benefit of the Receiver, the Corporation and the Assuming Institution, 

all Records of which it has custody 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 Institution shall have the primary responsibility to respond to subpoenas, 

discovery requests, and other similar official inquiries and customer requests for lien releases 

with respect to the Records of which it has custody. With respect to its obligations under this 

Section regarding Electronically Stored Information, the Assuming Institution will complete the 

Data Retention Catalog attached hereto as Schedule 6.3 and submit it to the Receiver for the 

Receiver’s approval of the Assuming Institution’s data retention plan. 

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

Receiver and the Corporation access to all Records of which the Assuming Institution has 

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

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

Corporation, any Record pertaining to Deposit account relationships; provided, that in the event 

that the Failed Bank maintained one or more duplicate copies of such Records, the Assuming 

Institution hereby assigns, transfers, and conveys to the Corporation one such duplicate copy of 

each such Record without cost to the Corporation, and agrees to deliver to the Corporation all 

Records assigned and transferred to the Corporation under this Article VI as soon as practicable 

on or after the date of this Agreement. The party requesting a copy of any Record shall bear the 

cost (based on standard accepted industry charges to the extent applicable, as determined by the 

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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. 

ARTICLE VII 

BID; INITIAL PAYMENT
 

The Assuming Institution has submitted to the Receiver an asset discount bid of $43,000,000.00 

and a positive Deposit premium bid of 2%. The Deposit premium bid will be applied to the total 

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

subscription services Deposits set forth on Schedule 7. On the Payment Date, the Assuming 

Institution will pay to the Corporation, or the Corporation will pay to the Assuming Institution, 

as the case may be, the Initial Payment, together with interest on such amount (if the Payment 

Date is not the day following the 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 Institution a pro forma statement 

reflecting any adjustments of such liabilities and assets as may be necessary. Such pro forma 

statement shall take into account, to the extent possible, (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 

Institution 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 a 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 Subsidiary's recorded 

equity as of Bank Closing as reflected on the Accounting Records of the Subsidiary. Any Loan 

purchased by the Assuming Institution pursuant to Section 3.1 which the Failed Bank charged 

off during the period beginning the day after the Bid Valuation Date to 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. 

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 

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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 Institution in a manner consistent with 

the intent of this Agreement. The Receiver will make appropriate adjustments to the pro forma 

statement provided by the Receiver to the Assuming Institution pursuant to Section 8.1 as may 

be necessary. 

8.3 Payments. The Receiver agrees to cause to be paid to the Assuming Institution, 

or the Assuming Institution agrees to pay to the Receiver, as the case may be, on the Settlement 

Date, a payment in an amount which reflects net adjustments (including any costs, expenses and 

fees associated with determinations of value as provided in this Agreement) made pursuant to 

Section 8.1 or Section 8.2, plus interest as provided in Section 8.4. The Receiver and the 

Assuming Institution agree to effect on the Settlement Date any further transfer of assets to or 

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

accordance with Section 8.1 or Section 8.2. 

8.4 Interest. Any amounts paid under Section 8.3 or Section 8.5, shall bear interest 

for the period from and including the day following 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 Institution or the 

Receiver discovers any errors or omissions as contemplated by Section 8.2 or any error with 

respect to the payment made under Section 8.3 after the Settlement Date, the Assuming 

Institution and the Receiver agree to promptly correct any such errors or omissions, make any 

payments and effect any transfers or assumptions as may be necessary to reflect any such 

correction plus interest as provided in Section 8.4. 

 ARTICLE IX 

 CONTINUING COOPERATION 

9.1 General Matters. The parties hereto agree that they will, in good faith and with 

their best efforts, cooperate with each other to carry out the transactions contemplated by this 

Agreement and to effect the purposes hereof. 

9.2 Additional Title Documents. The Receiver, the Corporation and the Assuming 

Institution each 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 

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property transferred pursuant to this Agreement or to be transferred in accordance herewith. The 

Assuming Institution shall prepare such instruments and documents of conveyance (in form and 

substance satisfactory to the Receiver) as shall be necessary to vest title to the Assets in the 

Assuming Institution. The Assuming Institution shall be responsible for recording such 

instruments and documents of conveyance at its own expense. 

9.3 Claims and Suits. 

(a) The Receiver shall have the right, in its discretion, to (i) defend or settle any 

claim or suit against the Assuming Institution with respect to which the Receiver has 

indemnified the Assuming Institution in the same manner and to the same extent as provided in 

Article XII, and (ii) defend or settle any claim or suit against the Assuming Institution with 

respect to any Liability Assumed, which claim or suit may result in a loss to the Receiver arising 

out of or related to this Agreement, or which existed against the Failed Bank on or before Bank 

Closing. The exercise by the Receiver of any rights under this Section 9.3(a) shall not release the 

Assuming Institution with respect to any of its obligations under this Agreement. 

(b) 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 Institution to pay any Deposit liability of the Failed Bank assumed by the 

Assuming Institution pursuant to this Agreement and asserts a claim against the Receiver for all 

or any portion of any such Deposit liability, the Assuming Institution agrees on demand to 

provide to the Receiver funds sufficient to pay such claim in an amount not in excess of the 

Deposit liability reflected on the books of the Assuming Institution at the time such claim is 

made. Upon payment by the Assuming Institution to the Receiver of such amount, the Assuming 

Institution shall be discharged from any further obligation under this Agreement to pay to any 

such depositor the amount of such Deposit liability paid to the Receiver. 

9.5 Withheld Payments. At any time, the Receiver or the Corporation may, in its 

discretion, determine that all or any portion of any deposit balance assumed by the Assuming 

Institution pursuant to this Agreement does not constitute a "Deposit" (or otherwise, in its 

discretion, determine that it is the best interest of the Receiver or Corporation to withhold all or 

any portion of any deposit), and may direct the Assuming Institution to withhold payment of all 

or any portion of any such deposit balance. Upon such direction, the Assuming Institution agrees 

to hold such deposit and not to make any payment of such deposit balance to or on behalf of the 

depositor, or to itself, whether by way of transfer, set-off, or otherwise. The Assuming Institution 

agrees to maintain the "withheld payment" status of any such deposit balance until directed in 

writing by the Receiver or the Corporation as to its disposition. At the direction of the Receiver 

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or the Corporation, the Assuming Institution shall return all or any portion of such deposit 

balance to the Receiver or the Corporation, as appropriate, and thereupon the Assuming 

Institution shall be discharged from any further liability to such depositor with respect to such 

returned deposit balance. If such deposit balance has been paid to the depositor prior to a 

demand for return by the Corporation or the Receiver, and payment of such deposit balance had 

not been previously withheld pursuant to this Section, the Assuming Institution shall not be 

obligated to return such deposit balance to the Receiver or the Corporation. The Assuming 

Institution shall be obligated to reimburse the Corporation or the Receiver, as the case may be, 

for the amount of any deposit balance or portion thereof paid by the Assuming Institution in 

contravention of any previous direction to withhold payment of such deposit balance or return 

such deposit balance the payment of which was withheld pursuant to this Section. 

9.6 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 Institution shall cooperate to 

the extent reasonably required by the Receiver. 

(b) In addition to its obligations under Section 6.4, the Assuming Institution shall 

provide representatives of the Receiver access at reasonable times and locations without other 

limitation or qualification to (i) its directors, officers, employees and agents and those of the 

Subsidiaries acquired by the Assuming Institution, and (ii) its books and records, the books and 

records of such Subsidiaries and all Credit Files, and copies thereof. Copies of books, records 

and Credit Files shall be provided by the Assuming Institution as requested by the Receiver and 

the costs of duplication thereof shall be borne by the Receiver. 

(c) Not later than ten (10) days after the Put Notice pursuant to Section 3.4 or the 

date of the notice of transfer of any Loan by the Assuming Institution to the Receiver pursuant to 

Section 3.6, the Assuming Institution shall deliver to the Receiver such documents with respect 

to such Loan as the Receiver may request, including without limitation the following: (i) all 

related Credit Documents (other than certificates, notices and other ancillary documents), (ii) a 

certificate setting forth the principal amount on the date of the transfer and the amount of 

interest, fees and other charges then accrued and unpaid thereon, and any restrictions on transfer 

to which any such Loan is subject, and (iii) all Credit Files, and all documents, microfiche, 

microfilm and computer records (including but not limited to magnetic tape, disc storage, card 

forms and printed copy) maintained by, owned by, or in the possession of the Assuming 

Institution or any Affiliate of the Assuming Institution relating to the transferred Loan. 

9.7 Information. The Assuming Institution promptly shall provide to the Corporation 

such other information, including financial statements and computations, relating to the 

performance of the provisions of this Agreement as the Corporation or the Receiver may request 

from time to time, and, at the request of the Receiver, make available employees of the Failed 

Bank employed or retained by the Assuming Institution to assist in preparation of the pro forma 

statement pursuant to Section 8.1. 

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 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 Institution, or other third party, with respect to this Agreement and the 

transactions contemplated hereby, the closing of the Failed Bank and the appointment of the 

Receiver, the chartering of the Assuming Institution, and any agreements, documents, matters or 

proceedings contemplated hereby or thereby. 

 ARTICLE XI 

REPRESENTATIONS AND WARRANTIES OF THE ASSUMING INSTITUTION
 

The Assuming Institution represents and warrants to the Corporation and the Receiver as 

follows: 

(a) Corporate Existence and Authority. The Assuming Institution (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 Institution 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 Institution 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 Institution and when this Agreement has been duly authorized, 

executed and delivered by the Corporation and the Receiver, this Agreement will constitute the 

legal, valid and binding obligation of the Assuming Institution, enforceable in accordance with 

its terms. 

(d) Compliance with Law. 

(i) Neither the Assuming Institution nor any of its Subsidiaries is in violation 

of any statute, regulation, order, decision, judgment or decree of, or any restriction imposed by, 

the United States of America, any State, municipality or other political subdivision or any 

agency of any of the foregoing, or any court or other tribunal having jurisdiction over the 

Assuming Institution or any of its Subsidiaries or any assets of any such Person, or any foreign 

government or agency thereof having such jurisdiction, with respect to the conduct of the 

business of the Assuming Institution or of any of its Subsidiaries, or the ownership of the 

properties of the Assuming Institution or any of its Subsidiaries, which, either individually or in 

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the aggregate with all other such violations, would materially and adversely affect the business, 

operations or condition (financial or otherwise) of the Assuming Institution or the ability of the 

Assuming Institution to perform, satisfy or observe any obligation or condition under this 

Agreement. 

(ii) Neither the execution and delivery nor the performance by the Assuming 

Institution of this Agreement will result in any violation by the Assuming Institution of, or be in 

conflict with, any provision of any applicable law or regulation, or any order, writ or decree of 

any court or governmental authority. 

(e) Insured or Guaranteed Loans. If any Loans being transferred pursuant to this 

Agreement are insured or guaranteed by any department or agency of any governmental unit, 

federal, state or local, Assuming Institution represents that Assuming Institution has been 

approved by such agency and is an approved lender or mortgagee, as appropriate, if such 

approval is required. Assuming Institution further assumes full responsibility for determining 

whether or not such insurance or guarantees are in full force and effect on the date of this 

Agreement and with respect to those Loans whose insurance or guaranty is in full force and 

effect on the date of this Agreement, Assuming Institution assumes full responsibility for doing 

all things necessary to insure such insurance or guarantees remain in full force and effect. 

Assuming Institution agrees to assume all of the obligations under the contract(s) of insurance or 

guaranty, agrees to cooperate with the Receiver where necessary to complete forms required by 

the insuring or guaranteeing department or agency to effect or complete the transfer to Assuming 

Institution. 

(f) Representations Remain True. The Assuming Institution represents and 

warrants that it has executed and delivered to the Corporation a Purchaser Eligibility 

Certification and Confidentiality Agreement and that all information provided and 

representations made by or on behalf of the Assuming Institution in connection with this 

Agreement and the transactions contemplated hereby, including, but not limited to, the Purchaser 

Eligibility Certification and Confidentiality Agreement (which are affirmed and ratified hereby) 

are and remain true and correct in all material respects and do not fail to state any fact required 

to make the information contained therein not misleading. 

 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 Institution pursuant to this Agreement or subsequent to the execution hereof by the 

Assuming Institution or any Subsidiary or Affiliate of the Assuming Institution for which 

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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) 

(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 Institution to continue to perform any service or activity previously performed by the 

Failed Bank which the Assuming Institution is not required to perform pursuant to this 

Agreement or which arise under any contract to which the Failed Bank was a party which the 

Assuming Institution elected not to assume in accordance with this Agreement and which neither 

the Assuming Institution nor any Subsidiary or Affiliate of the Assuming Institution has assumed 

subsequent to the execution hereof; 

(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: 

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(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 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 Institution in the cause of action from which the counterclaim 

arises; and in such event the Receiver will provide indemnification only in the amount of such 

excess; and no indemnification will be provided for any costs or expenses other than any costs or 

expenses (including attorneys' fees) which, in the determination of the Receiver, have been 

actually and reasonably incurred by such Indemnitee in connection with the defense of any such 

counterclaim; and it is expressly agreed that the Receiver reserves the right to intervene, in its 

discretion, on its behalf and/or on behalf of the Receiver, in the defense of any such 

counterclaim; 

(2) claims with respect to any liability or obligation of the Failed Bank that is 

expressly assumed by the Assuming Institution pursuant to this Agreement or subsequent to the 

execution hereof by the Assuming Institution or any Subsidiary or Affiliate of the Assuming 

Institution; 

(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 Institution pursuant to this Agreement or 

subsequent to the execution hereof by the Assuming Institution or any Subsidiary or Affiliate of 

the Assuming Institution; 

(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 Institution or any Subsidiary or Affiliate of the Assuming 

Institution; 

(7) claims based on the rights of any present or former shareholder as such of the 

Assuming Institution or any Subsidiary or Affiliate of the Assuming Institution regardless of 

whether any such present or former shareholder is also a present or former shareholder of the 

Failed Bank; 

(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 

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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 Institution not entered into this Agreement; 

(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 Institution; 

(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 Institution or its Subsidiaries or Affiliates; 

(12) claims or actions which constitute a breach by the Assuming Institution 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 Institution, other than pursuant to this Agreement. 

12.2 Conditions Precedent to Indemnification. It shall be a condition precedent to 

the obligation of the Receiver to indemnify any Person pursuant to this Article XII that such 

Person shall, with respect to any claim made or threatened against such Person for which such 

Person is or may be entitled to indemnification hereunder: 

(a) give written notice to the Regional Counsel (Litigation Branch) of the 

Corporation in the manner and at the address provided in Section 13.7 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; 

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(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, 

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 Institution subsequent to the execution of this 

Agreement by the Assuming Institution or any Subsidiary or Affiliate of the Assuming 

Institution, 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 Institution agrees to indemnify and hold harmless the Corporation and the 

Receiver and their respective directors, officers, employees and agents from and against any and 

all costs, losses, liabilities, expenses (including attorneys' fees), judgments, fines and amounts 

paid in settlement actually and reasonably incurred in connection with any of the following: 

(a) claims based on any and all liabilities or obligations of the Failed Bank assumed 

by the Assuming Institution pursuant to this Agreement or subsequent to the execution hereof by 

the Assuming Institution or any Subsidiary or Affiliate of the Assuming Institution, whether or 

not any such liabilities subsequently are sold and/or transferred, other than any claim based upon 

any action or inaction of any Indemnitee as provided in paragraph (7) or (8) of Section 12.1(a); 

and 

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(b) claims based on any act or omission of any Indemnitee (including but not limited 

to claims of any Person claiming any right or title by or through the Assuming Institution with 

respect to 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). 

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 Institution as set forth in 

this Article XII. It is a condition to the Corporation's obligation hereunder that the Assuming 

Institution shall comply in all respects with the applicable provisions of this Article XII. The 

Corporation shall be liable hereunder only for such amounts, if any, as the Receiver is obligated 

to pay under the terms of this Article XII but shall fail to pay. Except as otherwise provided 

above in this Section 12.7, nothing in this Article XII is intended or shall be construed to create 

any liability or obligation on the part of the Corporation, the United States of America or any 

department or agency thereof under or with respect to this Article XII, or any provision hereof, it 

being the intention of the parties hereto that the obligations undertaken by the Receiver under 

this Article XII are the sole and exclusive responsibility of the Receiver and no other Person or 

entity. 

12.8 Subrogation. Upon payment by the Receiver, or the Corporation as guarantor in 

accordance with Section 12.7, to any Indemnitee for any claims indemnified by the Receiver 

under this Article XII, the Receiver, or the Corporation as appropriate, shall become subrogated 

to all rights of the Indemnitee against any other Person to the extent of such payment. 

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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. 

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 Institution. Except as 

otherwise specifically provided in this Agreement, nothing expressed or referred to in this 

Agreement is intended or shall be construed to give any Person other than the Receiver, the 

Corporation and the Assuming Institution any legal or equitable right, remedy or claim under or 

with respect to this Agreement or any provisions contained herein, it being the intention of the 

parties hereto that this Agreement, the obligations and statements of responsibilities hereunder, 

and all other conditions and provisions hereof are for the sole and exclusive benefit of the 

Receiver, the Corporation and the Assuming Institution and for the benefit of no other Person. 

13.6 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 therefore, or sent by certified mail, postage prepaid, courier service, 

telex, facsimile transmission or email 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. 

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Assuming Institution 

Westamerica Bank 

4550 Mangels Blvd. 

Fairfield, California 94534-4082 

Attention:	 David L. Payne 

 Chairman, President & CEO 

with a copy to: “Robert” John A. Thorson 

 Chief Financial Officer 

Receiver and Corporation 

Federal Deposit Insurance Corporation 

Receiver of Sonoma Valley Bank 

40 Pacifica 

Irvine, California 92618 

Attention: Settlement Agent 

In addition, with respect to notices under Article 4.6: 

cc: Resolutions and Closings Manager, ORE Department 

40 Pacifica 

 Irvine, California 92618 

In addition, with respect to notice under Article XII: 

cc: Managing Counsel (WCTSO) 

 40 Pacifica 

 Irvine, California 92618 

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 Institution 

shall pay all fees, costs and expenses (other than attorneys' fees incurred by the Receiver) 

incurred in connection with the transfer to it of any Assets or Liabilities Assumed hereunder or 

in accordance herewith. 

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 13.10 Waiver. Each of the Receiver, the Corporation and the Assuming Institution may 

waive its respective rights, powers or privileges under this Agreement; provided, that such 

waiver shall be in writing; and further provided, that no failure or delay on the part of the 

Receiver, the Corporation or the Assuming Institution to exercise any right, power or privilege 

under this Agreement shall operate as a waiver thereof, nor will any single or partial exercise of 

any right, power or privilege under this Agreement preclude any other or further exercise thereof 

or the exercise of any other right, power or privilege by the Receiver, the Corporation, or the 

Assuming Institution under this Agreement, nor will any such waiver operate or be construed as 

a future waiver of such right, power or privilege under this Agreement. 

13.11 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 SONOMA V ALLEY BANK, 

SONOMA, CALIFORNIA 

BY:----- -­ TERRY KNAPP i 

Receiver-In-Char 

FEDERAL DEPOSIT INSURANCE CORPORATION 

WESTAMERICA BANK 

BY: 

"Robert" Jol1k'A. Thorson 

Chief Financial Officer 

Attest: 

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Redacted Redacted Redacted

Redacted

Redacted Redacted
SCHEDULE 2.1(a) – Excluded Deposit Liability Accounts 

Sonoma Valley Bank 

Sonoma, CA
 

Sonoma Valley Bank reported no deposits associated with the Depository Organization (DO) 

Cede & Co as Nominee for DTC as of May 28, 2010. If such DO funds exist at bank closing, 

they will not pass to the Assuming Institution and will be excluded from the transaction as 

described in section 2.1 (a) of the P&A Agreement. A schedule will be updated post-closing with 

data as of the actual bank closing date if such DO accounts are found to exist at that time. 

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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) Loans: Book Value 

(e) Other Real Estate Book Value 

(f) credit card business, if any: Book Value 

(g) Safe Deposit Boxes and related business, 

safekeeping business and trust business, if 

any: 

Book Value 

(h) boats, motor vehicles, aircraft, trailers, fire 

arms, and repossessed collateral 

Book Value 

(i) Records and other documents: Book Value 

(j) capital stock of any Acquired Subsidiaries 

and FRB stock and FHLB stock: 

Book Value 

(k) amounts owed to the Failed Bank by any 

Acquired Subsidiary: 

Book Value 

(l) assets securing Deposits of public money, 

to the extent not otherwise purchased 

hereunder: 

Book Value 

(m) Overdrafts of customers: Book Value 

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

Financial Contracts. 

As provided in Section 3.2(c) 

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(o) rights of the Failed Bank to provide Book Value 

mortgage servicing for others and to have 

mortgage servicing provided to the Failed 

Bank by others and related contracts. 

(p) Personal Computers Fair Market Value 

assets subject to an option to purchase: 

(a) Bank Premises: Fair Market Value 

(b) Furniture and Equipment: Fair Market Value 

(c) Fixtures: Fair Market Value 

(d) Other Equipment: Fair Market Value 

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SCHEDULE 3.5(1) - Excluded Securities 

52 

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SCHEDULE 6.3 – Data Retention Catalog 

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SCHEDULE 7 

Accounts Excluded from Calculation of Deposit Franchise Bid Premium 

Sonoma Valley Bank 

Sonoma, CA 

The accounts identified below will pass to the Assuming Institution (unless otherwise noted in subsequent amendments to 

the P&A agreement). 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 Non- DO Brokered Deposits $0 

II CDARS $1,155,784 

III Market Place Deposits (e.g. 

QuickRate/Bank Internet CD’s) $0 

Total deposits excluded from Calculation of premium $1,155,784 

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. 

DO Brokered Deposits (Cede & Co as Nominee for DTC), are typically excluded from Assumed Deposits in the P&A 

transaction. If, however, the terms of a particular transaction are altered and the DO Brokered Deposits pass to the 

Assuming Bank, they will similarly not be included in Assumed Deposits for purposes of calculating the deposit premium. 

II CDARS 

CDARS deposits pass to the Assuming Bank, but are excluded from Assumed Deposits when the deposit premium is 

calculated. 

Sonoma Valley Bank did participate in the CDARS program as of the date of the deposit download and did report 

CDARS deposits. 

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. 

Sonoma Valley Bank did not report QwickRate and similar deposits as identified above. A list will be updated postclosing with balances, if they are later found to exist as of the bank closing date. 

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EXHIBIT 2.3A 

FINAL NOTICE LETTER 

FINAL LEGAL NOTICE 

Claiming Requirements for Deposits 

Under 12 U.S.C. 1822(e) 

[Date] 

[Name of Unclaimed Depositor] 

[Address of Unclaimed Depositor] 

[Anytown, USA] 

Subject: [XXXXX – Name of Bank] 

[City, State] – In Receivership 

Dear [Sir/Madam]: 

As you may know, on [Date: Closing Date], the [Name of Bank (“The Bank”)] was 

closed and the Federal Deposit Insurance Corporation (“FDIC”) transferred [The Bank’s] accounts to 

[Name of Acquiring Institution]. 

According to federal law under 12 U.S.C., 1822(e), on [Date: eighteen months from the 

Closing Date], [Name of Acquiring Institution] must transfer the funds in your account(s) back to the 

FDIC if you have not claimed your account(s) with [Name of Acquiring Institution]. Based on the 

records recently supplied to us by [Name of Acquiring Institution], your account(s) currently fall into 

this category. 

This letter is your formal Legal Notice that you have until [Date: eighteen months from 

the Closing Date], to claim or arrange to continue your account(s) with [Name of Acquiring 

Institution]. There are several ways that you can claim your account(s) at [Name of Acquiring 

Institution]. It is only necessary for you to take any one of the following actions in order for your 

account(s) at [Name of Acquiring Institution] to be deemed claimed. In addition, if you have more than 

one account, your claim to one account will automatically claim all accounts: 

1.	 Write to [Name of Acquiring Institution] and notify them that you wish to keep your account(s) 

active with them. Please be sure to include the name of the account(s), the account number(s), the 

signature of an authorized signer on the account(s), name, and address. [Name of Acquiring 

Institution] address is: 

[123 Main Street 

Anytown, USA] 

2.	 Execute a new signature card on your account(s), enter into a new deposit agreement with [Name of 

Acquiring Institution], change the ownership on your account(s), or renegotiate the terms of your 

certificate of deposit account(s) (if any). 

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3.	 Provide [Name of Acquiring Institution] with a change of address form. 

4.	 Make a deposit to or withdrawal from your account(s). This includes writing a check on any account 

or having an automatic direct deposit credited to or an automatic withdrawal debited from an account. 

If you do not want to continue your account(s) with [Name of Acquiring Institution] for 

any reason, you can withdraw your funds and close your account(s). Withdrawing funds from one or 

more of your account(s) satisfies the federal law claiming requirement. If you have time deposits, such as 

certificates of deposit, [Name of Acquiring Institution] can advise you how to withdraw them without 

being charged an interest penalty for early withdrawal. 

If you do not claim ownership of your account(s) at [Name of Acquiring Institution by 

Date: eighteen months from the Closing Date] federal law requires [Name of Acquiring Institution] 

to return your deposits to the FDIC, which will deliver them as unclaimed property to the State indicated 

in your address in the Failed Institution’s records. If your address is outside of the United States, the 

FDIC will deliver the deposits to the State in which the Failed Institution had its main office. 12 U.S.C. § 

1822(e). If the State accepts custody of your deposits, you will have 10 years from the date of delivery to 

claim your deposits from the State. After 10 years you will be permanently barred from claiming your 

deposits. However, if the State refuses to take custody of your deposits, you will be able to claim them 

from the FDIC until the receivership is terminated. If you have not claimed your insured deposits before 

the receivership is terminated, and a receivership may be terminated at any time, all of your rights in those 

deposits will be barred. 

If you have any questions or concerns about these items, please contact [Bank 

Employee] at [Name of Acquiring Institution] by phone at [(XXX) XXX-XXXX]. 

Sincerely, 

[Name of Claims Specialist] 

[Title] 

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 ______________________________________ 

 

 

______________________ ________________________________ 

 

 

 

EXHIBIT 2.3B 

AFFIDAVIT OF MAILING 

AFFIDAVIT OF MAILING 

State of 

COUNTY OF 

I am employed as a [Title of Office] by the [Name of Acquiring Institution]. 

This will attest that on [Date of mailing], I caused a true and correct copy of the Final Legal Notice, 

attached hereto, to owners of unclaimed deposits of [Name of Failed Bank], City, State, to be prepared 

for deposit in the mail of the United States of America on behalf of the Federal Deposit Insurance 

Corporation. A list of depositors to whom the notice was mailed is attached. This notice was mailed to 

the depositor's last address as reflected on the books and records of the [Name of Failed Bank] as of the 

date of failure. 

[Name] 

[Title of Office] 

[Name of Acquiring Institution] 

Subscribed and sworn to before me this _______day of [Month, Year]. 

My commission expires: 

 [Name], Notary Public 

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EXHIBIT 3.2(c) -- VALUATION OF CERTAIN 

QUALIFIED FINANCIAL CONTRACTS
 

A. Scope 

Interest Rate Contracts - All interest rate swaps, forward rate agreements, interest rate 

futures, caps, collars and floors, whether purchased or written. 

Option Contracts - All put and call option contracts, whether purchased or written, on 

marketable securities, financial futures, foreign currencies, foreign exchange or foreign 

exchange futures contracts. 

Foreign Exchange Contracts - All contracts for future purchase or sale of foreign 

currencies, foreign currency or cross currency swap contracts, or foreign exchange 

futures contracts. 

B. Exclusions 

All financial contracts used to hedge assets and liabilities that are acquired by the 

Assuming Institution but are not subject to adjustment from Book Value. 

C. Adjustment 

The difference between the Book Value and market value as of Bank Closing. 

D. Methodology 

1. The price at which the Assuming Institution sells or disposes of Qualified 

Financial Contracts will be deemed to be the fair market value of such contracts, 

if such sale or disposition occurs at prevailing market rates within a predefined 

timetable as agreed upon by the Assuming Institution and the Receiver. 

2. In valuing all other Qualified Financial Contracts, the following principles will 

apply: 

(i) All known cash flows under swaps or forward exchange contracts shall be 

present valued to the swap zero coupon interest rate curve. 

(ii) All valuations shall employ prices and interest rates based on the actual 

frequency of rate reset or payment. 

(iii) Each tranche of amortizing contracts shall be separately valued. The total 

value of such amortizing contract shall be the sum of the values of its 

component tranches. 

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 (iv) For regularly traded contracts, valuations shall be at the midpoint of the 

bid and ask prices quoted by customary sources (e.g., The Wall Street 

Journal, Telerate, Reuters or other similar source) or regularly traded 

exchanges. 

(v) For all other Qualified Financial Contracts where published market quotes 

are unavailable, the adjusted price shall be the average of the bid and ask 

price quotes from three (3) securities dealers acceptable to the Receiver 

and Assuming Institution as of Bank Closing. If quotes from securities 

dealers cannot be obtained, an appraiser acceptable to the Receiver and the 

Assuming Institution will perform a valuation based on modeling, 

correlation analysis, interpolation or other techniques, as appropriate. 

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EXHIBIT 4.13
 

INTERIM ASSET SERVICING ARRANGEMENT
 

(a) With respect to each asset (or liability) designated from time to time by the 

Receiver to be serviced by the Assuming Institution pursuant to this Arrangement, including any 

Assets sold by the Receiver but with respect to which the Receiver has an obligation to service 

or provide servicing support. (such being designated as "Pool Assets"), during the term of this 

Arrangement, the Assuming Institution 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, or to such other person at such address as the Receiver may designate, 

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, or to such other person at such address and/or account as the Receiver may designate, 

all payments received on Pool Assets managed by the Assuming Institution 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 Institution shall not be 

required to initiate litigation or other collection proceedings against any obligor or any collateral 

with respect to any defaulted Loan. The Assuming Institution shall promptly notify the Receiver, 

at the address provided above in subparagraph (a)(vii), of any claims or legal actions regarding 

any Pool Asset. 

(b) The Receiver agrees to reimburse the Assuming Institution 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 a period of up 

to three hundred sixty-five (365) days after Bank Closing. 

(d) At any time during the term of this Arrangement, the Receiver may, upon written 

notice to the Assuming Institution, remove one or more Pool Assets from the Pool, at which time 

the Assuming Institution's responsibility with respect thereto shall terminate. 

(e) At the expiration of this Agreement or upon the termination of the Assuming 

Institution's responsibility with respect to any Pool Asset pursuant to paragraph (d) hereof, the 

Assuming Institution shall: 

(i) deliver to the Receiver (or its designee) all of the Credit Documents and 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 Institution shall perform such 

transitional services with regard to the Pool Assets as the Receiver may request. Transitional 

services may include, without limitation, assisting in any due diligence process deemed 

necessary by the Receiver and providing to the Receiver or its designee(s) (x) information and 

data regarding the Pool Assets, including, without limitation, system reports and data downloads 

sufficient to transfer the Pool Assets to another system or systems, and (y) access to employees 

of the Assuming Institution involved in the management of, or otherwise familiar with, the Pool 

Assets.; 

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