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.
(2) Both
parties are well informed or well advised, and acting in what they consider
their own best interests;
(3) A
reasonable time is allowed for exposure in the open market;
(4)
Payment is made in terms of cash in U.S. dollars or in terms of financial
arrangements comparable thereto; and
(5) The
price represents the normal consideration for the property sold unaffected by
special or creative financing or sales concessions granted by anyone associated
with the sale;
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as
determined as of Bank Closing by an appraiser chosen by the Assuming Bank from a
list of acceptable appraisers provided by the Receiver; any costs and fees
associated with such determination shall be shared equally by the Receiver and
the Assuming Bank, 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 Bank within seven (7) days after Bank
Closing; or (ii) with respect to property other than Bank Premises purchased
utilizing this valuation method, the price therefore as established by the
Receiver and agreed to by the Assuming Bank, or in the absence of such
agreement, as determined in accordance with clause (i)(a) above.
(i) loans
(including loans which have been charged off the Accounting Records of the
Failed Bank in whole or in part prior to March 31, 2009), 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.
(a) Assumed
Deposits, except those Deposits specifically listed on Schedule 2.1(a); provided, that as to any Deposits of public
money which are Assumed Deposits, the Assuming Bank agrees to properly secure
such Deposits with such of the Assets as appropriate which, prior to Bank
Closing, were pledged as security therefor by the Failed Bank, or with assets of
the Assuming Bank, if such securing Assets, if any, are insufficient to properly
secure such Deposits;
(b) liabilities
for indebtedness secured by mortgages, deeds of trust, chattel mortgages,
security interests or other liens on or affecting any Assets, if any; provided, that the assumption of any liability
pursuant to this paragraph shall be limited to the market value of the Assets
securing such liability as determined by the Receiver;
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(c) borrowings
from Federal Reserve Banks and Federal Home Loan Banks, 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; and overdrafts, debit
balances, service charges, reclamations, and adjustments to accounts with the
Federal Reserve Banks as reflected on the books and records of any such Federal
Reserve Bank within ninety (90) days after 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 credit card business, overdraft protection
plans, safe deposit business, safekeeping business or trust business, if
any;
(i) liabilities,
if any, for Commitments;
(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;
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(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; and
(m)
all asset-related offensive litigation liabilities and all asset-related
defensive litigation liabilities, but only to the extent such liabilities relate
to assets subject to a loss share agreement, and provided that all other
defensive litigation and any class actions with respect to credit card business
are retained by the Receiver.
Schedule
2.1 attached hereto and incorporated herein sets forth certain categories of
Liabilities Assumed and the aggregate Book Value of the Liabilities Assumed in
such categories. Such schedule is based upon the best information available to
the Receiver and may be adjusted as provided in Article VIII.
If,
within eighteen (18) months after Bank Closing, any depositor of the Failed Bank
does not claim or arrange to continue such depositor’s Deposit assumed pursuant
to Section 2.1 at the Assuming Bank, the Assuming Bank shall, within fifteen
(15) Business Days after the end of such eighteen (18) month period, (i) refund
to the 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 Bank in and to the Records previously transferred to the Assuming
Bank and other records generated or maintained by the Assuming Bank pertaining
to such Deposits. During such eighteen (18) month period, at the
request of the Receiver, the Assuming Bank promptly shall provide to the
Receiver schedules of unclaimed deposits in such form as may be prescribed by
the Receiver.
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(a) All
Assets and assets of the Failed Bank subject to an option to purchase by the
Assuming Bank shall be purchased for the amount, or the amount resulting from
the method specified for determining the amount, as specified on Schedule 3.2,
except as otherwise may be provided herein. Any Asset, asset of the Failed Bank
subject to an option to purchase or other asset purchased for which no purchase
price is specified on Schedule 3.2 or otherwise herein shall be purchased at its
Book Value. Loans or other assets charged off the Accounting Records of the
Failed Bank prior to March 31, 2009 shall be purchased at a price of
zero.
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(b)
The purchase price for securities (other than the capital stock of any Acquired
Subsidiary) purchased under Section 3.1 by the Assuming Bank shall be the market
value thereof as of Bank Closing, which market value shall be (i) the market
price for each such security quoted at the close of the trading day effective on
Bank Closing as published electronically by Bloomberg, L.P., or alternatively,
at the discretion of the Receiver, IDC/Financial Times (FT) Interactive Data;
(ii) provided, that if such market price is not
available for any such security, the Assuming Bank will submit a
bid for each such security within three days of notification/bid
request by the Receiver (unless a different time period is agreed to by the
Assuming Bank and the Receiver) and the Receiver, in its sole discretion will
accept or reject each such bid; and (iii) further provided in the absence of an
acceptable bid from the Assuming Bank, each such security shall not pass to the
Assuming Bank and shall be deemed to be an excluded asset
hereunder.
(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 Bank.
3.3 Manner of Conveyance; Limited Warranty; Nonrecourse;
Etc. THE CONVEYANCE OF ALL ASSETS,
INCLUDING REAL AND PERSONAL PROPERTY INTERESTS, PURCHASED BY THE ASSUMING BANK
UNDER THIS AGREEMENT SHALL BE MADE, AS NECESSARY, BY RECEIVER’S DEED OR
RECEIVER’S BILL OF SALE, “AS IS”, “WHERE IS”, WITHOUT RECOURSE AND, EXCEPT AS
OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT, WITHOUT ANY WARRANTIES
WHATSOEVER WITH RESPECT TO SUCH ASSETS, EXPRESS OR IMPLIED, WITH RESPECT TO
TITLE, ENFORCEABILITY, COLLECTIBILITY, DOCUMENTATION OR FREEDOM FROM LIENS OR
ENCUMBRANCES (IN WHOLE OR IN PART), OR ANY OTHER MATTERS.
(i)
During the period from Bank Closing to and including the Business Day
immediately preceding the Settlement Date, the Assuming Bank shall be entitled
to require the Receiver to purchase any Asset which the Assuming Bank can
establish is evidenced by forged or stolen instruments as of Bank Closing; provided, that, the Assuming Bank shall not have the right to require the
Receiver to purchase any such Asset with respect to which the Assuming Bank has
taken any action referred to in Section 3.4(a)(ii) with respect to such
Asset.
(ii)
At the end of the thirty (30)-day period following Bank Closing and at that time
only, in accordance with this Section 3.4, the Assuming Bank shall be entitled
to require the Receiver to purchase any remaining overdraft transferred to the
Assuming Bank pursuant to 3.1 which both was made after March 31, 2009 and was
not made pursuant to an overdraft protection plan or similar extension of
credit.
The
Assuming Bank shall transfer all such Assets to the Receiver without recourse,
and shall indemnify the Receiver against any and all claims of any Person
claiming by, through or under the Assuming Bank with respect to any such Asset,
as provided in Section 12.4.
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a
list of all Assets that the Assuming Bank requires the Receiver to
purchase;
(ii)
a
list of all Related Liabilities with respect to the Assets identified
pursuant to (i) above; and
(iii)
a
statement of the estimated Repurchase Price of each Asset identified
pursuant to (i) above as of the applicable Put
Date.
Such
notice shall be in the form prescribed by the Receiver or such other form to
which the Receiver shall consent. As provided in Section 9.6, the Assuming Bank
shall deliver to the Receiver such documents, Credit Files and such additional
information relating to the subject matter of the Put Notice as the Receiver may
request and shall provide to the Receiver full access to all other relevant
books and records.
(a) any
financial institution bonds, banker’s blanket bonds, or public liability, fire,
or extended coverage insurance policy or any other insurance policy of the
Failed Bank, or premium refund, unearned premium derived from cancellation, or
any proceeds payable with respect to any of the foregoing;
(b) any
interest, right, action, claim, or judgment against (i) any officer, director,
employee, accountant, attorney, or any other Person employed or retained by the
Failed Bank or any Subsidiary of the Failed Bank on or prior to Bank Closing
arising out of any act or omission of such Person in such capacity, (ii) any
underwriter of financial institution bonds, banker’s blanket bonds or any other
insurance policy of the Failed Bank, (iii) any shareholder or holding company of
the Failed Bank, or (iv) any other Person whose action or inaction may be
related to any loss (exclusive of any loss resulting from such Person’s failure
to pay on a Loan made by the Failed Bank) incurred by the Failed Bank; provided, that for the purposes hereof, the
acts, omissions or other events giving rise to any such claim shall have
occurred on or before Bank Closing, regardless of when any such claim is
discovered and regardless of whether any such claim is made with respect to a
financial institution bond, banker’s blanket bond, or any other insurance policy
of the Failed Bank in force as of Bank Closing;
(c) prepaid
regulatory assessments of the Failed Bank, if any;
(d) legal
or equitable interests in tax receivables of the Failed Bank, if any, including
any claims arising as a result of the Failed Bank having entered into any
agreement or otherwise being joined with another Person with respect to the
filing of tax returns or the payment of taxes;
(e) 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;
(f) 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 Bank does obtain an
option under Section 4.6, Section 4.7 or Section 4.8, as the case may be, with
respect thereto;
(g) owned
Bank Premises which the Receiver, in its discretion, determines may contain
environmentally hazardous substances;
(h) any
“goodwill,” as such term is defined in the instructions to the report of
condition prepared by banks examined by the Corporation in accordance with 12
C.F.R. Section 304.4, and other intangibles;
(i) any
criminal restitution or forfeiture orders issued in favor of the Failed
Bank;
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(a) The
Receiver may refuse to sell to the Assuming Bank, or the Assuming Bank agrees,
at the request of the Receiver set forth in a written notice to the Assuming
Bank, to assign, transfer, convey, and deliver to the Receiver all of the
Assuming Bank’s right, title and interest in and to, any Asset or asset
essential to the Receiver as determined by the Receiver in its discretion
(together with all Credit Documents evidencing or pertaining thereto), which may
include any Asset or asset that the Receiver determines to be:
(i)
made
to an officer, director, or other Person engaging in the affairs of the
Failed Bank, its Subsidiaries or Affiliates or any related entities of any
of the foregoing;
(ii)
the
subject of any investigation relating to any claim with respect to any
item described in Section 3.5(a) or (b), or the subject of, or potentially
the subject of, any legal
proceedings;
(iii)
made
to a Person who is an Obligor on a loan owned by the Receiver or the
Corporation in its corporate capacity or its capacity as receiver of any
institution;
(iv)
secured
by collateral which also secures any asset owned by the Receiver;
or
(v)
related
to any asset of the Failed Bank not purchased by the Assuming Bank under
this Article III or any liability of the Failed Bank not assumed by the
Assuming Bank under Article II.
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(b) Each such Asset or asset purchased by the
Receiver shall be purchased at a price equal to the Repurchase Price thereof
less the Related Liability Amount with respect to any Related Liabilities
related to such Asset or asset, in each case determined as of the date of the
notice provided by the Receiver pursuant to Section 3.6(a). The Receiver shall
pay the Assuming Bank not later than the twentieth (20th) Business Day following
receipt of related Credit Documents and Credit Files together with interest on
such amount at the Settlement Interest Rate for the period from and including
the date of receipt of such documents to and including the day preceding the day
on which payment is made. The Assuming Bank agrees to administer and manage each
such Asset or asset in accordance with usual and prudent banking standards and
business practices until each such 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 Bank 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 Bank with respect to any such Asset or asset, as
provided in Section 12.4.
(a) The
Assuming Bank shall, without further transfer, substitution, act or deed, to the
full extent permitted by law, succeed to the rights, obligations, properties,
assets, investments, deposits, agreements, and trusts of the Failed Bank under
trusts, executorships, administrations, guardianships, and agencies, and other
fiduciary or representative capacities, all to the same extent as though the
Assuming Bank had assumed the same from the Failed Bank prior to Bank Closing;
provided, that any liability based on the
misfeasance, malfeasance or nonfeasance of the Failed Bank, its directors,
officers, employees or agents with respect to the trust business is not assumed
hereunder.
(b) The
Assuming Bank shall, to the full extent permitted by law, succeed to, and be
entitled to take and execute, the appointment to all executorships,
trusteeships, guardianships and other fiduciary or representative capacities to
which the Failed Bank is or may be named in wills, whenever probated, or to
which the Failed Bank is or may be named or appointed by any other
instrument.
(c) In
the event additional proceedings of any kind are necessary to accomplish the
transfer of such trust business, the Assuming Bank agrees that, at its own
expense, it will take whatever action is necessary to accomplish such transfer.
The Receiver agrees to use reasonable efforts to assist the Assuming Bank in
accomplishing such transfer.
(d) The
Assuming Bank shall provide to the Receiver written verification of the assets
held in connection with the Failed Bank’s trust business within sixty (60) days
after Bank Closing.
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(i) The
Assuming Bank agrees to pay to the Receiver, or to appropriate third parties at
the direction of the Receiver, during and for the period of any occupancy by it
of (x) owned Bank Premises the market rental value, as determined by the
appraiser selected in accordance with the definition of Fair Market Value, and
all operating costs, and (y) leased Bank Premises, all operating costs with
respect thereto and to comply with all relevant terms of applicable leases
entered into by the Failed Bank, including without limitation the timely payment
of all rent. Operating costs include, without limitation all taxes, fees,
charges, utilities, insurance and assessments, to the extent not included in the
rental value or rent. If the Assuming Bank elects to purchase any owned Bank
Premises in accordance with Section 4.6(a), the amount of any rent paid (and
taxes paid to the Receiver which have not been paid to the taxing authority and
for which the Assuming Bank assumes liability) by the Assuming Bank with respect
thereto shall be applied as an offset against the purchase price
thereof.
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(ii) The
Assuming Bank agrees during the period of occupancy by it of owned or leased
Bank Premises, to pay to the Receiver rent for the use of all owned or leased
Furniture and Equipment and all owned or leased Fixtures located on such Bank
Premises for the period of such occupancy. Rent for such property owned by the
Failed Bank shall be the market rental value thereof, as determined by the
Receiver within sixty (60) days after Bank Closing. Rent for such leased
property shall be an amount equal to any and all rent and other amounts which
the Receiver incurs or accrues as an obligation or is obligated to pay for such
period of occupancy pursuant to all leases and contracts with respect to such
property. If the Assuming Bank purchases any owned Furniture and Equipment or
owned Fixtures in accordance with Section 4.6(f) or 4.6(h), the amount of any
rents paid by the Assuming Bank with respect thereto shall be applied as an
offset against the purchase price thereof.
(i) If
the Assuming Bank elects not to purchase any owned Bank Premises, the notice of
such election in accordance with Section 4.6(a) shall specify the date upon
which the Assuming Bank’s occupancy of such premises shall terminate, which date
shall not be later than ninety (90) days after the date of the Assuming Bank’s
notice not to exercise such option. The Assuming Bank promptly shall relinquish
and release to the Receiver such premises and the Furniture and Equipment and
Fixtures located thereon in the same condition as at Bank Closing, normal wear
and tear excepted. By occupying any such premises after the expiration of such
ninety (90)-day period, the Assuming Bank shall, at the Receiver’s option, (x)
be deemed to have agreed to purchase such Bank Premises, and to assume all
leases, obligations and liabilities with respect to leased Furniture and
Equipment and leased Fixtures located thereon and any ground lease with respect
to the land on which such premises are located, and (y) be required to purchase
all Furniture and Equipment and Fixtures owned by the Failed Bank and located on
such premises as of Bank Closing.
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(ii) If
the Assuming Bank elects not to accept an assignment of the lease or sublease
any leased Bank Premises, the notice of such election in accordance with Section
4.6(b) shall specify the date upon which the Assuming Bank’s occupancy of such
leased Bank Premises shall terminate, which date shall not be later than the
date which is one hundred eighty (180) days after Bank Closing. Upon vacating
such premises, the Assuming Bank shall relinquish and release to the Receiver
such premises and the Fixtures and the Furniture and Equipment located thereon
in the same condition as at Bank Closing, normal wear and tear excepted. By
failing to provide notice of its intention to vacate such premises prior to the
expiration of the option period specified in Section 4.6(b), or by occupying
such premises after the one hundred eighty (180)-day period specified above in
this paragraph (ii), the Assuming Bank shall, at the Receiver’s option, (x) be
deemed to have assumed all leases, obligations and liabilities with respect to
such premises (including any ground lease with respect to the land on which
premises are located), and leased Furniture and Equipment and leased Fixtures
located thereon in accordance with this Section 4.6 (unless the Receiver
previously repudiated any such lease), and (y) be required to purchase all
Furniture and Equipment and Fixtures owned by the Failed Bank at Fair Market
Value and located on such premises as of Bank Closing.
(a) The
Receiver hereby grants to the Assuming Bank an exclusive option for the period
of ninety (90) days commencing the day after Bank Closing to accept an
assignment from the Receiver of any or all Data Processing Leases to the extent
that such Data Processing Leases can be assigned.
(b) The
Assuming Bank shall (i) give written notice to the Receiver within the option
period specified in Section 4.7(a) of its intent to accept or decline an
assignment or sublease of any or all Data Processing Leases and promptly accept
an assignment or sublease of such Data Processing Leases, and (ii) give written
notice to the appropriate lessor(s) that it has accepted an assignment or
sublease of any such Data Processing Leases.
(c) The Receiver agrees to facilitate the
assignment or sublease of Data Processing Leases or the negotiation of new
leases or license agreements by the Assuming Bank; provided, that neither the
Receiver nor the Corporation shall be obligated to engage in litigation or make
payments to the Assuming Bank or to any third party in connection with
facilitating any such assumption, assignment, sublease or
negotiation.
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(d) The
Assuming Bank agrees, during its period of use of any property subject to a Data
Processing Lease, to pay to the Receiver or to appropriate third parties at the
direction of the Receiver all operating costs with respect thereto and to comply
with all relevant terms of the applicable Data Processing Leases entered into by
the Failed Bank, including without limitation the timely payment of all rent,
taxes, fees, charges, utilities, insurance and assessments.
(e) The
Assuming Bank shall, not later than fifty (50) days after giving the notice
provided in Section 4.7(b), (i) relinquish and release to the Receiver all
property subject to the relevant Data Processing Lease, in the same condition as
at Bank Closing, normal wear and tear excepted, or (ii) accept an assignment or
a sublease thereof or negotiate a new lease or license agreement under this
Section 4.7.
(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 ninety (90) days after Bank Closing, the Assuming Bank shall give
the Receiver written notice specifying whether it elects to assume or not to
assume each such agreement. Except as may be otherwise provided in this Article
IV, the Assuming Bank agrees to comply with the terms of each such agreement for
a period commencing on the day after Bank Closing and ending on: (i) in the case
of an agreement that provides for the rendering of services by the Failed Bank,
the date which is ninety (90) days after Bank Closing, and (ii) in the case of
an agreement that provides for the rendering of services to the Failed Bank, the
date which is thirty (30) days after the Assuming Bank has given notice to the
Receiver of its election not to assume such agreement; provided, that the Receiver can reasonably make
such service agreements available to the Assuming Bank. The Assuming Bank shall
be deemed by the Receiver to have assumed agreements for which no notification
is timely given. The Receiver agrees to assign, transfer, convey, and deliver to
the Assuming Bank all right, title and interest of the Receiver, if any, in and
to agreements the Assuming Bank assumes hereunder. In the event the Assuming
Bank elects not to accept an assignment of any lease (or sublease) or negotiate
a new lease for leased Bank Premises under Section 4.6 and does not otherwise
occupy such premises, the provisions of this Section 4.8(a) shall not apply to
service agreements related to such premises. The Assuming Bank agrees, during
the period it has the use or benefit of any such agreement, promptly to pay to
the Receiver or to appropriate third parties at the direction of the Receiver
all operating costs with respect thereto and to comply with all relevant terms
of such agreement.
(b) The
provisions of Section 4.8(a) regarding the Assuming Bank’s election to assume or
not assume certain agreements shall not apply to (i) agreements pursuant to
which the Failed Bank provides mortgage servicing for others or mortgage
servicing is provided to the Failed Bank by others, (ii) agreements that are
subject to Sections 4.1 through 4.7 and any insurance policy or bond referred to
in Section 3.5(a) or other agreement specified in Section 3.5, and (iii)
consulting, management or employment agreements, if any, between the Failed Bank
and its employees or other Persons. Except as otherwise expressly set forth
elsewhere in this Agreement, the Assuming Bank does not assume any liabilities
or acquire any rights under any of the agreements described in this Section
4.8(b).
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(a) The
Assuming Bank agrees to assist the Receiver, as provided in this Section 4.12,
in offering individuals who were employees or former employees of the Failed
Bank, or any of its Subsidiaries, and who, immediately prior to Bank Closing,
were receiving, or were eligible to receive, health insurance coverage or health
insurance continuation coverage from the Failed Bank (“Eligible Individuals”),
the opportunity to obtain health insurance coverage in the Corporation’s FIA
Continuation Coverage Plan which provides for health insurance continuation
coverage to such Eligible Individuals who are qualified beneficiaries of the
Failed Bank as defined in Section 607 of the Employee Retirement Income Security
Act of 1974, as amended (respectively, “qualified beneficiaries” and “ERISA”).
The Assuming Bank shall consult with the Receiver and not later than five (5)
Business Days after Bank Closing shall provide written notice to the Receiver of
the number (if available), identity (if available) and addresses (if available)
of the Eligible Individuals who are qualified beneficiaries of the Failed Bank
and for whom a “qualifying event” (as defined in Section 603 of ERISA) has
occurred and with respect to whom the Failed Bank’s obligations under Part 6 of
Subtitle B of Title I of ERISA have not been satisfied in full, and such other
information as the Receiver may reasonably require. The Receiver shall cooperate
with the Assuming Bank in order to permit it to prepare such notice and shall
provide to the Assuming Bank such data in its possession as may be reasonably
required for purposes of preparing such notice.
(b) The
Assuming Bank shall take such further action to assist the Receiver in offering
the Eligible Individuals who are qualified beneficiaries of the Failed Bank the
opportunity to obtain health insurance coverage in the Corporation’s FIA
Continuation Coverage Plan as the Receiver may direct. All expenses incurred and
paid by the Assuming Bank (i) in connection with the obligations of the Assuming
Bank under this Section 4.12, and (ii) in providing health insurance
continuation coverage to any Eligible Individuals who are hired by the Assuming
Bank and such employees’ qualified beneficiaries shall be borne by the Assuming
Bank.
(c) This
Section 4.12 is for the sole and exclusive benefit of the parties to this
Agreement, and for the benefit of no other Person (including any former employee
of the Failed Bank or any Subsidiary thereof or qualified beneficiary of such
former employee). Nothing in this Section 4.12 is intended by the parties, or
shall be construed, to give any Person (including any former employee of the
Failed Bank or any Subsidiary thereof or qualified beneficiary of such former
employee) other than the Corporation, the Receiver and the Assuming Bank any
legal or equitable right, remedy or claim under or with respect to the
provisions of this Section.
4.13
Agreement with Respect to Interim Asset
Servicing.> At any time after Bank Closing, the Receiver may
establish on its books an asset pool(s) and may transfer to such asset pool(s)
(by means of accounting entries on the books of the Receiver) all or any assets
and liabilities of the Failed Bank which are not acquired by the Assuming Bank,
including, without limitation, wholly unfunded Commitments and assets and
liabilities which may be acquired, funded or originated by the Receiver
subsequent to Bank Closing. The Receiver may remove assets (and liabilities)
from or add assets (and liabilities) to such pool(s) at any time in its
discretion. At the option of the Receiver, the Assuming Bank agrees to service,
administer, and collect such pool assets in accordance with and for the term set
forth in Exhibit 4.13 “Interim Asset Servicing Arrangement”.
4.14 Reserved.
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(a) Within
seven (7) days after Bank Closing, the Assuming Bank shall give (i) notice to
depositors of the Failed Bank of its assumption of the Deposit liabilities of
the Failed Bank, and (ii) any notice required under Section 2.2, by mailing to
each such depositor a notice with respect to such assumption and by advertising
in a newspaper of general circulation in the county or counties in which the
Failed Bank was located. The Assuming Bank agrees that it will obtain prior
approval of all such notices and advertisements from counsel for the Receiver
and that such notices and advertisements shall not be mailed or published until
such approval is received.
(b) The
Assuming Bank shall give notice by mail to depositors of the Failed Bank
concerning the procedures to claim their deposits, which notice shall be
provided to the Assuming Bank by the Receiver or the Corporation. Such notice
shall be included with the notice to depositors to be mailed by the Assuming
Bank pursuant to Section 5.3(a).
(c) If
the Assuming Bank proposes to charge fees different from those charged by the
Failed Bank before it establishes new deposit account relationships with the
depositors of the Failed Bank, the Assuming Bank shall give notice by mail of
such changed fees to such depositors.
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(a) In
accordance with Section 3.1, the Receiver assigns, transfers, conveys and
delivers to the Assuming Bank the following Records pertaining to the Deposit
liabilities of the Failed Bank assumed by the Assuming Bank under this
Agreement, except as provided in Section 6.4:
(i)
signature
cards, orders, contracts between the Failed Bank and its depositors and
Records of similar character;
(ii)
passbooks
of depositors held by the Failed Bank, deposit slips, cancelled checks and
withdrawal orders representing charges to accounts of
depositors;
and the
following Records pertaining to the Assets:
(iii)
records
of deposit balances carried with other banks, bankers or trust
companies;
(iv)
Loan
and collateral records and Credit Files and other
documents;
(v)
deeds,
mortgages, abstracts, surveys, and other instruments or records of title
pertaining to real estate or real estate
mortgages;
(vi)
signature
cards, agreements and records pertaining to Safe Deposit Boxes, if any;
and
(vii)
records
pertaining to the credit card business, trust business or safekeeping
business of the Failed Bank, if
any.
(b) The
Receiver, at its option, may assign and transfer to the Assuming Bank by a
single blanket assignment or otherwise, as soon as practicable after Bank
Closing, any other Records not assigned and transferred to the Assuming Bank as
provided in this Agreement, including but not limited to loan disbursement
checks, general ledger tickets, official bank checks, proof transactions
(including proof tapes) and paid out loan files.
The
Assuming Bank has submitted to the Receiver an asset premium (discount) bid of
($108,145,048.00) and a Deposit premium bid of 0%. 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. The First Loss Tranche shall be determined by adding (i)
the asset premium (discount) bid, (ii) the Deposit premium bid, and (iii) the
Equity Adjustment. If the First Loss Tranche is a positive number,
then this is the Losses on Single Family Shared-Loss Loans and Net Charge-offs
on Shared Loss Assets that the Assuming Bank will incur before loss-sharing
commences under Exhibits 4.15A and 4.15B. If the First Loss Tranche
is a negative number, the Corporation shall pay such amount by wire transfer to
the Assuming Bank by the end of the first business day following Bank Closing
and loss sharing shall commence immediately.
(a) In
the event any bookkeeping omissions or errors are discovered in preparing any
pro forma statement or in completing the transfers and assumptions contemplated
hereby, the parties hereto agree to correct such errors and omissions, it being
understood that, as far as practicable, all adjustments will be made consistent
with the judgments, methods, policies or accounting principles utilized by the
Failed Bank in preparing and maintaining Accounting Records, except that
adjustments made pursuant to this Section 8.2(a) are not intended to bring the
Accounting Records of the Failed Bank into accordance with generally accepted
accounting principles.
(b) If
the Receiver discovers at any time subsequent to the date of this Agreement that
any claim exists against the Failed Bank which is of such a nature that it would
have been included in the liabilities assumed under Article II had the existence
of such claim or the facts giving rise thereto been known as of Bank Closing,
the Receiver may, in its discretion, at any time, require that such claim be
assumed by the Assuming Bank in a manner consistent with the intent of this
Agreement. The Receiver will make appropriate adjustments to the pro forma
statement provided by the Receiver to the Assuming Bank pursuant to Section 8.1
as may be necessary.
(a) The
Receiver shall have the right, in its discretion, to (i) defend or settle any
claim or suit against the Assuming Bank with respect to which the Receiver has
indemnified the Assuming Bank in the same manner and to the same extent as
provided in Article XII, and (ii) defend or settle any claim or suit against the
Assuming Bank with respect to any Liability Assumed, which claim or suit may
result in a loss to the Receiver arising out of or related to this Agreement, or
which existed against the Failed Bank on or before Bank Closing. The exercise by
the Receiver of any rights under this Section 9.3(a) shall not release the
Assuming Bank with respect to any of its obligations under this
Agreement.
(b) In
the event any action at law or in equity shall be instituted by any Person
against the Receiver and the Corporation as codefendants with respect to any
asset of the Failed Bank retained or acquired pursuant to this Agreement by the
Receiver, the Receiver agrees, at the request of the Corporation, to join with
the Corporation in a petition to remove the action to the United States District
Court for the proper district. The Receiver agrees to institute, with or without
joinder of the Corporation as coplaintiff, any action with respect to any such
retained or acquired asset or any matter connected therewith whenever notice
requiring such action shall be given by the Corporation to the
Receiver.
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(a) In
connection with any investigation, proceeding or other matter with respect to
any asset or liability of the Failed Bank retained by the Receiver, or any asset
of the Failed Bank acquired by the Receiver pursuant to this Agreement, the
Assuming Bank shall cooperate to the extent reasonably required by the
Receiver.
(b) In
addition to its obligations under Section 6.4, the Assuming Bank shall provide
representatives of the Receiver access at reasonable times and locations without
other limitation or qualification to (i) its directors, officers, employees and
agents and those of the Subsidiaries acquired by the Assuming Bank, 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 Bank as requested by the Receiver and the costs of
duplication thereof shall be borne by the Receiver.
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(c) Not
later than ten (10) days after the Put Notice pursuant to Section 3.4 or the
date of the notice of transfer of any Loan by the Assuming Bank to the Receiver
pursuant to Section 3.6, the Assuming Bank shall deliver to the Receiver such
documents with respect to such Loan as the Receiver may request, including
without limitation the following: (i) all related Credit Documents (other than
certificates, notices and other ancillary documents), (ii) a certificate setting
forth the principal amount on the date of the transfer and the amount of
interest, fees and other charges then accrued and unpaid thereon, and any
restrictions on transfer to which any such Loan is subject, and (iii) all Credit
Files, and all documents, microfiche, microfilm and computer records (including
but not limited to magnetic tape, disc storage, card forms and printed copy)
maintained by, owned by, or in the possession of the Assuming Bank or any
Affiliate of the Assuming Bank relating to the transferred Loan.
The
obligations of the parties to this Agreement are subject to the Receiver and the
Corporation having received at or before Bank Closing evidence reasonably
satisfactory to each of any necessary approval, waiver, or other action by any
governmental authority, the board of directors of the Assuming Bank, or other
third party, with respect to this Agreement and the transactions contemplated
hereby, the closing of the Failed Bank and the appointment of the Receiver, the
chartering of the Assuming Bank, and any agreements, documents, matters or
proceedings contemplated hereby or thereby.
(i) Neither
the Assuming Bank nor any of its Subsidiaries is in violation of any statute,
regulation, order, decision, judgment or decree of, or any restriction imposed
by, the United States of America, any State, municipality or other political
subdivision or any agency of any of the foregoing, or any court or other
tribunal having jurisdiction over the Assuming Bank or any of its Subsidiaries
or any assets of any such Person, or any foreign government or agency thereof
having such jurisdiction, with respect to the conduct of the business of the
Assuming Bank or of any of its Subsidiaries, or the ownership of the properties
of the Assuming Bank or any of its Subsidiaries, which, either individually or
in the aggregate with all other such violations, would materially and adversely
affect the business, operations or condition (financial or otherwise) of the
Assuming Bank or the ability of the Assuming Bank to perform, satisfy or observe
any obligation or condition under this Agreement.
(ii) Neither
the execution and delivery nor the performance by the Assuming Bank of this
Agreement will result in any violation by the Assuming Bank of, or be in
conflict with, any provision of any applicable law or regulation, or any order,
writ or decree of any court or governmental authority.
12.1 Indemnification of
Indemnitees>. From and after Bank Closing and subject to the
limitations set forth in this Section and Section 12.6 and compliance by the
Indemnitees with Section 12.2, the Receiver agrees to indemnify and hold
harmless the Indemnitees against any and all costs, losses, liabilities,
expenses (including attorneys’ fees) incurred prior to the assumption of defense
by the Receiver pursuant to paragraph (d) of Section 12.2, judgments, fines and
amounts paid in settlement actually and reasonably incurred in connection with
claims against any Indemnitee based on liabilities of the Failed Bank that are
not assumed by the Assuming Bank pursuant to this Agreement or subsequent to the
execution hereof by the Assuming Bank or any Subsidiary or Affiliate of the
Assuming Bank for which indemnification is provided hereunder in (a) of this
Section 12.1, subject to certain exclusions as provided in (b) of this Section
12.1:
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(1)
claims based on the rights of any shareholder or former shareholder as such of
(x) the Failed Bank, or (y) any Subsidiary or Affiliate of the Failed
Bank;
(2)
claims based on the rights of any creditor as such of the Failed Bank, or any
creditor as such of any director, officer, employee or agent of the Failed Bank,
with respect to any indebtedness or other obligation of the Failed Bank arising
prior to Bank Closing;
(3)
claims based on the rights of any present or former director, officer, employee
or agent as such of the Failed Bank or of any Subsidiary or Affiliate of the
Failed Bank;
(4)
claims based on any action or inaction prior to Bank Closing of the Failed Bank,
its directors, officers, employees or agents as such, or any Subsidiary or
Affiliate of the Failed Bank, or the directors, officers, employees or agents as
such of such Subsidiary or Affiliate;
(5)
claims based on any malfeasance, misfeasance or nonfeasance of the Failed Bank,
its directors, officers, employees or agents with respect to the trust business
of the Failed Bank, if any;
(6)
claims based on any failure or alleged failure (not in violation of law) by the
Assuming Bank to continue to perform any service or activity previously
performed by the Failed Bank which the Assuming Bank is not required to perform
pursuant to this Agreement or which arise under any contract to which the Failed
Bank was a party which the Assuming Bank elected not to assume in accordance
with this Agreement and which neither the Assuming Bank nor any Subsidiary or
Affiliate of the Assuming Bank has assumed subsequent to the execution
hereof;
(7)
claims arising from any action or inaction of any Indemnitee, including for
purposes of this Section 12.1(a)(7) the former officers or employees of the
Failed Bank or of any Subsidiary or Affiliate of the Failed Bank that is taken
upon the specific written direction of the Corporation or the Receiver, other than any action or
inaction taken in a manner constituting bad faith, gross negligence or willful
misconduct; and
(8)
claims based on the rights of any depositor of the Failed Bank whose deposit has
been accorded “withheld payment” status and/or returned to the Receiver or
Corporation in accordance with Section 9.5 and/or has become an “unclaimed
deposit” or has been returned to the Corporation or the Receiver in accordance
with Section 2.3;
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(b) provided, that, with respect to
this Agreement, except for paragraphs (7) and (8) of Section 12.1(a), no
indemnification will be provided under this Agreement for any:
(1)
judgment or fine against, or any amount paid in settlement (without the written
approval of the Receiver) by, any Indemnitee in connection with any action that
seeks damages against any Indemnitee (a “counterclaim”) arising with respect to
any Asset and based on any action or inaction of either the Failed Bank, its
directors, officers, employees or agents as such prior to Bank Closing, unless
any such judgment, fine or amount paid in settlement exceeds the greater of (i)
the Repurchase Price of such Asset, or (ii) the monetary recovery sought on such
Asset by the Assuming Bank in the cause of action from which the counterclaim
arises; and in such event the Receiver will provide indemnification only in the
amount of such excess; and no indemnification will be provided for any costs or
expenses other than any costs or expenses (including attorneys’ fees) which, in
the determination of the Receiver, have been actually and reasonably incurred by
such Indemnitee in connection with the defense of any such counterclaim; and it
is expressly agreed that the Receiver reserves the right to intervene, in its
discretion, on its behalf and/or on behalf of the Receiver, in the defense of
any such counterclaim;
(2)
claims with respect to any liability or obligation of the Failed Bank that is
expressly assumed by the Assuming Bank pursuant to this Agreement or subsequent
to the execution hereof by the Assuming Bank or any Subsidiary or Affiliate of
the Assuming Bank;
(3)
claims with respect to any liability of the Failed Bank to any present or former
employee as such of the Failed Bank or of any Subsidiary or Affiliate of the
Failed Bank, which liability is expressly assumed by the Assuming Bank pursuant
to this Agreement or subsequent to the execution hereof by the Assuming Bank or
any Subsidiary or Affiliate of the Assuming Bank;
(4)
claims based on the failure of any Indemnitee to seek recovery of damages from
the Receiver for any claims based upon any action or inaction of the Failed
Bank, its directors, officers, employees or agents as fiduciary, agent or
custodian prior to Bank Closing;
(5)
claims based on any violation or alleged violation by any Indemnitee of the
antitrust, branching, banking or bank holding company or securities laws of the
United States of America or any State thereof;
(6)
claims based on the rights of any present or former creditor, customer, or
supplier as such of the Assuming Bank or any Subsidiary or Affiliate of the
Assuming Bank;
(7)
claims based on the rights of any present or former shareholder as such of the
Assuming Bank or any Subsidiary or Affiliate of the Assuming Bank regardless of
whether any such present or former shareholder is also a present or former
shareholder of the Failed Bank;
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(8)
claims, if the Receiver determines that the effect of providing such
indemnification would be to (i) expand or alter the provisions of any warranty
or disclaimer thereof provided in Section 3.3 or any other provision of this
Agreement, or (ii) create any warranty not expressly provided under this
Agreement;
(9)
claims which could have been enforced against any Indemnitee had the Assuming
Bank not entered into this Agreement;
(10)
claims based on any liability for taxes or fees assessed with respect to the
consummation of the transactions contemplated by this Agreement, including
without limitation any subsequent transfer of any Assets or Liabilities Assumed
to any Subsidiary or Affiliate of the Assuming Bank;
(11)
except as expressly provided in this Article XII, claims based on any action or
inaction of any Indemnitee, and nothing in this Agreement shall be construed to
provide indemnification for (i) the Failed Bank, (ii) any Subsidiary or
Affiliate of the Failed Bank, or (iii) any present or former director, officer,
employee or agent of the Failed Bank or its Subsidiaries or Affiliates; provided, that the Receiver, in its discretion,
may provide indemnification hereunder for any present or former director,
officer, employee or agent of the Failed Bank or its Subsidiaries or Affiliates
who is also or becomes a director, officer, employee or agent of the Assuming
Bank or its Subsidiaries or Affiliates;
(12)
claims or actions which constitute a breach by the Assuming Bank of the
representations and warranties contained in Article XI;
(13)
claims arising out of or relating to the condition of or generated by an Asset
arising from or relating to the presence, storage or release of any hazardous or
toxic substance, or any pollutant or contaminant, or condition of such Asset
which violate any applicable Federal, State or local law or regulation
concerning environmental protection; and
(14)
claims based on, related to or arising from any asset, including a loan,
acquired or liability assumed by the Assuming Bank, other than pursuant to this
Agreement.
(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;
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(c) cooperate and take all steps, as
the Receiver may reasonably require, to preserve and protect any defense to such
claim;
(d) in
the event suit is brought with respect to such claim, upon reasonable prior
notice, afford to the Receiver the right, which the Receiver may exercise in its
sole discretion, to conduct the investigation, control the defense and effect
settlement of such claim, including without limitation the right to designate
counsel and to control all negotiations, litigation, 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.
(a) claims based on any and all
liabilities or obligations of the Failed Bank assumed by the Assuming Bank
pursuant to this Agreement or subsequent to the execution hereof by the Assuming
Bank or any Subsidiary or Affiliate of the Assuming Bank, whether or not any
such liabilities subsequently are sold and/or transferred, other than any claim
based upon any action or inaction of any Indemnitee as provided in paragraph (7)
or (8) of Section 12.1(a); and
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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 Bank
with respect to Assets transferred to the Receiver pursuant to Section 3.4 or
3.6), other than any action or inaction of any Indemnitee as provided in
paragraph (7) or (8) of Section 12.1(a).
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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THE LIST(S)
ATTACHED TO THIS SCHEDULE (OR SUBSCHEDULE(S)) AND THE INFORMATION THEREIN, IS AS
OF THE DATE OF THE MOST RECENT PERTINENT DATA MADE AVAILABLE TO THE ASSUMING
BANK AS PART OF THE INFORMATION PACKAGE. IT WILL BE ADJUSTED TO
REFLECT THE COMPOSITION AND BOOK VALUE OF THE LOANS AND ASSETS AS OF THE DATE OF
BANK CLOSING. THE LIST(S) MAY NOT INCLUDE ALL LOANS AND ASSETS (E.G., CHARGED
OFF LOANS). THE LIST(S) MAY BE REPLACED WITH A MORE ACCURATE LIST POST
CLOSING.
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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)
credit
card business, if any, including all outstanding extensions of credit and
offensive litigation, but excluding any class action lawsuits related to
the credit card business:
Book
Value
(f)
Safe
Deposit Boxes and related business, safekeeping business and trust
business, if any:
Book
Value
(g)
Records
and other documents:
Book
Value
(h)
capital
stock of any Acquired Subsidiaries:
Book
Value
(i)
amounts
owed to the Failed Bank by any Acquired Subsidiary:
Book
Value
(j)
assets
securing Deposits of public money, to the extent not otherwise purchased
hereunder:
Book
Value
(k)
Overdrafts
of customers:
Book
Value
(l)
rights,
if any, with respect to Qualified Financial Contracts.
As
provided in Section
3.2(c)
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rights
of the Failed Bank to provide mortgage servicing for others and to have
mortgage servicing provided to the Failed Bank by others and related
contracts.
Book
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 7 -Accounts Excluded from Calculation of Deposit
Franchise Bid Premium
Irwin
Union Bank, FSB
Columbus,
IN
The
accounts identified below will pass to the Assuming Bank (unless otherwise
noted). When calculating the premium to be paid on Assumed
Deposits in a P&A transaction, the FDIC will exclude the following
categories of deposit accounts:
Category
Description
#
of Accounts
Amount
I
DO Brokered
Deposits
7
$
52,514,069
II
Non- DO Brokered
Deposits
13
$
19,259,140
III
CDARS
IIII
Market Place
Deposits
Total deposits excluded from
Calculation of premium
$
71,773,209
Category
Description
I Brokered
Deposits
Brokered
deposit accounts are accounts for which the “depositor of record” is an agent,
nominee, or custodian who deposits funds for a principal or principals to whom
“pass-through” deposit insurance coverage may be extended. The FDIC
separates brokered deposit accounts into 2 categories: 1) Depository
Organization (DO) Brokered Deposits and 2) Non-Depository Organization (Non-DO)
Brokered Deposits. This distinction is made by the FDIC to facilitate
our role as Receiver and Insurer. These terms will not appear on
other “brokered deposit” reports generated by the institution.
Non-DO
Brokered Deposits pass to the Assuming Bank, but are excluded from Assumed
Deposits when the deposit premium is calculated. Please see the
attached “Schedule 7 Non-DO Broker Deposit Detail Report” for a listing of these
accounts. This list will be updated post closing with balances as of
Bank Closing date.
DO
Brokered Deposits (Cede & Co as Nominee for DTC), are typically excluded
from Assumed Deposits in the P&A transaction. A list of these
accounts is provided on “Schedule 2.1 DO Brokered Deposit Detail
Report”. If, however, the terms of a particular transaction are
altered and the DO Brokered Deposits pass to the Assuming Bank, they will not be
included in Assumed Deposits for purposes of calculating the deposit
premium.
II
CDARS
CDARS
deposits pass to the Assuming Bank, but are excluded from Assumed Deposits when
the deposit premium is calculated.
Irwin
Union, FSB did not participate in the CDARS program as of the date of the
deposit download. If CDARS deposits are taken between the date of the
deposit download and the Bank Closing Date, they will be identified post closing
and made part of Schedule 7 to the P&A Agreement.
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“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.
Irwin
Union, FSB does have Qwickrate deposits as identified above. The
Qwickrate deposits are reported as time deposits in the Call
Report. Irwin Union, FSB uses “Branch 4” on their system to identify
both brokered and Qwickrate deposits. Please see the attached
Schedule 7 – Qwickrate Deposit Detail Report for a listing of these accounts as
of March 31, 2009. This list will be updated post closing with
balances as of Bank Closing date.
This
schedule provides account categories and balances as of the date of the deposit
download, or as indicated. The deposit franchise bid premium will be
calculated using account categories and balances as of Bank Closing Date that
are reflected in the general ledger or subsystem as described
above. The final numbers for Schedule 7 will be provided post
closing.
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EXHIBIT
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 Bank 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 Bank 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 Bank 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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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 Bank as of Bank Closing. If quotes from securities dealers
cannot be obtained, an appraiser acceptable to the Receiver and the
Assuming Bank will perform a valuation based on modeling, correlation
analysis, interpolation or other techniques, as
appropriate.]
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(a) With
respect to each asset (or liability) designated from time to time by the
Receiver to be serviced by the Assuming Bank pursuant to this Arrangement (such
being designated as “Pool Assets”), during the term of this Arrangement, the
Assuming Bank shall:
(i)
Promptly apply payments received with respect to any Pool Assets;
(ii)
Reverse and return insufficient funds checks;
(iii) Pay
(A) participation payments to participants in Loans, as and when received; and
(B) tax and insurance bills on Pool Assets as they come due, out of escrow funds
maintained for purposes;
(iv)
Maintain accurate records reflecting (A) the payment history of Pool Assets,
with updated information received concerning changes in the address or identity
of the obligors and (B) usage of data processing equipment and employee services
with respect to servicing duties;
(v) Send
billing statements to obligors on Pool Assets to the extent that such statements
were sent by the Failed Bank;
(vi) Send
notices to obligors who are in default on Loans (in the same manner as the
Failed Bank);
(vii)
Send to the Receiver, Attn: Managing Liquidator, at the address provided in
Section 13.7 of the Agreement, via overnight delivery: (A) on a weekly basis,
weekly reports for the Pool Assets, including, without limitation, reports
reflecting collections and the trial balances, transaction journals and loan
histories for Pool Assets having activity, together with copies of (1) checks
received, (2) insufficient funds checks returned, (3) checks for payment to
participants or for taxes and insurance, (4) pay-off requests, (5) notices to
defaulted obligors, and (6) data processing and employee logs and (B) any other
reports, copies or information as may be periodically or from time to time
requested;
(viii)
Remit on a weekly basis to the Receiver, Attn: Division of Finance, Cashier
Unit, Operations, at the address in (vii), via wire transfer to the account designated by
the Receiver, all payments received on Pool Assets managed by the Assuming Bank
or at such time and place and in such manner as may be directed by the
Receiver;
(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.
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1 – Modified Whole Bank w/ Loss Share – P&A
Notwithstanding
anything to the contrary in this Section, the Assuming Bank shall not be
required to initiate litigation or other collection proceedings against any
obligor or any collateral with respect to any defaulted Loan. The Assuming Bank
shall promptly notify the Receiver, at the address provided above in
subparagraph (a)(vii), of any claims or legal actions regarding any Pool
Asset.
(b) The
Receiver agrees to reimburse the Assuming Bank for actual, reasonable and
necessary expenses incurred in connection with the performance of duties
pursuant to this Arrangement, including expenses of photocopying, postage and
express mail, and data processing and employee services (based upon the number
of hours spent performing servicing duties).
(c) The
Assuming Bank shall provide the services described herein for an initial period
of ninety (90) days after Bank Closing. At the option of the Receiver,
exercisable by notice given not later than ten (10) days prior to the end of
such initial period or a renewal period, the Assuming Bank shall continue to
provide such services for such renewal period(s) as designated by the Receiver,
up to the Settlement Date.
(d) At
any time during the term of this Arrangement, the Receiver may, upon written
notice to the Assuming Bank, remove one or more Pool Assets from the Pool, at
which time the Assuming Bank’s responsibility with respect thereto shall
terminate.
(e) At
the expiration of this Agreement or upon the termination of the Assuming Bank’s
responsibility with respect to any Pool Asset pursuant to paragraph (d) hereof,
the Assuming Bank shall:
(i)
deliver to the Receiver (or its designee) all of the Credit Documents and Pool
Records relating to the Pool Assets; and
(ii)
cooperate with the Receiver to facilitate the orderly transition of managing the
Pool Assets to the Receiver (or its designee).
(f) At
the request of the Receiver, the Assuming Bank shall perform such transitional
services with regard to the Pool Assets as the Receiver may request.
Transitional services may include, without limitation, assisting in any due
diligence process deemed necessary by the Receiver and providing to the Receiver
or its designee(s) (x) information and data regarding the Pool Assets,
including, without limitation, system reports and data downloads sufficient to
transfer the Pool Assets to another system or systems, and (y) access to
employees of the Assuming Bank involved in the management of, or otherwise
familiar with, the Pool Assets.
Module
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This
agreement for the reimbursement of loss sharing on certain single family
residential mortgage loans (the “Single Family Shared-Loss Agreement”) shall
apply when the Assuming Bank purchases Single Family Shared-Loss Loans as that
term is defined herein. The terms hereof shall modify and supplement, as
necessary, the terms of the Purchase and Assumption Agreement to which this
Single Family Shared-Loss Agreement is attached as Exhibit 4.15A and
incorporated therein. To the extent any inconsistencies may arise between the
terms of the Purchase and Assumption Agreement and this Single Family
Shared-Loss Agreement with respect to the subject matter of this Single Family
Shared-Loss Agreement, the terms of this Single Family Shared-Loss Agreement
shall control. References in this Single Family Shared-Loss Agreement to a
particular Section shall be deemed to refer to a Section in this Single Family
Shared-Loss Agreement, unless the context indicates that it is intended to be a
reference to a Section of the Purchase and Assumption Agreement.
ARTICLE
I — DEFINITIONS
The
capitalized terms used in this Single Family Shared-Loss Agreement that are not
defined in this Single Family Shared-Loss Agreement are defined in the Purchase
and Assumption Agreement. In addition to the terms defined above, defined below
are certain additional terms relating to loss-sharing, as used in this Single
Family Shared-Loss Agreement.
Not later
than fifteen (15) days after the end of each Shared-Loss Month, beginning with
the month in which the Commencement Date occurs and ending in the month in which
the tenth anniversary of the Commencement Date occurs, the Assuming Bank shall
deliver to the Receiver a certificate, signed by an officer of the Assuming Bank
involved in, or responsible for, the administration and servicing of the Single
Family Shared-Loss Loans whose name appears on a list of servicing officers
furnished by the Assuming Bank to the Receiver, (a “Servicing Officer”) setting
forth in such form and detail as the Receiver may reasonably specify (a “Monthly
Certificate”):
(i)
(A) a schedule substantially in the form of Exhibit 1 listing:
(i) each
Single Family Shared-Loss Loan for which a Loss Amount (calculated in accordance
with the applicable Exhibit) is being claimed, the related Loss Amount for each
Single Family Shared-Loss Loan, and the total Monthly Loss Amount for all Single
Family Shared-Loss Loans;
(ii) each
Single Family Shared-Loss Loan for which a Recovery Amount was received, the
Recovery Amount for each Single Family Shared-Loss Loan, and the total Recovery
Amount for all Single Family Shared-Loss Loans;
Module
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(iii) the
total Monthly Loss Amount for all Single Family Shared-Loss Loans minus the
total monthly Recovery Amount for all Single Family Shared-Loss
Loans;
(iv) the
Cumulative Shared-Loss Amount as of the beginning and end of the
month;
(v) the
Monthly Shared Loss Amount;
(vi) the
result obtained in (v) times 80%, or times 95% if the Stated Threshold has been
reached, which in either case is the amount to be paid under Section 2.1(d) of
this Single Family Shared-Loss Agreement by the Receiver to the Assuming Bank if
the amount is a positive number, or by the Assuming Bank to the Receiver if the
amount is a negative number;
(ii)
(B)
for each of the Single Family Shared-Loss Loans for which a Loss is
claimed for that Shared-Loss Month, a schedule showing the calculation of
the Loss Amount using the form and methodology shown in Exhibit 2a,
Exhibit 2b, or Exhibit 2c, as
applicable.
(iii)
(C)
For each of the Restructured Loans where a gain or loss is realized in a
sale under Section 4.1 or 4.2, a schedule showing the calculation using
the form and methodology shown in Exhibit
2d.
(iv)
(D)
a portfolio performance and summary schedule substantially in the form
shown in Exhibit 3.
(i)
the servicing file in machine-readable format including but not limited to
the following fields for each outstanding Single Family Shared-Loss Loan,
as applicable:
(A)
Loan
number
(B)
FICO
score
(C)
Origination
date
(D)
Original
principal amount
(E)
Maturity
date
(F)
Paid-to
date
(G)
Last
payment date
(H)
Loan
status (bankruptcy, in foreclosure,
etc.)
(I)
Delinquency
counters
(J)
Current
principal balance
(K)
Current
escrow account balance
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If
adjustable: index, margin, next interest rate reset
date
(S)
Payment/Interest
rate cap and/or floor
(T)
Underwriting
type (Full doc, Alt Doc, No Doc)
(U)
Lien
type (1st,
2nd)
(V)
Amortization
type (amortizing or I/O)
(W)
Property
address, including city, state, zip
code
(X)
A
code indicating whether the Mortgaged Property is owner
occupied
(Y)
Property
type (single-family detached, condominium, duplex,
etc.)
(vi)
(ii)
An Excel file for ORE held as a result of foreclosure on a Single Family
Shared-Loss Loan listing:
(A)
Foreclosure
date
(B)
Unpaid
loan principal balance
(C)
Appraised
value or BPO value, as applicable
(D)
Projected
liquidation date
Notwithstanding
the foregoing, the Assuming Bank shall not be required to provide any of the
foregoing information to the extent it is unable to do so as a result of the
Failed Bank’s or Receiver’s failure to provide information
required to produce the information set forth in this Section 2.1(c); provided,
that the Assuming Bank shall, consistent with Customary Servicing Procedures
seek to produce any such missing information or improve any inaccurate
information previously provided to it.
(a) Within
ninety (90) days after the end of each fiscal year during which the Receiver
makes any payment to the Assuming Bank under this Single Family Shared-Loss
Agreement, the Assuming Bank shall deliver to the Corporation and to the
Receiver a report signed by its independent public accountants stating that they
have reviewed the terms of this Single Family Shared-Loss Agreement and that, in
the course of their annual audit of the Assuming Bank’s books and records,
nothing has come to their attention suggesting that any computations required to
be made by the Assuming Bank during such year pursuant to this Article II were
not made by the Assuming Bank in accordance herewith. In the event that the
Assuming Bank cannot comply with the preceding sentence, it shall promptly
submit to the Receiver corrected computations together with a report signed by
its independent public accountants stating that, after giving effect to such
corrected computations, nothing has come to their attention suggesting that any
computations required to be made by the Assuming Bank during such year pursuant
to this Article II were not made by the Assuming Bank in accordance herewith. In
such event, the Assuming Bank and the Receiver shall make all such accounting
adjustments and payments as may be necessary to give effect to each correction
reflected in such corrected computations, retroactive to the date on which the
corresponding incorrect computation was made. It is the intention of this
provision to align the timing of the audit required under this Single-Family
Shared-Loss Agreement with the examination audit required pursuant to 12 CFR
Section 363.
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(b) The
Receiver or the FDIC in its corporate capacity (“Corporation”) may perform an
audit or audits to determine the Assuming Bank’s compliance with the provisions
of this Single Family Shared-Loss Agreement, including this Article II, by
providing not less than ten (10) Business Days’ prior written notice. Assuming
Bank shall provide access to pertinent records and proximate working space in
Assuming Bank’s facilities. The scope and duration of any such audit shall be
within the reasonable discretion of the Receiver or the Corporation, but shall
in no event be administered in a manner that unreasonably interferes with the
operation of the Assuming Bank’s business. The Receiver or the Corporation, as
the case may be, shall bear the expense of any such audit. In the event that any
corrections are necessary as a result of such an audit or audits, the Assuming
Bank and the Receiver shall make such accounting adjustments and payments as may
be necessary to give retroactive effect to such corrections.
(i)
manage and administer each Single Family Shared-Loss Loan in accordance with
Assuming Bank’s usual and prudent business and banking practices and Customary
Servicing Procedures;
(ii)
exercise its best business judgment in managing, administering and collecting
amounts owed on the Single Family Shared-Loss Loans;
(iii) use
commercially reasonable efforts to maximize Recoveries with respect to Losses on
Single Family Shared-Loss Loans without regard to the effect of maximizing
collections on assets held by the Assuming Bank or any of its Affiliates that
are not Single Family Shared-Loss Loans;
(iv)
retain sufficient staff (in Assuming Bank’s discretion) to perform its duties
hereunder; and
(v) other
than as provided in Section 2.1(a), comply with the terms of the Modification
Guidelines for any Single Family Shared-Loss Loans meeting the requirements set
forth therein. For the avoidance of doubt, the Assuming Bank may propose
exceptions to Exhibit 5 (the FDIC Loan Modification Program) for a group of
Loans with similar characteristics, with the objectives of (1) minimizing the
loss to the Assuming Bank and the FDIC and (2) maximizing the opportunity for
qualified homeowners to remain in their homes with affordable mortgage
payments.
Module
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(b) Any
transaction with or between any Affiliate of the Assuming Bank with respect to
any Single Family Shared-Loss Loan including, without limitation, the execution
of any contract pursuant to which any Affiliate of the Assuming Bank will
manage, administer or collect any of the Single Family Shared-Loss Loans will be
provided to FDIC for informational purposes and if such transaction is not
entered into on an arm’s length basis on commercially reasonable terms such
transaction shall be subject to the prior written approval of the
Receiver.
(a) Assuming
Bank shall use its best efforts to determine which loans are “Related Loans”, as
hereinafter defined. The Assuming Bank shall not manage, administer or collect
any “Related Loan” in any manner that would have the effect of increasing the
amount of any collections with respect to the Related Loan to the detriment of
the Single Family Shared-Loss Loan to which such loan is related. A “Related
Loan” means any loan or extension of credit held by the Assuming Bank at any
time on or prior to the end of the Final Shared-Loss Month that is made to an
Obligor of a Single Family Shared-Loss Loan.
(b) The
Assuming Bank shall prepare and deliver to the Receiver with the Monthly
Certificates for the calendar months ending June 30 and December 31, a schedule
of all Related Loans on the Accounting Records of the Assuming Bank as of the
end of each such semi-annual period.
ARTICLE
V — LOSS-SHARING NOTICES GIVEN TO RECEIVER AND PURCHASER
All
notices, demands and other communications hereunder shall be in writing and
shall be delivered by hand, or overnight courier, receipt requested, addressed
to the parties as follows:
If
to Receiver, to:
Federal Deposit Insurance Corporation as Receiver
for Irwin Union, FSB
Division of Resolutions and Receiverships
550 17th Street, N.W.
Washington, D.C. 20429
Attention: Ralph Malami, Manager, Capital Markets
with
a copy to:
Federal
Deposit Insurance Corporation
as
Receiver for Irwin Union, FSB
Room
E7056
3501
Fairfax Drive, Arlington, VA 2226
Attn:
Special Issues Unit
With
respect to a notice under Section 3.5 of this Single Family
Shared-Loss
Agreement,
copies of such notice shall be sent to:
Federal
Deposit Insurance Corporation
Legal
Division 1601 Bryan St.
Dallas,
Texas 75201
Attention:
Regional Counsel
If
to Assuming Bank, to:
First
Financial Bank, National Association
4000
Smith Road, Suite 400
Cincinnati,
OH 45209
Attention:
J. Franklin Hall
Executive Vice President and Chief Financial Officer
with
copy to: Gregory Gehlmann
Such
Persons and addresses may be changed from time to time by notice given pursuant
to the provisions of this Article V. Any notice, demand or other communication
delivered pursuant to the provisions of this Article V shall be deemed to have
been given on the date actually received.
(a) In
the event a dispute arises about the interpretation, application, calculation of
Loss, or calculation of payments or otherwise with respect to this Single Family
Shared-Loss Agreement (“SF Shared-Loss Dispute Item”), then the Receiver and the
Assuming Bank shall make every attempt in good faith to resolve such items
within sixty (60) days following the receipt of a written description of the SF
Shared-Loss Dispute Item, with notification of the possibility of taking the
matter to arbitration (the date on which such 60-day period expires, or any
extension of such period as the parties hereto may mutually agree to in writing,
herein called the “Resolution Deadline Date”). If the Receiver and the Assuming
Bank resolve all such items to their mutual satisfaction by the Resolution
Deadline Date, then within thirty (30) days following such resolution, any
payment arising out such resolution shall be made arising from the settlement of
the SF Shared-Loss Dispute.
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(b) If
the Receiver and the Assuming Bank fail to resolve any outstanding SF
Shared-Loss Dispute Items by the Resolution Deadline Date, then either party may
notify the other of its intent to submit the SF Shared-Loss Dispute Item to
arbitration pursuant to the provisions of this Article VII. Failure of either
party to notify the other of its intent to submit any unresolved SF Shared-Loss
Dispute Item to arbitration within thirty (30) days following the Resolution
Deadline Date (the date on which such thirty (30) day period expires is herein
called the “Arbitration Deadline Date”) shall be deemed an acceptance of such SF
Shared-Loss Dispute not submitted to arbitration, as well as a waiver of the
submitting party’s right to dispute such non-submitted SF Shared-Loss Dispute
Item but not a waiver of any similar claim which may arise in the
future.
(c) If
a SF Shared-Loss Dispute Item is submitted to arbitration, it shall be governed
by the rules of the American Arbitration Association (the “AAA”), except as
otherwise provided herein. Either party may submit a matter for arbitration by
delivering a notice, prior to the Arbitration Deadline Date, to the other party
in writing setting forth:
(i)
A
brief description of each SF Shared-Loss Dispute Item submitted for
arbitration;
(ii)
A
statement of the moving party’s position with respect to each SF
Shared-Loss Dispute Item submitted for
arbitration;
(iii)
The
value sought by the moving party, or other relief requested regarding each
SF Shared-Loss Dispute Item submitted for arbitration, to the extent
reasonably calculable; and
(iv)
The
name and address of the arbiter selected by the moving party (the “Moving
Arbiter”), who shall be a neutral, as determined by the
AAA.
Failure
to adequately include any information above shall not be deemed to be a waiver
of the parties right to arbitrate so long as after notification of such failure
the moving party cures such failure as promptly as reasonably
practicable.
(d) The
non-moving party shall, within thirty (30) days following receipt of a notice of
arbitration pursuant to this Section 7.1, deliver a notice to the moving party
setting forth:
(i)
The
name and address of the arbiter selected by the non-moving party (the
“Respondent Arbiter”), who shall be a neutral, as determined by the
AAA;
(ii)
A
statement of the position of the respondent with respect to each Dispute
Item; and
(iii)
The
ultimate resolution sought by the respondent or other relief, if any, the
respondent deems is due the moving party with respect to each SF
Shared-Loss Dispute Item.
Failure
to adequately include any information above shall not be deemed to be a waiver
of the non-moving party’s right to defend such arbitration so long as after
notification of such failure the non-moving party cures such failure as promptly
as reasonably practicable
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(e) The
Moving Arbiter and Respondent Arbiter shall select a third arbiter from a list
furnished by the AAA. In accordance with the rules of the AAA, the three (3)
arbiters shall constitute the arbitration panel for resolution of each SF
Loss-Share Dispute Item. The concurrence of any two (2) arbiters shall be deemed
to be the decision of the arbiters for all purposes hereunder. The arbitration
shall proceed on such time schedule and in accordance with the Rules of
Commercial Arbitration of the AAA then in effect, as modified by this Section
7.1. The arbitration proceedings shall take place at such location as the
parties thereto may mutually agree, but if they cannot agree, then they will
take place at the offices of the Corporation in Washington, DC, or Arlington,
Virginia.
(f) The
Receiver and Assuming Bank shall facilitate the resolution of each outstanding
SF Shared-Loss Dispute Item by making available in a prompt and timely manner to
one another and to the arbiters for examination and copying, as appropriate, all
documents, books, and records under their respective control and that would be
discoverable under the Federal Rules of Civil Procedure.
(g) The
arbiters designated pursuant to subsections (c), (d) and (e) hereof shall
select, with respect to each Dispute Item submitt
