PURCHASE AND ASSUMPTION AGREEMENT ALL DEPOSITS AMONG FEDERAL DEPOSIT INSURANCE CORPORATION, RECEIVER OF FIRST NATIONAL BANK SAVANNAH, GEORGIA FEDERAL DEPOSIT INSURANCE CORPORATION and THE SAVANNAH BANK, N.A., SAVANNAH, GEORGIA DATED AS OF JUNE 25, 2010
ALL
DEPOSITS
AMONG
FEDERAL
DEPOSIT INSURANCE CORPORATION,
RECEIVER
OF FIRST NATIONAL BANK
SAVANNAH,
GEORGIA
FEDERAL
DEPOSIT INSURANCE CORPORATION
and
THE
SAVANNAH BANK, N.A.,
SAVANNAH,
GEORGIA
DATED
AS OF
JUNE
25, 2010
TABLE
OF CONTENTS
|
ARTICLE
I
|
DEFINITIONS
|
2
|
||
|
ARTICLE
II
|
ASSUMPTION
OF LIABILITIES
|
9
|
||
|
2.1
|
Liabilities
Assumed by Assuming Institution
|
9
|
||
|
2.2
|
Interest
on Deposit Liabilities
|
10
|
||
|
2.3
|
Unclaimed
Deposits
|
11
|
||
|
2.4
|
Employee
Benefit Plans
|
11
|
||
|
ARTICLE
III
|
PURCHASE
OF ASSETS
|
12
|
||
|
3.1
|
Assets
Purchased by Assuming Institution
|
12
|
||
|
3.2
|
Asset
Purchase Price
|
13
|
||
|
3.3
|
Manner
of Conveyance; Limited Warranty; Nonrecourse; Etc
|
13
|
||
|
3.4
|
Puts
of Assets to the Receiver
|
14
|
||
|
3.5
|
Assets
Not Purchased by Assuming Institution
|
16
|
||
|
3.6
|
Assets
Essential to Receiver
|
17
|
||
|
ARTICLE
IV
|
ASSUMPTION
OF CERTAIN DUTIES AND OBLIGATIONS
|
18
|
||
|
4.1
|
Continuation
of Banking Business
|
18
|
||
|
4.2
|
Agreement
with Respect to Credit Card Business
|
19
|
||
|
4.3
|
Agreement
with Respect to Safe Deposit Business
|
19
|
||
|
4.4
|
Agreement
with Respect to Safekeeping Business
|
19
|
||
|
4.5
|
Agreement
with Respect to Trust Business
|
20
|
||
|
4.6
|
Agreement
with Respect to Bank Premises
|
20
|
||
|
4.7
|
Agreement
with Respect to Leased Data Processing Equipment
|
23
|
||
|
4.8
|
Agreement
with Respect to Certain Existing Agreements
|
25
|
||
|
4.9
|
Informational
Tax Reporting
|
25
|
||
|
4.10
|
Insurance
|
25
|
||
|
4.11
|
Services
for Receiver and Corporation
|
26
|
||
|
4.12
|
Agreement
with Respect to Continuation of Group Health Plan Coverage for Former
Employees of the Failed Bank
|
26
|
||
|
4.13
|
Agreement
with Respect to Interim Asset Servicing
|
27
|
||
|
4.14
|
Agreement
with Respect to Option to Purchase Loan Pools
|
27
|
||
|
ii
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
|
ARTICLE
V
|
DUTIES
WITH RESPECT TO DEPOSITORS OF THE FAILED BANK
|
28
|
||
|
5.1
|
Payment
of Checks, Drafts and Orders
|
28
|
||
|
5.2
|
Certain
Agreements Related to Deposits
|
28
|
||
|
5.3
|
Notice
to Depositors
|
28
|
||
|
ARTICLE
VI
|
RECORDS
|
29
|
||
|
6.1
|
Transfer
of Records
|
29
|
||
|
6.2
|
Delivery
of Assigned Records
|
29
|
||
|
6.3
|
Preservation
of Records
|
29
|
||
|
6.4
|
Access
to Records; Copies
|
30
|
||
|
ARTICLE
VII
|
BID;
INITIAL PAYMENT
|
30
|
||
|
ARTICLE
VIII
|
ADJUSTMENTS
|
30
|
||
|
8.1
|
Pro
Forma Statement
|
30
|
||
|
8.2
|
Correction
of Errors and Omissions; Other Liabilities
|
|||
|
8.3
|
Payments
|
31
|
||
|
8.4
|
Interest
|
31
|
||
|
8.5
|
Subsequent
Adjustments
|
32
|
||
|
ARTICLE
IX
|
CONTINUING
COOPERATION
|
32
|
||
|
9.1
|
General
Matters
|
32
|
||
|
9.2
|
Additional
Title Documents
|
32
|
||
|
9.3
|
Claims
and Suits
|
32
|
||
|
9.4
|
Payment
of Deposits
|
33
|
||
|
9.5
|
Withheld
Payments
|
33
|
||
|
9.6
|
Proceedings
with Respect to Certain Assets and Liabilities
|
33
|
||
|
9.7
|
Information
|
34
|
||
|
ARTICLE
X
|
CONDITION
PRECEDENT
|
34
|
||
|
ARTICLE
XI
|
REPRESENTATIONS
AND WARRANTIES OF THE ASSUMING INSTITUTION
|
34
|
||
|
iii
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
|
ARTICLE
XII
|
INDEMNIFICATION
|
36
|
||
|
12.1
|
Indemnification
of Indemnitees
|
36
|
||
|
12.2
|
Conditions
Precedent to Indemnification
|
39
|
||
|
12.3
|
No
Additional Warranty
|
39
|
||
|
12.4
|
Indemnification
of Corporation and Receiver
|
40
|
||
|
12.5
|
Obligations
Supplemental
|
40
|
||
|
12.6
|
Criminal
Claims
|
40
|
||
|
12.7
|
Limited
Guaranty of the Corporation
|
41
|
||
|
12.8
|
Subrogation
|
41
|
||
|
ARTICLE
XIII
|
MISCELLANEOUS
|
41
|
||
|
13.1
|
Entire
Agreement
|
41
|
||
|
13.2
|
Headings
|
41
|
||
|
13.3
|
Counterparts
|
41
|
||
|
13.4
|
Governing
Law
|
41
|
||
|
13.5
|
Successors
|
42
|
||
|
13.6
|
Modification;
Assignment
|
42
|
||
|
13.7
|
Notice
|
42
|
||
|
13.8
|
Manner
of Payment
|
43
|
||
|
13.9
|
Costs,
Fees and Expenses
|
43
|
||
|
13.10
|
Waiver
|
43
|
||
|
13.11
|
Severability
|
43
|
||
|
13.12
|
Term
of Agreement
|
44
|
||
|
13.13
|
Survival
of Covenants, Etc
|
44
|
||
|
SCHEDULES
|
||||
|
2.1
|
Certain
Liabilities Assumed
|
46
|
||
|
2.1(a)
|
Excluded
Deposit Liability Accounts
|
47
|
||
|
3.1
|
Certain
Assets Purchased
|
50
|
||
|
3.1(e)
|
Loans
Fully Secured by Assumed Deposits
|
51
|
||
|
3.1(i)
|
Acquired
Subsidiaries
|
52
|
||
|
3.2
|
Purchase
Price of Assets or assets
|
53
|
||
|
3.5(k)
|
Securities
Not Purchased
|
55
|
||
|
6.3
|
Data
Retention Catalog
|
56
|
||
|
7
|
Calculation
of Deposit Premium
|
58
|
||
|
iv
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
|
EXHIBITS
|
||||
|
2.3A
|
Final
Notice Letter
|
95
|
||
|
2.3B
|
Affidavit
of Mailing
|
97
|
||
|
3.2(c)
|
Valuation
of Certain Qualified Financial Contracts
|
98
|
||
|
4.13
|
Interim
Asset Servicing Arrangement
|
100
|
||
|
v
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
ALL
DEPOSITS
THIS AGREEMENT, made and
entered into as of June 25, 2010, by and among the FEDERAL DEPOSIT INSURANCE
CORPORATION, RECEIVER of FIRST NATIONAL BANK, SAVANNAH, GEORGIA (the
"Receiver"), THE SAVANNAH BANK,
N.A., organized under the laws of the United States of America, and
having its principal place of business in Savannah, Georgia (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 First National Bank (the "Failed Bank") pursuant to
applicable law and the Corporation was appointed Receiver thereof;
and
WHEREAS, the Assuming
Institution desires to purchase certain assets and assume certain deposit and
other liabilities of the Failed Bank on the terms and conditions set forth in
this Agreement; and
WHEREAS, pursuant to 12 U.S.C.
Section 1823(c)(2)(A), the Corporation may provide assistance to the Assuming
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:
|
1
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
ARTICLE
I
DEFINITIONS
Capitalized
terms used in this Agreement shall have the meanings set forth in this Article
I, or elsewhere in this Agreement. As used herein, words imparting the singular
include the plural and vice versa.
"Accounting
Records" means
the general ledger and subsidiary ledgers and supporting schedules which support
the general ledger balances.
"Acquired
Subsidiaries" has
the meaning provided in Section 3.1.
"Affiliate" of any Person means any
director, officer, or employee of that Person and any other Person (i) who is
directly or indirectly controlling, or controlled by, or under direct or
indirect common control with, such Person, or (ii) who is an affiliate of such
Person as the term "affiliate" is defined in Section 2 of the Bank Holding
Company Act of 1956, as amended, 12 U.S.C. Section 1841.
"Agreement" means this Purchase and
Assumption Agreement by and among the Assuming 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 March 26, 2010.
"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
|
2
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
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 an Acquired Subsidiary shall be determined from
the investment in subsidiary and related accounts on the "bank only"
(unconsolidated) balance sheet of the Failed Bank based on the equity method of
accounting. Without limiting the generality of the foregoing, (i) the Book Value
of a Liability Assumed shall include all accrued and unpaid interest thereon as
of Bank Closing, and (ii) the Book Value of a Loan shall reflect adjustments for
earned interest, or unearned interest (as it relates to the "rule of 78s" or
add-on-interest loans, as applicable), if any, as of Bank Closing, adjustments
for the portion of earned or unearned loan-related credit life and/or disability
insurance premiums, if any, attributable to the Failed Bank as of Bank Closing,
and adjustments for Failed Bank Advances, if any, in each case as determined for
financial reporting purposes. The Book Value of an Asset shall not include any
adjustment for loan premiums, discounts or any related deferred income, 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.
|
3
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
"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;
|
4
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
(3) A
reasonable time is allowed for exposure in the open market;
(4)
Payment is made in terms of cash in U.S. dollars or in terms of financial
arrangements comparable thereto; and
(5) The
price represents the normal consideration for the property sold unaffected by
special or creative financing or sales concessions granted by anyone associated
with the sale;
as
determined as of Bank Closing by an appraiser mutually acceptable to the
Receiver and the Assuming 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 therefor as established by
the Receiver and agreed to by the Assuming Institution, or in the absence of
such agreement, as determined in accordance with clause (i)(a)
above.
"Fixtures" means those leasehold
improvements, additions, alterations and installations constituting all or a
part of Bank Premises and which were acquired, added, built, installed or
purchased at the expense of the Failed Bank, regardless of the holder of legal
title thereto as of Bank Closing.
"Furniture
and Equipment"
means the furniture and equipment (other than Safe Deposit Boxes, motor
vehicles and leased data processing equipment, including hardware and software),
leased or owned by the Failed Bank and reflected on the books of the Failed Bank
as of Bank Closing, including without limitation automated teller machines,
carpeting, furniture, office machinery (including personal computers), shelving,
office supplies, telephone, surveillance and security systems, and artwork.
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
|
5
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
Assumed
and the negative Bid Amount minus the aggregate
purchase price of the Assets and assets purchased. The Initial Payment shall be
payable by the Corporation to the Assuming Institution if (i) the Liabilities
Assumed are greater than the sum of the positive Bid Amount and the Assets and
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, participation agreements, interests in participations, overdrafts of
customers (including but not limited to overdrafts made pursuant to an overdraft
protection plan or similar extensions of credit in connection with a deposit
account), revolving commercial lines of credit, home equity lines of credit,
United States and/or State-guaranteed student loans, and lease financing
contracts;
(ii) all
Liens, rights (including rights of set-off), remedies, powers, privileges,
demands, claims, priorities, equities and benefits owned or held by, or accruing
or to accrue to or for the benefit of, the holder of the obligations or
instruments referred to in clause (i) above, including but not limited to those
arising under or based upon Credit Documents, casualty insurance policies and
binders, standby letters of credit, mortgagee title insurance policies and
binders, payment bonds and performance bonds at any time and from time to time
existing with respect to any of the obligations or instruments referred to in
clause (i) above; and
(iii) all
amendments, modifications, renewals, extensions, refinancings, and refundings of
or for any of the foregoing;
provided, that there shall be
excluded from the definition of Loans (a) any portion of the foregoing which the
Failed Bank or the Assuming Institution (or any of their respective
Subsidiaries) holds not for its own account but solely as agent or fiduciary
for, or otherwise as
|
6
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
representative
of, any other Person, (b) any loans which have been charged off the Accounting
Records of the Failed Bank in whole or in part up to and including the Bid
Valuation Date, (c) Commitments and (d) amounts owing under Qualified Financial
Contracts.
"Obligor" means each Person liable for
the full or partial payment or performance of any Loan, whether such Person is
obligated directly, indirectly, primarily, secondarily, jointly, or
severally.
"Payment
Date" means the
first Business Day after Bank Closing.
"Person" means any individual,
corporation, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, or government or any 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.
|
7
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
"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) the
amount paid by the Assuming Institution, 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 for Loans repurchased pursuant to
Section 3.4(a).
If any
Asset or asset is purchased as part of a group of Assets or assets for Book
Value and/or as a percentage of Book Value, the amount paid by the Assuming
Institution, for purposes of (a), above, shall be the Book Value, as of the date
of Bank Closing, of the individual Asset or asset being repurchased multiplied,
if applicable, by the percentage paid.
"Safe
Deposit Boxes"
means the safe deposit boxes of the Failed Bank, if any, including the
removable safe deposit boxes and safe deposit stacks in the Failed Bank's
vault(s), all rights and benefits under rental agreements with respect to such
safe deposit boxes, and all keys and combinations thereto.
"Settlement
Date" means the
first Business Day immediately prior to the day which is 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.
|
8
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
"Settlement
Interest Rate"
means, for the first calendar quarter or portion thereof during which
interest accrues, the rate determined by the Receiver to be equal to the
equivalent coupon issue yield on six (6)-month United States Treasury Bills in
effect as of Bank Closing as published in The Wall Street
Journal; provided, that if no such
equivalent coupon issue yield is available as of Bank Closing, the equivalent
coupon issue yield for such Treasury Bills most recently published in The Wall Street
Journal prior to Bank Closing shall be used. Thereafter, the rate shall
be adjusted to the rate determined by the Receiver to be equal to the equivalent
coupon issue yield on such Treasury Bills in effect as of the first day of each
succeeding calendar quarter during which interest accrues as published in The Wall Street
Journal.
"Subsidiary" has the meaning set forth in
Section 3(w)(4) of the Federal Deposit Insurance Act, 12 U.S.C. Section
1813(w)(4), as amended.
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)
|
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
|
|
9
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
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 amounts owed to any Acquired
Subsidiary.
|
|
|
(j)
|
liabilities,
if any, with respect to Qualified Financial
Contracts.
|
|
|
(k)
|
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.
|
Schedule
2.1 attached hereto and incorporated herein sets forth certain categories of
Liabilities Assumed and the aggregate Book Value of the Liabilities Assumed in
such categories. Such schedule is based upon the best information available to
the Receiver and may be adjusted as provided in Article VIII.
2.2 Interest
on Deposit Liabilities.
The Assuming 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
|
10
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
depositor's
Deposit, whether or not the Assuming Institution elects to pay interest in
accordance with any deposit agreement formerly existing between the Failed Bank
and such depositor; and further provided,
that if such
Deposit has been pledged to secure an obligation of the depositor or other
party, any withdrawal thereof shall be subject to the terms of the agreement
governing such pledge. The Assuming Institution shall give notice to such
depositors as provided in Section 5.3 of the rate(s) of interest which it has
determined to pay and of such withdrawal rights.
2.3 Unclaimed
Deposits. 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.
|
11
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
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
following:
|
|
(a)
|
cash
and receivables from depository institutions (including Federal Reserve
Banks and Federal Home Loan Banks), including cash items in the process of
collection, plus any accrued interest thereon computed to and including
Bank Closing;
|
|
|
(b)
|
securities
(other than the capital stock of Subsidiaries of the Failed Bank and those
securities referred to in Section 3.5(k), if any), plus any accrued
interest thereon computed to and including Bank
Closing;
|
|
|
(c)
|
federal
funds sold and repurchase agreements, if any, including any accrued
interest thereon computed to and including Bank
Closing;
|
|
|
(d)
|
Omitted;
|
|
|
(e)
|
Deposit
Secured Loans, but only such of those Deposit Secured Loans which also are
listed on Schedule 3.1(e), if any (including any such Deposit Secured Loan
that the Failed Bank charged-off in whole or in part during the period
from the date after the Bid Valuation Date and up to and including Bank
Closing);
|
|
|
(f)
|
credit
card business, if any, including all outstanding extensions of credit,
subject to Section 4.2;
|
|
|
(g)
|
Safe
Deposit Boxes and related business, safekeeping business and trust
business, if any, subject to Section 4.3, 4.4 or 4.5,
respectively;
|
|
|
(h)
|
Records
and other documents as provided in Section
6.1;
|
|
|
(i)
|
capital
stock of the Subsidiaries of the Failed Bank listed on Schedule 3.1(i), if
any (the "Acquired Subsidiaries");
|
|
|
(j)
|
amounts
owed to the Failed Bank by any Acquired
Subsidiary;
|
|
|
(k)
|
assets
securing Deposits of public money, to the extent not otherwise purchased
hereunder; and
|
|
|
(l)
|
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).
|
|
12
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
|
|
(m)
|
rights,
if any, with respect to Qualified Financial
Contracts.
|
|
|
(n)
|
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.
|
Schedule
3.1 attached hereto and incorporated herein sets forth certain categories of
Assets. Such schedule(s) is based upon the best information available to the
Receiver and may be adjusted as provided in Article VIII. Assets are purchased
hereunder by the Assuming Institution subject to all liabilities for
indebtedness collateralized by Liens affecting such Assets to the extent
provided in Section 2.1.
3.2 Asset
Purchase Price.
(a)
All Assets and assets of the Failed Bank subject to an option
to purchase by the Assuming 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 Fair Market Value.
(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 XXXX OF SALE, "AS IS", "WHERE IS", WITHOUT
RECOURSE AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS
AGREEMENT,
|
13
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
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.
3.4 Puts of Assets to the
Receiver.
(a)
Puts
Within 30 Days After Bank Closing. During the thirty (30)-day
period following Bank Closing and only during such period (which thirty (30)-day
period may be extended in writing in the
sole absolute discretion of the Receiver for any Loan), in accordance with this
Section 3.4, the Assuming Institution shall be entitled to require the Receiver
to purchase any Deposit Secured Loan transferred to the Assuming Institution
pursuant to Section 3.1(e) which is not fully secured by Assumed Deposits or
deposits at other insured depository institutions due to either insufficient
Assumed Deposit or deposit collateral or deficient documentation regarding such
collateral; provided with regard to any 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(l) 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
|
|
14
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
|
|
(E)
|
sold,
assigned or transferred all or a portion of such Loan to a third party
(whether with or without recourse).
|
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
|
15
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
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 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;
|
16
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
(d)
legal or equitable
interests in tax receivables of the Failed Bank, if any, including any claims
arising as a result of the Failed Bank having entered into any agreement or
otherwise being joined with another Person with respect to the filing of tax
returns or the payment of taxes;
(e)
Federal Reserve Bank and Federal Home
Loan Bank stock, if any;
(f)
amounts reflected on the Accounting Records
of the Failed Bank as of Bank Closing as a general or specific loss reserve or
contingency account, if any;
(g)
owned and leased Bank Premises and owned and
leased Furniture and Equipment and Fixtures and data processing equipment
(including hardware and software) located on Bank Premises, if any; provided, that the
Assuming 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 amounts owed to the Failed Bank by any
Subsidiary of the Failed Bank other than an Acquired Subsidiary;
(j)
any "goodwill," as such term is defined in the
instructions to the report of condition prepared by banks examined by the
Corporation in accordance with 12 C.F.R. Section 304.3, and other
intangibles;
(k)
any security if, in the discretion of the Receiver, the
value of such security either cannot be determined or is determined to be zero
pursuant to Section 3.2(b), all private label asset backed securities,
including, but not limited to, those listed on Schedule 3.5(k), and any other
security listed on Schedule 3.5(k), if any; and
(l)
any criminal restitution or forfeiture orders issued in
favor of the Failed Bank.
The
Assuming Institution only acquires assets and rights as provided in this
Agreement. The foregoing shall not be construed to imply that any particular
asset or right listed otherwise would have been sold or assigned or that any
asset or right not listed is sold or assigned.
3.6 Assets Essential to
Receiver.
(a) The
Receiver may refuse to sell to the Assuming 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:
|
17
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
(i) made
to an officer, director, or other Person engaging in the affairs of the Failed
Bank, its Subsidiaries or Affiliates or any related entities of any of the
foregoing;
(ii) the
subject of any investigation relating to any claim with respect to any item
described in Section 3.5(a) or (b), or the subject of, or potentially the
subject of, any legal proceedings;
(iii)
made to a Person who is an Obligor on a loan owned by the Receiver or the
Corporation in its corporate capacity or its capacity as receiver of any
institution;
(iv)
secured by collateral which also secures any asset owned by the Receiver;
or
(v)
related to any asset of the Failed Bank not purchased by the Assuming
Institution under this Article III or any liability of the Failed Bank not
assumed by the Assuming Institution under Article II.
(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 Loan is purchased by the Receiver. All
transfers with respect to Loans under this Section 3.6 shall be made as provided
in Section 9.6. The Assuming Institution shall transfer all such Assets or
assets and Related Liabilities to the Receiver without recourse, and shall
indemnify the Receiver against any and all claims of any Person claiming by,
through or under the Assuming Institution with respect to any such Asset or
asset, as provided in Section 12.4.
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
|
18
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
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.
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.
|
19
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
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 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 xxxxx, 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 the 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
|
20
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
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 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.
|
21
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
(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 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 inventories 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.
|
22
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
(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 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, data processing equipment (including hardware and
software) and check processing and similar operating equipment owned by the
Failed Bank and located at any owned or leased Bank Premises that the Assuming
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.
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
|
23
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
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.
|
24
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
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 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
|
25
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
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.
4.11 Services
for Receiver and Corporation. For the period commencing on
the day following Bank Closing and ending on the one hundred eightieth (180th)
day thereafter, the Assuming Institution agrees to provide to the Receiver and
the Corporation, without charge, adequate and suitable office space (including
parking facilities and vault space), furniture, equipment (including
photocopying and telecopying machines), email accounts, network access and
technology resources (such as shared drive) and utilities (including local
telephone service and fax machines) at the Bank Premises occupied by the
Assuming Institution for their use in the discharge of their respective
functions with respect to the Failed Bank. In the event the Receiver and the
Corporation determine that the space provided is inadequate or unsuitable, the
Receiver and the Corporation may relocate to other quarters having adequate and
suitable space and the costs of relocation and any rental and utility costs for
the balance of the period of occupancy by the Receiver and the Corporation shall
be borne by the Assuming Institution. Additionally, the Assuming Institution
agrees to pay such bills and invoices on behalf of the Receiver and Corporation
as the Receiver or Corporation may direct for the period beginning on the date
of Bank Closing and ending on Settlement Date. Assuming Institution shall submit
it requests for reimbursement of such expenditures pursuant to Article VIII of
this Agreement.
4.12 Agreement with Respect to
Continuation of Group Health Plan Coverage for Former Employees of the Failed
Bank.
(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 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.
|
26
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
(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. Unless agreed to otherwise
by the Assuming Institution and 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 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".
4.14 Agreement
with Respect to Option to Purchase Loan Pools. The Receiver hereby
grants to the Assuming Institution an exclusive option for the period of 30 days
commencing the day after the Bank Closing Date to establish and purchase loan
pools at Book Value. The Assuming Institution shall give written notice to the
Receiver within the option period of its election to establish and purchase any
of the established pools. The pools shall be purchased pursuant to the FDIC's
loan sale agreement.
|
27
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
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 country or countries 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.
|
28
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
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,
the following:
(a)
all Records pertaining to the Deposit liabilities of the
Failed Bank assumed by the Assuming Institution under this Agreement, including,
but not limited to, the following:
(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
(b)
all Records pertaining to the Assets, including, but not limited to, the
following:
(i)
records of deposit balances carried with other banks, bankers or trust
companies;
(ii)
Loan and collateral records and Credit Files and other documents;
(iii) deeds,
mortgages, abstracts, surveys, and other instruments or records of title
pertaining to real estate or real estate mortgages;
(iv) signature
cards, agreements and records pertaining to Safe Deposit Boxes, if any;
and
(v)
records pertaining to the credit card business, trust business or safekeeping
business of the Failed Bank, if any.
6.2 Delivery
of Assigned Records.
The Receiver shall deliver to the Assuming Institution all Records
described in (i) Section 6.1(a) as soon as practicable on or after the date of
this Agreement, and (ii) Section 6.1(b) as soon as practicable after making any
assignment described therein.
6.3 Preservation
of Records. The
Assuming 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,
|
29
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
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 in the form of microfilm or
microfiche pertaining to Deposit account relationships; provided, that in the event
that the Failed Bank maintained one or more duplicate copies of such microfilm
or microfiche Records, the Assuming Institution hereby assigns, transfers, and
conveys to the Corporation one such duplicate copy of each such Record without
cost to the Corporation, and agrees to deliver to the Corporation all Records
assigned and transferred to the Corporation under this Article VI as soon as
practicable on or after the date of this Agreement. The party requesting a copy
of any Record shall bear the cost (based on standard accepted industry charges
to the extent applicable, as determined by the Receiver) for providing such
duplicate Records. A copy of each Record requested shall be provided as soon as
practicable by the party having custody thereof.
ARTICLE
VII
BID;
INITIAL PAYMENT
The
Assuming Institution has submitted to the Receiver a positive bid of 0.11% of
the Assumed Deposits, as described in the transaction recap, for the Assets
purchased and Liabilities Assumed hereunder (the "Bid Amount"). The Deposit bid
will be applied to the total of all Assumed Deposits except for brokered, CDARS,
and any market place or similar subscription services Deposits. On the Payment
Date, the Assuming 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
|
30
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
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 an Acquired Subsidiary and related accounts on the
"bank only" (unconsolidated) balance sheet of the Failed Bank based on the
equity method of accounting, whether or not the Failed Bank used the equity
method of accounting for investments in subsidiaries, except that the resulting
amount cannot be less than the Acquired Subsidiary's recorded equity as of Bank
Closing as reflected on the Accounting Records of the Acquired Subsidiary. Any
Loan purchased by the Assuming Institution pursuant to Section 3.1 which the
Failed Bank charged off during the period beginning after the Bid Valuation Date
up to and including the date of 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 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
|
31
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
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 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
|
32
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
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 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.
|
33
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
(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 Acquired
Subsidiaries, and (ii) its books and records, the books and records of the
Acquired Subsidiaries and all Credit Files, and copies thereof. Copies of books,
records and Credit Files shall be provided by the Assuming 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.
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:
|
34
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
(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 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)
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)
|
35
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
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 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
|
36
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
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:
(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;
|
37
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
(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 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
|
38
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
(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;
(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
|
39
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
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
(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.
|
40
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
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.
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.
|
41
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
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.
Assuming
Institution
The
Savannah Bank, N.A.
00 Xxxx
Xxxxxx
Xxxxxxxx,
XX 00000
|
Attention:
|
Xxxx
X. Xxxxxxx, XX, Chief Executive
Officer
|
Xxxxxxx
X. Xxxxxx, Xx., Chief Financial Offer
|
42
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
Receiver and
Corporation
Federal
Deposit Insurance Corporation,
Receiver
of First National Bank
0000
Xxxxxxxxxx Xxx Xxxx
Xxxxxxxxxxxx,
XX 00000
Attention:
Settlement Agent
In
addition, with respect to notices under Article 4.6:
cc:
Resolutions and Closings Manager, ORE Department
In
addition, with respect to notice under Article XII:
cc:
Managing Counsel (Litigation Branch)
13.8 Manner of
Payment. All
payments due under this Agreement shall be in lawful money of the United States
of America in immediately available funds as each party hereto may specify to
the other parties; provided, that in the
event the Receiver or the Corporation is obligated to make any payment hereunder
in the amount of $25,000.00 or less, such payment may be made by
check.
13.9 Costs,
Fees and Expenses.
Except as otherwise specifically provided herein, each party hereto
agrees to pay all costs, fees and expenses which it has incurred in connection
with or incidental to the matters contained in this Agreement, including without
limitation any fees and disbursements to its accountants and counsel; provided, that the Assuming
Institution shall pay all fees, costs and expenses (other than attorneys' fees
incurred by the Receiver) incurred in connection with the transfer to it of any
Assets or Liabilities Assumed hereunder or in accordance herewith.
13.10 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.
|
43
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
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]
|
44
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
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 FIRST NATIONAL BANK,
SAVANNAH,
GEORIGA
|
|||
|
BY:
|
/s/ Xxxxxxxxx X. Xxxx | ||
|
NAME:
Xxxxxxxxx X. Xxxx
|
|||
|
TITLE:
Receiver-in-Charge
|
|||
|
Attest:
|
|||
|
FEDERAL
DEPOSIT INSURANCE CORPORATION
|
|||
|
BY:
|
/s/ Xxxxxxxxx X. Xxxx | ||
|
NAME:
Xxxxxxxxx X. Xxxx
|
|||
|
Attest:
|
TITLE:
Receiver-in-Charge
|
||
|
THE
SAVANNAH BANK, N.A.
|
|||
|
BY:
|
/s/ Xxxx X. Xxxxxxx, XX | ||
|
NAME:
Xxxx X. Xxxxxxx, XX
|
|||
|
TITLE:
Chief Executive Officer
|
|||
|
Attest:
|
|||
|
45
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
SCHEDULE
2.1 - Certain Liabilities Assumed by the Assuming Institution
To be
provided.
|
46
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
SCHEDULE
2.1(a) - Excluded Deposit Liability Accounts
First
National Bank\
Savannah,
Georgia
First
National Bank has $10,000,000 in deposits associated with the Depository
Organization (DO) Cede & Co as Nominee for DTC. The DO accounts do not pass
to the Assuming Bank and are excluded from the transaction as described in
section 2.1 of the P&A Agreement. (See Exhibit A)
|
47
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
Exhibit
A
|
48
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
|
**
BancPAC Reporter
**
Certificates Of Deposit
|
**** FIRST
NATIONAL BANK
****
|
****
Report number RPT-999 042000.914
Page 1 **
****
posting of 3/30/10
created 3/31/10
13:21 **
|
|
Account
number Name line 1 Source Of
Funds
|
Current
balance
|
Interest
rate
|
Maturity
date
|
||||||
|
853
9 CEDE &
CO.
|
$ | 1,500,000.00 | 2.55000 | % |
3/30/2012
|
||||
|
0003-Brokered
CD
|
|||||||||
|
854
0 CEDE &
CO.
|
$ | 1,500,000.00 | 2.00000 | % |
3/31/2011
|
||||
|
0003-Brokered
CD
|
|||||||||
|
8611 CEDE
& CO.
|
$ | 3,500,000.00 | 1.95000 | % |
4/08/2011
|
||||
|
0003-Brokered
CD
|
|||||||||
|
8612 CEDE
& CO.
|
$ | 3,500,000.00 | 2.40000 | % |
4/06/2012
|
||||
|
0003-Brokered
CD
|
|||||||||
|
Sub-total
of: Source Of Funds
Sub-total
selected record count
Current
balance
Source
Of Funds
|
Value
: 0003 -Brokered CD
4
$10,000,
000.00
12
|
||||||||
SCHEDULE
3.1 - Certain Assets Purchased
To be
provided.
|
50
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
SCHEDULE
3.1(e) - Deposit Secured Loans Secured, In Whole Or In Part, By Assumed Deposits
Or Deposits At Other Depository Institutions
SEE
ATTACHED LIST
THE
LIST(S), IF ANY, ATTACHED TO THIS SCHEDULE (OR SUBSCHEDULE(S)) AND THE
INFORMATION THEREIN, IS AS OF THE BID VALUATION DATE. IT WILL BE ADJUSTED TO
REFLECT THE COMPOSITION AND BOOK VALUE OF THE LOANS AS OF THE DATE OF BANK
CLOSING. THE LIST(S), IF ANY, MAY BE REPLACED WITH A MORE ACCURATE LIST POST
CLOSING.
THE
POST CLOSING LIST(S) MAY REFLECT ALL, SOME, OR NONE OF THE LOANS THAT MEET THE
CRITERIA OF DEPOSIT SECURED LOANS AND MAY CONTAIN LOANS NOT PREVIOUSLY LISTED
FOR THIS SCHEDULE, INCLUDING LOANS THAT MET THE CRITERIA OF DEPOSIT SECURED
LOANS AS OF THE BID VALUATION DATE.
|
51
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
SCHEDULE
3.1(i) - Acquired Subsidiaries
NONE
|
52
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
SCHEDULE
3.2 - Purchase Price of Assets or assets
|
(a)
|
cash
and receivables from depository institutions, including cash items in the
process of collection, plus Interest thereon:
|
Book
Value
|
|
|
(b)
|
securities
(exclusive of the capital stock of Acquired Subsidiaries), plus interest
thereon:
|
As
provided in Section 3.2(b)
|
|
|
(c)
|
federal
funds sold and repurchase agreements, if any, including interest
thereon:
|
Book
Value
|
|
|
(d)
|
Omitted:
|
Book Value | |
|
(e)
|
Loans
purchased pursuant to Section 3.1(e):
|
Book Value | |
|
(f)
|
credit
card business, if any:
|
Book
Value
|
|
|
(g)
|
Safe
Deposit Boxes and related business, safekeeping business and trust
business, if any:
|
Fair
Market Value
|
|
|
(h)
|
Records
and other documents:
|
Book
Value
|
|
|
(i)
|
Other
Real Estate
|
Book
Value
|
|
|
(j)
|
boats,
motor vehicles, aircraft, trailers, fire arms, repossessed collateral, and
Personal Computers
|
Book
Value
|
|
|
(k)
|
capital
stock of any Acquired Subsidiaries and FRB stock and FHLB
stock:
|
Book
Value
|
|
|
(l)
|
amounts
owed to the Failed Bank by any Acquired Subsidiary:
|
Book
Value
|
|
|
(m)
|
assets
securing Deposits of public money, to the extent not otherwise purchased
hereunder:
|
Fair
Market Value
|
|
|
(n)
|
Overdrafts
of customers:
|
Book
Value
|
|
53
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
|
(o)
|
rights,
if any, with respect to Qualified Financial Contracts.
|
As
provided in Section 3.2(c)
|
|
|
(p)
|
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.
|
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
|
|
54
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
SCHEDULE
3.5(k) - Securities Not Purchased
|
CUSIP
|
Description
|
Original Face/Par
|
Book Value
|
|
00000XXX0
|
Nexity Capital Trust III
|
$1,000,000.00
|
$200,000.00
|
|
55
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
SCHEDULE
6.3 – Data Retention Catalog
FDIC_Acquirer_Data_Retention_Catalog_v2
0
|
FDIC
Data Management Services (DMS)
|
||
|
Acquirer
Data Retention Catalog
|
||
|
Version
2.0
|
||
|
Failed
Institution
|
||
| Name | ||
| Data Center Address | ||
|
Assuming
Institution
|
||
| Name | ||
| Address | ||
|
DRC
Preparation Date
|
||
|
DftC
Preparer's Contact
|
||
| Name | ||
| Designation | ||
| Phone | ||
|
Alternate
Contact for Subsequent Data Requests (if different from
above)
|
||
| Name | ||
| Phone | ||
|
Instructions
|
||
|
1.
|
Provide
preparer's contact information and Bank information on the "Cover Page"
tab.
|
|
|
2.
|
Provide
point of contact and desired procedure for data requests on the "Data
Request Procedure" Tab.
|
|
|
3.
|
Provide
the requested application retention details on "Data Retention" tab of
this workbook.
|
|
|
a.
|
Update
provided application list with any additional systems that were not
included
|
|
|
b.
|
Select
the most appropriate value from the drop down list when the list is
provided with applicable column.
|
|
|
If
you need additional clarification while recording the information, please
call Xxxxx Xxxxxxx (FDIC) at 000-000-0000 or Xxxxxx
Xxxxx (FDIC) at 000-000-0000. Send the
final copy of this document to Xxxxxx Xxxxx XXxxxx@XXXX.xxx.
|
||
|
FDIC
Confidential
|
5/25/2010
|
|
56
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
This page intentionally
left Blank.
|
57
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
SCHEDULE
7 – Accounts Excluded from Calculation of Deposit Franchise Bid
Premium
First
National Bank
Savannah,
Georgia
The
accounts identified below will pass to the Assuming Bank (unless otherwise
noted). When calculating the premium to be paid
on Assumed Deposits in a P&A transaction, the FDIC will exclude the
following categories of deposit accounts:
|
Category
|
Description
|
Amount
|
|||||
| I |
Non-DO
Brokered Deposits
|
$ | 0 | ||||
|
II
|
CDARS
|
$ | 0 | ||||
|
III
|
Market
Place Deposits
|
*See
Note
|
$ | 104,307,377.63 | |||
|
Total deposits
excluded from Calculation of premium
|
$ | 104,307,377.63 | |||||
*The Market
Place Deposits are identified on "Exhibit B".
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 Exhibit A ", the Non-DO Broker Deposit Detail Report, for a listing
of these accounts (if any exist). 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 (if any exist) 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.
First
National Bank did not participate in the CDARS program as of the date of the
deposit download. If CDARS deposits are taken between the date of the deposit
download and the Bank Closing Date, they will be identified post closing and
made part of Schedule 7 to the P&A Agreement.
III
Market Place Deposits
"Market
Place Deposits" is a description given to deposits that may have been solicited
via a money desk, internet subscription service (for example, Qwickrate), or
similar programs.
First
National Bank did have Market Place Deposits as identified above as per the
attached "Schedule 7 Exhibit B". This list will be updated post closing (if any
exist) with balances as of Bank Closing date.
This
schedule provides a snapshot of account categories and balances as of 3/30/10.
The deposit franchise bid premium
|
58
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
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.
|
59
|
||
|
Module
2 - Standard P&A
|
First
National Bank
|
|
|
Version
2.02
|
Savannah,
GA
|
|
|
June
25, 2010
|
