TABLE OF CONTENTS

 

ARTICLE I	DEFINITIONS		2
ARTICLE II	ASSUMPTIONS OF LIABILITIES		8
2.1	Liabilities Assumed by Assuming Bank		8
2.2	Interest on Deposit Liabilities		10
2.3	Unclaimed Deposits		10
2.4	Employee Benefits Plans		11
ARTICLE III	PURCHASE OF ASSETS		11
3.1	Assets Purchased by Assuming Bank		11
3.2	Asset Purchase Price		12
3.3	Manner of Conveyance; Limited Warranty; Nonrecourse; Etc.		12
3.4	Puts of Assets to the Receiver		13
3.5	Assets Not Purchased by Assuming Bank		15
3.6	Assets Essential to Receiver		16
ARTICLE IV	ASSUMPTION OF CERTAIN DUTIES AND OBLIGATIONS		17
4.1	Continuation of Banking Business		17
4.2	Agreement with Respect to Credit Card Business		17
4.3	Agreement with Respect to Safe Deposit Business		18
4.4	Agreement with Respect to Safekeeping Business		18
4.5	Agreement with Respect to Trust Business		18
4.6	Agreement with Respect to Bank Premises		19
4.7	Agreement with Respect to Leased Data Processing Equipment		22
4.8	Agreement with Respect to Certain Existing Agreements		22
4.9	Informational Tax Reporting		23
4.10	Insurance		23
4.11	Services for Receiver and Corporation		23
4.12	Agreement with Respect to Continuation of Group Health Plan Coverage for Former Employees of the Failed Bank		24
4.13	Agreement with Respect to Interim Asset Servicing		25
ARTICLE V	DUTIES WITH RESPECT TO DEPOSITORS OF THE FAILED BANK		25
5.1	Payment of Checks, Drafts and Orders		25
5.2	Certain Agreements Related to Deposits		25
5.3	Notice to Depositors		25
ARTICLE VI	RECORDS		26
6.1	Transfer of Records		26
6.2	Delivery of Assigned Records		26
6.3	Preservation of Records		27
6.4	Access to Records; Copies		27

 

 

ARTICLE VII	BID; INITIAL PAYMENT		27
ARTICLE VIII	ADJUSTMENTS		27
8.1	Pro Forma Statement		27
8.2	Correction of Errors and Omissions; Other Liabilities		28
8.3	Payments		28
8.4	Interest		29
8.5	Subsequent Adjustments		29
ARTICLE IX	CONTINUING COOPERATION		29
9.1	General Matters		29
9.2	Additional Title Documents		29
9.3	Claims and Suits		29
9.4	Payment of Deposits		30
9.5	Withheld Payments		30
9.6	Proceedings with Respect to Certain Assets and Liabilities		30
9.7	Information		31
ARTICLE X	CONDITION PRECEDENT		31
ARTICLE XI	REPRESENTATIONS AND WARRANTIES OF THE ASSUMING BANK		31

 

 

ARTICLE XII	INDEMNIFICATION		33
12.1	Indemnification of Indemnitees		33
12.2	Conditions Precedent to Indemnification		35
12.3	No Additional Warranty		36
12.4	Indemnification of Corporation and Receiver		36
12.5	Obligations Supplemental		37
12.6	Criminal Claims		37
12.7	Limited Guaranty of the Corporation		37
12.8	Subrogation		38
ARTICLE XIII	MISCELLANEOUS		38
13.1	Entire Agreement		38
13.2	Headings		38
13.3	Counterparts		38
13.4	Governing Law		38
13.5	Successors		38
13.6	Modification; Assignment		38
13.7	Notice		39
13.8	Manner of Payment		39
13.9	Costs, Fees and Expenses		39
13.10	Waiver		40
13.11	Severability		40
13.12	Term of Agreement		40
13.13	Survival of Covenants, Etc.		40
SCHEDULES
2.1	Certain Liabilities Assumed		42
2.1(a)	Excluded Deposit Liability Accounts		43
3.1	Certain Assets Purchased		44
3.1(e)	Loans Fully Secured by Assumed Deposits		45
3.1(i)	Acquired Subsidiaries		46
3.2	Purchase Price of Assets or assets		47
3.5(k)	Securities Not Purchased		49
7	Calculation of Deposit Premium		50
EXHIBITS
4.13	Interim Asset Servicing Arrangement		52

 

 

PURCHASE AND ASSUMPTION AGREEMENT

 

ALL DEPOSIT

 

THIS AGREEMENT, made and entered into as of September 11 , 2009, by and among the FEDERAL DEPOSIT INSURANCE CORPORATION, RECEIVER of CORUS BANK, NATIONAL ASSOCIATION, CHICAGO, ILLINOIS (the “Receiver”), MB FINANCIAL BANK, N.A., organized under the laws of the United States of America , and having its principal place of business in Chicago, Illinois (the “Assuming Bank”), and the FEDERAL DEPOSIT INSURANCE CORPORATION, organized under the laws of the United States of America and having its principal office in Washington, D.C., acting in its corporate capacity (the “Corporation”).

 

WITNESSETH:

 

WHEREAS, on Bank Closing Date, the Chartering Authority closed CORUS BANK, NATIONAL ASSOCIATION (the “Failed Bank”) pursuant to applicable law and the Corporation was appointed Receiver thereof; and

 

WHEREAS, the Assuming Bank desires to purchase certain assets and assume certain deposit and other liabilities of the Failed Bank on the terms and conditions set forth in this Agreement; and

 

WHEREAS, pursuant to 12 U.S.C. Section 1823(c)(2)(A), the Corporation may provide assistance to the Assuming Bank to facilitate the transactions contemplated by this Agreement, which assistance may include indemnification pursuant to Article XII; and

 

WHEREAS, the Board of Directors of the Corporation (the “Board”) has determined to provide assistance to the Assuming Bank on the terms and subject to the conditions set forth in this Agreement; and

 

WHEREAS, the Board has determined pursuant to 12 U.S.C. Section 1823(c)(4)(A) that such assistance is necessary to meet the obligation of the Corporation to provide insurance coverage for the insured deposits in the Failed Bank and is the least costly to the deposit insurance fund of all possible methods for meeting such obligation.

 

NOW THEREFORE, in consideration of the mutual promises herein set forth and other valuable consideration, the parties hereto agree as follows:

 

1

 

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 supporting subsidiary ledgers and schedules.

 

“Acquired Subsidiaries” has the meaning provided in Section 3.1.

 

“Affiliate” of any Person means any director, officer, or employee of that Person and any other Person (i) who is directly or indirectly controlling, or controlled by, or under direct or indirect common control with, such Person, or (ii) who is an affiliate of such Person as the term “affiliate” is defined in Section 2 of the Bank Holding Company Act of 1956, as amended, 12 U.S.C. Section 1841.

 

“Agreement” means this Purchase and Assumption Agreement by and among the Assuming Bank, the Corporation and the Receiver, as amended or otherwise modified from time to time.

 

“Assets” means all assets of the Failed Bank purchased pursuant to Section 3.1. Assets owned by Subsidiaries of the Failed Bank are not “Assets” within the meaning of this definition.

 

“Assumed Deposits” meansDeposits.

 

“Bank Closing Date” means the close of business of the Failed Bank on the date on which the Chartering Authority closed such institution.

 

“Bank Premises” means the banking houses, drive-in banking facilities, and teller facilities (staffed or automated) together with appurtenant parking, storage and service facilities and structures connecting remote facilities to banking houses, and land on which the foregoing are located, that are owned or leased by the Failed Bank and that 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.

 

“Book Value” means, with respect to any Asset and any Liability Assumed, the dollar amount thereof stated on the Accounting Records of the Failed Bank. The Book Value of any item shall be determined as of Bank Closing after adjustments made by the Receiver for differences in accounts, suspense items, unposted debits and credits, and other similar adjustments or corrections and for setoffs, whether voluntary or involuntary. The Book Value of a Subsidiary of the Failed Bank acquired by the Assuming Bank 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

 

2

 

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 any day other than a Saturday, Sunday or federal legal holiday.

 

“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. Section 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, cur ency 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.

 

“Data Processing Lease” means any lease or licensing agreement, binding on the Failed Bank as of the Bank Closing Date, the subject of which is data processing equipment or computer hardware or software used in connection with data processing activities. A lease or licensing agreement for computer software used in connection with data processing activities shall constitute a Data Processing Lease regardless of whether such lease or licensing agreement also covers data processing equipment.

 

3

 

“Deposit” means a deposit as defined in 12 U.S.C. Section 1813(1), including, without limitation, outstanding cashier’s checks and other official checks and all uncollected items included in the depositors’ balances and credited on the books and records of the Failed Bank; provided, that the term “Deposit” shall not include all or any portion of those deposit balances which, in the discretion of the Receiver or the Corporation, (i) may be required to satisfy it for any liquidated or contingent liability of any depositor arising from an unauthorized or unlawful transaction, or (ii) may be needed to provide payment of any liability of any depositor to the Failed Bank or the Receiver, including the liability of any depositor as a director or officer of the Failed Bank, whether or not the amount of the liability is or can be determined as of Bank Closing.

 

“Failed Bank Advances” means the total sums paid by the Failed Bank to (i) protect its lien position, (ii) pay ad valorem taxes and hazard insurance, and (iii) pay credit life insurance, accident and health insurance, and vendor’s single interest insurance.

 

“Fair Market Value” means (i)(a) “Market Value” as defined in the regulation prescribing the standards for real estate appraisals used in federally related transactions, 12 C.F.R. Section 323.2(g), and accordingly shall mean the most probable price which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller each acting prudently and knowledgeably, and assuming the price is not affected by undue stimulus. Implicit in this definition is the consummation of a sale as of a specified date and the passing of title from seller to buyer under conditions whereby:

 

(1)   Buyer and seller are typically motivated;

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

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

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

(5)   The price represents the normal consideration for the property sold unaffected by special or creative financing or sales concessions granted by anyone associated with the sale;

 

as determined as of the Bank Closing Date by an appraiser mutually acceptable to the Receiver and the Assuming Bank; any costs and fees associated with such determination shall be shared equally by the Receiver and the Assuming Bank, and (b) which, with respect to Bank Premises (to the extent, if any, that Bank Premises are purchased utilizing this valuation method), shall be determined not later than sixty (60) days after the Bank Closing Date by an appraiser selected by the Receiver and the Assuming Bank within seven (7) days after the Bank Closing Date; or (ii) with respect to property other than Bank Premises purchased utilizing this valuation method, the price therefor as established by the Receiver and agreed to by the Assuming Bank, or in the absence of such agreement, as determined in accordance with clause (i)(a) above.

 

“Fixtures” means those leasehold improvements, additions, alterations and installations constituting all or a part of Bank Premises and which were acquired, added, built,

 

4

 

installed or purchased at the expense of the Failed Bank, regardless of the holder of legal title thereto as of the Bank Closing Date.

 

“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 the Bank Closing Date, including without limitation automated teller machines, carpeting, furniture, office machinery (including personal computers), shelving, office supplies, telephone, surveillance and security systems, and artwork.

 

“Indemnitees” means, except as provided in paragraph (11) of Section 12.1(b), (i) the Assuming Bank, (ii) the Subsidiaries and Affiliates of the Assuming Bank other than any Subsidiaries or Affiliates of the Failed Bank that are or become Subsidiaries or Affiliates of the Assuming Bank, and (iii) the directors, officers, employees and agents of the Assuming Bank and its Subsidiaries and Affiliates who are not also present or former directors, officers, employees or agents of the Failed Bank or of any Subsidiary or Affiliate of the Failed Bank.

 

“Initial Payment” means the payment made pursuant to Article VII (based on the best information available as of the Bank Closing Date), the amount of which shall be either (i) if the Bid Amount is positive, the aggregate Book Value of the Liabilities Assumed minus the sum of the aggregate purchase price of the Assets and assets purchased and the positive Bid Amount, or (ii) if the Bid Amount is negative, the sum of the aggregate Book Value of the Liabilities Assumed and the negative Bid Amount minus the aggregate purchase price of the Assets and assets purchased. The Initial Payment shall be payable by the Corporation to the Assuming Bank if (i) the Liabilities Assumed are greater than the sum of the positive Bid Amount and the Assets and assets purchased, or if (ii) the sum of the Liabilities Assumed and the negative Bid Amount are greater than the Assets and assets purchased. The Initial Payment shall be payable by the Assuming Bank to the Corporation if (i) the Liabilities Assumed are less than the sum of the positive Bid Amount and the Assets and assets purchased, or if (ii) the sum of the Liabilities Assumed and the negative Bid Amount is less than the Assets and assets purchased. Such Initial Payment shall be subject to adjustment as provided in Article VIII.

 

“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.

 

“Loan File” means all Credit Documents and all other credit, collateral, or insurance documents in the possession or custody of the Assuming Bank, or any of its

 

5

 

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

 

“Loans” means all of the following owed to or held by the Failed Bank as of the Bank Closing Date:

 

(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-oft), remedies, powers, privileges, demands, claims, priorities, equities and benefits owned or held by, or accruing or to accrue to or for the benefit of, the holder of the obligations or instruments referred to in clause (i) above, including but not limited to those arising under or based upon Credit Documents, casualty insurance policies and binders, standby letters of credit, mortgagee title insurance policies and binders, payment bonds and performance bonds at any time and from time to time existing with respect to any of the obligations or instruments referred to in clause (i) above; and

 

(iii)  all amendments, modifications, renewals, extensions, refinancings, and refundings of or for any of the foregoing;

 

provided, that there shall be excluded from the definition of Loans (a) any portion of the foregoing which the Failed Bank or the Assuming Bank (or any of their respective Subsidiaries) holds not for its own account but solely as agent or fiduciary for, or otherwise as representative of, any other Person, (b) any loans which have been charged off the Accounting Records of the Failed Bank in whole or in part prior to the Bank Closing Date, (c) loans recorded on the Accounting Records of the Failed Bank on “in substance foreclosure” status as of the Bank Closing Date, (d) Commitments and (e) amounts owing under Qualified Financial Contracts.

 

“Obligor” means each Person liable for the full or partial payment or perfomance of any Loan, whether such Person is obligated directly, indirectly, primarily, secondarily, jointly, or severally.

 

“Payment Date” means the first Business Day after the Bank Closing Date.

 

“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.

 

“Primary Indemnitor” means any Person (other than the Assuming Bank or any of its Affiliates) who is obligated to indemnify or insure, or otherwise make payments (including payments on account of claims made against) to or on behalf of any Person in connection with the claims covered under Article XII, including without limitation any insurer issuing any

 

6

 

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

 

“Put Date” has the meaning provided in Section 3.4.

 

“Put Notice” has the meaning provided in Section 3.4.

 

“Qualified Financial Contract” means a qualified financial contract as defined in 12 U.S.C. Section 1821(e)(8)(D).

 

“Record” means any document, microfiche, microfilm and computer records (including but not limited to magnetic tape, disc storage, card forms and printed copy) of the Failed Bank generated or maintained by the Failed Bank that is owned by or in the possession of the Receiver at the Bank Closing Date.

 

“Related Liability” with respect to any Asset means any liability existing and reflected on the Accounting Records of the Failed Bank as of the Bank Closing Date for (i) indebtedness secured by mortgages, deeds of trust, chattel mortgages, security interests or other liens on or affecting such Asset, (ii) ad valorem taxes applicable to such Asset, and (iii) any other obligation determined by the Receiver to be directly related to such Asset.

 

“Related Liability Amount” with respect to any Related Liability on the books of the Assuming Bank, means the amount of such Related Liability as stated on the Accounting Records of the Assuming Bank (as maintained in accordance with generally accepted accounting principles) as of the date as of which the Related Liability Amount is being determined. With respect to a liability that relates to more than one asset, the amount of such Related Liability shall be allocated among such assets for the purpose of determining the Related Liability Amount with respect to any one of such assets. Such allocation shall be made by specific allocation, where determinable, and otherwise shall be pro rata based upon the dollar amount of such assets stated on the Accounting Records of the entity that owns such asset.

 

“Repurchase Price” means with respect to any Asset or asset, which shall be determined by the Receiver, the lesser of (a) or (b):

 

(a)           the amount paid by the Assuming Bank, decreased by the amount of any money received with respect thereto since the Bank Closing Date 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 the Bank Closing Date 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 Bank from the sale of collateral, any forgiveness of debt, or otherwise shall be deemed money received by the Assuming Bank; or

 

(b)          the dollar amount thereof stated on the Accounting Records of the Assuming Bank as of the date as of which the Repurchase Price is being determined, as maintained in accordance with generally accepted accounting principles, and, if the asset is a Loan, regardless

 

7

 

of the Legal Balance thereof and adjusted in the same manner as the Book Value of a Failed Bank Loan would be adjusted hereunder.

 

Provided, however, (b), above, shall not be applicable for Loans repurchased pursuant to Section 3.4(a).

 

If any Asset or asset is purchased as part of a group of Assets or assets for Book Value and/or as a percentage of Book Value, the amount paid by the Assuming Bank, for purposes of (a), above, shall be the Book Value, as of the date of the Bank Closing Date, of the individual Asset or asset being repurchased multiplied, if applicable, by the percentage paid.

 

“Safe Deposit Boxes” means the safe deposit boxes of the Failed Bank, if any, including the removable safe deposit boxes and safe deposit stacks in the Failed Bank’s vault(s), all rights and benefits under rental agreements with respect to such safe deposit boxes, and all keys and combinations thereto.

 

“Settlement Date” means the first Business Day immediately prior to the day which is one hundred eighty (180) days after the Bank Closing Date, or such other date prior thereto as may be agreed upon by the Receiver and the Assuming Bank. The Receiver, in its discretion, may extend the Settlement Date.

 

“Settlement Interest Rate” means, for the first calendar quarter or portion thereof during which interest accrues, the rate determined by the Receiver to be equal to the equivalent coupon issue yield on six (6)-month United States Treasury Bills in effect as of the Bank Closing Date as published in The Wall Street Journal; provided, that if no such equivalent coupon issue yield is available as of the Bank Closing Date, the equivalent coupon issue yield for such Treasury Bills most recently published in The Wall Street Journal prior to the Bank Closing Date shall be used. Thereafter, the rate shall be adjusted to the rate determined by the Receiver to be equal to the 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 Bank. The Assuming Bank expressly assumes at Book Value (subject to adjustment pursuant to Article VIII) and agrees to pay, perform, and discharge all of the following liabilities of the Failed Bank as of the Bank Closing Date, except as otherwise provided in this Agreement (such liabilities referred to as “Liabilities Assumed”):

 

8

 

(a)                              Assumed Deposits, except those Deposits specifically listed on Schedule 2.1(a); provided, that as to any Deposits of public money which are Assumed Deposits, the Assuming Bank agrees to properly secure such Deposits with such of the Assets as appropriate which, prior to the Bank Closing Date, were pledged as security therefor by the Failed Bank, or with assets of the Assuming Bank, if such securing Assets, if any, are insufficient to properly secure such Deposits;

 

(b)                             liabilities for indebtedness secured by mortgages, deeds of trust, chattel mortgages, security interests or other liens on or affecting any Assets, if any; provided, that the assumption of any liability pursuant to this paragraph shall be limited to the market value of the Assets securing such liability as determined by the Receiver;

 

(c)                              overdrafts, debit balances, service charges, reclamations, and adjustments to accounts with the Federal Reserve Banks as reflected on the books and records of any such Federal Reserve Bank within ninety (90) days after the Bank Closing Date, 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 the Bank Closing Date); provided, that the assumption of any liability pursuant to this paragraph shall be limited to the market value of the Assets securing such liability as determined by the Receiver;

 

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

 

(g)                             liabilities for any acceptance or commercial letter of credit (other than “standby letters of credit” as defined in 12 C.F.R. Section 337.2(a)); provided, that the assumption of any liability pursuant to this paragraph shall be limited to the market value of the Assets securing such liability as determined by the Receiver;

 

(h)                             duties and obligations assumed pursuant to this Agreement including without limitation those relating to the Failed Bank’s credit card business, overdraft protection plans, safe deposit business, safekeeping business or trust business, if any;

 

(i)                                 Omitted; and,

 

(j)                                 all asset-related offensive litigation liabilities and all defensive-related litigation liabilities, but only to the extent such liabilities related to assets purchased, and

 

9

 

provided that all non asset-related defensive litigation and offensive and defensive litigation on assets not purchased and any class actions with respect to the credit card business are retained by the Receiver.

 

Schedule 2.1 attached hereto and incorporated herein sets forth certain categories of Liabilities Assumed and the aggregate Book Value of the Liabilities Assumed in such categories. Such schedule is based upon the best information available to the Receiver and may be adjusted as provided in Article VIII.

 

2.2                           Interest on Deposit Liabilities. The Assuming Bank agrees that, from and after the Bank Closing Date, it will accrue and pay interest on Deposit liabilities assumed pursuant to Section 2.1 at a rate(s) it shall determine; provided, that for nontransaction Deposit liabilities such rate(s) shall not be less than the lowest rate offered by the Assuming Bank to its depositors for nontransaction deposit accounts. The Assuming Bank shall permit each depositor to withdraw, without penalty for early withdrawal, all or any portion of such depositor’s Deposit, whether or not the Assuming Bank elects to pay interest in accordance with any deposit agreement formerly existing between the Failed Bank and such depositor; and further provided, that if such Deposit has been pledged to secure an obligation of the depositor or other party, any withdrawal thereof shall be subject to the terms of the agreement governing such pledge. The Assuming Bank shall give notice to such depositors as provided in Section 5.3 of the rate(s) of interest which it has determined to pay and of such withdrawal rights.

 

2.3                           Unclaimed Deposits. Fifteen (15) months following the Bank Closing Date, the Assuming Bank 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 Bank to act on behalf of the Receiver to send a “Final Legal Notice” to the owners) of the unclaimed deposits reminding them of the need to claim or arrange to continue their account(s) with the Assuming Bank. The Assuming Bank will send the “Final Legal Notice” to the depositors within thirty (30) days following notification of the Receiver’s authorization. The Assuming Bank will prepare an Affidavit of Mailing and will forward the Affidavit of Mailing to the Receiver after mailing out the “Final Legal Notice” to the owners) 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 Bank, the Assuming Bank shall, within fifteen (15) Business Days after the end of such eighteen (18) month period, (i) refund to the Receiver the full amount of each such deposit (without reduction for service charges), (ii) provide to the Receiver a schedule of all such refunded Deposits in such form as may be prescribed by the Receiver, and (iii) assign, transfer, convey, and deliver to the Receiver, all right, title, and interest of the Assuming Bank in and to the Records previously transferred to the Assuming Bank and other records generated or maintained by the Assuming Bank pertaining to such Deposits. During such eighteen (18) month period, at the request of the Receiver, the Assuming Bank promptly shall provide to the Receiver schedules of unclaimed deposits in such form as may be prescribed by the Receiver.

 

10

 

2.4                           Employee Benefit Plans. Except as provided in Section 4.12, the Assuming Bank shall have no liabilities, obligations or responsibilities under the Failed Bank’s health care, bonus, vacation, pension, profit shari