<PAGE>
FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 10, 1994
EAGLE FINANCIAL CORP.
____________________________________________________________
(Exact name of registrant as specified in its charter)
Delaware 0-15311 06-1194047
_____________________________________________________________________
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
222 Main Street, P.O. Box 1157, Bristol, Connecticut 06010
_________________________________________________________________________
(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code: (203) 589-4600
Not Applicable
_____________________________________________________________
(Former name or former address, if changed since last report)
<PAGE>
Item 2. Acquisition or Disposition of Assets
Effective June 10, 1994, Eagle Federal Savings Bank
("Eagle"), a wholly-owned subsidiary of Eagle Financial Corp.,
entered into a Purchase and Assumption Agreement (the "Agreement")
with the Federal Deposit Insurance Corporation("FDIC"), as receiver
of The Bank of Hartford, Inc., Hartford, Connecticut (the "Bank of
Hartford"). A copy of the Agreement is attached at Exhibit 2(a)
hereto and is incorporated herein by reference.
The assets of the Bank of Hartford acquired include $30.4
million of cash and other amounts due from banks, $76.4 million of
investment securities, substantially all of which are U.S. Treasury
and agency securities, $80.5 million of primarily one- to four-
family residential mortgage loans and $1.7 million of other assets,
primarily accrued interest receivable on the purchased loans. In
addition, Eagle assumed approximately $275.0 million of deposit
accounts and $1.0 million of other liabilities, primarily accrued
interest payable on deposits. The FDIC has advanced $72.3 million
in cash to Eagle in partial settlement of the difference between the
amount of deposit and other liabilities assumed and assets purchased
by Eagle, less the $8.7 million premium paid by Eagle in the
transaction. The initial cash payment received by Eagle from the
FDIC was based on the June 10, 1994 balances of assets acquired and
liabilities assumed, and is subject to adjustment.
The assets purchased and liabilities assumed in the Bank of
Hartford transaction are subject to adjustment up to the Settlement
Date, as described below, to reflect the actual "book value" of the
assets and liabilities acquired. As defined in the Purchase and
Assumption Agreement, "book value" means, with respect to any
acquired asset and any liability assumed, the dollar amount stated
on the accounting records of the Bank of Hartford as of June 10,
1994 (the "Closing Date") after adjustment by the FDIC for
differences in accounts, suspense items, unposted debits and
credits, and other similar adjustments or corrections. Without
limiting the generality of the foregoing, (i) book value of a
liability includes all accrued and unpaid interest thereon as of the
Closing Date, and (ii) the book value of a loan reflects all
adjustments for earned or unearned interest, if any, as of the
Closing Date, and adjustments for the portion of earned or unearned
loan related credit life and/or disability insurance premiums, if
any, attributable to the Bank of Hartford, as of the Closing Date.
No adjustment to the book value of any asset will be made for any
loan premiums, discounts or any related deferred income or fees, or
general or specific loan loss reserves on the records of the Bank of
Hartford as of the Closing Date. As to securities acquired, the
book value of the securities as of the date of acquisition are
subject to adjustment of their fair market value as of such date.
On March 7, 1995, or on such earlier date as the FDIC and
Eagle may agree, or such later date as the FDIC may establish (the
"Settlement Date"), the FDIC will pay Eagle, or Eagle will pay the
FDIC, as the case may be an amount which reflects the net
adjustments of the assets and liabilities acquired and certain other
adjustments (including any costs, expenses and fees associated with
certain determinations of value) as provided in the Purchase and
Assumption Agreement, plus accrued interest.
The Purchase and Assumption Agreement contemplates that
certain additional adjustments may be made in connection with the
settlement process. The FDIC has the right to repurchase certain
loans deemed essential to its role as receiver, including loans to
officers, directors and affiliates of the Bank of Hartford, loans
related to investigations or litigation by the receiver, and loans
secured by collateral that also secures assets owned by the
receiver. For a period of one year after the Closing Date, Eagle
may require the FDIC to repurchase any loan acquired from the Bank
of Hartford which is evidenced by forged or stolen instruments.
Such repurchase obligation does not extend to loans pursuant to an
overdraft protection plan or to loans which Eagle has advanced
additional funds, modified or sold to a third party.
In connection with the transaction, Eagle acquired an option
to acquire or lease the Bank of Hartford's seven banking offices.
The Bank of Hartford's seven banking offices are located in the
towns of Hartford (2), Avon, Bloomfield, Cromwell, Rocky Hill and
West Hartford.
<PAGE>
The FDIC has generally agreed to indemnify Eagle against all
costs, losses, liabilities, and expenses, including legal fees,
incurred in connection with certain third party claims that may be
brought against Eagle based on liabilities of the Bank of Hartford
that were not assumed by Eagle under the Purchase and Assumption
Agreement. Such indemnification would include, for example, claims
based on the rights of any creditor of the Bank of Hartford with
respect to indebtedness or other obligations of claims based on any
action or inaction by directors, officers, employees or agents of
the Bank of Hartford prior to the acquisition claims based on the
determination of insolvency and the closing of the Bank of Hartford,
and claims based on the execution and consummation of the Purchase
and Assumption agreement. Eagle has agreed to indemnify the FDIC
against certain costs, losses, liabilities and expenses, including
legal fees, incurred in connection with certain third party claims
that may be brought against the FDIC based on liabilities of the
Bank of Hartford that were assumed by Eagle under the Purchase and
Assumption Agreement or based on any liability or obligation of
Eagle with respect to purchased assets and assumed liabilities under
the terms of the Purchase and Assumption Agreement.
<PAGE>
Item 7. Financial Statements and Exhibits.
a. Financial Statements of Businesses Acquired
It is impracticable to provide the financial
statements required under this Item as of the date this Current
Report on Form 8-K must be filed. The required financial statements
will be filed under cover of Form 8-K/A as soon as practicable, but
not later than 60 days after the date this Current Report on Form
8-K must be filed.
b. Pro Forma Financial Information.
It is impracticable to provide the pro forma financial
information required under this Item as of the date this Current
Report on Form 8-K must be filed. The required pro forma financial
information will be filed under cover of Form 8-K/A as soon as
practicable, but not later than 60 days after the date this Current
Report on Form 8-K must be filed.
c. Exhibits
No. 2 Purchase and Assumption Agreement dated as of June
10, 1994
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
Eagle Financial Corp.
(Registrant)
/s/ Ralph T. Linsley
_____________________
Ralph T. Linsley
President and Chief Executive
Officer
Attest:
/s/ Mark J. Blum
_____________________
Mark J. Blum
Vice President and
Chief Financial Officer
Date: June 24, 1994
___________________
<PAGE>
EXHIBIT INDEX
EXHIBITS PAGE
No. 2 Purchase and Assumption Agreement dated as
of June 10, 1994
<PAGE>
NE-STD P&A
(All Deposits)
PURCHASE AND ASSUMPTION AGREEMENT
AMONG
FEDERAL DEPOSIT INSURANCE CORPORATION,
RECEIVER OF THE BANK OF HARTFORD, INC.
HARTFORD, CT
FEDERAL DEPOSIT INSURANCE CORPORATION
and
EAGLE FEDERAL SAVINGS BANK
DATED AS OF
JUNE 10, 1994
<PAGE>
TABLE OF CONTENTS
ARTICLE I DEFINITIONS. . . . . . . . . . . . . . . . . . . .
ARTICLE II ASSUMPTION OF LIABILITIES. . . . . . . . . . . . .
2.1 Liabilities Assumed by Assuming Bank . . . . . . .
2.2 Interest on Deposit Liabilities. . . . . . . . . .
2.3 Unclaimed Deposits . . . . . . . . . . . . . . . .
2.4 Employee Benefit Plans . . . . . . . . . . . . . .
ARTICLE III PURCHASE OF ASSETS . . . . . . . . . . . . . . . .
3.1 Assets Purchased by Assuming Bank. . . . . . . . .
3.1A Option to Purchase Certain Other Loans . . . . . .
3.1B Option to Purchase Certain Other Assets. . . . . .
3.2 Asset Purchase Price . . . . . . . . . . . . . . .
3.3 Manner of Conveyance; Limited Warranty;
Nonrecourse; Etc. . . . . . . . . . . . . . . .
3.4 Forged or Stolen Instruments . . . . . . . . . . .
3.5 Assets Not Purchased by Assuming Bank. . . . . . .
3.6 Loans Essential to Receiver. . . . . . . . . . . .
ARTICL E IV ASSUMPTION OF CERTAIN DUTIES
AND OBLIGATIONS. . . . . . . . . . . . . . . . . .
4.1 Continuation of Banking Business . . . . . . . . .
4.2 Agreement with Respect to Credit Card Business . .
4.3 Agreement with Respect to Safe Deposit Business. .
4.4 Agreement with Respect to Safekeeping Business . .
4.5 Agreement with Respect to Trust Business . . . . .
4.6 Agreement with Respect to Bank Premises. . . . . .
4.7 Agreement with Respect to Leased Data
Processing Equipment. . . . . . . . . . . . . .
4.8 Agreement with Respect to Certain
Existing Agreements . . . . . . . . . . . . . .
4.9 Informational Tax Reporting. . . . . . . . . . . .
4.10 Insurance. . . . . . . . . . . . . . . . . . . . .
4.11 Office Space for Receiver and Corporation. . . . .
4.12 Agreement with Respect to Continuation of
Group Health Plan Coverage for
Former Employees of the Failed Bank . . . . . .
4.13 Agreement with Respect to Interim Asset
Servicing . . . . . . . . . . . . . . . . . . .
4.14 Agreement With Respect to Cash and Cash Items. . .
ARTICLE V DUTIES WITH RESPECT TO DEPOSITORS OF
THE FAILED BANK. . . . . . . . . . . . . . . . . .
5.1 Payment of Checks, Drafts and Orders . . . . . . .
5.2 Certain Agreements Related to Deposits. . . . . .
5.3 Notice to Depositors . . . . . . . . . . . . . . .
ARTICLE VI RECORDS. . . . . . . . . . . . . . . . . . . . . .
6.1 Transfer of Records. . . . . . . . . . . . . . . .
6.2 Delivery of Assigned Records . . . . . . . . . . .
6.3 Preservation of Records. . . . . . . . . . . . . .
6.4 Access to Records; Copies. . . . . . . . . . . . .
6.5 Records Research . . . . . . . . . . . . . . . . .
6.6 Limited Power of Attorney. . . . . . . . . . . . .
ARTICLE VII BID; INITIAL PAYMENT . . . . . . . . . . . . . . .
ARTICLE VIII ADJUSTMENTS. . . . . . . . . . . . . . . . . . . .
8.1 Pro Forma Statement. . . . . . . . . . . . . . . .
8.2 Correction of Errors and Omissions;
Other Liabilities . . . . . . . . . . . . . . .
8.3 Payments . . . . . . . . . . . . . . . . . . . . .
8.4 Interest . . . . . . . . . . . . . . . . . . . . .
8.5 Subsequent Adjustments . . . . . . . . . . . . . .
ARTICLE IX CONTINUING COOPERATION . . . . . . . . . . . . . .
9.1 General Matters. . . . . . . . . . . . . . . . . .
9.2 Additional Title Documents . . . . . . . . . . . .
9.3 Claims and Suits . . . . . . . . . . . . . . . . .
9.4 Payment of Deposits. . . . . . . . . . . . . . . .
9.5 Withheld Payments. . . . . . . . . . . . . . . . .
9.6 Proceedings with Respect to Certain Assets
and Liabilities . . . . . . . . . . . . . . . .
9.7 Information. . . . . . . . . . . . . . . . . . . .
ARTICLE X CONDITION PRECEDENT. . . . . . . . . . . . . . . .
ARTICLE XI REPRESENTATIONS AND WARRANTIES OF THE
ASSUMING BANK. . . . . . . . . . . . . . . . . . .
<PAGE>
ARTICLE XII INDEMNIFICATION. . . . . . . . . . . . . . . . . .
12.1 Indemnification of Indemnitees . . . . . . . . . .
12.2 Conditions Precedent to Indemnification. . . . . .
12.3 No Additional Warranty . . . . . . . . . . . . . .
12.4 Indemnification of Corporation and Receiver. . . .
12.5 Obligations Supplemental . . . . . . . . . . . . .
12.6 Criminal Claims. . . . . . . . . . . . . . . . . .
12.7 Corporation Obligation . . . . . . . . . . . . . .
12.8 Subrogation. . . . . . . . . . . . . . . . . . . .
ARTICLE XIII MISCELLANEOUS. . . . . . . . . . . . . . . . . . .
13.1 Entire Agreement . . . . . . . . . . . . . . . . .
13.2 Headings . . . . . . . . . . . . . . . . . . . . .
13.3 Counterparts . . . . . . . . . . . . . . . . . . .
13.4 Governing Law. . . . . . . . . . . . . . . . . . .
13.5 Successors . . . . . . . . . . . . . . . . . . . .
13.6 Modification; Assignment . . . . . . . . . . . . .
13.7 Notice . . . . . . . . . . . . . . . . . . . . . .
13.8 Manner of Payment. . . . . . . . . . . . . . . . .
13.9 Costs, Fees and Expenses . . . . . . . . . . . . .
13.10 Waiver . . . . . . . . . . . . . . . . . . . . . .
13.11 Severability . . . . . . . . . . . . . . . . . . .
13.12 Term of Agreement. . . . . . . . . . . . . . . . .
13.13 Survival of Covenants, Etc . . . . . . . . . . . .
SCHEDULES
2.1 Certain Liabilities Assumed. . . . . . . . . . . .
3.1 Certain Assets Purchased . . . . . . . . . . . . .
3.1(a) Assets Purchased Under Section 3.1(a). . . . . . .
3.1(b) Assets Purchased Under Section 3.1(b). . . . . . .
3.1(c) Assets Purchased Under Section 3.1(c). . . . . . .
4.6 Bank Premises. . . . . . . . . . . . . . . . . . .
EXHIBITS
4.13 Interim Asset Servicin g Arrangement . . . . . . .
6.6 Limited Power of Attorney. . . . . . . . . . . . .
<PAGE>
PURCHASE AND ASSUMPTION AGREEMENT
THIS AGREEMENT, made and entered into as of the 10th day of
June, 1994, by and among the FEDERAL DEPOSIT INSURANCE CORPORATION,
RECEIVER of THE BANK OF HARTFORD, INC., Hartford, CT (the "Receiver"),
EAGLE FEDERAL SAVINGS BANK, organized under the laws of the United
States of America, and having its principal place of business in
Bristol, CT (the "Assuming Bank"), and the FEDERAL DEPOSIT INSURANCE
CORPORATION, organized under the laws of the United States of America
and having its principal office in Washington, D.C., acting in its
corporate capacity (the "Corporation").
WITNESSETH:
WHEREAS, on Bank Closing, the Chartering Authority closed
The Bank of Hartford, Hartford, CT (the "Failed Bank") pursuant
to applicable law and the Corporation was appointed Receiver
thereof; and
WHEREAS, the Assuming Bank desires to purchase certain
assets and assume certain deposit and other liabilities of the
Failed Bank on the terms and conditions set forth in this
Agreement; and
WHEREAS, pursuant to 12 U.S.C. Section 1823(c)(2)(A), the
Corporation may provide assistance to the Assuming Bank to
facilitate the transactions contemplated by this Agreement, which
assistance may include indemnification pursuant to Article XII; and
WHEREAS, the Board of Directors of the Corporation (the
"Board") has determined to provide assistance to the Assuming
Bank on the terms and subject to the conditions set forth in this
Agreement; and
WHEREAS, the Board has determined pursuant to 12 U.S.C.
Section 1823(c)(4)(A) that such assistance is necessary to meet
the obligation of the Corporation to provide insurance coverage
for the insured deposits in the Failed Bank and is the least
costly to the deposit insurance fund of all possible methods for
meeting such obligation.
NOW THEREFORE, in consideration of the mutual promises
herein set forth and other valuable consideration, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used in this Agreement shall have the
meanings set forth in this Article I, or elsewhere in this
Agreement. As used herein, words imparting the singular include
the plural and vice versa.
"Accounting Records" means the general ledger and
subsidiary ledgers and supporting schedules which support the
general ledger balances.
"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.
"Asset Pool" means any of the pools of Loans, Other
Real Estate or other assets (including servicing rights, if any)
purchased by the Assuming Bank from the Receiver pursuant to this
Agreement and identified on Schedules 3.1(a), (b) or (c) hereto.
"Asset Purchase Price" which shall be determined by the
Receiver, means, with respect to any assets of Failed Bank
purchased pursuant to this Agreement, the Book Value therefor
(unless another purchase price is specified in this Agreement).
"Asset Valuation Review" or "AVR" means the Corporation's
asset valuation review of the Failed Bank.
"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.
"Bank Closing" means the close of business of the
Failed Bank on the date on which the Chartering Authority closed
such institution.
"Bank Premises" means the banking houses, drive-in
banking facilities, and teller facilities (staffed or automated)
together with appurtenant parking, storage and service facilities
and structures connecting remote facilities to banking houses,
and land on which the foregoing are located, that are owned or
leased by the Failed Bank and that are occupied by the Failed
Bank as of Bank Closing.
"Bid Amount" has the meaning provided in Article VII.
"Book Value" means, with respect to any Asset and any
Liability Assumed, the dollar amount thereof stated on the
Accounting Records of the Failed Bank. The Book Value of any
item shall be determined as of Bank Closing after adjustments
made by the Receiver for differences in accounts, suspense items,
unposted debits and credits, and other similar adjustments or
corrections. 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 or
unearned interest (as it relates to the "rule of 78s" or add-on-
interest loans, as applicable), if any, as of Bank Closing, and
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, in each case
as determined for financial reporting purposes. The Book Value
of an Asset shall not include any adjustment for loan premiums,
discounts or any related deferred income or fees, or general or
specific reserves on the Accounting Records of the Failed Bank.
"Business Day" means a day other than a Saturday,
Sunday, Federal legal holiday or legal holiday under the laws of
the State where the Failed Bank is located, or a day on which the
principal office of the Corporation is closed.
"Chartering Authority" means (i) with respect to a
national bank, the Office of the Comptroller of the Currency,
(ii) with respect to a Federal savings association or savings
bank, the Office of Thrift Supervision, (iii) with respect to a
bank or savings institution chartered by a State, the agency of
such State charged with primary responsibility for regulating
and/or closing banks or savings institutions, as the case may be,
or (iv) the Corporation in accordance with 12 U.S.C. Section
1821(c)(10).
"Classified" means, with respect to any Loan or
security, a Loan or security which has been designated in the
Information Package as "substandard," "doubtful" or "loss".
"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, home equity lines of credit
or overdraft protection plans of the Failed Bank, if any.
"Credit Documents" means the agreements, instruments,
certificates or other documents at any time evidencing or
otherwise relating to, governing or executed in connection with
or as security for, a Loan, including without limitation notes,
bonds, loan agreements, letter of credit applications, lease
financing contracts, banker's acceptances, drafts, interest
protection agreements, currency exchange agreements, repurchase
agreements, reverse repurchase agreements, guarantees, deeds of
trust, mortgages, assignments, security agreements, pledges,
subordination or priority agreements, lien priority agreements,
undertakings, security instruments, certificates, documents,
legal opinions, participation agreements and intercreditor
agreements, and all amendments, modifications, renewals,
extensions, rearrangements, and substitutions with respect to any
of the foregoing.
"Credit File" means all Credit Documents and all other
credit, collateral, or insurance documents in the possession or
custody of the Assuming Bank, or any of its Subsidiaries or
Affiliates, relating to an Asset or a Loan included in a
Repurchase Notice, or copies of any thereof.
"Data Processing Lease" means any lease or licensing
agreement, binding on the Failed Bank as of Bank Closing, the
subject of which is data processing equipment or computer
hardware or software used in connection with data processing
activities. A lease or licensing agreement for computer software
used in connection with data processing activities shall
constitute a Data Processing Lease regardless of whether such
lease or licensing agreement also covers data processing equipment.
<PAGE>
"Deposit" means a deposit as defined in 12 U.S.C.
Section 1813(l), including without limitation 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.
"Fair Market Value" means (i) with respect to Bank
Premises, the most probable price for which such property would
have sold in a competitive market as of Bank Closing under all
conditions requisite to a fair sale, with the buyer and the
seller each acting prudently, knowledgeably, and for self
interest, and assuming that neither is under duress, as
determined by an appraiser mutually acceptable to the Receiver
and the Assuming Bank, or (ii) with respect to Fixtures,
Furniture and Equipment and Assets other than Loans and Bank
Premises, 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) 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 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, artwork and motor
vehicles. The owned and leased motor vehicles shall be deemed
located at the Bank Premises which is the Failed Bank's
operations center.
"Indemnitees" means, except as provided in paragraph
(k) of Section 12.1, (i) the Assuming Bank, (ii) the Subsidiaries
and Affiliates of the Assuming Bank other than any Subsidiaries
or Affiliates of the Failed Bank that are or become Subsidiaries
or Affiliates of the Assuming Bank, and (iii) the directors,
officers, employees and agents of the Assuming Bank and its
Subsidiaries and Affiliates who are not also present or former
directors, officers, employees or agents of the Failed Bank or of
any Subsidiary or Affiliate of the Failed Bank.
"Information Package" means the compilation of
financial and other data with respect to the Failed Bank entitled
"Information Package" dated as of December 31, 1993, and any
amendments or supplements thereto provided to the Assuming Bank
by the Corporation.
"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 the sum of the Liabilities
Assumed minus the sum of the aggregate Book Value of the Assets
purchased and the Bid Amount. Such Initial Payment shall be
subject to adjustment as provided in Article VIII.
"Interim Asset Servicing Arrangement" has the meaning
provided in Section 4.13.
"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 interests, interests in
participations, revolving commercial lines of credit, home equity
lines of credit, United States and/or State-guaranteed student
loans, and lease financing contracts;
<PAGE>
(ii) all Liens, rights (including rights of set-off),
remedies, powers, privileges, demands, claims, priorities,
equities and benefits owned or held by, or accruing or to accrue
to or for the benefit of, the holder of the obligations or
instruments referred to in clause (i) above, including but not
limited to those arising under or based upon Credit Documents,
casualty insurance policies and binders, standby letters of
credit, mortgagee title insurance policies and binders, payment
bonds and performance bonds at any time and from time to time
existing with respect to any of the obligations or instruments
referred to in clause (i) above; and
(iii) all amendments, modifications, renewals, extensions,
refinancings, and refundings of or for any of the foregoing;
provided, that there shall be excluded from the definition of
Loans (a) any portion of the foregoing which the Failed Bank or
the Assuming Bank (or any of their respective Subsidiaries) holds
not for its own account but solely as agent or fiduciary for, or
otherwise as representative of, any other Person, (b) any loans
which have been charged off the Accounting Records of the Failed
Bank in whole prior to the date of the Information Package, (c)
loans recorded on the Accounting Records of the Failed Bank on
"in substance foreclosure" status as of Bank Closing, (d)
Commitments, (e) any participation (or sub-participation)
interest in any loan made by (or participated in) by Maine
Savings Bank, and (f) Loans to Facilitate.
"Loans to Facilitate" means new loans (regardless of
the amount of such loans) made by the Failed Bank for the purpose
of facilitating the disposition of Other Real Estate.
"Mortgage Derivative Products" means Real Estate
Mortgage Investment Conduits ("REMICS") and Collateralized
Mortgage Obligations ("CMOs") as such terms are used in the FDIC
Supervisory Policy Statement on Securities Activities (FIL-7-92,
January 17, 1992).
"Nonhigh-Risk Mortgage Securities" means those Mortgage
Derivative Products which are not within the definition of "high-
risk mortgage security" set forth in the FDIC Supervisory Policy
Statement on Securities Activities (FIL-7-92, January 17, 1992)
as determined by the Receiver or the Assuming Bank, at the
Receiver's discretion.
"Obligor" means each Person liable for the full or
partial payment or performance of any Loan, whether such Person
is obligated directly, indirectly, primarily, secondarily,
jointly, or severally.
"Other Acquirer" means any purchaser (other than the
Assuming Bank) of a significant portion of the Failed Bank's
assets, as determined by the Receiver.
"Other Real Estate" means all interests in real estate
(other than Bank Premises and Fixtures) and loans on "in substance
foreclosure" status as recorded on the Accounting Records of the
Failed Bank, including but not limited to mineral rights, leasehold
rights, condominium and cooperative interests, air rights and
development rights which are owned by the Failed Bank.
"Payment Date" means the first Business Day after Bank
Closing.
"Person" means any individual, corporation,
partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, or government or any agency
or political subdivision thereof, excluding the Corporation.
"Primary Indemnitor" means any Person (other than the
Assuming Bank or any of its Affiliates) who is obligated to
indemnify or insure, or otherwise make payments (including
payments on account of claims made against) to or on behalf of
any Person in connection with the claims covered under Article
XII, including without limitation any insurer issuing any
directors and officers liability policy or any Person issuing a
financial institution bond or banker's blanket bond.
"Repurchase Date" has the meaning provided in Section 3.4.
"Repurchase Notice" has the meaning provided in Section 3.4.
"Qualified Financial Contract" means a qualified
financial contract as defined in 12 U.S.C. Section 1821(e)(8)(D).
"Record" means any document, microfiche, microfilm and
computer records (including but not limited to magnetic tape,
disc storage, card forms and printed copy) of the Failed Bank
generated or maintained by the Failed Bank that is owned by or in
the possession of the Receiver at Bank Closing.
<PAGE>
"Related Liability" with respect to any Asset means any
liability existing and reflected on the books and records of the
Failed Bank as of Bank Closing for (i) indebtedness secured by
mortgages, deeds of trust, chattel mortgages, security interests
or other liens on or affecting such Asset, (ii) ad valorem taxes
applicable to such Asset, and (iii) any other obligation
determined by the Receiver to be directly related to such Asset.
"Related Liability Amount" with respect to any Related
Liability on the books and records 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" which shall be determined by the
Receiver, means, with respect to any Asset, the Asset Purchase
Price therefor, less any collections received by the Assuming
Bank applicable to such Asset after Bank Closing.
"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 (other than fees collected prior to Bank
Closing) 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 two hundred seventy (270)
days after Bank Closing, or such other date prior thereto as may
be agreed upon by the Receiver and the Assuming Bank. The
Receiver, in its discretion, may extend the Settlement Date.
"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 Bank Closing, except as otherwise provided in this Agreement
(such liabilities referred to as "Liabilities Assumed"):
(a) Deposits, including outstanding cashier's checks and
other official checks;
(b) liabilities for indebtedness secured by mortgages
(other than borrowings from Federal Reserve Banks or
Federal Home Loan Banks), 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 or Federal Home Loan Banks as
reflected on the books and records of any such Federal
Reserve Bank or Federal Home Loan Bank within ninety
(90) days after Bank Closing, if any;
(d) ad valorem taxes applicable to any Asset, if any;
provided, that the assumption of any ad valorem taxes
pursuant to this paragraph shall be limited to an
amount equal to the market value of the Asset to which
such taxes apply as determined by the Receiver;
(e) liabilities, if any, for federal funds purchased,
repurchase agreements and overdrafts in accounts
maintained with other depository institutions
(including any accrued and unpaid interest thereon
computed to and including Bank Closing); provided, that
the assumption of any liability pursuant to this
paragraph shall be limited to the market value of the
Assets securing such liability as determined by the
Receiver;
<PAGE>
(f) 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;
(g) 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, and
safekeeping business or trust business, if any.
(h) duties and obligations under any contract pursuant to
which the Failed Bank provides loan or mortgage
servicing for others; and
(i) liabilities, if any, with respect to Mortgage Derivative
Products acquired pursuant to Section 3.1(q); provided,
that liabilities with respect to such assets shall be
assumed at their market value as determined in accordance
with the terms of Section 3.2(c).
Schedule 2.1 attached hereto and incorporated herein sets forth
certain categories of Liabilities Assumed and the aggregate Book
Value of the Liabilities Assumed in such categories. Such
schedule is based upon the best information available to the
Receiver and may be adjusted as provided in Article VIII.
2.2 Interest on Deposit Liabilities.
The Assuming Bank agrees that, from and after Bank Closing,
it will accrue and pay interest on Deposit liabilities assumed
pursuant to Section 2.1 in accordance with the terms of the
respective deposit agreements between the Failed Bank and the
depositors of the Failed Bank for a period of fourteen (14) days
commencing the day after Bank Closing. Thereafter, except as
provided in Section 5.3, the Assuming Bank may pay interest with
respect to such Deposit liabilities at rate(s) it shall
determine; provided, that such rate(s) shall not be less than the
lowest rate offered by the Assuming Bank to other depositors in
accordance with the Assuming Bank's rules for deposit accounts at
the time. The Assuming Bank shall permit each such 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 such deposit
agreement; and further provided, that if such Deposit has been
pledged to secure an obligation of the depositor to the Failed
Bank, 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 after such
fourteen (14)-day period, and of such withdrawal rights.
2.3 Unclaimed Deposits. If, within eighteen (18) months
after Bank Closing, any depositor of the Failed Bank does not
claim or arrange to continue such depositor's Deposit assumed
pursuant to Section 2.1 at the Assuming Bank, the Assuming Bank
shall, within fifteen (15) Business Days after the end of such
eighteen (18)-month period, (i) refund to the Corporation the
full amount of each such Deposit (without reduction for service
charges), (ii) provide to the Corporation a schedule of all such
refunded Deposits in such form as may be prescribed by the
Corporation, and (iii) assign, transfer, convey and deliver to
the Receiver all right, title and interest of the Assuming Bank
in and to Records previously transferred to the Assuming Bank and
other records generated or maintained by the Assuming Bank
pertaining to such Deposits. During such eighteen (18)-month
period, at the request of the Corporation, the Assuming Bank
promptly shall provide to the Corporation schedules of unclaimed
deposits in such form as may be prescribed by the Corporation.
2.4 Employee Benefit Plans. Except as provided in Section
4.12, the Assuming Bank shall have no liabilities, obligations or
responsibilities under the Failed Bank's health care, bonus,
vacation, pension, profit sharing or stock purchase plans or
similar plans, if any, unless the Receiver and the Assuming Bank
agree otherwise subsequent to the date of this Agreement.
ARTICLE III
PURCHASE OF ASSETS
3.1 Assets Purchased by Assuming Bank. Subject to Sections
3.5 and 3.6, the Assuming Bank hereby purchases from the
Receiver, and the Receiver hereby sells, assigns, transfers,
conveys, and delivers to the Assuming Bank, all right, title, and
interest of the Receiver in and to all of the following:
(a) Assets listed on Schedule 3.1(a) hereto, plus accrued
interest thereon computed to and including Bank
Closing;
(b) Assets listed on Schedule 3.1(b) hereto, plus accrued
interest thereon computed to and including Bank
Closing;
(c) Assets listed on Schedule 3.1(c) hereto, plus accrued
interest thereon computed to and including Bank
Closing;
(d) cash and receivables from depository institutions,
including cash items in the process of collection, plus
any accrued interest thereon computed to and including
Bank Closing;
(e) securities (other than (i) Federal Reserve Bank stock
or Federal Home Loan Bank stock, if any, or any rights
with respect to such stock relating to any borrowings
from Federal Reserve Banks or Federal Home Loan Banks,
(ii) the capital stock of Subsidiaries of the Failed
Bank and (iii) Mortgage Derivative Products); plus any
accrued interest thereon computed to and including Bank
Closing;
(f) federal funds sold and repurchase agreements, if any,
including any accrued interest thereon computed to and
including Bank Closing;
(g) overdrafts of customers (including but not limited to
overdrafts made pursuant to an overdraft protection
plan or similar extension of credit in connection with
a deposit account);
(h) Safe Deposit Boxes and related business, safekeeping
business, if any, subject to Section 4.3 or 4.4,
respectively;
(i) credit card business, if any, subject to Section 4.2;
(q) Mortgage Derivative Products which are Nonhigh-Risk
Mortgage Securities on the date of Bank Closing;
(j) any rights of the Failed Bank to provide loan or
mortgage servicing for others; and
(k) Records and other documents as provided in Section 6.1.
Schedule 3.1 attached hereto and incorporated herein sets forth
certain categories of Assets and the aggregate Book Value of the
Assets in such categories. Such schedule is based upon the best
information available to the Receiver and may be adjusted as
provided in Article VIII. Assets are purchased hereunder by the
Assuming Bank subject to all liabilities for indebtedness
collateralized by Liens affecting such Assets to the extent
provided in Section 2.1.
3.1A Option to Purchase Certain Other Loans. Subject to
Sections 3.5 and 3.6, the Receiver hereby grants to the Assuming
Bank an exclusive option for the period of thirty (30) days
commencing the day after Bank Closing to purchase any Loan of the
Failed Bank which (a) was not included in any pool of Loans
offered for purchase at the bid meeting for the Failed Bank and
(b) made by the Failed Bank after the date of the Information
Package. Each Loan purchased by the Assuming Bank pursuant to
this option shall be purchased at the Book Value thereof, and
such purchase shall be consummated as soon as practicable after
the Assuming Bank notifies the Receiver of its election to
exercise such option, and in no event later than the Settlement
Date.
3.1B Option to Purchase Certain Other Assets. Subject to
Sections 3.5 and 3.6, the Receiver hereby grants to the Assuming
Bank an exclusive option for the period of thirty (30) days
commencing the day after Bank Closing to purchase any Mortgage
Derivative Products which did not pass to the Assuming Bank
pursuant to Section 3.1(q). Each Mortgage Derivative Product
purchased by the Assuming Bank pursuant to this option shall be
purchased at the market value thereof, determined in accordance
with Section 3.2(c). Such purchase shall be consummated as soon
as practicable after the Assuming Bank notifies the Receiver of
its election to exercise such option, and in no event later than
the Settlement Date.
3.2 Asset Purchase Price.
(a) Securities (excluding Mortgage Derivative
Products) purchased by the Assuming Bank shall be purchased at
the price determined in accordance with Section 3.2(b). Mortgage
Derivative Products purchased by the Assuming Bank shall be
purchased at the price determined in accordance with Section
3.2(c). Bank Premises, Fixtures and Furniture and Equipment
owned by the Failed Bank shall be purchased at the prices
determined in Section 4.6. All other Assets (including, without
limitation, Assets purchased pursuant to subsections (a), (b) and
<PAGE>
(c) of Section 3.1) shall be purchased at the Book Value thereof
(or, in the event a Book Value does not exist, at their market
value as determined by the Receiver).
(b) The purchase price for securities purchased under
Section 3.1 by the Assuming Bank shall be the market value
thereof as of Bank Closing, which market value shall be (i) the
quotation for the closing price of each such security effective
on Bank Closing as published in The Wall Street Journal; (ii)
provided, that if such closing price is not available for any
such security, the market value thereof shall be determined by
taking the average of the quotations for asked and bid prices for
each such security effective on Bank Closing as published in The
Wall Street Journal; and (iii) further provided, that if the
closing price and asked and bid prices are not published in The
Wall Street Journal, the market value of each such security shall
be determined by taking the average of the quotations for asked
and bid prices for each such security as quoted by the National
Association of Securities Dealers (exclusive of any brokerage
commissions) or if unavailable from such source, then from three
(3) independent brokers mutually acceptable to the Receiver and
the Assuming Bank, in either case as in effect on Bank Closing.
The value of such securities shall be calculated within sixty
(60) days after Bank Closing. Any costs associated with such
valuation shall be shared equally by the Receiver and the
Assuming Bank.
(c) The purchase price for Mortgage Derivative
Products purchased under Section 3.1 by the Assuming Bank shall
be the market value thereof as of Bank Closing, which shall be
determined by taking the average of the quotations for asked and
bid prices for each such Mortgage Derivative Product from three
(3) independent brokers mutually acceptable to the Receiver and
the Assuming Bank, in either case as in effect on Bank Closing.
The value of such Mortgage Derivative Products shall be
calculated within sixty (60) days after Bank Closing. Any costs
associated with such valuation shall be shared equally by the
Receiver and the Assuming Bank. With respect to Mortgage
Derivative Products purchased pursuant to Section 3.1B, market
value shall be determined as of the date of the notice to the
Receiver of the Assuming Bank's exercise of its option.
3.3 Manner of Conveyance; Limited Warranty; Nonrecourse;
Etc. THE CONVEYANCE OF ALL ASSETS, INCLUDING REAL AND PERSONAL
PROPERTY INTERESTS, PURCHASED BY THE ASSUMING BANK UNDER THIS
AGREEMENT SHALL BE MADE, AS NECESSARY, BY RECEIVER'S DEED OR
RECEIVER'S BILL OF SALE, "AS IS", "WHERE IS", WITHOUT RECOURSE
AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT,
WITHOUT ANY WARRANTIES WHATSOEVER WITH RESPECT TO SUCH ASSETS,
EXPRESS OR IMPLIED, WITH RESPECT TO TITLE, ENFORCEABILITY,
COLLECTIBILITY, DOCUMENTATION OR FREEDOM FROM LIENS OR
ENCUMBRANCES (IN WHOLE OR IN PART), OR ANY OTHER MATTERS.
3.4 Forged or Stolen Instruments.
(a) During the period from Bank Closing to and
including the Business Day immediately preceding the day which is
the first anniversary of the Bank Closing date, the Assuming Bank
shall be entitled to require the Receiver to purchase any Asset
which the Assuming Bank can establish is evidenced by forged or
stolen instruments as of Bank Closing; provided, that, the
Assuming Bank shall not have the right to require the Receiver to
purchase any such Asset with respect to which the Assuming Bank
has taken any of the following actions with respect to such
Asset:
(i) made any advance in accordance with the terms of a
Commitment or otherwise with respect to such Loan;
(ii) 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;
(iii) 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;
(iv) 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
(v) sold, assigned or transferred all or a portion of
such Loan to a third party (whether with or without recourse).
The Assuming Bank shall transfer all such Assets to the Receiver
without recourse, and shall indemnify the Receiver against any
and all claims of any Person claiming by, through or under the
Assuming Bank with respect to any such Asset, as provided in
Section 12.4.
(b) In the event that the Assuming Bank elects to
require the Receiver to purchase one or more Assets, the Assuming
Bank shall deliver to the Receiver a notice (a "Repurchase
Notice") which shall include:
(i) a list of all Assets that the Assuming Bank
requires the Receiver to purchase;
(ii) a list of all Related Liabilities with
respect to the Assets identified pursuant to (i) above; and
(iii) a statement of the estimated Repurchase Price
of each Asset identified pursuant to (i) above as of the
applicable Repurchase Date.
Such notice shall be in the form prescribed by the Receiver or
such other form to which the Receiver shall consent. As provided
in Section 9.6, the Assuming Bank shall deliver to the Receiver
such documents, Credit Files and such additional information
relating to the subject matter of the Repurchase Notice as the
Receiver may request and shall provide to the Receiver full
access to all other relevant books and records.
(c) The Receiver shall purchase Loans that are
specified in the Repurchase 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 "Repurchase Date").
(d) Each Loan purchased by the Receiver pursuant to
this Section 3.4 shall be purchased at a price equal to the
Repurchase Price of such Loan less the Related Liability Amount
applicable to such Loan, in each case determined as of the
applicable Repurchase Date. If the difference between such
Repurchase Price and such Related Liability Amount is positive,
then the Receiver shall pay to the Assuming Bank the amount of
such difference; if the difference between such amounts is
negative, then the Assuming Bank shall pay to the Receiver the
amount of such difference. The Assuming Bank or the Receiver, as
the case may be, shall pay the purchase price determined pursuant
to this Section 3.4(e) not later than the twentieth (20th)
Business Day following the applicable Repurchase Date, together
with interest on such amount determined pursuant to Section 8.4
for the period from and including such Repurchase Date to and
including the day preceding the date upon which payment is made.
(e) The Assuming Bank shall administer and manage any
Asset subject to purchase by the Receiver in accordance with
usual and prudent banking standards and business practices until
such time as such Asset is purchased by the Receiver.
(f) In the event that the Receiver purchases an Asset
(and assumes the Related Liability) that it is not required to
purchase pursuant to this Section 3.4, the Assuming Bank shall
repurchase such Asset (and assume such Related Liability) from
the Receiver at a price computed so as to achieve the same
economic result as would apply if the Receiver had never
purchased such Asset pursuant to this Section 3.4.
3.5 Assets Not Purchased by Assuming Bank. The Assuming
Bank does not purchase, or (except as otherwise expressly
provided in this Agreement) obtain an option to purchase under
this Agreement:
(a) any financial institution bonds, banker's blanket
bonds, or public liability, fire, or extended coverage
insurance policy or any other insurance policy of the
Failed Bank, or premium refund, unearned premium
derived from cancellation, or any proceeds payable with
respect to any of the foregoing;
(b) any interest, right, action, claim, or judgment against
(i) any officer, director, employee, accountant,
attorney, or any other Person employed or retained by
the Failed Bank or any Subsidiary of the Failed Bank on
or prior to Bank Closing arising out of any act or
omission of such Person in such capacity, (ii) any
underwriter of financial institution bonds, banker's
blanket bonds or any other insurance policy of the
Failed Bank, (iii) any shareholder or holding company
of the Failed Bank, or (iv) any other Person whose
action or inaction may be related to any loss
(exclusive of any loss resulting from such Person's
failure to pay on a Loan made by the Failed Bank)
incurred by the Failed Bank; provided, that for the
purposes hereof, the acts, omissions or other events
giving rise to any such claim shall have occurred on or
before Bank Closing, regardless of when any such claim
is discovered and regardless of whether any such claim
is made with respect to a financial institution bond,
banker's blanket bond, or any other insurance policy of
the Failed Bank in force as of Bank Closing;
(c) prepaid regulatory assessments of the Failed Bank, if
any;
(d) legal or equitable interests in tax receivables of the
Failed Bank, if any, including any claims arising as a
result of the Failed Bank having entered into any
agreement or otherwise being joined with another Person
with respect to the filing of tax returns or the
payment of taxes;
(e) Federal Reserve Bank stock 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 Bank does obtain an option under Section 4.6,
Section 4.7 or Section 4.8, as the case may be, with
respect thereto;
(h) owned Bank Premises which the Receiver, in its
discretion, determines may contain environmentally
hazardous substances (notwithstanding the foregoing,
however, the Receiver has determined that the Bank
Premises located on Farmington Avenue shall be
available for purchase pursuant to Section 4.6 hereof);
(i) Other Real Estate and loans on "in-substance
foreclosure" status which existed as such on the Failed
Bank's Accounting Records on December 31, 1993;
(j) any amounts owed to the Failed Bank by any Subsidiary
of the Failed Bank;
(k) any "goodwill," as such term is defined in the
instructions to the report of condition prepared by
banks examined by the Corporation in accordance with 12
C.F.R. Section 304.4, and other intangibles;
(l) 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);,
(m) any Mortgage Derivative Product if, in the discretion
of the Receiver, the value of such Mortgage Derivative
Product either cannot be determined or is determined to
be zero pursuant to Section 3.2(c);
(n) any criminal restitution orders issued in favor of the
Failed Bank;
(o) any participation (or sub-participation) interest in
any loan made by (or participated in) by Maine Savings
Bank:
(p) any capital stock of any Subsidiary of the Failed Bank;
(q) any United States Treasury tax and loan note option
accounts;
(r) any Loans to Facilitate; and
(s) any assets listed under the heading "Other Assets" on
the Schedule titled "Income Earned Not Collected,
Prepaid Expenses, Other Assets" in the Information
Package.
3.6 Loans Essential to Receiver.
(a) The Receiver may refuse to sell to the Assuming
Bank, or the Assuming Bank agrees, at the request of the Receiver
set forth in a written notice to the Assuming Bank, to assign,
transfer, convey, and deliver to the Receiver all of the Assuming
Bank's right, title and interest in and to, any Loan 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 Loan that the Receiver determines
to be:
(i) made to an officer, director, or other Person
engaging in the affairs of the Failed Bank, its
Subsidiaries or Affiliates or any related entities of
any of the foregoing;
(ii) the subject of any investigation relating to
any claim with respect to any item described in Section
3.5(a) or (b), or the subject of, or potentially the
subject of, any legal proceedings;
(iii) made to a Person who is an Obligor on a loan
owned by the Receiver or the Corporation in its
corporate capacity or its capacity as receiver of any
institution;
(iv) secured by collateral which also secures any
asset owned by the Receiver; or
(v) related to any asset of the Failed Bank not
purchased by the Assuming Bank under this Article III.
(b) Each such Loan 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 Loan, in each case determined as of
the date of the notice provided by the Receiver pursuant to
Section 3.6(a). The Receiver shall pay the Assuming Bank not
later than the twentieth (20th) Business Day following receipt of
related Credit Documents and Credit Files together with interest
on such amount determined pursuant to Section 8.4 for the period
from and including the date of receipt of such documents to and
including the day preceding the day on which payment is made.
The Assuming Bank agrees to administer and manage each such Loan
in accordance with usual and prudent banking standards and
business practices until each such Loan is purchased by the
Receiver. All transfers with respect to Loans under this Section
3.6 shall be made as provided in Section 9.6. The Assuming Bank
shall transfer all such Loans and Related Liabilities to the
Receiver without recourse, and shall indemnify the Receiver
against any and all claims of any Person claiming by, through or
under the Assuming Bank with respect to any such Loan, as
provided in Section 12.4.
ARTICLE IV
ASSUMPTION OF CERTAIN DUTIES AND OBLIGATIONS
The Assuming Bank agrees with the Receiver and the
Corporation as follows:
4.1 Continuation of Banking Business. The Assuming Bank
agrees to provide full service banking in the trade area of the
Failed Bank commencing on the first banking business day
(including a Saturday) after Bank Closing. At the option of the
Assuming Bank, such banking services may be provided at any or
all of the Bank Premises, or at other premises within such trade
area.
4.2 Agreement with Respect to Credit Card Business. The
Assuming Bank agrees to honor and perform, from and after Bank
Closing, all duties and obligations with respect to the Failed
Bank's credit card business, and/or processing related to credit
cards, if any, and assumes all outstanding extensions of credit
with respect thereto. Fees related to the credit card business
collected prior to Bank Closing shall be for the benefit of the
Receiver and fees collected after Bank Closing shall be for the
benefit of the Assuming Bank.
4.3 Agreement with Respect to Safe Deposit Business. The
Assuming Bank assumes and agrees to discharge, from and after
Bank Closing, in the usual course of conducting a banking
business, the duties and obligations of the Failed Bank with
respect to all Safe Deposit Boxes, if any, of the Failed Bank and
to maintain all of the necessary facilities for the use of such
boxes by the renters thereof during the period for which such
boxes have been rented and the rent therefor paid to the Failed
Bank, subject to the provisions of the rental agreements between
the Failed Bank and the respective renters of such boxes;
provided, that the Assuming Bank may relocate the Safe Deposit
Boxes of the Failed Bank to any office of the Assuming Bank
located in the trade area of the Failed Bank. Fees related to
the safe deposit business collected prior to Bank Closing shall
be for the benefit of the Receiver and fees collected after Bank
Closing shall be for the benefit of the Assuming Bank.
4.4 Agreement with Respect to Safekeeping Business. The
Receiver transfers, conveys and delivers to the Assuming Bank and
the Assuming Bank accepts all securities and other items, if any,
held by the Failed Bank in safekeeping for its customers as of
Bank Closing. The Assuming Bank assumes and agrees to honor and
discharge, from and after Bank Closing, the duties and
obligations of the Failed Bank with respect to such securities
and items held in safekeeping. The Assuming Bank shall be
entitled to all rights and benefits heretofore accrued or
hereafter accruing with respect thereto. Fees related to the
safe keeping business collected prior to Bank Closing shall be
for the benefit of the Receiver and fees collected after Bank
Closing shall be for the benefit of the Assuming Bank. The
Assuming Bank shall provide to the Receiver written verification
of all assets held by the Failed Bank for safekeeping within
sixty (60) days after Bank Closing.
<PAGE>
4.5 Agreement with Respect to Trust Business.
(a) The Assuming Bank shall, without further transfer,
substitution, act or deed, to the full extent permitted by law,
succeed to the rights, obligations, properties, assets,
investments, deposits, agreements, and trusts of the Failed Bank,
if any, under (i) trusts, executorships, administrations,
guardianships, and agencies, and (ii) other fiduciary or
representative capacities, all to the same extent as though the
Assuming Bank had assumed the same from the Failed Bank prior to
Bank Closing; provided, that any liability based on the
misfeasance, malfeasance or nonfeasance of the Failed Bank, its
directors, officers, employees or agents with respect to the
trust business is not assumed hereunder.
(b) The Assuming Bank shall, to the full extent
permitted by law, succeed to, and be entitled to take and
execute, the appointment to all executorships, trusteeships,
guardianships and other fiduciary or representative capacities to
which the Failed Bank is or may be named in wills, whenever
probated, or to which the Failed Bank is or may be named or
appointed by any other instrument.
(c) In the event additional proceedings of any kind
are necessary to accomplish the transfer of such trust business,
the Assuming Bank agrees that, at its own expense, it will take
whatever action is necessary to accomplish such transfer. The
Receiver agrees to use reasonable efforts to assist the Assuming
Bank in accomplishing such transfer. Fees related to the Failed
Bank's trust business collected prior to Bank Closing shall be
retained by the Receiver.
4.6 Agreement with Respect to Bank Premises.
(a) Option to Purchase. Subject to Section 3.5, the
Receiver hereby grants to the Assuming Bank an exclusive option
for the period of sixty (60) days commencing the day after Bank
Closing to purchase any or all owned Bank Premises, if any is
owned as of Bank Closing, at a fixed price established in the
Asset Valuation Review, as set forth on Schedule 4.6 hereto. The
Assuming Bank shall give written notice to the Receiver within
the option period of its election to purchase or not to purchase
any of the owned Bank Premises. Any purchase of such premises
shall be effective as of the date the Receiver receives the
notice of election to exercise the option from the Assuming Bank
and such purchase shall be consummated as soon as practicable
thereafter, and in no event later than the Settlement Date.
(b) Option to Lease. The Receiver hereby grants to
the Assuming Bank an exclusive option for the period of sixty
(60) days commencing the day after Bank Closing to cause the
Receiver to assign to the Assuming Bank any or all leases for (i)
leased Bank Premises, if any, which have been continuously
occupied by the Assuming Bank from Bank Closing to the date it
elects to accept an assignment of the leases with respect thereto
to the extent such leases can be assigned, and (ii) leased
Furniture and Equipment and leased Fixtures located on owned Bank
Premises that the Assuming Bank purchases or located on leased
Bank Premises with respect to which the Assuming Bank accepts an
assignment of a lease (or enters into a sublease in lieu thereof)
or negotiates a new lease, in each case to the extent such leases
can be assigned; provided, that the exercise of this option with
respect to any lease must be as to all premises or other property
subject to the lease. If an assignment cannot be made of any
such leases, the Receiver may, in its discretion, enter into
subleases with the Assuming Bank containing the same terms and
conditions provided under such existing leases for such leased
Bank Premises or other property. The Assuming Bank shall give
notice to the Receiver within the option period of its election
to accept or not to accept an assignment of any or all leases (or
enter into subleases or new leases in lieu thereof). The
Assuming Bank agrees to assume all leases assigned (or enter into
subleases or new leases in lieu thereof) pursuant to this Section
4.6.
(c) Facilitation. The Receiver agrees to facilitate
the assumption, assignment or sublease of leases or the
negotiation of new leases by the Assuming Bank; provided, that
neither the Receiver nor the Corporation shall be obligated to
engage in litigation, make payments to the Assuming Bank or to
any third party in connection with facilitating any such
assumption, assignment, sublease or negotiation or commit to any
other obligations to third parties.
(d) Occupancy. The Assuming Bank shall give the
Receiver fifteen (15) days' prior written notice of its intention
to vacate prior to vacating any leased Bank Premises with respect
to which the Assuming Bank has not exercised the option provided
in Section 4.6(b). Any such notice shall be deemed to terminate
the Assuming Bank's option with respect to such leased Bank
Premises and leased Furniture and Equipment located on such
leased Bank Premises.
(e) Occupancy Costs.
(i) The Assuming Bank agrees, during the period of any
occupancy by it of (x) owned Bank Premises, to pay to the
Receiver the market rental value for the period of such
occupancy, and (y) leased Bank Premises, 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 applicable leases entered into by the Failed
Bank, including without limitation the timely payment of all
rent, taxes, fees, charges, utilities, insurance and assessments.
If the Assuming Bank elects to purchase any owned Bank Premises
in accordance with Section 4.6(a), the amount of any rent paid by
the Assuming Bank with respect thereto shall be applied as an
offset against the purchase price thereof.
(ii) The Assuming Bank agrees during the period of
occupancy by it of owned or leased Bank Premises, to pay to the
Receiver rent for the use of all owned or leased Furniture and
Equipment and all owned or leased Fixtures located on such Bank
Premises for the period of such occupancy. Rent for such
property owned by the Failed Bank shall be the market rental
value thereof, as determined by the Receiver within sixty (60)
days after Bank Closing. Rent for such leased property shall be
an amount equal to any and all rent and other amounts which the
Receiver incurs or accrues as an obligation or is obligated to
pay for such period of occupancy pursuant to all leases and
contracts with respect to such property.
(f) Certain Requirements as to Furniture, Equipment
and Fixtures. If the Assuming Bank purchases owned Bank Premises
or accepts an assignment of the lease (or enters into a sublease
or a new lease in lieu thereof) for leased Bank Premises as
provided in Section 4.6(a) or 4.6(b), or if the Assuming Bank
does not exercise such option but within twelve (12) months
following Bank Closing obtains the right to occupy such premises
(whether by assignment, lease, sublease, purchase or otherwise),
other than in accordance with Section 4.6(a) or (b), the Assuming
Bank shall (i) purchase from the Receiver, at a price determined
by an appraiser mutually acceptable to the Receiver and the
Assuming Bank, all Furniture and Equipment and Fixtures owned by
the Failed Bank and located thereon as of Bank Closing,
(ii) accept an assignment or a sublease of the leases or
negotiate new leases for all Furniture and Equipment and Fixtures
leased by the Failed Bank and located thereon, and (iii) if
applicable, accept an assignment or a sublease of any ground
lease or negotiate a new ground lease with respect to any land on
which such Bank Premises are located; provided, that the Receiver
shall not have disposed of such Furniture and Equipment and
Fixtures or repudiated the leases specified in clause (ii) or
(iii).
(g) Vacating Premises.
(i) If the Assuming Bank elects not to purchase any
owned Bank Premises, the Assuming Bank shall specify the date
upon which the Assuming Bank's occupancy of such premises shall
terminate, which date shall not be later than ninety (90) days
after the date of the Assuming Bank's notice not to exercise such
option. The Assuming Bank promptly shall relinquish and release
to the Receiver such premises and the Furniture and Equipment and
Fixtures located thereon in the same condition as at Bank
Closing, normal wear and tear excepted. By occupying any such
premises after the expiration of such ninety (90)-day period, the
Assuming Bank shall, at the Receiver's option, (x) be deemed to
have agreed to purchase such Bank Premises at the purchase price
specified in Section 4.6(a), 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 at the purchase price specified
in Section 4.6(f).
(ii) If the Assuming Bank elects not to accept an
assignment of the lease or sublease any leased Bank Premises, the
Assuming Bank shall specify the date upon which the Assuming
Bank's occupancy of such leased Bank Premises shall terminate,
which date shall not be later than the date which is ninety (90)
days after Bank Closing. Upon vacating such premises, the
Assuming Bank shall relinquish and release to the Receiver such
premises and the Fixtures and the Furniture and Equipment located
thereon in the same condition as at Bank Closing, normal wear and
tear excepted. By failing to provide notice of its intention to
vacate such premises prior to the expiration of the option period
specified in Section 4.6(b), or by occupying such premises after
the ninety (90)-day period specified above in this paragraph
(ii), the Assuming Bank shall, at the Receiver's option, (x) be
deemed to have assumed all leases, obligations and liabilities
with respect to such premises (including any ground lease with
respect to the land on which premises are located), and leased
Furniture and Equipment and leased Fixtures located thereon in
accordance with this Section 4.6 (unless the Receiver previously
repudiated any such lease), and (y) be required to purchase all
Furniture and Equipment and Fixtures owned by the Failed Bank and
located on such premises as of Bank Closing at the purchase price
specified in Section 4.6(f).
4.7 Agreement with Respect to Leased Data Processing
Equipment.
(a) The Receiver hereby grants to the Assuming Bank an
exclusive option for the period of sixty (60) days commencing the
day after Bank Closing to accept an assignment from the Receiver
of any or all Data Processing Leases to the extent that such Data
Processing Leases can be assigned.
(b) The Assuming Bank shall (i) give written notice to
the Receiver within the option period specified in Section 4.7(a)
of its intent to accept an assignment or sublease of any or all
Data Processing Leases and promptly accept an assignment or
sublease of such Data Processing Leases, and (ii) give written
notice to the appropriate lessor(s) that it has accepted an
assignment or sublease of any such Data Processing Leases.
(c) The Receiver agrees to facilitate the assignment
or sublease of Data Processing Leases or the negotiation of new
leases or license agreements by the Assuming Bank; provided, that
neither the Receiver nor the Corporation shall be obligated to
engage in litigation or make payments to the Assuming Bank or to
any third party in connection with facilitating any such
assumption, assignment, sublease or negotiation.
(d) The Assuming Bank agrees, during its period of use
of any property subject to a Data Processing Lease, to pay to the
Receiver or to appropriate third parties at the direction of the
Receiver all operating costs with respect thereto and to comply
with all relevant terms of the applicable Data Processing Leases
entered into by the Failed Bank, including without limitation the
timely payment of all rent, taxes, fees, charges, utilities,
insurance and assessments.
(e) The Assuming Bank shall, not later than fifty (50)
days after giving the notice provided in Section 4.7(b), (i)
relinquish and release to the Receiver all property subject to
the relevant Data Processing Lease, in the same condition as at
Bank Closing, normal wear and tear excepted, or (ii) accept an
assignment or a sublease thereof or negotiate a new lease or
license agreement under this Section 4.7.
4.8 Agreement with Respect to Certain Existing Agreements.
(a) Subject to the provisions of Section 4.8(b), with
respect to agreements existing as of Bank Closing which provide
for the rendering of services by or to the Failed Bank, within
thirty (30) days after Bank Closing, the Assuming Bank shall give
the Receiver written notice specifying whether it elects to
assume or not to assume each such agreement. Except as may be
otherwise provided in this Article IV, the Assuming Bank agrees
to comply with the terms of each such agreement for a period
commencing on the day after Bank Closing and ending on: (i) in
the case of an agreement that provides for the rendering of
services by the Failed Bank, the date which is sixty (60) days
after Bank Closing, and (ii) in the case of an agreement that
provides for the rendering of services to the Failed Bank, the
date which is thirty (30) days after the Assuming Bank has given
notice to the Receiver of its election not to assume such
agreement; provided, that the Receiver can reasonably make such
service agreements available to the Assuming Bank. The Assuming
Bank shall be deemed by the Receiver to have assumed agreements
for which no notification is timely given. The Receiver agrees
to assign, transfer, convey, and deliver to the Assuming Bank all
right, title and interest of the Receiver, if any, in and to
agreements the Assuming Bank assumes hereunder. In the event the
Assuming Bank elects not to accept an assignment of any lease (or
sublease) or negotiate a new lease for leased Bank Premises under
Section 4.6 and does not otherwise occupy such premises, the
provisions of this Section 4.8(a) shall not apply to service
agreements related to such premises. The Assuming Bank agrees,
during the period it has the use or benefit of any such
agreement, promptly to pay to the Receiver or to appropriate
third parties at the direction of the Receiver all operating
costs with respect thereto and to comply with all relevant terms
of such agreement.
(b) The provisions of Section 4.8(a) shall not apply
to (i) agreements pursuant to which the Failed Bank provides loan
or mortgage servicing for others or loan 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), and (iii) consulting,
management or employment agreements, if any, between the Failed
Bank and its employees or other Persons. Except as provided in
Section 2.1 hereof, the Assuming Bank does not assume any
liabilities under any of the foregoing agreements pursuant to
this Agreement.
4.9 Informational Tax Reporting. The Assuming Bank agrees
to perform all obligations of the Failed Bank with respect to
Federal and State income tax informational reporting related to
(i) the Assets and the Liabilities Assumed, (ii) deposit accounts
that were closed and loans that were paid off or collateral
obtained with respect thereto prior to Bank Closing, and (iii)
miscellaneous payments made to vendors of the Failed Bank.
4.10 Insurance. The Assuming Bank agrees to obtain
insurance coverage effective from and after Bank Closing,
including public liability, fire and extended coverage insurance
acceptable to the Receiver with respect to owned or leased Bank
Premises that it occupies, and all owned or leased Furniture and
Equipment and Fixtures and leased data processing equipment
(including hardware and software) located thereon, in the event
such insurance coverage is not already in force and effect with
respect to the Assuming Bank as the insured as of Bank Closing.
All such insurance shall, where appropriate (as determined by the
Receiver), name the Receiver as an additional insured.
4.11 Office Space for Receiver and Corporation. For the
period commencing on the day following Bank Closing and ending on
the one hundred twentieth (120th) day thereafter, the Assuming
Bank agrees to provide to the Receiver and the Corporation,
without charge, adequate and suitable office space (including
parking facilities and vault space), furniture, equipment
(including photocopying and telecopying machines) and utilities
(including local telephone service) at the Bank Premises occupied
by the Assuming Bank for their use in the discharge of their
respective functions with respect to the Failed Bank. In the
event that both the Receiver and the Corporation determine that
the space provided is inadequate or unsuitable, they may relocate
to other quarters having adequate and suitable space and the
costs of relocation and any rental and utility costs for the
balance of the period of occupancy by the Receiver and the
Corporation shall be borne by the Assuming Bank.
4.12 Agreement with Respect to Continuation of Group Health
Plan Coverage for Former Employees of the Failed Bank.
(a) The Assuming Bank agrees to assist the Receiver,
as provided in this Section 4.12, in offering individuals who
were employees or former employees of the Failed Bank, or any of
its Subsidiaries, and who, immediately prior to Bank Closing,
were receiving, or were eligible to receive, health insurance
coverage or health insurance continuation coverage from the
Failed Bank ("Eligible Individuals"), the opportunity to obtain
health insurance coverage in the Corporation's FIA Continuation
Coverage Plan which provides for health insurance continuation
coverage to such Eligible Individuals who are qualified
beneficiaries of the Failed Bank as defined in Section 607 of the
Employee Retirement Income Security Act of 1974, as amended
(respectively, "qualified beneficiaries" and "ERISA"). The
Assuming Bank shall consult with the Receiver and not later than
five (5) Business Days after Bank Closing shall provide written
notice to the Receiver of the number (if available), identity (if
available) and addresses (if available) of the Eligible
Individuals who are qualified beneficiaries of the Failed Bank
and for whom a "qualifying event" (as defined in Section 603 of
ERISA) has occurred and with respect to whom the Failed Bank's
obligations under Part 6 of Subtitle B of Title I of ERISA have
not been satisfied in full, and such other information as the
Receiver may reasonably require. The Receiver shall cooperate
with the Assuming Bank in order to permit it to prepare such
notice and shall provide to the Assuming Bank such data in its
possession as may be reasonably required for purposes of
preparing such notice.
(b) The Assuming Bank shall take such further action
to assist the Receiver in offering the Eligible Individuals who
are qualified beneficiaries of the Failed Bank the opportunity to
obtain health insurance coverage in the Corporation's FIA
Continuation Coverage Plan as the Receiver may direct. All
expenses incurred and paid by the Assuming Bank (i) in connection
with the obligations of the Assuming Bank under this Section
4.12, and (ii) in providing health insurance continuation
coverage to any Eligible Individuals who are hired by the
Assuming Bank and such employees' qualified beneficiaries shall
be borne by the Assuming Bank.
(c) This Section 4.12 is for the sole and exclusive
benefit of the parties to this Agreement, and for the benefit of
no other Person (including any former employee of the Failed Bank
or any Subsidiary thereof or qualified beneficiary of such former
employee). Nothing in this Section 4.12 is intended by the
parties, or shall be construed, to give any Person (including any
former employee of the Failed Bank or any Subsidiary thereof or
qualified beneficiary of such former employee) other than the
Corporation, the Receiver and the Assuming Bank any legal or
equitable right, remedy or claim under or with respect to the
provisions of this Section.
4.13 Agreement with Respect to Interim Asset Servicing. On
the day after Bank Closing, the Receiver may establish on its
books an asset pool and may transfer to such asset pool (by means
of accounting entries on the books of the Receiver) and, from
time to time, remove from such asset pool, the assets and related
liabilities of the Failed Bank retained by the Receiver. At the
option of the Receiver, the Assuming Bank agrees to service,
administer and collect such pool assets in accordance with and
for the term set forth in Exhibit 4.13 "Interim Asset Servicing
Arrangement."
4.14 Agreement with Respect to Cash and Cash Items. The
Assuming Bank agrees to provide to the Receiver, no later than
one (1) calendar day after Bank Closing, a balance sheet (signed
by one of its authorized representatives) reflecting all cash and
cash items in the Failed Bank's vault at Bank Closing. The
Assuming Bank further agrees to promptly deliver to the Receiver,
upon the Receiver's request therefor, copies of all checks,
invoices, account statements, bank records, ledger
reconcilements, spreadsheets, correspondence or other
documentation relating to the Failed Bank's cash and cash items
in connection with any "adjustment to cash" at or following Bank
Closing.
ARTICLE V
DUTIES WITH RESPECT TO DEPOSITORS OF THE FAILED BANK
5.1 Payment of Checks, Drafts and Orders. Subject to
Section 9.5, the Assuming Bank agrees to pay all properly drawn
checks, drafts and withdrawal orders of depositors of the Failed
Bank presented for payment, whether drawn on the check or draft
forms provided by the Failed Bank or by the Assuming Bank, to the
extent that the Deposit balances to the credit of the respective
makers or drawers assumed by the Assuming Bank under this
Agreement are sufficient to permit the payment thereof, and in
all other respects to discharge, in the usual course of
conducting a banking business, the duties and obligations of the
Failed Bank with respect to the Deposit balances due and owing to
the depositors of the Failed Bank assumed by the Assuming Bank
under this Agreement.
5.2 Certain Agreements Related to Deposits. Subject to
Section 2.2, the Assuming Bank agrees to honor the terms and
conditions of any written escrow or mortgage servicing agreement
or other similar agreement relating to a Deposit liability
assumed by the Assuming Bank pursuant to this Agreement.
5.3 Notice to Depositors.
(a) Within seven (7) days after Bank Closing, the
Assuming Bank shall give (i) notice to depositors of the Failed
Bank of its assumption of the Deposit liabilities of the Failed
Bank, and (ii) any notice required under Section 2.2, by mailing
to each such depositor a notice with respect to such assumption
and by advertising in a newspaper of general circulation in the
county or counties in which the Failed Bank was located. In the
event the Assuming Bank fails to mail the required notices on or
before the seventh (7th) day after Bank Closing, the Assuming
Bank shall continue to accrue and pay the deposit agreement
interest rate paid by the Failed Bank on any Deposit account with
respect to which such failure to provide notice occurs, until the
seventh (7th) day after mailing of the notices. The Assuming
Bank agrees that it will obtain prior approval of all such
notices and advertisements from counsel for the Receiver and that
such notices and advertisements shall not be mailed or published
until such approval is received.
(b) The Assuming Bank further agrees that it will mail
a notice to depositors of the Failed Bank concerning the
procedures to claim their deposits, which notice shall be
provided to the Assuming Bank by the Receiver or the Corporation.
Such notice shall be included with the notice to depositors to be
mailed by the Assuming Bank pursuant to Section 5.3(a). Notices
required by Sections 5.3(a) and (b) shall be mailed by the
Assuming Bank within thirty (30) days after Bank Closing.
ARTICLE VI
RECORDS
6.1 Transfer of Records.
(a) In accordance with Section 3.1 and subject to
Section 6.2, the Receiver assigns, transfers, conveys and
delivers to the Assuming Bank the following Records pertaining to
the Deposit liabilities of the Failed Bank assumed by the
Assuming Bank under this Agreement, except as provided in Section
6.4:
(i) signature cards, orders, contracts
between the Failed Bank and its depositors
and Records of similar character;
(ii) passbooks of depositors held by the
Failed Bank, deposit slips, cancelled checks
and withdrawal orders representing charges to
accounts of depositors;
and the following Records pertaining to the Assets:
(iii) records of deposit balances carried with
other banks, bankers or trust companies;
(iv) Loan and collateral records and Credit Files
and other documents;
(v) deeds, mortgages, abstracts, surveys, and
other instruments or records of title
pertaining to real estate or real estate
mortgages;
(vi) signature cards, agreements and records
pertaining to Safe Deposit Boxes, if any; and
(vii) records pertaining to the safekeeping
business of the Failed Bank, if any.
(b) The Receiver, at its option, may assign and
transfer to the Assuming Bank by a single blanket assignment or
otherwise, as soon as practicable after Bank Closing, any other
Records not assigned and transferred to the Assuming Bank as
provided in this Agreement (whether pursuant to Section 6.1(a) or
otherwise), including but not limited to loan disbursement
checks, general ledger tickets, official bank checks, proof
transactions (including proof tapes) and paid out loan files.
6.2 Delivery of Assigned Records.
(a) The Receiver shall deliver to the Assuming
Bank all Records described in (i) Section 6.1(a) as soon as
practicable on or after the date of this Agreement, and (ii)
Section 6.1(b) as soon as practicable after making any assignment
described therein.
(b) In the event the Receiver determines that any
Records relating to Assets or Liabilities Assumed cannot be
separated from other Records (which relate to Failed Bank assets
retained by the Receiver or purchased by any Other Acquirer), the
Receiver shall promptly notify the Assuming Bank and such Other
Acquirers of this fact. The parties hereto agree that they will,
in good faith and with their best efforts, cooperate with each
other and with any Other Acquirers to resolve, as soon as
practicable, any such problem concerning such Records.
6.3 Preservation of Records. The Assuming Bank agrees
that it will preserve and maintain for the joint benefit of the
Receiver, the Corporation and the Assuming Bank, all Records of
which it has custody for such period as either the Receiver or
the Corporation in its discretion may require. The Assuming Bank
shall have the primary responsibility to respond to subpoenas,
discovery requests, and other similar official inquiries with
respect to the Records of which it has custody.
6.4 Access to Records; Copies. The Assuming Bank
agrees to permit the Receiver and the Corporation access to all
Records of which the Assuming Bank has custody, and to use,
inspect, make extracts from or request copies of any such Records
in the manner and to the extent requested, and to duplicate, in
the discretion of the Receiver or the Corporation, any Record in
the form of microfilm or microfiche pertaining to Deposit account
relationships; provided, that in the event that the Failed Bank
maintained one or more duplicate copies of such microfilm or
microfiche Records, the Assuming Bank hereby assigns, transfers,
and conveys to the Corporation one such duplicate copy of each
such Record without cost to the Corporation, and agrees to
deliver to the Corporation all Records assigned and transferred
to the Corporation under this Article VI as soon as practicable
on or after the date of this Agreement. The party requesting a
copy of any Record shall bear the cost (based on standard
accepted industry charges to the extent applicable, as determined
by the Receiver) for providing such duplicate Records. A copy of
each Record requested shall be provided as soon as practicable by
the party having custody thereof.
6.5 Records Research. In the event the Assuming Bank
requests that research be conducted concerning the Records prior
to their delivery to the Assuming Bank, the Receiver (or a
Person, including without limitation, an Other Acquirer,
designated by Receiver) shall perform such research, at a fixed
fee satisfactory to the Assuming Bank, the Receiver and such
Person, if any.
<PAGE>
6.6 Limited Power of Attorney. If necessary (in the
Receiver's discretion) to facilitate the transfer of the Credit
Documents to the Assuming Bank, the Receiver agrees to execute
and deliver to the Assuming Bank, as soon as possible after Bank
Closing, a Limited Power of Attorney substantially in the form of
Exhibit 6.6 hereto.
ARTICLE VII
BID; INITIAL PAYMENT
The Assuming Bank has submitted to the Receiver: a bid of
$8,705,000.00 for the Assets purchased and Liabilities Assumed
hereunder (the "Bid Amount"). On the Payment Date, the Assuming
Bank will pay to the Corporation, or the Corporation will pay to
the Assuming Bank, as the case may be, the Initial Payment,
together with interest on such amount (if the Payment Date is not
the day following the day of Bank Closing) from and including the
day following Bank Closing to and including the day preceding the
Payment Date at the rate per annum provided in Section 8.4.
ARTICLE VIII
ADJUSTMENTS
8.1 Pro Forma Statement. It is understood that the
determination of the Initial Payment is based on the Receiver's
best estimate of the Liabilities Assumed and the Assets at Bank
Closing. The Receiver, as soon as practicable after Bank
Closing, in accordance with the best information then available,
shall provide to the Assuming Bank a pro forma statement
reflecting any adjustments of such liabilities and assets as may
be necessary. Such pro forma statement shall take into account,
to the extent possible, (i) liabilities and assets of a nature
similar to those contemplated by Section 2.1 or Section 3.1,
respectively, which at Bank Closing were carried in the Failed
Bank's suspense accounts, and (ii) accruals as of Bank Closing
for all income related to the assets and business of the Failed
Bank acquired by the Assuming Bank hereunder, whether or not such
accruals were reflected on the Accounting Records of the Failed
Bank in the normal course of its operations. Any Loan purchased
by the Assuming Bank pursuant to Section 3.1 which the Failed
Bank charged off during the period from the date of the
Information Package to Bank Closing shall be deemed not to be
charged off for the purposes of the pro forma statement, and the
purchase price shall be determined pursuant to Section 3.2.
8.2 Correction of Errors and Omissions; Other Liabilities.
(a) In the event any bookkeeping omissions or errors
are discovered in preparing any pro forma statement or in
completing the transfers and assumptions contemplated hereby, the
parties hereto agree to correct such errors and omissions, it
being understood that, as far as practicable, all adjustments
will be made consistent with the judgments, methods, policies or
accounting principles utilized by the Failed Bank in preparing
and maintaining Accounting Records, except that adjustments made
pursuant to this Section 8.2(a) are not intended to bring the
Accounting Records of the Failed Bank into accordance with
generally accepted accounting principles.
(b) If the Receiver discovers at any time subsequent
to the date of this Agreement that any claim exists against the
Failed Bank which is of such a nature that it would have been
included in the liabilities assumed under Article II had the
existence of such claim or the facts giving rise thereto been
known as of Bank Closing, the Receiver may, in its discretion, at
any time, require that such claim be assumed by the Assuming Bank
in a manner consistent with the intent of this Agreement. The
Receiver will make appropriate adjustments to the pro forma
statement provided by the Receiver to the Assuming Bank pursuant
to Section 8.1 as may be necessary.
8.3 Payments. The Receiver agrees to cause to be paid to
the Assuming Bank, or the Assuming Bank agrees to pay to the
Receiver, as the case may be, on the Settlement Date, a payment
in an amount which reflects net adjustments (including any costs,
expenses and fees associated with determinations of value as
provided in this Agreement) made pursuant to Section 8.1 or
Section 8.2, plus interest as provided in Section 8.4. The
Receiver and the Assuming Bank agree to effect on the Settlement
Date any further transfer of assets to or assumption of
liabilities or claims by the Assuming Bank as may be necessary in
accordance with Section 8.1 or Section 8.2.
8.4 Interest. Any amounts paid under Section 8.3 shall
bear interest for the period from and including the day following
Bank Closing to and including the day preceding the payment. The
interest rate per annum for the first calendar quarter or portion
thereof during which interest accrues shall be the rate
determined by the Receiver to be equal to the equivalent coupon
issue yield on twenty-six (26)-week United States Treasury Bills
in effect as of Bank Closing as published in The Wall Street
Journal; provided, that if no such equivalent coupon issue yield
is available as of Bank Closing, the equivalent coupon issue
yield for such Treasury Bills most recently published in The Wall
Street Journal prior to Bank Closing shall be used. Thereafter,
the rate shall be adjusted to the rate determined by the Receiver
to be equal to the equivalent coupon issue yield on such Treasury
Bills in effect as of the first day of each succeeding calendar
quarter during which interest accrues as published in The Wall
Street Journal.
8.5 Subsequent Adjustments. In the event that the Assuming
Bank or the Receiver discovers any errors or omissions as
contemplated by Section 8.2 or any error with respect to the
payment made under Section 8.3 after the Settlement Date, the
Assuming Bank and the Receiver agree to promptly correct any such
errors or omissions, make any payments and effect any transfers
or assumptions as may be necessary to reflect any such
correction; provided, that interest shall not be paid with
respect to any such payments.
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 Bank each agree, at any time, and
from time to time, upon the request of any party hereto, to
execute and deliver such additional instruments and documents of
conveyance as shall be reasonably necessary to vest in the
appropriate party its full legal or equitable title in and to the
property transferred pursuant to this Agreement or to be
transferred in accordance herewith. The Assuming Bank shall
prepare such instruments and documents of conveyance (in form and
substance satisfactory to the Receiver) as shall be necessary to
vest title to the Assets in the Assuming Bank. The Assuming Bank
shall be responsible for recording such instruments and documents
of conveyance at its own expense.
9.3 Claims and Suits.
(a) The Receiver shall have the right, in its
discretion, to (i) defend or settle any claim or suit against the
Assuming Bank with respect to which the Corporation has
indemnified the Assuming Bank in the same manner and to the same
extent as provided in Article XII, and (ii) defend or settle any
claim or suit against the Assuming Bank with respect to any
Liability Assumed, which claim or suit may result in a loss to
the Receiver arising out of or related to this Agreement, or
which existed against the Failed Bank on or before Bank Closing.
The exercise by the Receiver of any rights under this Section
9.3(a) shall not release the Assuming Bank with respect to any of
its obligations under this Agreement.
(b) In the event any action at law or in equity shall
be instituted by any Person against the Receiver and the
Corporation as codefendants with respect to any asset of the
Failed Bank retained or acquired pursuant to this Agreement by
the Receiver, the Receiver agrees, at the request of the
Corporation, to join with the Corporation in a petition to remove
the action to the United States District Court for the proper
district. The Receiver agrees to institute, with or without
joinder of the Corporation as coplaintiff, any action with
respect to any such retained or acquired asset or any matter
connected therewith whenever notice requiring such action shall
be given by the Corporation to the Receiver.
9.4 Payment of Deposits. In the event any depositor does
not accept the obligation of the Assuming Bank to pay any Deposit
liability of the Failed Bank assumed by the Assuming Bank
pursuant to this Agreement and asserts a claim against the
Receiver for all or any portion of any such Deposit liability,
the Assuming Bank agrees on demand to provide to the Receiver
funds sufficient to pay such claim in an amount not in excess of
the Deposit liability reflected on the books of the Assuming Bank
at the time such claim is made. Upon payment by the Assuming
Bank to the Receiver of such amount, the Assuming Bank shall be
discharged from any further obligation under this Agreement to
pay to any such depositor the amount of such Deposit liability
paid to the Receiver.
9.5 Withheld Payments. At any time, the Receiver or the
Corporation may, in its discretion, determine that all or any
portion of any deposit balance assumed by the Assuming Bank
pursuant to this Agreement does not constitute a "Deposit", and
may direct the Assuming Bank to withhold payment of all or any
portion of any such deposit balance. Upon such direction, the
Assuming Bank agrees to hold such deposit and not to make any
payment of such deposit balance to or on behalf of the depositor,
or to itself, whether by way of transfer, set-off, or otherwise.
The Assuming Bank agrees to maintain the "withheld payment"
status of any such deposit balance until directed in writing by
the Receiver or the Corporation as to its disposition. At the
direction of the Receiver or the Corporation, the Assuming Bank
shall return all or any portion of such deposit balance to the
Receiver or the Corporation, as appropriate, and thereupon the
Assuming Bank shall be discharged from any further liability to
such depositor with respect to such returned deposit balance. If
such deposit balance has been paid to the depositor prior to a
demand for return by the Corporation or the Receiver, and payment
of such deposit balance had not been previously withheld pursuant
to this Section, the Assuming Bank shall not be obligated to
return such deposit balance to the Receiver or the Corporation.
The Assuming Bank shall be obligated to reimburse the Corporation
or the Receiver, as the case may be, for the amount of any
deposit balance or portion thereof paid by the Assuming Bank in
contravention of any previous direction to withhold payment of
such deposit balance or return such deposit balance the payment
of which was withheld pursuant to this Section.
9.6 Proceedings with Respect to Certain Assets and
Liabilities.
(a) In connection with any investigation, proceeding
or other matter with respect to any asset or liability of the
Failed Bank retained by the Receiver, or any asset of the Failed
Bank acquired by the Receiver pursuant to this Agreement, the
Assuming Bank shall cooperate to the extent reasonably required
by the Receiver.
(b) In addition to its obligations under Section 6.4,
the Assuming Bank shall provide representatives of the Receiver
access at reasonable times and locations without other limitation
or qualification to (i) its directors, officers, employees and
agents, and (ii) its books and records and all Credit Files, and
copies thereof. Copies of books, records and Credit Files shall
be provided by the Assuming Bank as requested by the Receiver and
the costs of duplication thereof shall be borne by the Receiver.
(c) Not later than ten (10) days after the Repurchase
Notice pursuant to Section 3.4 or the date of the notice of
transfer of any Loan by the Assuming Bank to the Receiver
pursuant to Section 3.6, the Assuming Bank shall deliver to the
Receiver such documents with respect to such Loan as the Receiver
may request, including without limitation the following: (i) all
related Credit Documents (other than certificates, notices and
other ancillary documents), (ii) a certificate setting forth the
principal amount on the date of the transfer and the amount of
interest, fees and other charges then accrued and unpaid thereon,
and any restrictions on transfer to which any such Loan is
subject, and (iii) all Credit Files, and all documents,
microfiche, microfilm and computer records (including but not
limited to magnetic tape, disc storage, card forms and printed
copy) maintained by, owned by, or in the possession of the
Assuming Bank or any Affiliate of the Assuming Bank relating to
the transferred Loan.
9.7 Information. The Assuming Bank promptly shall provide
to the Corporation such other information, including financial
statements and computations, relating to the performance of the
provisions of this Agreement as the Corporation or the Receiver
may request from time to time, and, at the request of the
Receiver, make available employees of the Failed Bank employed or
retained by the Assuming Bank to assist in preparation of the pro
forma statement pursuant to Section 8.1.
ARTICLE X
CONDITION PRECEDENT
The obligations of the parties to this Agreement are subject
to the Receiver and the Corporation having received at or before
Bank Closing evidence reasonably satisfactory to each of any
necessary approval, waiver, or other action by any governmental
authority, the board of directors of the Assuming Bank, or other
third party, with respect to this Agreement and the transactions
contemplated hereby, the closing of the Failed Bank and the
appointment of the Receiver, the chartering of the Assuming Bank,
and any agreements, documents, matters or proceedings
contemplated hereby or thereby.
ARTICLE XI
REPRESENTATIONS AND WARRANTIES OF THE ASSUMING BANK
The Assuming Bank represents and warrants to the Corporation
and the Receiver as follows:
(a) Corporate Existence and Authority. The Assuming
Bank (i) is duly organized, validly existing and in good standing
under the laws of its Chartering Authority and has full power and
authority to own and operate its properties and to conduct its
business as now conducted by it, and (ii) has full power and
authority to execute and deliver this Agreement and to perform
its obligations hereunder. The Assuming Bank has taken all
necessary corporate action to authorize the execution, delivery
and performance of this Agreement and the performance of the
transactions contemplated hereby.
(b) Third Party Consents. No governmental authority
or other third party consents (including but not limited to
approvals, licenses, registrations or declarations) are required
in connection with the execution, delivery or performance by the
Assuming Bank of this Agreement, other than such consents as have
been duly obtained and are in full force and effect.
(c) Execution and Enforceability. This Agreement has
been duly executed and delivered by the Assuming Bank and when
this Agreement has been duly authorized, executed and delivered
by the Corporation and the Receiver, this Agreement will
constitute the legal, valid and binding obligation of the
Assuming Bank, enforceable in accordance with its terms.
(d) Compliance with Law.
(i) Neither the Assuming Bank nor any of its
Subsidiaries is in violation of any statute, regulation, order,
decision, judgment or decree of, or any restriction imposed by,
the United States of America, any State, municipality or other
political subdivision or any agency of any of the foregoing, or
any court or other tribunal having jurisdiction over the Assuming
Bank or any of its Subsidiaries or any assets of any such Person,
or any foreign government or agency thereof having such
jurisdiction, with respect to the conduct of the business of the
Assuming Bank or of any of its Subsidiaries, or the ownership of
the properties of the Assuming Bank or any of its Subsidiaries,
which, either individually or in the aggregate with all other
such violations, would materially and adversely affect the
business, operations or condition (financial or otherwise) of the
Assuming Bank or the ability of the Assuming Bank to perform,
satisfy or observe any obligation or condition under this
Agreement.
(ii) Neither the execution and delivery nor the
performance by the Assuming Bank of this Agreement will result in
any violation by the Assuming Bank of, or be in conflict with,
any provision of any applicable law or regulation, or any order,
writ or decree of any court or governmental authority.
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 Corporation 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 Corporation pursuant to paragraph
(4) of Section 12.2, judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with
claims against any Indemnitee based on liabilities of the Failed
Bank that are not assumed by the Assuming Bank pursuant to this
Agreement or subsequent to the execution hereof by the Assuming
Bank or any Subsidiary or Affiliate of the Assuming Bank, which
unassumed liabilities remain with the Receiver. Such claims for
which indemnification is provided hereunder include without
limitation the following claims set forth in paragraphs (1)
through (10), subject to certain exclusions as provided in
paragraphs (a) through (m) of this Section 12.1:
(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 the determination of insolvency
and the closing of the Failed Bank by its Chartering Authority;
(6) claims based on the execution and delivery of this
Agreement and the consummation of the transactions contemplated
hereby;
(7) 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;
(8) claims based on any failure or alleged failure
(not in violation of law) by the Assuming Bank to continue to
perform any service or activity previously performed by the
Failed Bank which the Assuming Bank is not required to perform
pursuant to this Agreement or which arise under any contract to
which the Failed Bank was a party which the Assuming Bank elected
not to assume in accordance with this Agreement and which neither
the Assuming Bank nor any Subsidiary or Affiliate of the Assuming
Bank has assumed subsequent to the execution hereof;
(9) claims arising from any action or inaction of any
Indemnitee, including for purposes of this Section 12.1(9) 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;
(10) 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 the
Corporation in accordance with Section 9.5 and/or has become an
"unclaimed deposit" or has been returned to the Receiver or the
Corporation in accordance with Section 2.3;
provided, that, with respect to this Agreement, except for
paragraphs (9) and (10) of this Section 12.1, no indemnification
will be provided under this Agreement for any:
(a) judgment or fine against, or any amount paid
in settlement (without the written approval of the Corporation)
by, any Indemnitee in connection with any action that seeks
damages against any Indemnitee (a "counterclaim") arising with
respect to any Asset and based on any action or inaction of
either the Failed Bank, its directors, officers, employees or
agents as such prior to Bank Closing, unless any such judgment,
fine or amount paid in settlement exceeds the greater of (i) the
Repurchase Price of such Asset, or (ii) the monetary recovery
sought on such Asset by the Assuming Bank in the cause of action
from which the counterclaim arises; and in such event the
Corporation 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 Corporation,
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 Corporation 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;
(b) claims with respect to any liability or
obligation of the Failed Bank that is expressly assumed by the
Assuming Bank pursuant to this Agreement or subsequent to the
execution hereof by the Assuming Bank or any Subsidiary or
Affiliate of the Assuming Bank;
(c) claims with respect to any liability of the
Failed Bank to any present or former employee as such of the
Failed Bank or of any Subsidiary or Affiliate of the Failed Bank,
which liability is expressly assumed by the Assuming Bank
pursuant to this Agreement or subsequent to the execution hereof
by the Assuming Bank or any Subsidiary or Affiliate of the
Assuming Bank;
(d) 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;
(e) 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;
(f) claims based on the rights of any present or
former creditor, customer, or supplier as such of the Assuming
Bank or any Subsidiary or Affiliate of the Assuming Bank;
(g) claims based on the rights of any present or
former shareholder as such of the Assuming Bank or any Subsidiary
or Affiliate of the Assuming Bank regardless of whether any such
present or former shareholder is also a present or former
shareholder of the Failed Bank;
<PAGE>
(h) claims, if the Corporation 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;
(i) claims which could have been enforced against
any Indemnitee had the Assuming Bank not entered into this
Agreement;
(j) claims based on any liability for taxes or
fees assessed with respect to the consummation of the
transactions contemplated by this Agreement, including without
limitation any subsequent transfer of any Assets or Liabilities
Assumed to any Subsidiary or Affiliate of the Assuming Bank;
(k) except as expressly provided in this Article
XII, claims based on any action or inaction of any Indemnitee
after Bank Closing, 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
Corporation, in its discretion, may provide indemnification
hereunder for any present or former director, officer, employee
or agent of the Failed Bank or its Subsidiaries or Affiliates who
is also or becomes a director, officer, employee or agent of the
Assuming Bank or its Subsidiaries or Affiliates;
(l) claims or actions which constitute a breach
by the Assuming Bank of the representations and warranties
contained in Article XI; and
(m) 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.
12.2 Conditions Precedent to Indemnification. It shall be
a condition precedent to the obligation of the Corporation 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:
(1) give written notice to the Regional Counsel
(Liquidation) 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;
(2) provide to the Corporation such information and
cooperation with respect to such claim as the Corporation may
reasonably require;
(3) cooperate and take all steps, as the Corporation
may reasonably require, to preserve and protect any defense to
such claim;
(4) in the event suit is brought with respect to such
claim, upon reasonable prior notice, afford to the Corporation
the right, which the Corporation 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
Corporation; provided, that the Corporation 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;
(5) 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
Corporation; provided, that the Corporation 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 Corporation;
(6) not release or settle such claim or make any
payment or admission with respect thereto, unless the Corporation
consents in writing thereto, which consent shall not be
unreasonably withheld; provided, that the Corporation 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 Corporation; and
(7) take reasonable action as the Corporation may
request in writing as necessary to preserve, protect or enforce
the rights of the indemnified Person against any Primary Indemnitor.
12.3 No Additional Warranty. Nothing in this Article XII
shall be construed or deemed to (i) expand or otherwise alter any
warranty or disclaimer thereof provided under Section 3.3 or any
other provision of this Agreement with respect to, among other
matters, the title, value, collectibility, genuineness,
enforceability or condition of any (x) Asset, or (y) asset of the
Failed Bank purchased by the Assuming Bank subsequent to the
execution of this Agreement by the Assuming Bank or any Subsidiary
or Affiliate of the Assuming Bank, or (ii) create any warranty not
expressly provided under this Agreement with respect thereto.
12.4 Indemnification of Corporation and Receiver. From
and after Bank Closing, the Assuming Bank agrees to indemnify and
hold harmless the Corporation and the Receiver and their
respective directors, officers, employees and agents from and
against any and all costs, losses, liabilities, expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with
any of the following:
(1) claims based on any and all liabilities or
obligations of the Failed Bank assumed by the Assuming Bank
pursuant to this Agreement or subsequent to the execution hereof
by the Assuming Bank or any Subsidiary or Affiliate of the
Assuming Bank, whether or not any such liabilities subsequently
are sold and/or transferred, other than any claim based upon any
action or inaction of any Indemnitee as provided in paragraph (9)
or (10) of Section 12.1; and
(2) claims based on any act or omission of any
Indemnitee (including but not limited to claims of any Person
claiming any right or title by or through the Assuming Bank with
respect to Assets transferred to the Receiver pursuant to Section
3.4 or 3.6), other than any action or inaction of any Indemnitee
as provided in paragraph (9) or (10) of Section 12.1.
12.5 Obligations Supplemental. The obligations of the
Corporation 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 Corporation 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
Corporation 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 Corporation thereof and, upon the request of the
Corporation, shall promptly pay to the Corporation the amount of
the 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 Corporation shall have no
obligation hereunder to indemnify such Person for liability with
respect to any criminal act or to the extent any costs or
expenses are attributable to the defense against the allegation
of any criminal act, unless (i) the Person is successful on the
merits or otherwise in the defense against any such action, suit
or proceeding, or (ii) such action, suit or proceeding is
terminated without the imposition of liability on such Person.
12.7 Corporation Obligation. Nothing in this Article XII
is intended or shall be construed to create in any way any
liability or obligation on the part of the Receiver, the United
States of America or any department or agency thereof (other than
the Corporation) 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 Corporation
hereunder are the sole and exclusive responsibility of the
Corporation and no other Person or entity.
12.8 Subrogation. Upon payment by the Corporation to any
Indemnitee for any claims indemnified by the Corporation under
this Article XII, the Corporation 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 OF CONNECTICUT.
13.5 Successors. All terms and conditions of this
Agreement shall be binding on the successors and assigns of the
Receiver, the Corporation and the Assuming Bank. Except as
otherwise specifically provided in this Agreement, nothing
expressed or referred to in this Agreement is intended or shall
be construed to give any Person other than the Receiver, the
Corporation and the Assuming Bank any legal or equitable right,
remedy or claim under or with respect to this Agreement or any
provisions contained herein, it being the intention of the
parties hereto that this Agreement, the obligations and
statements of responsibilities hereunder, and all other
conditions and provisions hereof are for the sole and exclusive
benefit of the Receiver, the Corporation and the Assuming Bank
and for the benefit of no other Person.
13.6 Modification; Assignment. No amendment or other
modification, rescission, release, or assignment of any part of
this Agreement shall be effective except pursuant to a written
agreement subscribed by the duly authorized representatives of
the parties hereto.
13.7 Notice. Any notice, request, demand, consent,
approval or other communication to any party hereto shall be
effective when received and shall be given in writing, and
delivered in person against receipt therefor, or sent by
certified mail, postage prepaid, courier service, telex or
facsimile transmission to such party (with copies as indicated
below) at its address set forth below or at such other address as
it shall hereafter furnish in writing to the other parties. All
such notices and other communications shall be deemed given on
the date received by the addressee.
Assuming Bank
Eagle Federal Savings Bank
222 Main Street
Bristol, CT 06010
Attention: Robert J. Britton
President
Receiver
Federal Deposit Insurance Corporation,
Receiver of The Bank of Hartford, Inc.
108 Farmington Avenue
Hartford, CT 06105
Attention: Site Manager
- - - - - - and to -
Federal Deposit Insurance Corporation
P.O. Box 280402
East Hartford, CT 06128-0402
Attention: Assistant Regional Manager (DAS) -
Closed Banks Administration
with a copy to: Managing Attorney (DAS)
155 Founders Plaza
East Hartford, Connecticut 06108
and with respect to notices under Article XII:
Federal Deposit Insurance Corporation
525 Washington Boulevard, 21st Floor
Jersey City, New Jersey 07310
Attention: Regional Counsel (DAS)
with a copy to:
Federal Deposit Insurance Corporation
Westwood Executive Center
200 Lowder Brook Drive
Westwood, Massachusetts 02090
Attention: Regional Manager (Resolutions)
<PAGE>
Corporation
Federal Deposit Insurance Corporation
Westwood Executive Center
200 Lowder Brook Drive
Westwood, MA 02090
Attention: Regional Manager (Resolutions)
13.8 Manner of Payment. All payments due under this
Agreement shall be in lawful money of the United States of
America in immediately available funds as each party hereto may
specify to the other parties; provided, that in the event the
Receiver or the Corporation is obligated to make any payment
hereunder in the amount of $25,000.00 or less, such payment may
be made by check.
13.9 Costs, Fees and Expenses. Except as otherwise
specifically provided herein, each party hereto agrees to pay all
costs, fees and expenses which it has incurred in connection with
or incidental to the matters contained in this Agreement,
including without limitation any fees and disbursements to its
accountants and counsel; provided, that the Assuming Bank shall
pay all fees, costs and expenses (other than attorneys' fees
incurred by the Receiver) incurred in connection with the
transfer to it of any Assets or Liabilities Assumed hereunder or
in accordance herewith.
13.10 Waiver. Each of the Receiver, the Corporation and
the Assuming Bank may waive its respective rights, powers or
privileges under this Agreement; provided, that such waiver shall
be in writing; and further provided, that no failure or delay on
the part of the Receiver, the Corporation or the Assuming Bank to
exercise any right, power or privilege under this Agreement shall
operate as a waiver thereof, nor will any single or partial
exercise of any right, power or privilege under this Agreement
preclude any other or further exercise thereof or the exercise of
any other right, power or privilege by the Receiver, the
Corporation, or the Assuming Bank under this Agreement, nor will
any such waiver operate or be construed as a future waiver of
such right, power or privilege under this Agreement.
13.11 Severability. If any provision of this Agreement is
declared invalid or unenforceable, then, to the extent possible,
all of the remaining provisions of this Agreement shall remain in
full force and effect and shall be binding upon the parties
hereto.
13.12 Term of Agreement. This Agreement shall continue in
full force and effect until the sixth (6th) anniversary of Bank
Closing; provided, that the provisions of Section 6.3 and Article
XII shall survive the expiration of the term of this Agreement.
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]
<PAGE>
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 THE BANK OF HARTFORD, INC.
Hartford, CT
BY:____________________________________
TITLE:_________________________________
Attest:
________________________
FEDERAL DEPOSIT INSURANCE CORPORATION
BY:____________________________________
TITLE:_________________________________
Attest:
________________________
EAGLE FEDERAL SAVINGS BANK
BY:____________________________________
TITLE:_________________________________
Attest:
________________________
<PAGE>
SCHEDULE 2.1 - Certain Liabilities Assumed
<PAGE>
SCHEDULE 3.1 - Certain Assets Purchased
<PAGE>
SCHEDULE 3.1(a)
<PAGE>
SCHEDULE 3.1(b)
<PAGE>
SCHEDULE 3.1(c)
<PAGE>
SCHEDULE 4.6 - Bank Premises
Land & Bldg AVR Price Monthly
Rental
Rate
325 Franklin Ave. $30,222.00 $1125.00
Hartford, CT
75 Park Road $34,966.00 $1260.00
West Hartford, CT
108 Farmington Ave. $ - 0 - $2350.00
Hartford, CT
<PAGE>
INTERIM ASSET SERVICING ARRANGEMENT
(a) With respect to each asset designated from time to
time by the Receiver to be serviced by the Assuming Bank pursuant
to this Arrangement (such assets being designated as "Pool
Assets"), during the term of this Arrangement, the Assuming Bank
shall:
(i) Promptly apply payments received with respect to any
Pool Assets;
(ii) Reverse and return insufficient funds checks;
(iii) Pay participation payments to participants in Loans, as
and when received; and pay tax and insurance invoices
on Pool Assets as they come due, out of escrow funds
maintained for such purposes;
(iv) Maintain accurate records reflecting (A) the payment
history of Pool Assets, with updated information
received concerning changes in the address or identity
of the obligors, and (B) the use of data processing
equipment and employee services with respect to
servicing duties;
(v) Send billing statements to obligors on Pool Assets to
the extent that such statements were sent by the Failed
Bank;
(vi) Send notices to obligors who are in default on Loans
(in the same manner as the Failed Bank);
(vii) Send on a weekly basis to the Receiver, Attn: Managing
Liquidator, at the address provided in Section 13.7 of
the Agreement, via overnight delivery: weekly reports
for the Pool Assets together with copies of checks
received, insufficient funds checks returned, checks
for payment to participants or for taxes and insurance,
pay-off requests, notices sent to obligors in default,
and data processing employee logs; and
(viii) Remit on a weekly basis to the Receiver, Attn:
Division of Finance, Cashier Unit, Operations, at the
address in (vii), via wire transfer to the account
designated by the Receiver, all payments received on
Pool Assets managed by the Assuming Bank.
Notwithstanding anything to the contrary in this Section, the
Assuming Bank shall not be required to initiate litigation or
other collection proceedings against any obligor or any
collateral with respect to any defaulted Loan. The Assuming Bank
shall promptly notify the Receiver, at the address provided above
in subparagraph (a)(vii), of any claims or legal actions
regarding any Pool Asset.
(b) The Receiver agrees to reimburse the Assuming Bank
for actual, reasonable and necessary expenses incurred in
connection with the performance of duties pursuant to this
Arrangement, including expenses of photocopying, postage and
express mail, and data processing and employee services (based
upon the number of hours spent performing servicing duties).
(c) The Assuming Bank shall provide the services
described herein for an initial period of sixty (60) days after
Bank Closing. At the option of the Receiver, exercisable by
notice given not later than ten (10) days prior to the end of
such initial period or a renewal period, the Assuming Bank shall
continue to provide such services for two (2) renewal periods not
to exceed sixty (60) days each.
(d) At any time during the term of this Arrangement,
the Receiver may, upon written notice to the Assuming Bank,
remove one or more Pool Assets from the Pool. At such time, the
Assuming Bank's responsibility with respect thereto shall
terminate, provided, however, the Assuming Bank shall forward to
the Receiver all items thereafter received with respect to such
Pool Asset(s).
(e) At the expiration of this Arrangement or upon the
termination of the Assuming Bank's responsibility with respect to
any Pool Asset(s) pursuant to paragraph (d) hereof, the Assuming
Bank shall:
(i) deliver to the Receiver (or its designee) all
of the Credit Documents and Records relating to the
Pool Asset(s); and
(ii) cooperate with the Receiver to facilitate
the orderly transition of managing the Pool Asset(s) to
the Receiver (or its designee).
(f) At the request of the Receiver, the Assuming Bank
shall perform such transitional services with regard to the Pool
Asset(s) as the Receiver may request. Transitional services may
include, without limitation, assisting in any due diligence
process deemed necessary by the Receiver, and providing to the
Receiver (i) information and data regarding the Pool Asset(s),
and (ii) access to employees of the Assuming Bank involved in the
management of, or who may otherwise be familiar with, the Pool
Asset(s).
<PAGE>
LIMITED POWER OF ATTORNEY
STATE OF ___________________)
)
COUNTY OF__________________)
KNOW ALL MEN BY THESE PRESENTS:
THAT the undersigned, Federal Deposit Insurance Corporation, a
corporation organized under the law of the United State of
America (the "FDIC"), in its capacity as Receiver of The Bank of
Hartford, Inc., Hartford, CT ("Failed Bank"), has this day made,
constituted and appointed and by these presents does make,
constitute and appoint _____________, _____________, ___________,
acting severally and individually, being authorized signatories
of Eagle Federal Savings Bank ("Assuming Bank"), whose principal
place of business is in Bristol, CT, true and lawful agents and
attorneys-in-fact (hereinafter "Receiver's Attorney-in-Fact") for
the FDIC in its capacity as Receiver of the Failed Bank
("Receiver"), and in Receiver's name, place and stead to:
(a) endorse and assign to Assuming Bank or its assignee or
designee or in blank, in Assuming Bank's discretion, by manual or
facsimile signature, as set forth below, any and all notes,
agreements, lines of credit, judgments and all other evidences of
indebtedness (collectively, "Notes") and personal property
transferred by Receiver to Assuming Bank pursuant to that certain
Purchase and Assumption Agreement dated as of June 10, 1994 among
the Receiver, the Assuming Bank and the FDIC in its corporate
capacity (the "P&A Agreement");
(b) execute, acknowledge and deliver to Assuming Bank or
its assignee or designee or in blank, in Assuming Bank's
discretion, by manual or facsimile signature,as set forth below,
assignments and transfer of any and all mortgages, liens,
pledges, charges, assignments for security purposes, security
interests, encumbrances 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, security
agreements, collateral assignments, UCC financing statements,
forms and continuations thereof, assignments of lien, judgment
liens and executions, all Loans (as defined in the P&A
Agreement), and all other documents constituting security for any
of the Notes and Loans, together with all documents delivered in
connection with any assignment or transfer of any of the
foregoing (collectively, "Collateral Instruments");
Receiver also gives and grants unto Receiver's Attorney-in-Fact
full power to substitute one or more officers of Assuming Bank as
attorney-in-fact or attorneys-in-fact under him or her (whether
one or more, hereinafter "Substitute Attorney-in-Fact"), in or
concerning this Limited Power of Attorney or any part thereof,
but any such substitution at the pleasure of the Receiver's
Attorney-in-Fact may be revoked as provided below, Receiver
hereby ratifying and confirming all that Receiver's Attorney-in-
Fact or Substitute Attorney-in-Fact shall and may do in the
premises by virtue hereof. The total number of Receiver's
Attorneys-in-Fact (including Substitute Attorneys-in-Fact) may
not exceed [ten (10)] at any given time.
Receiver agrees and represents to those dealing with Receiver's
Attorney-in-Fact or Substitute Attorney-in-Fact that this Limited
Power of Attorney shall become effective and begin as of 12:01
a.m., Eastern Standard Time, on the date after the date on which
it is executed by Receiver, unless earlier revoked.
Each endorsement of a Note by Receiver's Attorney-in-Fact or
Substitute Attorney-in-Fact hereunder shall state as follows:
PAY TO THE ORDER OF (insert name of Assuming Bank,
or assignee or designee, or leave blank, as
applicable) WITHOUT RECOURSE OR WARRANTY. FEDERAL
DEPOSIT INSURANCE CORPORATION, RECEIVER OF THE BANK OF
HARTFORD, INC., By _______________[insert name of
Attorney-in-Fact or Substitute], Attorney-in-Fact.
Each such endorsement may be made by rubber stamp, typewriter or
other mechanical means or the printing or handwriting of
Receiver's Attorney-in-Fact or Substitute Attorney-in-Fact making
such endorsement. The signature block on each Collateral
instrument executed and delivered hereunder shall state as
follows:
Federal Deposit Insurance Corporation, Receiver
of The Bank of Hartford, Inc., By ____________ [insert
name of Attorney-in-Fact or Substitute], Attorney-in-
Fact.
IN WITNESS WHEREOF, Receiver has caused this Limited Power of
Attorney to be executed by its duly authorized representatives on
this ____ day of _________________, 1994.
FEDERAL DEPOSIT INSURANCE CORPORATION
RECEIVER OF THE BANK OF HARTFORD, INC.
Hartford, CT
Witness: By:__________________________________
______________________ Name (Print):
Name (Print):
Witness: Title:_______________________________
______________________
Name (Print):
<PAGE>
(ACKNOWLEDGMENT)
STATE OF___________________________)
)
COUNTY OF_______________)
Before me, the undersigned authority, a Notary Public in and for
said County and State, on this day personally appeared _________
__________________________ of the Federal Deposit Insurance
Corporation as Receiver of The Bank of Hartford, Inc., known to
me to be the person whose name is subscribed to the foregoing
instrument, and who acknowledged to me that he executed the same
on behalf of the Federal Deposit Insurance Corporation in the
capacity and for the purposes and consideration therein
expressed.
GIVEN UNDER my hand and seal of office this _____ day of _________
______________________, 1994.
__________________________________
NOTARY PUBLIC, STATE OF __________
My Commission Expires: Notary's printed name:
______________________ __________________________________
standard p&a.NE
