AGREEMENT AND CONSENT TO THE APPOINTMENT OF A CONSERVATOR OR RECEIVER
Exhibit
10.3
AGREEMENT
AND CONSENT TO THE APPOINTMENT OF A CONSERVATOR OR RECEIVER
This
Agreement and Consent to the Appointment of a Conservator or Receiver
(“Consent”) is made and is effective this 2nd day of June, 2010 (the “Effective
Date”), by TierOne Bank (the “Savings Association”), a federally chartered stock
savings bank, having its home office located in Lincoln, Nebraska, with the
Office of Thrift Supervision (“OTS”), an office within the United States
Department of the Treasury, having its principal executive offices located at
0000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X.
RECITALS
WHEREAS, the Savings
Association is experiencing severe supervisory and/or financial problems that
are unlikely to be able to be resolved successfully without federal intervention
and the appointment of a conservator or receiver;
NOW THEREFORE, as a result of
the foregoing, it is hereby agreed by the Savings Association as
follows:
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1.
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Consent to the
Appointment of a Conservator or
Receiver.
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The
Savings Association hereby consents to the appointment of a conservator or
receiver or other legal custodian for the Savings Association by the OTS, and
waives any right it may otherwise have under 12 U.S.C. § 1464(d)(2)(B) or any
other law to challenge the appointment by the OTS of a conservator, receiver, or
other legal custodian.
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2.
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Integration Clause;
Modification.
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This
Consent represents the final written agreement of the Savings Association with
the OTS with respect to the subject matter hereof and constitutes the sole
agreement of the Savings Association with the OTS, as of the Effective Date,
with respect to such subject matter.
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3.
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Successors in
Interest/Benefit.
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The terms
and provisions of this Consent shall be binding upon and inure to the benefit of
the Savings Association, OTS and their successors in
interest. Nothing in this Consent, express or implied, shall give to
any person or entity other than the Savings Association, OTS and Federal Deposit
Insurance Corporation any benefit or any legal or equitable right, remedy or
claim under this Consent.
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4.
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Duration, Termination
or Suspension of Consent.
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This
Consent shall remain in effect until terminated, modified or suspended by the
OTS, acting through the OTS Central Regional Director or his
designee. The Savings Association may request that the OTS permit the
Savings Association to withdraw its Consent pursuant to a resolution of its
Board of Directors (Board) delivered to the OTS Central Regional Director or his
designee prior to any initial appointment of a conservator or receiver by the
OTS along with a written request signed by the Board to withdraw this
Consent.
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5.
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Valid Agreement,
Enforceability of Agreement.
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(a) The
undersigned officer of the Savings Association represents and warrants that: (i)
he/she is an officer of the Savings Association holding the title that is set
forth below his/her signature below; (ii) he/she has been duly authorized by the
Board to execute this Consent on behalf of the Savings Association; (iii) a true
and correct copy of the Board resolution authorizing execution of this Consent
is attached; and (iv) this Consent is valid and binding on the
Savings Association.
(b) It
is understood and agreed that this Consent is also a “written agreement” entered
into with the OTS within the meaning of Section 8 of the Federal Deposit
Insurance Act, 12 U.S.C. § 1818.
(c) All
or certain of the members of the Savings Association’s Board are signing this
Consent. Each such director, by signing this Consent, attests that
he/she voted positively in favor of the attached Board resolution authorizing
the execution of the Consent by the Savings Association.
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6.
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Separability
Clause.
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In the
event any provision in this Consent shall be found to be invalid, illegal or
unenforceable by a court of competent jurisdiction, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby, unless the OTS Central Regional Director, in his sole
discretion, determines otherwise.
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IN WITNESS WHEREOF, the Savings
Association hereby executes this Consent.
TIERONE
BANK
By:
/s/
Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Acting
Chairman of the Board
Attest:
/s/
Xxxxxx X. Xxxxxxxxx
Name:
Xxxxxx X. Xxxxxxxxx
Title:
Secretary
(SEAL)
THE
DIRECTORS OF TIERONE BANK
/s/ Xxxxx X. Xxxxxx
Name: Xxxxx
X. Xxxxxx, Director
/s/ Xxxxxxxx X. XxXxxxxxx
Name:
Xxxxxxxx X. XxXxxxxxx, Director
/s/ Xxxxx Person Pocras
Name:
Xxxxx Person Pocras, Director
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Attachment
to Consent Agreement - Form of Secretary’s Certificate and
Resolution
I, the undersigned, being the duly
appointed and qualified Secretary (or assistant or acting Secretary) of TierOne
Bank (the “Savings Association”) hereby certify as follows:
1. A
meeting of the Board of Directors of the Savings Association pursuant to its
bylaws was held on June 2, 2010;
2. At
said meeting, a quorum was present and acting throughout; and
3. Attached
hereto as Exhibit A is a true copy of resolution duly adopted by the Savings
Association’s Board of Directors at the aforesaid meeting, and the resolution
has not been rescinded or modified and is now in full force and
effect.
IN
WITNESS WHEREOF, I have set my hand, affixed the seal of the Savings
Association, and delivered this Certificate to the OTS on this 2nd day of June,
2010.
/s/
Xxxxxx X. Xxxxxxxxx
Name:
Xxxxxx X. Xxxxxxxxx
Title:
Secretary
(SEAL)
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Exhibit
A
WHEREAS,
after due consideration, the Board has made a determination that it is in the
best interest of the Savings Association to consent to the appointment of a
conservator or receiver and to enter into the Consent.
NOW,
THEREFORE, BE IT RESOLVED, that the Savings Association consents to the
appointment of a conservator or receiver; and
FURTHER
RESOLVED, that the execution, delivery and performance of all of the provisions
of the Consent, be and hereby are, authorized and approved; and
FURTHER
RESOLVED, that any officer of the Savings Association be, and each hereby is,
authorized, empowered and directed to execute and deliver the Consent on behalf
of the Savings Association; and any officer of the Savings Association be, and
each hereby is, authorized to attest to the execution of the Consent and to
affix the seal of the Savings Association; and
FURTHER
RESOLVED, that the officers of the Savings Association are hereby authorized and
directed to take all steps necessary or appropriate to implement the terms of
the Consent and to cause the Savings Association to comply in all respects with
the terms of the Consent.
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