1155.44 Acquiring insolvent depository institution.

(A) The depositor assistance corporation may enter into a contract for an acquisition with:

(1) A purchaser;

(2) An acquiring bank; and

(3) An insolvent depository institution or any successors-in-interest thereto;

Upon the terms and subject to the conditions specified in this section.

(B) The contract entered into under division (A) of this section shall provide:

(1) That the acquiring bank or purchaser shall agree to assume all of the deposit liabilities of the insolvent depository institution which have not been paid by the depositor assistance corporation pursuant to sections 1155.41 to 1155.47 of the Revised Code and which have not been, or will not be, paid by a deposit guaranty association established under former sections 1151.80 to 1151.92 of the Revised Code, except such deposit liabilities that may be offset against claims of the state, the insolvent depository institution or any of its subsidiaries, or any successors-in-interest thereto, against present and former directors, officers, shareholders, or agents of it or of any of its affiliates, or against agents of any of such directors, officers, or shareholders.

(2) That the acquiring bank shall be required to agree to attempt to collect or realize upon all purchased assets in the ordinary course of business as if collections were not subject to repayment of the reserve amounts provided for in such contract.

(3) That if the acquiring bank seeks to sell or compromise any purchased asset or group of assets with a book value of, or at a price, in excess of one hundred thousand dollars, the acquiring bank shall grant to the insolvent depository institution, or successors-in-interest thereto, a right of first refusal on the same terms as the proposed sale or compromise.

(4) Such other terms as the depositor assistance corporation may agree upon.

(C)

(1) In consideration of the claims and rights of depositors assigned to the depositor assistance corporation and immediately prior to the closing contemplated by the contract provided for in division (A) of this section and after the proceeds of revenue bonds issued pursuant to sections 1155.41 to 1155.47 of the Revised Code are collected, the depositor assistance corporation shall pay to a paying agent selected by the corporation, which agent may be the acquiring bank, for the accounts of depositors of the insolvent depository institution, an amount equal to one hundred per cent of the deposit liabilities of the insolvent depository institution, including accrued interest, if any, at the contractual rate agreed to by the insolvent depository institution, or successors-in-interest thereto except as provided in division (C)(4) of this section, which have not been assumed by the acquiring bank or purchaser, except those deposit liabilities that may be offset against claims of the state, the insolvent depository institution, or successors-in-interest thereto, against present or former directors, officers, shareholders, or agents of the insolvent depository institution or its affiliates, or against agents of any of such directors, officers, or shareholders, and except all sums paid to the benefit of depositors by any deposit guaranty association established under former sections 1151.80 to 1151.92 of the Revised Code.

(2) The amount paid pursuant to division (C)(1) of this section shall in all events not exceed the sum appropriated by the general assembly for purposes of implementing this section.

(3) Except a depositor by reason of deposit liabilities that may be offset against claims of the state, the insolvent depository institution, or successors-in-interest thereto, against present or former directors, officers, shareholders, or agents of the insolvent depository institution or its affiliates or against agents of any of such directors, officers, or shareholders, a depositor of the insolvent depository institution may elect to receive cash equal to such depositor's deposit from the amount paid pursuant to division (C)(1) of this section by the depositor assistance corporation. Such depositor shall be entitled to receive such cash from the depositor assistance corporation, or its paying agent, notwithstanding any contractual provision relating to the maturity of such deposit. If such depositor does not elect to receive such cash within ten days following the assumption of the insolvent depository institution's liabilities by the acquiring bank, the depositor assistance corporation through its paying agent shall make payment for the account of such depositor to the acquiring bank which, in connection with such assumption, shall have contractually agreed, subject only to applicable law and regulation, to issue its own deposit for an identical interest rate, maturity date, and other terms as the deposit for which the depositor assistance corporation is otherwise obligated to make payment. Each depositor, by electing to receive cash or permitting the payment to the acquiring bank for his account, shall be deemed to have assigned to the state any cause of action which he claims or has against the state or any of its officers or employees arising out of the insolvency of the depository institution, arising out of any action or inaction in the regulation of such institution or in the regulation of the Ohio deposit guarantee fund, arising out of information provided to the public concerning the nature of the guarantee of its deposits, or arising out of securing access to such deposits after insolvency.

(4) The interest paid to a depositor or credited to a deposit issued to him pursuant to this section shall be calculated from January 1, 1985, at a rate not exceeding the maximum interest rate payable on the same or similar deposit by a financial institution in the state of Ohio whose deposits are insured by the federal savings and loan insurance corporation.

(5) No disbursement of moneys shall be made pursuant to this section by the depositor assistance corporation or its paying agent to any present or former director, officer, shareholder, or agent of the insolvent depository institution or its affiliates, or any agent of any of such director, officer, or shareholder that is a depositor in the insolvent depository institution until all other depositors have received one hundred per cent of their deposits and the moneys loaned to the depositor assistance corporation pursuant to Section 3 of Am. Sub. H.B. 492 of the 116th general assembly have been repaid.

(D) All rights of any depositor against the insolvent depository institution with respect to any deposits paid by the depositor assistance corporation are thereby assigned and transferred by operation of law to the depositor assistance corporation in consideration of and to the extent of such payment. Upon such payment the insolvent depository institution and the superintendent of savings and loan associations, as liquidator of the insolvent depository institution, or any successors-in-interest thereto, shall grant to, and shall hereby be deemed to have granted to, the depositor assistance corporation a security interest for its benefit in all the proceeds from the following items:

(1) All assets of the insolvent depository institution or any successors-in-interest thereto, including all claims, choses in action, choate or inchoate and all other intangible assets which have not been specifically assigned and transferred to the purchaser; and

(2) All refunds, if any, payable to the insolvent depository institution or any successors-in-interest thereto under the terms of the contract entered into under division (A) of this section.

The security interest granted pursuant to division (D) of this section shall be subject to payment of administrative expenses of the liquidation of the insolvent depository institution, including expenses of collection, and to the rights of creditors of the insolvent depository institution whose claims have not been assumed by the acquiring bank to receive ratable payments from the assets of the insolvent depository institution; except that the security interest shall not be subject to the rights, if any, of any deposit guaranty association established under former sections 1151.80 to 1151.92 of the Revised Code, or its successors-in-interest or members, as a creditor or creditors. The security interest so granted shall be deemed to be perfected for all purposes without the filing of a financing statement or any other action whatsoever.

(E) Except for deposit liabilities to the extent contractually required to be assumed by the acquiring bank or the purchaser, any of the liabilities of the insolvent depository institution to be assumed by the acquiring bank or the purchaser may be assumed by any affiliate of the purchaser as may be approved by the depositor assistance corporation and the assets of the insolvent depository institution which are to be purchased by the purchaser may be transferred to either the acquiring bank or any other affiliate of the purchaser.

(F) The depositor assistance corporation may advise the superintendent as to the prosecution, settlement, compromise, or release, whether for cash or other consideration or without consideration, of all claims, rights, or choses in action in the proceeds from which it has been granted a security interest pursuant to division (D) of this section. The amount of any net recoveries paid to the depositor assistance corporation shall be deposited annually in the state treasury to the credit of the special distribution fund, which is hereby created. Such net recoveries shall not be used by the corporation for any other purpose whatsoever except operating expenses.

(G) As used in this section:

(1) "Deposit liabilities" means liabilities of an insolvent depository institution in respect of time, savings or demand deposits of the institution, or unpaid cashiers checks issued to depositors or issued to former depositors in the course of a withdrawal from an account at the institution.

(2) "Depositor" means any person or entity that directly or as a nominee owns deposit liabilities of an insolvent depository institution or has any interest therein, except as a debenture holder, or has an interest therein pursuant to the uniform gifts to minors act, except a depositor by reason of deposit liabilities that may be offset against claims of the state, the insolvent depository institution, or successors-in-interest thereto, against present or former directors, officers, shareholders, or agents of the insolvent depository institution or its affiliates or against agents of any of such directors, officers, or shareholders.

(3) "Acquiring bank" may include a domestic savings and loan association or domestic savings and loan association holding company.

Effective Date: 04-05-1991