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EXTENSION OF CONVEYANCE AND INDEMNIFICATION AGREEMENT
This EXTENSION OF THE CONVEYANCE AND INDEMNIFICATION AGREEMENT dated
October 1996 (the "Extension Agreement") is entered into between the FEDERAL
DEPOSIT INSURANCE CORPORATION ("FDIC") in its corporate capacity ("FDIC
Corporate"); the FDIC Receivers (as defined in that certain Settlement Agreement
dated as of June 22, 1994) (whether one or more, the "Indemnitee"); FCLT Loans,
L.P., as an assignee of First City Bancorporation of Texas, Inc. ("FCBOT") and
its related entities ("FCBOT Affiliated Entities") (FCBOT and the FCBOT
Affiliated Entities are collectively referred to as the "First City Parties")
and FIRSTCITY LIQUIDATING TRUST ("FCLT"). Capitalized terms used in this
Agreement and not otherwise defined shall be given the same meaning as set forth
in the Settlement Agreement (as defined below).
RECITALS:
WHEREAS, pursuant to the terms of that certain Settlement Agreement
dated as of June 22, 1994, between FDIC Corporate, the FDIC Receivers, and the
First City Parties, as amended as of January 30, 1995 (as amended, the
"Settlement Agreement"), the FDIC Receivers agreed to, among other things, (i)
effect distributions of the Surplus (as defined in the Settlement Agreement)
generated out of the First City Bank Receiverships (as hereinafter defined) to
the First City Parties and (ii) defend certain litigation and other disputed
matters of the First City Parties, the FDIC Receivers, FDIC Corporate and/or
certain other parties: and
WHEREAS, FCLT Loans, L.P. is an assignee of the First City Parties; and
WHEREAS, FCLT is the sole limited partner of FCLT Loans, L.P.; and
WHEREAS, the parties find it to be mutually desirable to terminate the
"Cash Holdback Reserve" established by the Conveyance and Indemnification
Agreement dated October 1996 prior to the anticipated termination date; and
WHEREAS, the FDIC desires to make an early final payment in the amount
of $2,514,550.28(1) (the "Final Payment "), and
WHEREAS, as a condition to making the Final Payment by the FDIC prior
to the scheduled termination date and as consideration therefor, the parties
desire to enter into this agreement whereby FCLT Loans, L.P. will continue to
provide indemnity to the FDIC against any known or unknown liabilities, claims
or expenses in an aggregate amount up to $10 million, associated with the First
City Bank Receiverships.
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(1) As of 1/31/99
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NOW THEREFORE, in consideration of the mutual promises and covenants
contained in this Extension Agreement and other good and valuable consideration,
the receipt and sufficiency of which is acknowledged, the parties agree as
follows:
1. DISTRIBUTION OF HOLDBACK ASSIGNMENT OF RIGHTS
a. ASSIGNMENT OF CASH HOLDBACK. As the final cash payment
pursuant to Section 5.1 of the Settlement Agreement and the terms of
the Conveyance and Indemnification Agreement dated October, 1996, the
FDIC Receivers hereby transfers, assigns and conveys unto FCLT Loans,
L.P. all of FDIC Receivers' rights, title and interest in and to the
Cash Holdback.
b. INDEMNIFICATION. As a condition to and in consideration of the
assignment of the Cash Holdback from the FDIC Receivers to FCLT Loans,
L.P., FCLT Loans, L.P. agrees to extend its indemnification of the
FDIC and agrees to indemnify the FDIC against any known or unknown
liabilities, obligations or expenses incurred by the FDIC which may
arise now or in the future until the Termination Date (as hereinafter
defined) associated with the FDIC Receivers (the "Indemnified
Obligations"). Such indemnification shall be subject to the conditions
and limitations, and governed by the procedures, set forth in Section
2 hereof.
2. INDEMNIFICATION
FCLT Loans, L.P. shall indemnify, and reimburse FDIC for all
liabilities, obligations, expenses, costs and any loss incurred by the
FDIC associated with the FDIC Receiverships, including, but not
limited to, expenses incurred in connection with the Outstanding
Claims; provided, however, that in no event shall FCLT Loans, L.P.'s
liability under Section 1(b) and this Section 2 exceed ten million
dollars ($10,000,000). The term "expenses" as used herein shall
include, but is not limited to, all research costs, accounting
charges, review fees, attorneys' fees, court costs, transcript costs,
fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery
service fees, and all other disbursements or expenses of any kind
incurred in connection with or related to the FDIC Receivers and in
defending litigation, preparing to defend, investigating, or being or
preparing to be a witness in litigation.
3. GENERAL
a. DURATION OF AGREEMENT. This Extension Agreement shall continue
until and terminate on Midnight C.S.T., January 3, 2000, or the final
termination of FCLT (whichever date is later, the "Termination Date"),
unless otherwise extended by the parties.
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b. SEVERABILITY. If any provision or provisions of this Extension
Agreement shall be held to be invalid, illegal or unenforceable for
any reason whatsoever; (i) the validity, legality and enforceability
of the remaining provisions of this Extension Agreement (including,
without limitation, each portion of any section of this Extension
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable)
shall not in any way be effected or impaired thereby; and (ii) to the
fullest extent possible, the provisions of this Extension Agreement
(including, without limitation, each portion of any section of this
Extension Agreement containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent
manifested thereby.
c. IDENTICAL COUNTERPARTS. This Extension Agreement may be
executed in one or more counterparts, each of which shall for all
purposes be deemed to be an original but all of which together shall
constitute one and the same agreement. Only one such counterpart
signed by the party against whom enforceability is sought needs to be
produced to evidence the existence of this Extension Agreement.
d. WAIVER. No delay on the part of the Indemnitee in exercising
any power or right shall operate as a waiver thereof; nor shall any
single or partial exercise of any power or right preclude other or
further exercise thereof or the exercise of any power or right. No
waiver by the Indemnitee of any right hereunder or of any default by
FCLT Loans, L.P. shall be binding upon the Indemnitee unless in
writing, and no failure by the Indemnitee to exercise any right
hereunder or waiver of any default FCLT Loans, L.P. shall operate as a
waiver of any other or further exercise of such right or of any
further default.
e. HEADINGS. The headings of the paragraphs of this Extension
Agreements are inserted for convenience only and shall not be deemed
to constitute part of or to effect the construction of this Extension
Agreement.
f. MODIFICATION AND WAIVER. This instrument contains the entire
agreement of the parties with respect to its subject matter. No
supplement, modification or amendment of this Extension Agreement
shall be binding unless executed in writing by all of the parties to
this Extension Agreement. No waiver of any of the provisions of this
Extension Agreement shall be deemed or shall constitute a waiver of
any other provisions (whether or not similar) nor shall such waiver
constitute a continuing waiver.
g. PARTIES BOUND. The rights of the Indemnitee hereunder shall
inure to the benefit of its successors and assigns. The terms of this
Extension Agreement shall be binding upon heirs, executors,
administrators, successors, and assigns of the parties hereto. All
representations, warranties and agreements of FCLT Loans, L.P. shall
bind FCLT Loans, L.P.'s personal representatives, heirs, successors
and assigns.
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h. NOTICE. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to
have been duly given if (i) delivered by hand and receipted for by the
party to whom said notice or other communication shall have been
directed, or (ii) mailed by certified or registered mail with postage
prepaid, on the third business day after mailing:
(a) If to Indemnitee, to:
Xx. Xxxxxx X. X'Xxxxx, Assistant Director Field Operations
0000 Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000
with a copy to:
Regional Counsel FDIC Legal Division,
0000 Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx
(b) If to FCLT or FCLT Loans, L.P., to:
Xx. Xxxxxx X. Xxxxx, President, FCLT Loans Asset Corp.
First City Tower, 0000 Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000
with a copy to:
G. Xxxxxxx Xxxxxx
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
or to such other address as may have been furnished to Indemnitee by
FCLT or FCLT Loans, L.P. or to FCLT or FCLT Loans, L.P. by the
Indemnitee, as the case may be.
i. GOVERNING LAW. The parties agree that this Extension Agreement
shall be governed by, and construed and enforced in accordance with
the laws of the United States of America, and to the extent such law
is not applicable, with the laws of the State of Texas.
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IN WITNESS WHEREOF, the parties hereto have executed this Extension
Agreement on the day and year first above written.
FEDERAL DEPOSIT INSURANCE CORPORATION, in its
corporate capacity
By: /s/ XXXXXX X. X'XXXXX
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Name: Xxxxxx X. X'Xxxxx
Title: Assistant Director Field Operations
FEDERAL DEPOSIT INSURANCE CORPORATION in its
capacity as the FDIC Receivers
By: /s/ XXXXXX X. X'XXXXX
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Name: Xxxxxx X. X'Xxxxx
Title: Assistant Director Field Operations
FIRSTCITY LIQUIDATING TRUST
By: FLEET NATIONAL BANK, as Trustee
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
FCLT Loans, L.P., a limited partnership
By: FCLT LOANS ASSET CORP.,
its General Partner
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: President
