Exhibit 10.9
AMENDMENT NO. 1 TO
INTERIM CAPITAL ASSISTANCE AGREEMENT
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THIS AMENDMENT NO. 1, dated as of this 1 day of May, 1997, is made and
entered into by and among the Shareholder(s), Pan American Financial, Inc., an
insured depository institution within the meaning of the Federal Deposit
Insurance Act, as amended (the "FDIA"), 12 U.S.C. Section 1811, et seq.,
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organized and existing as a financial institution with its principal place of
business at 0000 Xx Xxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx, Pan American Bank, FSB
(the "Assuming Institution"), and the Federal Deposit Insurance Corporation, as
Manager of the FSLIC Resolution Fund (the successor to the assets and
liabilities of the Resolution Trust Corporation (the "RTC")), a corporation duly
organized and existing under the laws of the United states of America and having
its principal office in Washington, D.C. (the "FDIC").
RECITALS
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WHEREAS, the Shareholder(s), Assuming Institution, and the former RTC
entered into an Interim Capital Assistance Agreement dated as of April 29, 1994
(the "Agreement"); and
WHEREAS, subsection (f) of Section 12 of the Agreement provides, in
pertinent part, that no amendment or other modification of the Agreement shall
be effective except pursuant to a written agreement subscribed by the duly
authorized representatives of the Parties; and
WHEREAS, the Shareholder(s), Assuming Institution, and FDIC desire to amend
the Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and other good valuable consideration, the
receipt and sufficiency of which are herby acknowledged, the Shareholder(s),
Assuming Institution, and FDIC hereby agree as follows:
1. Defined Terms. Except as otherwise provided herein, capitalized
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terms used in this Amendment shall have the respective meanings assigned to them
in the Agreement (such meanings to be equally applicable to both the singular
and plural forms of the terms defined).
2. Negative Covenants of Shareholder(s) and Assuming Institution.
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Subsection (a) of Section 8 of the Agreement is hereby amended by deleting such
subsection in its entirety and substituting in lieu thereof the following:
"(a) Declare or pay any dividends, or issue any of its capital
stock or any options or other rights in respect thereto, or repurchase,
redeem, retire or otherwise acquire for value any of its outstanding
capital stock, or make any distribution of its assets to any of its
Shareholders or Holding Company as such; provided, that dividends may be
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paid if:
(i) used by the Shareholder(s) exclusively for payment of principal
or interest on the Promissory Note, or
(ii) The Assuming Institution has provided the FDIC with 30 days'
prior written notice of its intent to declare or pay any such dividends,
which includes a written certification from the Assuming Institution's
chief executive officer that it is in compliance with all of the conditions
set forth in clauses (A) through (E) below:
(A) the Assuming Institution has enclosed in such notice a
business plan setting forth in specific detail its plans for repayment of
the Promissory Note,
(B) the payment of any such dividends would not exceed 50% of the
net income of the Assuming Institution earned during the period in which
dividends are to be declared and paid,
(C) there is no Event of Default in existence under the Agreement
or the Promissory Note,
(D) the Assuming Institution would not cause an Event of Default
under the Agreement or the Promissory Note by the declaration or payment of
any such dividends, and
(E) the declaration or payment of any such dividends is not
prohibited or objected to by the Assuming Institution's primary Federal
regulator."
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3. Miscellaneous.
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(a) Ratification: Effective Date. Except as specifically amended
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hereby, the Agreement and the Promissory Note shall remain in full force and
effect and are hereby ratified and confirmed.
(b) Counterparts. This Amendment No. 1 may be executed in any
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number of counterparts and by the duly authorized representative of a different
Party 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 Amendment.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the Parties have duly executed this Amendment as of the
day and year first above written.
ASSUMING INSTITUTION:
PAN AMERICAN BANK FSB
Witness: /s/ XXXXXX X. XXXXX By: /s/ XXXXXXXX X. GRILL
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Its: President
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SHAREHOLDERS:
PAN AMERICAN FINANCIAL, INC.
Witness: /s/ XXXXXX XXXXXXX By: /s/ XXXXXXXXX XXXX
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Its: Chairman
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FEDERAL DEPOSIT INSURANCE
CORPORATION
Witness:/s/ [SIGNATURE ILLEGIBLE] By: /s/ XXXXXXX X. XXXXXXXX
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Its: XXXXXXX X. XXXXXXXX
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Assistant Director
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