EXHIBIT 10.18
[LOGO OF RTC APPEARS HERE]
INDEMNITY AGREEMENT
BETWEEN
RESOLUTION TRUST CORPORATION
and
PAN AMERICAN BANK, FSB
SAN MATEO, CALIFORNIA
DATED AS OF
APRIL 29, 1994
page 1
TABLE OF CONTENTS
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Page
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RECITALS.................................................................. 1
ARTICLE I................................................................. 2
DEFINITIONS.......................................................... 2
1.1 Certain Defined Terms .................................... 2
1.2 Other Capitalized Terms .................................. 3
ARTICLE II................................................................ 3
INDEMNIFICATION OF AI INDEMNITEES.................................... 3
2.1 General Indemnity.......................................... 3
2.2 Limited Indemnity.......................................... 4
2.3 Exclusions................................................. 5
2.4 Limited Guaranty........................................... 7
2.5 Third Party Beneficiaries.................................. 7
ARTICLE III............................................................... 7
INDEMNIFICATION OF RTC INDEMNITEES .................................. 7
3.1 General Indemnity.......................................... 7
3.2 Third Party Beneficiaries.................................. 8
ARTICLE IV................................................................ 8
INDEMNIFICATION PROCEDURES........................................... 8
4.1 All Indemnitees............................................ 8
4.2 Al Indemnitees............................................. 8
4.3 Advance of Defense Costs .................................. 9
ARTICLE V................................................................. 10
TERMINATION.......................................................... 10
ARTICLE VI................................................................ 10
MISCELLANEOUS........................................................ 10
6.1 No Warranty................................................ 10
6.2 Entire Agreement........................................... 10
6.3 Headings................................................... 10
6.4 Counterparts............................................... 10
6.5 GOVERNING LAW.............................................. 11
6.6 Successors................................................. 11
6.7 Modification; Assignment.................................. 11
6.8 Notice..................................................... 11
6.9 Waiver..................................................... 12
6.10 Severability............................................... 12
6.11 Corporation Obligation .................................... 13
6.12 Costs of Duplication....................................... 13
6.13 Effectiveness.............................................. 13
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT dated as of this 29th day of April, 1994, is made
by and between the RESOLUTION TRUST CORPORATION, a corporation organized and
existing under the laws of the United States of America and having its principal
office in Washington, D.C. (the "Corporation") and Pan American Bank, FSB,
organized and existing under the laws of the United States of America and having
its principal place of business in San Mateo, California (the "Assuming
Institution").
RECITALS
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A. Pursuant to Section 5(d) of the Home Owners' Loan Act, as amended, 12
U.S.C. Section 1464(d) (the "HOLA"), the Office of Thrift Supervision of the
Department of the Treasury ("OTS") has issued its Order No. _____ providing for
the closing of Pan American Federal Savings Bank, formerly an insured savings
association within the meaning of the FDI Act, organized as a federal
association under Section 21A of the Federal Home Loan Bank Act, as amended, 12
U.S.C. Section 1441a and having its principal place of business in San Mateo,
California (the "Failed Association").
B. Pursuant to Section 5(d) (2) of the HOLA, 12 U.S.C. Section
1464(d)(2), and Section 11(c)(6)(B) of the FDI Act, 12 U.S.C. Section
1821(c)(6)(B), the OTS has appointed the Resolution Trust Corporation as
Receiver of the Failed Association (in such capacity, the "Receiver") and the
Resolution Trust Corporation has accepted the appointment.
C. Pursuant to the Purchase and Assumption Agreement of even date
herewith by and between the Receiver and the Assuming Institution a the same may
be modified or amended from time to time, the "Purchase and Assumption
Agreement"), the Assuming Institution has assumed the deposit and certain other
liabilities and purchased certain assets of the Failed Association.
D. Pursuant to 12 U.S.C. Section 1823(c)(2)(A), the Corporation may
provide assistance to the Assuming Institution to facilitate the transactions
contemplated by the Purchase and Assumption Agreement, which assistance may
include indemnification of the Al Indemnitees (as hereinafter defined) upon the
determination of the Corporation's Chief Executive Officer ("CEO") that any one
of the requisite conditions set forth in 12 U.S.C. Section 1823(c)(4)(A) as
amended exists.
E. The CEO has determined pursuant to 12 U.S.C. Section 1823(c) (4)(A)
that providing indemnification pursuant to this Indemnity Agreement is necessary
to meet the obligation of the Corporation to provide insurance coverage for the
insured deposits in such Failed Association and the total amount of the
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expenditures by, and obligations incurred by, the Corporation in connection with
the exercise of such authority is the least costly to the deposit insurance fund
of all possible methods for meeting that obligation.
F. The Assuming Institution would not enter into the Purchase and
Assumption Agreement without the indemnification provided under this Indemnity
Agreement.
NOW, THEREFORE, in consideration of the mutual promises herein set forth
and other valuable consideration, the Corporation and the Assuming Institution
hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms. As used in this Agreement, the following terms
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shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
(a) "Agreement" shall mean this Indemnity Agreement, as the same may
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be amended or supplemented from time to time. References to Articles, Sections,
subsections and the like refer to the Articles, Sections and subsections and the
like of this Agreement unless otherwise indicated.
(b) "AI Indemnitees" shall mean (i) the Assuming Institution and its
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Affiliates, and (ii) the respective directors, officers, employees and agents of
the Assuming Institution and its Affiliates; provided, however, that
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notwithstanding anything to the contrary contained herein, "Al Indemnitees"
shall not include (x) any Affiliate of the Assuming Institution that was at any
time an Affiliate of either the Failed Association or any Predecessor Thrift,
(y) any entity (including, without limitation, any Affiliate of the Assuming
Institution) that is a successor-in-interest (whether by merger, consolidation,
reorganization or otherwise) to any Affiliate of either the Failed Association
or any Predecessor Thrift, or (z) any director, officer, employee or agent of
the Assuming Institution or any Affiliate of the Assuming Institution that was
at any time a director, officer, employee or agent of the Failed Association,
any Predecessor Thrift, or any Affiliate of either the Failed Association or any
Predecessor Thrift, to the extent that the Costs for which indemnification is
sought are based upon, arise out of or relate to acts or omissions of, or
liability incurred by, such person during his or her tenure or in his or her
capacity as a director, officer, employee or agent of the Failed Association,
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any Predecessor Thrift, or any Affiliate of the Failed Association or any
Predecessor Thrift.
(c) "Costs" shall mean, with respect to any claim (or potential claim
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under Section 2.2(c)), any and all costs, losses, liabilities, expenses
(including attorneys' fees), judgments, fines and settlement amounts incurred in
connection with such claim or potential claim, provided, however, that the
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amount of any indemnification provided to any Al Indemnitee hereunder for any
such Costs shall be determined on an after-tax basis so as to reflect any
reduction in taxes attributable to the payment by such Al Indemnitee of any such
Costs.
(d) "FA Affiliated Person" shall mean (i) the Failed Association,
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(ii) any Predecessor Thrift, (iii) any Affiliate of either the Failed
Association or any Predecessor Thrift, or (iv) any director, officer, employee
or agent as such of any of the entities specified in subsections (i) through
(iii) above.
(e) "Indemnitee" shall mean any Al Indemnitee or any RTC Indemnitee,
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as the context may require.
(f) "Indemnitor" shall mean the Corporation or the Assuming
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Institution, as the context may require.
(g) "RTC Indemnitees" shall mean (a) the Corporation,
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(b) the Receiver, and (c) the respective directors, officers, employees and
agents of the Corporation and the Receiver.
(h) "Standard Terms" shall mean the RTC Standard Purchase and
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Assumption Terms and Conditions, incorporated by ref erence in (and expressly
made a part of) the Purchase and Assumption Agreement.
(i) "Third Partv Claim" shall mean, with respect to any Indemnitee, a
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claim against such Indemnitee by a Person that is not an Affiliate of such
Indemnitee.
1.2 Other Capitalized Terms. Capitalized terms used in this Agreement and
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not otherwise defined herein shall have the respective meanings assigned to them
in the Purchase and Assumption Agreement.
ARTICLE II
INDEMNIFICATION OF Al INDEMNITEES
2.1 General Indemnity. On the terms and conditions hereinafter set
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forth, the Corporation shall indemnify and hold harmless each Al Indemnitee
against any and all Costs actually and
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reasonably incurred by any such Al Indemnitee in connection with any and all
claims based upon any of the following:
(a) any liability of the Failed Association not assumed by the
Assuming Institution pursuant to the Purchase and Assumption Agreement on or
after Association Closing;
(b) the determination or appointment of a conservator or receiver by
the appropriate regulatory authority for the Failed Association or any
Predecessor Thrift or the acceptance of the Assuming Institution's bid to
purchase certain assets and assume certain liabilities of the Failed
Association;
(c) any act or omission of any Al Indemnitee on behalf of the
Receiver or the Corporation which is taken or omitted upon the specific written
direction of the Receiver or the Corporation; and
(d) any act or omission of any Dedicated Personnel which is (i) taken
or omitted at the direction or upon the approval of the Receiver (whether
written or verbal) pursuant to Article IX of the Standard Terms, or (ii) within
the scope of the employment of such Dedicated Personnel as it relates to the
services provided under Article IX of the Standard Terms.
2.2 Limited Indemnity.
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(a) All assets purchased by the Assuming Institution pursuant to the
Purchase and Assumption Agreement, whether on or after Association Closing, are
transferred "as is," "where is," without any warranties, express or implied.
Notwithstanding anything to the contrary contained in this Agreement, no
indemnification shall be provided hereunder to any Al Indemnitee for any claim
based upon, arising out of or relating to any such asset, including, without
limitation, any Third Party Claims, except as expressly set forth in this
Section 2.2.
(b) Subject to subsections (c), (d) and (e) below, the Corporation
shall indemnify and hold harmless each Al Indemnitee against any and all Costs
actually and reasonably incurred by any such Al Indemnitee in connection with
any Third Party Claim arising out of or relating to any asset of the Failed
Association purchased by the Assuming Institution pursuant to the Purchase and
Assumption Agreement to the extent such claim is based upon any act or omission
prior to Association Closing by any FA Affiliated Person.
(c) In the case of any Third Party Claim or potential Third Party
Claim based upon, arising out of or relating to an
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interest overcharge on any adjustable rate First Mortgage Loan, the
indemnification provided under Section 2.2(b) (i) shall apply to potential Third
Party Claims identified by the Assuming Institution, whether or not an actual
Third Party Claim has been made or threatened, (ii) shall not in any event
exceed the purchase price (as set forth on Schedule A to the Purchase and
Assumption Agreement) of such First Mortgage Loan, and (iii) shall be limited to
indemnification for Costs that are directly attributable to net interest
overcharges received by the Failed Association prior to Association Closing. As
used herein, "net interest overcharge" means, with respect to any First Mortgage
Loan, the difference between total interest overpayments and total interest
underpayments received by the Failed Association in respect of such First
Mortgage Loan prior to Association Closing .
(d) No indemnification shall be provided to any Al Indemnitee under
Section 2.2(b) for any Third Party Claim (other than any Third Party Claim
relating to an interest overcharge on any adjustable rate First Mortgage Loan)
unless the Costs actually and reasonably incurred by such Al Indemnitee in
connection with such claim exceed the sum of (i) the purchase price (as set
forth in Article III or Article IV of the Standard Terms) of the asset to which
such claim relates, plus (ii) any and all amounts (other than principal
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payments) recovered by such Al Indemnitee in connection with any claim by such
Al Indemnitee arising out of or relating to such asset. The Corporation shall
provide indemnification only in the amount of any such excess.
(e) No indemnification shall be provided under Section 2.2(b) for any
Third Party Claim (or potential Third Party Claim under Section 2.2(c)) based
upon, arising out of or relating to any act or omission by any Al Indemnitee.
If any claim or potential claim for which indemnification is sought under
Section 2.2(b) is attributable in part to any act or omission by any Al
Indemnitee, the Corporation shall provide indemnification only to the extent
that such claim or potential claim is attributable to acts or omissions by any
FA Affiliated Person. The Corporation, in its sole discretion, shall determine
which, if any, Costs incurred in connection with any such Third Party Claim (or
potential Third Party Claim) are attributable to acts or omissions by any Al
Indemnitee.
2.3 Exclusions. Notwithstanding anything to the contrary contained in
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this Agreement, no indemnification shall be provided hereunder to any Al
Indemnitee for any claims or potential claims based upon, arising out of or
relating to any of the following:
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(a) any liability assumed by the Assuming Institution pursuant to the
Purchase and Assumption Agreement on or after Association Closing;
(b) any gross negligence or intentional misconduct of any Al
Indemnitee, whether before or after Association Closing and, except as expressly
provided in Section 2.1(c) above, any-act or omission by any Al Indemnitee or
any Transition Personnel on or after Association Closing, including, without
limitation, any act or omission by any Al Indemnitee or any Transition Personnel
with respect to any asset purchased by the Assuming Institution under the
Purchase and Assumption Agreement and subsequently put back to the Receiver in
accordance with the terms of the Purchase and Assumption Agreement;
(c) any violation by any Al Indemnitee of any laws of the United
States of America or any state thereof, including, without limitation, any
antitrust, branching, banking or bank holding company or securities laws;
(d) any claim or potential claim which could have been enforced
against any Al Indemnitee had the Assuming Institution not entered into the
Purchase and Assumption Agreement;
(e) any alleged breach by any director of any Al Indemnitee of such
director's fiduciary duty or duty of care to the shareholders of such Al
Indemnitee, including, without limitation, any shareholder derivative suit;
(f) any claim or potential claim based upon, arising out for
relating to any asset purchased by the Assuming Institution pursuant to any
Mortgage Loan Sale Agreement; and
(g) with respect to any asset purchased by the Assuming Institution
pursuant to the Purchase and Assumption Agreement on or after Association
Closing, any claim or potential claim based upon, arising out of or relating to
(i) title to, or the value, collectibility, enforceability or condition of, or
the existence of liens or encumbrances affecting, any such asset,
(ii) conditions of or generated by any such asset arising from or related to the
generation, storage, manufacturing, refining, transportation, treatment,
disposal, deposit, dumping, placing, spilling, discharge, or release or other
presence of any hazardous substance or toxic substance, or any pollutant or
contaminant, (iii) the presence of asbestos or other toxic substance used in
construction of, or rehabilitation of, or on any such asset, (iv) the presence
of radon or petroleum or petroleum byproducts or gases or pesticide products or
nuclear materials on any such asset, or (v) conditions of any such asset
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which violate any applicable Federal, state or local law or regulation for
environmental protection.
2.4 Limited Guaranty. The Corporation hereby guarantees performance of
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the Receiver's obligation to repurchase certain assets from the Assuming
Institution upon the exercise of the Assuming Institution's putback rights (if
any) under Section 3.1, Section 3.3(b) and Section 4.2(a) (iv) of the Standard
Terms. It is a condition to the Corporation's obligation hereunder that the
Assuming Institution shall comply in all respects with the applicable provisions
of the Purchase and Assumption Agreement. The Corporation shall be liable
hereunder only for such amounts, if any, as the Receiver is obligated to pay
under the terms of the Purchase and Assumption Agreement but shall fail to pay.
2.5 Third Party Beneficiaries. Each AI Indemnitee is an intended third
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party beneficiary of this Agreement (other than the Assuming Institution, which
is a party hereto). Each AI Indemnitee (including the Assuming Institution)
may enforce the Corporation's obligations to such AI Indemnitee hereunder
directly and without any need for any consent, assistance or intervention of any
other AI Indemnitee.
ARTICLE III
INDEMNIFICATION OF RTC INDEMNITEES
3.1 General Indemnity. On the terms and conditions hereinafter set forth,
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the Assuming Institution shall indemnify and hold harmless each RTC Indemnitee
from and against any and all Costs incurred in connection with any and all
claims based upon, arising out of or relating to any of the following:
(a) any liability assumed by the Assuming Institution pursuant to the
Purchase and Assumption Agreement on or after Association Closing;
(b) any act or omission of any AI Indemnitee (including, by way of
example only and expressly without limitation, any act or omission by any AI
Indemnitee with respect to any asset of the Failed Association purchased by the
Assuming Institution under the Purchase and Assumption Agreement and
subsequently put back to the Receiver), other than any act or omission subject
to Section 2.1(c) of this Agreement;
(c) any "Phase I" environmental report or similar environmental audit
report provided to the Assuming Institution pursuant to Section 4.9(b) of the
Standard Terms; and
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(d) the Assuming Institution's notice to depositors required by
Section 5.3 of the Standard Terms.
3.2 Third Partv Beneficiaries. Each RTC Indemnitee (other than the
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Corporation, which is a party hereto) is an intended third party beneficiary of
this Agreement. Each RTC Indemnitee (including the Corporation) may enforce the
Assuming Institution's obligations to such RTC Indemnitees hereunder directly
and without the need for any consent, assistance or intervention of any other
RTC Indemnitee.
ARTICLE IV
INDEMNIFICATION PROCEDURES
4.1 All Indemnitees. Subject to Article V, and with respect to (i) any
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claim made or threatened against any Indemnitee for which such Indemnitee is or
may be entitled to indemnification under this Agreement, and (ii) any potential
claim for which indemnification may be sought under Section 2.2(c), it shall be
a condition to such indemnification that such Indemnitee shall:
(a) give written notice to the Indemnitor of such claim as soon as
practicable after such claim is made or threatened (or, in the case of any such
potential claim, as soon as practicable after such Indemnitee becomes aware of
any facts or circumstances on which such potential claim may be based), which
notice shall specify in reasonable detail the nature of the claim or potential
claim and the amount (or an estimate of the amount) of the claim or potential
claim;
(b) provide to the Indemnitor such information and cooperation with
respect to such claim or potential claim as the Indemnitor may reasonably
require, including, without limitation, making appropriate personnel available
to the Indemnitor at such times as the Indemnitor shall request (provided, that
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such personnel are under the employ of the Indemnitee at such time) and
providing copies of invoices or other evidence of expense incurred;
(c) cooperate and take all such steps as the Indemnitor may
reasonably request to preserve and protect any defense to such claim or
potential claim; and
(d) upon reasonable prior notice, afford to the Indemnitor the right,
which the Indemnitor may exercise in its sole discretion and at its expense, to
participate in the investigation, defense and settlement of such claim or
potential claim.
page 9
4.2 AI Indemnitees. With respect to any claim made or threatened against
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any AI Indemnitee for which such AI Indemnitee is or may be entitled to
indemnification under this Agreement, and with respect to any potential claim
for which indemnification may be sought under Section 2.2(c), it shall be a
further condition to such indemnification that such Al Indemnitee, in addition
to complying with the provisions of Section 4.1, shall:
(a) neither incur any material expense to defend against nor settle
or compromise such claim or potential claim or make any admission with respect
thereto (other than routine or incontestable admissions or factual admissions
the failure to make which would expose such AI Indemnitee to unindemnified
liability) without the prior written consent of the Corporation (which consent
shall not be unreasonably withheld); and
(b) upon reasonable prior notice, afford to the Corporation the
right, in its sole discretion and at its expense, to control the defense of such
claim or potential claim, including, without limitation, the right to designate
counsel and to control all negotiations, litigation, arbitration, settlements,
compromises and appeals of any such claim or potential claim; provided, however,
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that the Corporation shall have advised such AI Indemnitee that, to the best of
the Corporation's knowledge at such time, such AI Indemnitee is entitled to be
indemnified hereunder with respect to such claim or potential claim; and
provided further, that prior to entering into a final settlement or compromise,
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(i) the Corporation shall use its best efforts in the light of the then
prevailing circumstances (including, without limitation, any express or implied
time constraint on any pending settlement offer) to consult with such AI
Indemnitee as to the terms of settlement or compromise and shall use its best
efforts to incorporate suggested modifications if such modifications (A) would
reduce the risk to such AI Indemnitee of liability not indemnified hereunder and
(B) would not materially adversely affect the Corporation, (ii) the Corporation
shall obtain the relevant AI Indemnitee's consent (which consent shall not be
unreasonably withheld) to such settlement or compromise if, and only if, (A)
such settlement or compromise would result in a Cost to such AI Indemnitee for
which it is not indemnified hereunder solely because of the limitation set forth
in Section 2.2(c) hereof, and (B) the Corporation would not be required to pay
any indemnity amounts hereunder in respect of such settlement or compromise; and
(iii) the Corporation shall obtain the relevant AI Indemnitee's consent (which
consent shall not be unreasonably withheld) to such settlement or compromise if
such settlement or compromise would result in injunctive relief against such AI
Indemnitee.
page 10
4.3 Advance of Defense Costs. The Corporation, in its sole discretion, may
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reimburse any AI Indemnitee for any Costs actually and reasonably incurred by
such AI Indemnitee in the defense of any claim or potential claim for which
indemnification may be sought hereunder in advance of the final disposition of
such claim or potential claim; provided, that such AI Indemnitee shall undertake
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in writing to repay any such amounts to the Corporation at such time as it is
determined that such AI Indemnitee is not entitled to indemnification hereunder
with respect to such claim or potential claim.
ARTICLE V
TERMINATION
Any notice given under Section 4.1(a) above with respect to any request for
indemnification made under this Indemnity Agreement must be received on or
before the date seven (7) years after Association Closing (the "Termination
Date"); no indemnification shall be provided under this Agreement with respect
to any such notice or claim or request for indemnification received after the
Termination Date.
ARTICLE VI
MISCELLANEOUS
6.1 No Warranty. Nothing in this Indemnity Agreement shall be construed or
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deemed to (a) expand or otherwise alter any warranty or disclaimer thereof
provided under the Purchase and Assumption Agreement with respect to, among
other matters, title to, the value, collectibility, genuineness, enforceability
or condition of, or the existence of any liens or encumbrances affecting, any
asset of the Failed Association purchased by the Assuming Institution pursuant
to such Purchase and Assumption Agreement on or after the date of Association
Closing, or (b) create any warranty not expressly provided under the Purchase
and Assumption Agreement with respect to any such asset.
6.2 Entire Agreement. This Agreement, the Purchase and Assumption
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Agreement and the other Related Agreements embody the entire agreement of the
parties in relation to the subject matter hereof and thereof and supersede all
prior understandings or agreements, oral or written, between the parties hereto
and thereto.
6.3 Headings. The headings and subheadings of the Table Contents, Articles
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and Sections contained in this Agreement, except the terms identified for
definition in Article I, are inserted for convenience only and shall not affect
the meaning interpretation of this Agreement or any provision hereof.
page 11
6.4 Counterparts. This Agreement may be executed in any number of
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counterparts and by 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.
6.5 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS HEREUNDER
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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 CALIFORNIA.
6.6 Successors. Subject to the limitations of Section 6.7, all terms and
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conditions of this Agreement shall be binding on the successors and assignees of
the Corporation and the Assuming Institution. 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 Corporation,
the Receiver and the Indemnitees any legal or equitable right, remedy or claim
under or in respect of 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 Corporation, the
Receiver and the other Indemnitees and for the benefit of no other Person.
6.7 Modification; Assignment. No amendment or other modification,
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rescission, release, annulment 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 Corporation and the Assuming Institution. No
assignment of this Agreement or any portion hereof shall be effective as a
discharge or release unless specifically provided for in an instrument of
consent to such assignment.
6.8 Notice. Any notice, request, demand, consent, approval or other
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communication to any party hereto or the Receiver shall be effective when
received and shall be given in writing, and delivered in person against receipt
therefor, or sent by registered mail, postage prepaid or courier service to its
address set forth below or at such other address as it shall hereafter furnish
in writing to the others. All such notices and other com-
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munications shall be deemed given on the date received by the addressee.
CORPORATION
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Resolution Trust Corporation
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Senior Vice President
and General Counsel
with a copy to:
Resolution Trust Corporation
P. O. Xxx 0000
Xxxxxxx Xxxxx, XX 00000-0000
Attention: Assistant General Counsel (RTC)
ASSUMING INSTITUTION
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Pan American Bank, FSB
0000 Xxxxx Xx Xxxxxx Xxxx
X.X. Xxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx X. Grill, President
with a copy to:
Pan American Financial, Inc.
x/x Xxxxxxx Xxxxxxx
0000 Xxxxxx of the Stars, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxxxxx Xxxx
6.9 Waiver. The Corporation, the Assuming Institution and any other
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Indemnitee may waive its respective rights, powers or privileges under this
Agreement; provided, that any such waiver shall be in writing; and provided
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further, that no failure or delay on the part of the Corporation, the Assuming
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Institution or any other Indemnitee to exercise any right, power or privilege
under this Agreement will 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 Corporation, the Assuming Institution or any other
Indemnitee
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under the terms of this Agreement, nor will any such waiver operate or be
construed as a future waiver of such right, power or privilege under this
Agreement.
6.10 Severability. If any provision of this Agreement is invalid or
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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.
6.11 Corporation Obligation. Nothing in this Agreement is intended or
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shall be construed to create in any way any liability or obligation on the part
of the United States of America or any department or agency thereof (other than
the Corporation) under or in respect of this Agreement, 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.
6.12 Costs of Duplication. The costs of duplication of documents provided
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in connection with the matters contemplated hereunder shall be paid in the
manner provided in Sections 8.4(c) and 8.4(d) of the Standard Terms by the party
requesting copies of such documents.
6.13 Effectiveness. This Agreement shall become effective at such time as
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the conditions set forth in the Purchase and Assumption Agreement shall have
been satisfied or waived.
IN WITNESS WHEREOF, the Corporation and the Assuming Institution on behalf
of all of the Indemnitees have caused this Agreement to be executed by their
duly authorized representatives on the date first above written.
RESOLUTION TRUST CORPORATION
ATTEST:
By: /s/ [SIGNATURE ILLEGIBLE] /s/ [SIGNATURE ILLEGIBLE]
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PAN AMERICAN BANK, FSB
SAN MATEO, CALIFORNIA
ATTEST:
By: /s/ XXXXXXXXX XXXX /s/ XXXXXXXX X. GRILL
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