Exhibit 10.8
INTERIM CAPITAL ASSISTANCE AGREEMENT
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This Interim Capital Assistance Agreement (the "Agreement"), dated as
of this 9th day of September, 1994, is made and entered into by and among the
Shareholder[s], as defined in Section 1[s] below and Pan American Bank, FSB, 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 federal savings bank with its principal place of
business at San Mateo, California (the "Assuming Institution") and the
Resolution Trust Corporation, in its corporate capacity (in such capacity, the
"Corporation").
RECITALS
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WHEREAS, pursuant to Section 5(d) of the Home Owners' Loan Act, as
amended, (the "HOLA") 12 U.S.C. Section 1464(d), the Office of Thrift
Supervision ("OTS") has closed Western Federal Savings Bank, (the "Failed
Association") and has appointed the Resolution Trust Corporation as receiver of
the Failed Association;
WHEREAS, the Receiver has determined pursuant to Section 11(d) (2) (G)
of the FDIA, as amended (the "FDIA"), 12 U.S.C. Section 1821(d)(2)(G), that it
is appropriate and necessary to transfer certain assets and liabilities of the
Failed Association to the Assuming Institution;
WHEREAS, the parties intend that such transfer be made on the terms
and conditions set forth in the Standard Terms as that document is defined in
Section 1(t) hereof;
WHEREAS, interim capital assistance may be provided by the Corporation
pursuant to the Corporation's Minority Capital Assistance Program and Section
21A(u) of the Federal Home Loan Bank Act, as amended (the "FHLBA"), 12 U.S.C.
1441a(u).
WHEREAS, application has been made to the Corporation to provide
interim capital assistance to the Assuming Institution in connection with the
resolution of the Failed Association and, in that connection, the Shareholder[s]
and the Assuming Institution have executed and delivered to the Corporation an
Application for Interim Capital Assistance dated August 29, 1994 (the
"Application") and a Minority Ownership Affidavit dated August 29, 1994 (the
"Affidavit").
WHEREAS, the Shareholder[s] have represented that they are
"Minorities" and the Assuming Institution has represented that it is a "Minority
Institution" in accordance with the definition of those terms under Sections
21A[s] and 21A(u) of the FHLBA, as amended, 12 U.S.C. Sections 1441a[s] and
1441a(u).
WHEREAS, the Corporation has agreed to provide interim capital
assistance to the Assuming Institution and [each of] the Shareholder[s] for the
sole purpose of facilitating the resolution of the Failed Association on the
terms and conditions set forth in this Agreement; and
WHEREAS the Assuming Institution has executed a Purchase and
Assumption Agreement, and Related Agreement[s] in connection with the resolution
of the Failed Association.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the Parties hereto agree as follows:
1. Defined Terms.
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(a) Except as otherwise provided herein, capitalized terms used
in this Agreement shall have the respective meanings assigned to them in the
Standard Terms (such meanings to be equally applicable to both the singular and
plural forms of the terms defined).
(b) "Affiliate" shall have the meaning set forth in (i) in
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Section 2(k) of the Bank Holding Company Act of 1956, as amended, 12 U.S.C.
Section 1841(k); or (ii) in subsection (a) (1) (H) of Section 10 of the HOLA, 12
U.S.C. Section 1467a(a)(1)(H), whichever is applicable.
(c) "Agreement" shall mean this Interim Capital Assistance
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Agreement, as amended, modified or supplemented from time to time.
(d) "Collateral" shall mean the Pledged Collateral as that term
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is defined in the Stock Pledge Agreement.
(e) "Cost of Funds" shall mean the end of the calendar quarter
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Monday Auction yield price for 13 week U.S. Treasury Bills, as quoted in
Tuesday's Wall Street Journal, plus 12.5 basis points.
(f) "Event of Default" shall have the meaning set forth in
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Section 5 hereof.
(g) "Failed Association" shall mean Western Federal Savings
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Bank, formerly a federal savings association under the
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HOLA, as amended, 12 U.S.C. Section 1461 et seq., and having its principal place
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of business in Marina Del Ray, California which was closed pursuant to Order No.
_________of the OTS.
(h) "Holding Company" shall mean any Person that is subject to
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the Bank Holding Company Act of 1956, as amended, or Section 10 of the HOLA, as
the case may be, as a results of its ownership or control of all or any portion
of the outstanding capital stock of the Assuming Institution.
(i) "Interim Capital Assistance Documents" shall mean this
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Agreement, the Promissory Note, the Stock Pledge Agreement and any other
document or agreement now or hereafter delivered in connection herewith or
therewith.
(j) "Lien" shall mean, with respect to any asset of any Person,
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any mortgage, deed of trust, pledge, security interest, hypothecation,
assignment, deposit arrangement, charge, encumbrance, lien (statutory or other),
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever with respect to such asset (including, without limitation, any
conditional sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing and the filing of
any financing statement under the Uniform Commercial Code or comparable law of
any jurisdiction).
(k) "Minority" shall have the meaning as statutorily set forth
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in Section 21A(s) (2) (C) of the FHLBA, as amended, 12 U.S.C. 1441a(s)(2)(C).
(1) "Minority Institution" shall have the meaning set forth in
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Section 21A(s) (2) (A) of the FHLBA, as amended, 12 LS.C. 1441a(s) (2) (A)
(m) "Party" shall mean the Shareholder[s], the Assuming
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Institution or the Corporation and "Parties" shall mean the Shareholder[s], the
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Assuming Institution, and the Corporation.
(n) "Pledged Shares" shall mean 100% of the issued and
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outstanding shares of capital stock of the Assuming Institution, as more
specifically described in Schedule 2 of the Stock Pledge Agreement attached
hereto.
(o) "Promissory Note" shall mean the promissory note made by
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each Shareholder[s] of the Assuming Institution in connection herewith attached
as Exhibit A, which is incorporated herein by reference, and referred to in
Section 2 hereof.
(p) "Purchase and Assumption Agreement" shall mean the Purchase
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and Assumption Agreement by and between the Resolution
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Trust Corporation as receiver of the Failed Association and the Assuming
Institution of even date herewith.
(q) "Receiver" shall have the meaning as set forth in the
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Purchase and Assumption Agreement.
(r) "Related Agreements" shall have the meaning set forth in the
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Purchase and Assumption Agreement.
(s) "Shareholder[s]" shall have the meaning set forth in
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Schedule 1 of the Stock Pledge Agreement and shall include, except as otherwise
expressly set forth herein, Pan American Financial, Inc.
(t) "Standard Terms" shall mean the RTC Standard Purchase and
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Assumption Terms and Conditions (Iota version dated December 25, 1993).
(u) "Stock Pledge Agreement" shall mean the Stock Pledge
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Agreement attached hereto as Exhibit B in favor of the Corporation made by each
of the Shareholders of the Assuming Institution in connection herewith and is
incorporated herein by reference.
2. Interim Capital Assistance. The Corporation hereby agrees to make
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a term loan (the "Interim Capital Assistance") to the Shareholder[s] in the
principal amount of $4,000,000.00. As additional evidence of the indebtedness of
the Shareholder[s] to the Corporation resulting from the Interim Capital
Assistance, the Shareholder[s] have executed the Promissory Note attached as
Exhibit A. The Interim Capital Assistance shall be provided after Association
Closing but not later than the initial cash payment date as set forth in Article
6 of the Standard Terms. The Shareholder[s] hereby covenant that they shall,
immediately upon receipt of the Interim Capital Assistance, invest the entire
amount thereof in the Assuming Institution, and further, that they shall
maintain and use such amount solely as capital of the Assuming Institution.
3. Repayment of the Interim Capital Assistance
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(a) Maturity. The Shareholder[s] shall repay the outstanding
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principal balance of the Interim Capital Assistance, plus any accrued,
previously unpaid interest thereon, in a single lump sum installment on
September 8, 1999.
(b) Optional Prepayment. The Shareholder[s], at their option and
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from time to time, may prepay the outstanding principal amount of the Interim
Capital Assistance, in whole or in part.
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(c) Mandatory Prepayment. If, prior to the maturity of the
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Interim Capital Assistance, the Shareholder[s] obtain all or any material
portion of their permanent financing (through a loan, capital infusion or
otherwise), they shall promptly prepay all or a portion of the Interim Capital
Assistance in an amount equal to the amount of financing so obtained.
(d) Application of Prepayments. Any such mandatory or optional
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prepayments shall be applied first to accrued interest to the date of such
prepayment and then to the outstanding principal amount of the Interim Capital
Assistance.
4. Interest.
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(a) The Shareholder[s] shall pay interest on the outstanding
principal balance of the Interim Capital Assistance for the first full calendar
quarter after Association Closing and for each calendar quarter thereafter until
the maturity (whether at stated maturity, by acceleration or otherwise) of the
Interim Capital Assistance. Each interest payment is due and payable on the
first Thursday of the month following the end of the preceding calendar quarter.
Interest shall accrue at an initial rate per annum of __.__ % which is no
greater than the Corporation's Cost of Funds as of the end of the most recently
completed calendar quarter prior to Association Closing. The interest rate will
be adjusted every calendar quarter thereafter based on the Corporation's Cost of
Funds as of the end of the most recently completed calendar quarter prior to the
interest payment being due. Interest on Optional and Mandatory Prepayments of
Assistance shall be due and payable pursuant to Section 3.
(b) In the event that any amount of principal or interest on the
Interim Capital Assistance or any other amount payable hereunder or under the
Promissory Note is not paid in full when due, the Shareholder[s] agree to pay
interest on such unpaid principal and accrued interest or other amount, for each
day from the date such amount became due until the date paid, at a rate which is
no greater than the sum of the Corporation's Cost of Funds as of the end of the
most recently completed calendar quarter plus 300 basis points or, if less, the
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maximum amount of interest permissible by law to be charged on such unpaid
principal or other amount payable hereunder or thereunder. This interest rate
will be adjusted every calendar quarter thereafter based on the Corporation's
Cost of Funds plus 300 basis points as of the end of the most recently completed
calendar quarter prior to the interest payment being due.
5. Events of Default. If any one or more of the following events
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(each, an "Event of Default") shall occur and be continuing, it shall constitute
an Event of Default:
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(a) The Shareholder[s] shall fail to pay any amount of principal
or interest on the Interim Capital Assistance or the Promissory Note or any
other amount payable hereunder or thereunder when due; or
(b) Any representation or warranty by one or more of the
Shareholder[s] or the Assuming Institution in this Agreement or any other
Interim Capital Assistance Document shall prove to have been incorrect when
made; or
(c) One or more of the Shareholder[s] or the Assuming
Institution shall fail in any material respect to perform or observe any term,
covenant or agreement contained in this Agreement or any other Interim Capital
Assistance Document to which it is a party; or
(d) One or more of the Shareholder[s) or the Assuming
Institution shall fail to perform or observe any term, covenant or agreement
contained in any Interim Capital Assistance Document to which they are a party
or shall revoke or repudiate their obligations under any such Interim Capital
Assistance Document; or
(e) One or more of the Shareholder[s] or the Assuming
Institution shall admit in writing their inability to, or shall fail generally
or be generally unable to, pay their debts as such debts become due, or shall
make a general assignment for the benefit of creditors; or shall have filed a
voluntary petition in bankruptcy, a petition for dissolution, or filed a
petition or answer seeking reorganization, to effect a plan or other arrangement
with creditors or any other relief under any state or federal law relating to
bankruptcy or reorganization granting relief to debtors, or shall file an answer
admitting the jurisdiction of the court and the material allegations of any
involuntary petition filed against it; or any order for relief shall be entered
against one or more of the Shareholder[s] or the Assuming Institution in any
involuntary proceeding under any such state or federal law, or one or more of
the Shareholder[s] or the Assuming Institution shall be adjudicated bankrupt, or
shall make an assignment for the benefit of creditors, or shall apply for the
appointment of any custodian, conservator, receiver, or trustee for all or any
substantial part of their property, or shall take any action to authorize any of
the actions set forth in this subsection (e); or any involuntary petition
seeking any of the relief specified in this subsection (e) shall be filed
against one or more of the Shareholder[s] and shall not be dismissed or stayed
within 60 days; or any order shall be issued under state or federal law
appointing a conservator or receiver for the Assuming Institution.
(g) The Stock Pledge Agreement, shall for any reason cease or
fail to create a valid and perfected first priority lien on any of the
collateral purported to be covered thereby; or
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(h) Any event[s] shall occur which give reasonable grounds to
conclude, in the judgement of the Corporation, that one or more of the
Shareholder[s] or the Assuming Institutions will not, or will be unable to,
perform or observe their obligations under the Promissory Note, this Agreement
or any other Interim Capital Assistance Document.
6. Acceleration. If any such Event of Default shall occur: (i) the
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Corporation, in its sole discretion, may declare the entire unpaid principal
amount of the Interim Capital Assistance and the Promissory Note, all interest
accrued and unpaid thereon and all other amounts payable under this Agreement
and any other Interim Capital Assistance Document to be immediately due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by each of the Shareholder[s] and the
Assuming Institution; and (ii) the Corporation may immediately, and whether or
not the actions specified in clause (i) have been taken, exercise any or all of
the Corporation's rights and remedies under any other Interim Capital Assistance
Document, including, without limitation, the rights of a secured party pursuant
to the Uniform Commercial Code; provided further, that for any Event of Default
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other than the voluntary or involuntary appointment of a conservator or receiver
for the Assuming Institution, the Corporation shall, prior to accelerating the
Promissory Note as provided in this Section, give the Shareholders written
notice of default which shall specify the circumstances constituting the Event
of Default; Shareholders shall have the right to cure the Event of Default
within 30 days of the date of mailing of the notice in the case of any Event of
Default described in Section 5(a) of this Agreement, or 60 days in the case of
any other Event of Default.
7. Consent to Appointment of Conservator or Receiver. The
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Shareholder[s] and the Assuming Institution hereby acknowledge and agree that in
the event any amount of principal or interest hereunder is not paid when due
(whether at stated maturity, by acceleration or otherwise), such default, if not
cured by the Shareholders as provided in Section 6 above, shall constitute
grounds for the appointment of a conservator or receiver of the Assuming
Institution pursuant to Federal law, including without limitation, the FDIA, as
amended, 12 U.S.C. Section 1821(c)(5), by the appropriate primary federal
regulator, and each of the Shareholder[s] and the Assuming Institution hereby
consent to any such appointment of a conservator or receiver by the appropriate
primary federal regulator and waive any and all right to contest any such
appointment.
8. Negative Covenants of Shareholder[s] and the Assuming Institution.
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Until all of the Assuming Institution's obligations under this Agreement and the
Shareholders' obligations under this Agreement and the Promissory Note have been
discharged,
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the Assuming Institution will not:
(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 however that dividends may be paid if; (i) there is no
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Event of Default in existence under this Agreement or the Promissory Note, (ii)
the Assuming Institution would not cause an Event of Default under this
Agreement or Promissory Note by the declaration or payment of any such
dividends, and (iii) the declaration or payment of such dividends are not
prohibited or objected to by the Assuming Institution's primary federal
regulator.
(b) Make any loan or advance to any Shareholder[s] or Holding
Company or to any Affiliate of the Assuming Institution, Shareholder[s] or
Holding Company, or enter into any other transaction with any Shareholder[s] or
Holding Company or any Affiliate of the Assuming Institution, Shareholder[s] or
Holding Company, including, without limitation, any transaction involving the
purchase, sale, exchange or lease of property or the provision of services
(other than standard deposit transactions entered into in the ordinary course of
business on terms no less favorable to the Assuming Institution than it would
obtain in an arm's length deposit transaction with a person not such a
Shareholder[s] or Holding Company or an Affiliate), provided however, the
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Assuming Institution may enter into transactions with its Affiliated mortgage
and consumer finance companies so long as any such transaction does not require
the Assuming Institution to repurchase any loans from its Affiliated companies
or any other Affiliate or third party purchaser which would result in any loss
to the Assuming Institution;
(c) Increase the compensation of, or pay any bonuses to, any of
its officers, directors or key employees, provided however, that compensation
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for officers, directors or key employees may be increased in the second year of
operations of the Assuming Institution and in each year thereafter so long as
this Agreement is in effect and all such increases shall be pre-approved in
writing by the Corporation.
(d) Sell, assign, lease or otherwise dispose of all or
substantially all of its assets, or enter into any merger or consolidation, or
agree to do any of the foregoing, unless the performance of such agreement is
conditioned on the prior or simultaneous repayment, in full, of the Interim
Capital Assistance, provided however that the Assuming Institution may
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reorganize its branch structure subject to written approval from its regulators;
or
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(e) Enter into any agreement providing for a change of control
of the Assuming Institution prior to the date of repayment, in full, of the
Interim Capital Assistance (whether by stated maturity, acceleration or
otherwise), plus accrued interest, unless the performance of such agreement is
conditioned on the prior or simultaneous repayment, in full, of the Interim
Capital Assistance.
9. Affirmative Covenants of Shareholder[s] and the Assuming
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Institution.
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(a) Until all of the Shareholder[s] and Assuming Institution's
obligations under this Agreement and the Promissory Note have been discharged,
the Assuming Institution will:
(i) Maintain its core capital, tangible capital and risk-
based capital (calculated in accordance with the regulations prescribed by the
OTS in an amount equal to at least 75% of the amount of its core capital,
tangible capital and risk based capital on the first Business Day following the
date of Association Closing;
(ii) Comply with all applicable laws, rules, regulations
and orders, including, without limitation, rules and regulations of the OTS;
(iii) Provide monthly financial reports to the Corporation
or its successor in such form as the Corporation or its successor may reasonably
request in order to monitor the financial condition and capital ratios of the
Assuming Institution;
(iv) Permit representatives of the Corporation or its
successor, at any reasonable time and from time to time, to examine the books
and records of the Assuming Institution at its place of business;
(v) Conduct its operations in a prudent and businesslike
manner; and
(vi) maintain insurance with responsible and reputable
insurers in such amounts and covering such risks as is carried by financial
institutions engaged in similar businesses and owning similar properties,
including, without limitation, fire, extended coverage, business interruption,
public liability, property damage, worker's compensation, banker's blanket bond,
directors and officers, and errors and omissions, all as reasonably determined
by the Corporation or its successor.
(b) Prior to the date of repayment, in full, of the principal
amount of the Interim Capital Assistance (whether by stated maturity,
acceleration or otherwise), plus accrued interest,
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and until all of the Shareholder[s] and the Assuming Institution's obligations
under this Agreement have been discharged, the Assuming Institution will remain
at all times a Minority Institution.
10. Assuming Institution Representations and Warranties. The Assuming
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Institution hereby represents and warrants to the Corporation as follows:
(a) Capitalization. 100% of the issued and outstanding shares of
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capital stock of the Assuming Institution are the Pledged Shares, all of which
are validly issued, fully paid and nonassessable. No securities convertible into
or exchangeable for any shares of capital stock of the Assuming Institution, or
any options, warrants or other commitments entitling any person to purchase or
otherwise acquire any shares of capital stock of the Assuming Institution, are
issued and outstanding. The Shareholder[s] listed on Schedule 1 to the Stock
Pledge Agreement are the record and beneficial owners of the Pledged Shares.
None of the Pledged Shares has been transferred in violation of the securities
registration, securities disclosure or similar laws of any jurisdiction to which
such transfer may be subject.
(b) Authorization. The execution and delivery of this Agreement
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and the other Interim Capital Assistance Documents to which it is a party, and
performance by the Assuming Institution of its obligations hereunder and
thereunder, the execution and delivery of each Interim Capital Assistance
Document to which it is a party by each of the Shareholder[s] and performance of
their obligations thereunder, and the consummation of the transactions
contemplated hereby and thereby, have been duly authorized by all necessary
corporate action on the part of the Assuming Institution and each of the
Shareholder[s]. This Agreement and the other Interim Capital Assistance
Documents each have been duly executed and delivered and, upon receipt of the
regulatory approvals or waivers contemplated by this Agreement, will constitute
a legal, valid and binding obligation of the Assuming Institution and each of
the Shareholder[s], as the case may be, enforceable in accordance with their
respective terms subject to bankruptcy, insolvency, reorganization or similar
laws affecting the enforcement of creditors rights generally and to general
principles of equity.
(c) No Conflict. Except as previously disclosed to the
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Corporation in writing, the execution, delivery and performance of this
Agreement and the other Interim Capital Assistance Documents by the Assuming
Institution, the execution, delivery and performance of each Interim Capital
Assistance Document to which it is a party by each of the Shareholder[s], and
the consummation of the transactions contemplated hereby and thereby, will not
(i) violate or conflict with any provision of the charter or bylaws of the
Assuming Institution or any Holding Company or any law, rule,
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or regulation affecting the Assuming Institution or any of the Shareholder[s] or
by which the Assuming Institution or any of the Shareholder[s] is bound, the
violation of which could have a material adverse effect on the financial
condition of the Assuming Institution or any of the Shareholder[s], as the case
may be, or (ii) violate or conflict with any order, judgement, award,
administrative interpretation, injunction, writ, decree or the like affecting
the Assuming Institution or any of the Shareholder[s] or by which the Assuming
Institution or any of the Shareholder[s] is bound, the violation of which could
have a material adverse effect on the operations or financial condition of the
Assuming Institution or any of the Shareholder[s], as the case may be, or (iii)
result in a breach of or constitute a default under any indenture or other
material agreement to which the Assuming Institution or any of the
Shareholder[s] is a party or by which the Assuming Institution or any of the
Shareholder[s] or any material portion of its respective properties is bound.
(d) Regulatory Approvals. No authorization, consent, approval,
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license, exemption or other action by, or notice to or registration or filing
with any governmental authority or administrative or regulatory body is required
for either the execution, delivery or performance of this Agreement and the
other Interim Capital Assistance Documents to which the Assuming Institution is
a party, or the execution, delivery and performance of each Interim Capital
Assistance Document to which any of the Shareholder[s] is a party, or the
consummation of the transactions contemplated hereby and thereby, except such as
shall have been made or obtained prior to the date of Association Closing.
(e) Absence of Litigation. Except as previously disclosed to the
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Corporation in writing, there are no pending or threatened actions, suits or
proceedings before any court, governmental agency, arbitrator or instrumentality
affecting the Assuming Institution or any of the Shareholder[s] which (i) if
determined adversely to Assuming Institution or any of the Shareholder[s],
could reasonably be expected, individually or in the aggregate, to materially
affect the financial condition, properties or operation of the Assuming
Institution or any of the Shareholder[s] or (ii) purport to affect the legality,
validity or enforceability of this Agreement or any other Interim Capital
Assistance Document.
(f) Accuracy of Application and Affidavit. All statements and
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information provided by the Shareholder[s] and the Assuming Institution in the
Application and the Affidavit are true and correct on and as of the date hereof
as if made on and as of the date hereof. Such Interim Capital Assistance
Documents do not fail to state a material fact necessary to make the statements
made therein not misleading.
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(g) Minimum Capital Requirement. The Interim Capital Assistance
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does not exceed two-thirds (2/3) of the amount necessary to maintain the
Assuming Institution's ratio of tangible capital to total assets (after the
reduction of the tangible capital due to the payment of the premium) at the
percentage level that existed prior to Association Closing.
11. Conditions. The obligation of the Corporation to make the Interim
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Capital Assistance is subject to the satisfaction of the following conditions:
(a) Compliance. The Assuming Institution and each of the
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Shareholder[s] shall have complied in all material respects with each of the
covenants and agreements contained herein which are required to be performed or
complied with by them on or prior to the date such Interim Capital Assistance is
provided.
(b) Accuracy of Representations. Each of the representations and
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warranties contained in Section 10 shall be true and correct in all material
respects on the date such Interim Capital Assistance is made as if made at and
as of such date.
(c) Officer's Certificate. The Corporation shall have received a
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certificate, dated the date of Association Closing, of the chief executive
officer of the Assuming Institution certifying as to the matters specified in
subsections (a) and (b) of this Section 11, which shall constitute a
representation of the Assuming Institution with respect thereto.
(d) Purchase and Assumption Transaction. The Receiver and the
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Assuming Institution shall have entered into the Purchase and Assumption
Agreement and the Corporation shall have received evidence satisfactory to it
that the conditions precedent set forth in the Purchase and Assumption Agreement
shall have been satisfied or waived and that the Purchase and Assumption
Agreement shall have become effective in accordance with its terms.
(e) Other Interim Capital Assistance Documents. Each of the
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Shareholder[s] of the Assuming Institution shall have executed and delivered to
the Corporation the Promissory Note and one or more Stock Pledge Agreement[s].
(f) Legal Opinion. Counsel for the Receiver shall have received
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an opinion from counsel for the Assuming Institution, in form and substance
satisfactory to counsel for the Receiver, dated the date of Association Closing,
which confirms that the Assuming Institution is a Minority Institution as
defined in Section 21A(s) of the FHLBA, 12 U.S.C. 1441a(s).
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12. Miscellaneous.
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(a) Entire Agreement. This Agreement and the other Interim
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Capital Assistance Documents and any Related Agreements embody the entire
agreement of the Parties in relation to the subject matter herein and therein
and supersede all prior understandings or agreements, oral or written, between
the Parties.
(b) Headings. The headings and subheadings of the Articles and
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Sections contained in this Agreement, except the terms identified for definition
in Section 1 of this Agreement, are inserted for convenience only and shall not
affect the meaning or interpretation of this Agreement or any provision
thereof.
(c) Counterparts This Agreement may be executed in any number of
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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
Agreement.
(d) GOVERNING LAW. THE AGREEMENT AND THE RIGHTS AND OBLIGATIONS
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UNDER THIS AGREEMENT 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 SPECIFIED IN THE PURCHASE
AND ASSUMPTION AGREEMENT.
(e) Successors. Subject to the limitations of subsection (f) of
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this Section 12, subsection (e) of Section 8, and subsection (b) of Section 9,
all terms and conditions of the Agreement shall be binding on the successors and
assigns of the Corporation, the Assuming Institution and each of the
Shareholder[s]. Except as otherwise specifically provided in the Agreement,
nothing expressed or referred to in the Agreement is intended or shall be
construed to give any Person other than the Corporation, the Assuming
Institution and the Shareholder[s] any legal or equitable right, remedy or claim
under or with respect to this Agreement or any provisions contained herein, it
being the intention of the Parties that this Agreement, the obligations and
statements of responsibilities thereunder, and all other conditions and
provisions thereof are for the sole and exclusive benefit of the Corporation,
the Assuming Institution and Shareholder[s] and for the benefit of no other
person.
(f) Modification; Assignment. No amendment or other
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modification, 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 Parties.
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(g) Notice. Any notice, request, demand, consent, approval or
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other communication to any Party hereto shall be effective when received and
shall be given in writing, and delivered in person against receipt therefor, or
sent by certified mail, postage prepaid or courier service to its address set
forth below or at such other address or number as it shall hereafter furnish in
writing to the others. All such notices and other communications shall be deemed
given on the date received by the addressee.
CORPORATION Shareholder[s] and Assuming
----------- ---------------------------
Institution
-----------
RESOLUTION TRUST CORPORATION PAN AMERICAN BANK, FSB
000 00xx Xxxxxx, X.X. 0000 Xxxxx Xx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000 Xxx Xxxxx, XX 00000
Attention: Vice President Attention: President
Department of Resolutions
With copies to: Senior Counsel for Resolutions
Resolution Trust Corporation
(h) Waiver. Each of the Parties may waive their respective
------
rights, powers or privileges under this Agreement; provided, that such waiver
-------- ----
shall be in writing; and further provided, that no failure or delay on the part
------- -------- ----
of the Corporation, the Shareholder[s] or the Assuming Institution to exercise
any right, power or privilege under this Agreement shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
by the Corporation, the Shareholder[s], or the Assuming Institution 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.
(i) Costs, Fees and Expenses. Each Party hereto agrees to pay
------------------------
all costs, fees and expenses which it had incurred or will incur, in connection
with or incidental to the matters contained in this Agreement, including without
limitation any fees and disbursements to its advisers, accountants and counsel.
(j) Severability. If any provision of this Agreement is invalid
------------
or 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.
(k) Effectiveness This Agreement shall become effective upon the
-------------
satisfaction or waiver of the conditions set
14
forth in Section 11 hereof.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as
of the day and year first above written.
ASSUMING INSTITUTION:
Witness: /s/ [SIGNATURE ILLEGIBLE] By: /s/ XXXXXXXX X. GRILL
------------------------- -----------------------------
Its: President
----------------------------
[HOLDING COMPANY]
Witness: /s/ [SIGNATURE ILLEGIBLE] By: /s/ XXXXXXXX X. GRILL
------------------------- -----------------------------
Its: President
----------------------------
SHAREHOLDER[S]
Witness: /s/ [SIGNATURE ILLEGIBLE] By: /s/ XXXXXXXX X. GRILL
------------------------- --------------------------
RESOLUTION TRUST CORPORATION
Witness: By: /s/ [SIGNATURE ILLEGIBLE]
------------------------ -----------------------------
Its:
----------------------------
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