Exhibit 10.10
INTERIM CAPITAL ASSISTANCE AGREEMENT
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This Interim Capital Assistance Agreement (the "Agreement"), dated as
of this 29th day of April, 1994, is made and entered into by Pan American
Financial, Inc. ("Shareholders"), 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., organized and existing as a
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federal savings bank with its principal place of business in 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 Pan American 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 "RTC Standard Purchase and Assumption Terms and
Conditions" as that document is defined in Section 1(q) hereof;
WHEREAS, on April 1, 1992 the Corporation adopted an amended policy
statement entitled "RTC Guidelines Regarding Minority - Preference Resolutions"
(the "Guidelines") which authorizes the Corporation to provide interim capital
assistance to Minority-Owned Depository Institutions in order to preserve the
ownership characteristics and increase the number of such institutions whenever
practical and the Minority Capital Assistance Program has been established
statutorily in Section 21A(u) of the Federal Home Loan Bank Act, as amended (the
"FHLBA"), 12 U.S.C. 1441a(u).
WHEREAS, the Failed Association was formerly a Minority-Owned
Depository Institution.
WHEREAS, application has been made to the Corporation to provide
interim capital assistance to the Assuming Institution pursuant to the
Guidelines in connection with the resolution of the Failed Association and, in
that connection, the Shareholders and the Assuming Institution have executed and
delivered to the Corporation an Application for Interim Capital Assistance dated
September 7, 1993 (the "Application") and a Minority Ownership Affidavit dated
September 7, 1993 (the "Affidavit").
WHEREAS, the Shareholders and the Assuming Institution have
represented that they are "Minorities" and a "Minority-Owned Depository
Institution" within the intent and 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), and the Guidelines.
WHEREAS, the Corporation has agreed to provide interim capital
assistance to the Assuming Institution and each of the Shareholders 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, Indemnity Agreement and Related Agreements in connection
with the resolution of the Failed Association.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter contained, 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 Section
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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)(l)(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.
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(d) "Assistance Documents" shall mean this Agreement, the
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Promissory Note, the Stock Pledge Agreement and any other document or agreement
now or hereafter delivered in connection herewith or therewith.
(e) "Collateral" shall mean the Pledged Collateral as that term
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is defined in the Stock Pledge Agreement.
(f) "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.
(g) "Event of Default" shall have the meaning set forth in
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Section 5 hereof.
(h) "Failed Association" shall mean Pan American Federal Savings
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Bank, formerly a federal savings association under the HOLA, as amended, 12
U.S.C. Section 1461, et seq. and having its principal place of business in San
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Mateo; California which was closed pursuant to Order No. __________ of the OTS.
(i) "Holding Company" shall mean any Person that is subject to the
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Bank Holding Company Act of 1956, as amended, or Section 10 of the HOLA, as the
case may be, as a result of its ownership or control of all or any portion of
the outstanding capital stock of the Assuming Institution.
(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 in
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Section 21A(s) (2) (C) of the FHLBA, as amended, 12 U.S.C. 1441a(s) (2) (C).
(1) "Minority-Owned Depository Institution" shall have the meaning
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set forth in Section 21A(s) (2) (A) of the FHLBA, as amended, 12 U.S.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
Assuming Institution, and the Corporation.
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(n) "Pledged Shares" shall mean all of the issued and outstanding
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shares of capital stock of the Assuming Institution, as more specifically
described in Schedule 1 of the Stock Pledge Agreement attached hereto.
(0) "Promissory Note" shall mean the promissory note made by each
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Shareholder 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) "Receiver" shall have the meaning as set forth in the
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Standard Terms.
(q) "Shareholder" shall have the meaning set forth in the
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Preamble to this Agreement.
(r) "Standard Terms" shall mean the RTC Standard Purchase and
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Assumption Terms and Conditions (Theta version dated July 26, 1993),
incorporated by reference in (and expressly made a part of) the Whole Purchase
and Assumption Agreement dated as of April 29, 1994 (the "Purchase and
Assumption Agreement") and as supplemented, modified or amended by the Purchase
and Assumption Agreement. References to Articles, Sections, Exhibits and the
like refer to the Articles, Sections, Exhibits and the like of the Standard
Terms, as defined herein, unless otherwise indicated.
(s) "Stock Pledge Agreement" shall mean the Stock Pledge Agreement
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attached hereto as Exhibit B in favor of the Corporation made by each
Shareholder 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 Shareholders in the
principal amount of $6,930,000.00. As additional evidence of the indebtedness of
the Shareholders to the Corporation resulting from the Interim Capital
Assistance, the Shareholders have executed the Promissory Note attached as
Exhibit A. The Interim Capital Assistance shall be provided upon the
consummation of the transactions contemplated by the Standard Terms and not
later than the initial payment date as set forth in Article 6 of the Standard
Terms.
3. Repayment of the Interim Capital Assistance.
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(a) Maturity. The Shareholders shall repay the outstanding
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principal balance of the Interim Capital Assistance with any accrued previously
unpaid interest thereon in a single lump sum installment on April 28, 1999.
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(b) Optional Prepayment. The Shareholders, 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.
(c) Mandatory Prepayment. If, prior to the maturity of the
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Interim Capital Assistance, the Shareholders obtain all or any material portion
of their permanent financing, 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
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optional prepayments shall be applied first to accrued interest to the date of
such prepayment on the amount prepaid and then to the outstanding principal
amount of the Interim Capital Assistance.
4. Interest.
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(a) The Shareholders shall pay interest on the outstanding
principal balance of the Assistance for the first calendar quarter after
Association Closing and for each calendar quarter thereafter until the maturity
(whether at stated maturity, by acceleration or otherwise) of the Assistance,
payable the first Thursday of the month following the end of the preceding
calendar quarter. Interest shall accrue at a rate per annum of 3.688% for the
first two (2) years. Thereafter, interest shall accrue at a variable rate to be
adjusted annually, which rate shall equal the Cost of Funds as of the end of the
most recently completed calendar quarter prior to the beginning of years three
(3), four (4), and five (5). 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 Promissory Note or any other amount payable
hereunder or thereunder is not paid in full when due, the Shareholders 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 the rate
then in effect plus 300 basis points or, if less, the maximum amount of interest
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permissible by law to be charged on such unpaid principal or other amount
payable hereunder or thereunder.
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:
(a) The Shareholders shall fail to pay any amount of principal or
interest on the Interim Capital Assistance or the
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Promissory Note or any other amount payable hereunder or thereunder when due; or
(b) Any representation or warranty by one or more of the
Shareholders 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 Shareholders 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 Shareholders 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) The death or incapacity of any individual Shareholder; or
(f) One or more of the Shareholders 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 or 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 Shareholders or the
Assuming Institution in any involuntary proceeding under any such state or
federal law, or one or more of the Shareholders or the Assuming Institution
shall be adjudicated bankrupt, or shall make an assignment for the benefit of
creditors, or shall apply for or consent to the appointment of any custodian,
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
(f); or any involuntary petition seeking any of the relief specified in this
subsection (f) ; or any involuntary petition seeking any of the relief specified
in this subsection (f) shall be filed against one or more of the Shareholders or
the Assuming Institution and shall not be dismissed or stayed within 60 days;
(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 shall occur which gives reasonable grounds to
conclude, in the judgement of the Corporation, that one or more of the
Shareholders or the Assuming Institutions will not; or will be unable to,
perform or observe in the normal course their obligations under the Promissory
Note, this Agreement or the other Interim Capital Assistance Documents.
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 Documents to be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by each of the Shareholders; provided, that
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if an event of the type described in Section 5(e) hereof shall occur, the result
which would otherwise occur only upon giving of notice by the Corporation to the
Shareholders as specified above shall occur automatically, without the giving of
any such notice; 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 the Corporation shall,
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prior to taking any action 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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Shareholders 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 the FDIA, as amended, 12 U.S.C. Section 1821(c) (5), by
the appropriate Federal Banking Regulator and each of the Shareholders and the
Assuming Institution hereby consent to any such appointment of a conservator or
receiver by the appropriate Federal Banking Regulator and waive any and all
right to contest any such appointment.
8. Negative Covenants of Shareholders 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, the Assuming Institution will not:
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(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 used by the
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Shareholders exclusively for payment of principal or interest on the Promissory
Note;
(b) Make any loan or advance to any Shareholder or Holding
Company or to any Affiliate of the Assuming Institution, Shareholder or Holding
Company, or enter into any other transaction with any Shareholder or Holding
Company or any Affiliate of the Assuming Institution, Shareholder or Holding
Company, including, without limitation, any transaction involving the purchase,
sale, exchange or lease of property or the provisions 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 or Holding
Company or an Affiliate), provided however, the Assuming Institution may enter
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into transactions with its Affiliated mortgage company so long as any such
transaction does not require the Assuming Institution to repurchase any loans
from its Affiliated mortgage company 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 for
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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 preapproved in
writing by the Corporation and provided further this exception allowing increase
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in compensation shall not be available to officers, directors or key employees
who own 5% or more of the voting stock in the holding company (Pan American
Financial, Inc.) or its parent (Pan American Group, Inc.) or any Affiliate of
the Assuming Institution or any members of the immediate family of any
individual who owns 5% or more of such stock;
(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; provided however that the Assuming Institution
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may reorganize its branch structure subject to written approval from its
regulators; or
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(e) Enter into any agreement which effects a change of control of
the Assuming Institution prior to the expiration of one year after repayment of
the principal amount of the Interim Capital Assistance (whether by stated
maturity, acceleration or otherwise).
9. Affirmative Covenants of Shareholders 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
FDIC or 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 FDIC or 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) For a period of one year after repayment of the principal amount
of the Interim Capital Assistance (whether by stated maturity, acceleration or
otherwise) and all of the Shareholders' and the Assuming Institution's
obligations under this Agreement have been discharged, the Assuming Institution
will
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remain at all times a Minority-Owned Depository 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. The only 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 Shareholders listed on Schedule 1 of the Stock
Pledge, Agreement attached hereto 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 Shareholders 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
Shareholders. 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
Shareholders, 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 Shareholders, 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, regulation affecting the
Assuming Institution or any of the Shareholders or by which the Assuming
Institution or any of the Shareholders is bound, the violation of which could
have a material adverse effect on the financial condition of the Assuming
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Institution or any of the Shareholders, 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 Shareholders or by which the Assuming Institution or any of the Shareholders
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
Shareholders, 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 Shareholders is a party or by which the Assuming
Institution or any of the Shareholders 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 Shareholders 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 Shareholders which (i) if
determined adversely to the Assuming Institution or any of the Shareholders,
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 Shareholders 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 Shareholders 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.
(g) Minimum Capital Requirement. The Interim Capital Assistance
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does not exceed two-thirds (2/3) of the required minimum capital of the Assuming
Institution.
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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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Shareholders 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 and the Shareholders certifying as to the
matters specified in subsections (a) and (b) of this Section 11, which shall
constitute a representation of the Assuming Institution and its Shareholders
with respect thereto.
(d) Purchase and Assumption Transaction. The Receiver and the
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Assuming Institution shall have entered into the Standard Terms and the
Corporation shall have received evidence satisfactory to it that the conditions
precedent set forth in the Standard Terms shall have been satisfied or waived
and that the Standard Terms shall have become effective in accordance with its
terms.
(e) Other Interim Capital Assistance Documents. Each Shareholder
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of the Assuming Institution shall have executed and delivered to the Corporation
one or more than one Stock Pledge Agreement[s].
12. Miscellaneous.
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(a) Entire Agreement. This Agreement and the other Interim
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Capital Assistance Documents 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 Article 1 of the Standard Terms and elsewhere in this Agreement, are inserted
for convenience only and shall not affect the meaning or interpretation of this
Agreement or any provision thereof.
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(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 STANDARD
TERMS.
(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
Shareholders. 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 Shareholders 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 Shareholders and for the benefit of no other
person.
(f) 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 Parties.
(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.
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CORPORATION SHAREHOLDERS
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RESOLUTION TRUST CORPORATION Pan American Financial, Inc.
000 00xx Xxxxxx, X.X. c/o Bastion Capital
Xxxxxxxxxx, XX 00000 1999 Avenue of the Stars, #2800
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: J. Xxxx Xxxxx
Vice President Attention: Xx. Xxxxxxxxx Xxxx
Department of Resolutions
cc: Assistant General Counsel ASSUMING INSTITUTION
Resolution Trust Corporation --------------------
0000 XxxXxxxxx Xxxxxxxxx Pan American Bank, FSB
Xxxxxxx Xxxxx, XX 00000 0000 Xxxxx Xx Xxxxxx Xxxx
and X.X. Xxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Vice President Attention: Xxxxxxxx X. Grill
Resolution Trust Corporation President
0000 XxxXxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, XX 00000
(h) Waiver. The Corporation, the Shareholders, and the Assuming
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Institution may waive their respective rights, powers or privileges under this
Agreement; provided, that such waiver shall be in writing; and further provided,
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that no failure or delay on the part of the Corporation, the Shareholders or the
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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 Shareholders, 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.
SHAREHOLDERS:
Pan American Financial, Inc.
By: /s/ XXXXXXX (XXXXXXXXX) BRON
------------------------------------
Printed Name: Xxxxxxx (Xxxxxxxxx) Bron
Title: Chairman of the Board
ASSUMING INSTITUTION:
Pan American Bank, FSB
By: /s/ XXXXXXX (XXXXXXXXX) BRON
------------------------------------
Printed Name: Xxxxxxx (Xxxxxxxxx) Bron
Title: Chairman of the Board
RESOLUTION TRUST CORPORATION
By: /s/ XXXXX X. XXXXXX
------------------------------------
Printed Name: Xxxxx X. Xxxxxx
Title: Director of Resolutions
15
