EXHIBIT 10.14
LIMITED BRANCH PURCHASE AND ASSUMPTION AGREEMENT
THIS LIMITED BRANCH PURCHASE AND ASSUMPTION AGREEMENT ("Agreement")
dated as of September 9, 1994, is made and entered into by and between the
Resolution Trust Corporation, in its capacity as receiver of the failed savings
association referred to in Paragraph 1(d) below (in such capacity, the
"Receiver") and Pan American Bank FSB, a federal thrift organized under the laws
of the United States of America and having its principal place of business in
San Mateo, California (the "Assuming Institution").
RECITALS
A. Pursuant to Section 5(d) of the Home Owners' Loan Act, as
amended, 12 U.S.C. Section 1464(d), the Office of Thrift Supervision has closed
the savings association referred to in Paragraph 1(d) below (the "Failed
Association") and has appointed the Resolution Trust Corporation as receiver of
the Failed Association.
B. The Receiver has determined pursuant to Section 11(d)(2)(G) of
the Federal Deposit Insurance Act, as amended (the "FDI Act"), 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.
C. The Chief Executive Officer of the Resolution Trust Corporation
has determined (i) pursuant to Sections 13(c)(2)(B) and 13(k)(1)(A)(i) of the
FDI Act, 12 U.S.C. Sections 1823(c)(2)(B) and 1823(k)(1)(A)(i), that severe
financial conditions threaten the stability of a significant number of insured
savings associations and of insured savings associations possessing significant
financial resources, and that the risk to the Resolution Trust Corporation in
its corporate capacity (in such capacity, the "Corporation") posed by the Failed
Association would be lessened if the Corporation approves the transfer to the
Assuming Institution of certain assets and liabilities of the Failed Association
and if the Corporation provides assistance to the Assuming Institution to
facilitate such transfer, and (ii) pursuant to Section 13(c)(4)(A) of the FDI
Act, as amended, 12 U.S.C. Section 1823(c)(4)(A), that the exercise of the
Corporation's authority under subsections (c), (d), (f), (h), (i), or (k) of
Section 13 of the FDI Act, as amended, 12 U.S.C. Section 1823, in providing
assistance pursuant to the Agreement
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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 expenditures by, and the obligations incurred by, the Corporation
in connection with the exercise of any such authority is the least costly to the
deposit insurance fund of all possible methods for meeting that obligation.
D. The parties intend that such transfer be made on the terms and
conditions set forth in the RTC's Standard Purchase and Assumption Terms and
Conditions (Iota version dated December 25, 1993) (the "Standard Terms") as
herein supplemented, modified or amended.
NOW, THEREFORE, in consideration of the mutual promises herein set
forth and other valuable consideration, the Receiver and the Assuming
Institution agree as follows:
1. Certain Defined Terms. As used in this Agreement, the following
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terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
(a) "Acquiror" shall mean any transferee of any Asset or
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Liability pursuant to an agreement of even date herewith who is listed on
Schedule I, including the Assuming Institution.
(b) "Association Closing" shall mean the close of business of
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the Failed Association on September 9, 1994.
(c) "Branch" shall mean the branch office or offices of the
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Failed Association at the locations described on Schedule H hereto.
(d) "Failed Association" shall mean Western Federal Savings
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Bank, formerly a [federal savings association under the Home Owners' Loan Act,
as amended, 12 U.S.C. Section 1461, et seq.,] [__________ under the laws of the
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United States of America] and having its principal place of business in Marina
Del Rey, California, which was closed pursuant to Order No. _____ of the Office
of Thrift Supervision.
(e) "Lead Acquiror" shall mean either the Assuming Institution
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or one of the Other Acquirors, as designated by the Receiver.
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(f) "Other Acquiror" shall mean any Acquiror other than the
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Assuming Institution.
(g) "Other Branch Agreement" shall mean any Purchase and
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Assumption Agreement of even date herewith by and between the Receiver and any
Other Acquiror and related to any branch office or offices (other than the
Branch) of the Failed Association.
(h) "Premium" shall mean a premium in the amount of $808,026.00.
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(i) "Pro Rata Share" shall have the meaning set forth in Section
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1.53, Alternative B, of the Standard Terms.
(j) "Related Agreements" shall mean the Indemnity Agreement,
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Interim Capital Assistance Agreement, Promissory Note, and Stock Pledge
Agreement.
2. Purchase and Assumption. On the terms and conditions set forth
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in the Standard Terms, incorporated herein by this reference, in each case as
the Standard Terms are herein supplemented, modified or amended,
(a) the Assuming Institution hereby assumes, and agrees to pay,
perform and discharge, all of the liabilities described in Section 2.1 of the
Standard Terms; provided, that liabilities assumed pursuant to Section 2.1(a)
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shall be limited to liabilities directly attributable to the Branch,
(b) the Receiver hereby sells, assigns, transfers, conveys and
delivers to the Assuming Institution, and the Assuming Institution hereby
purchases and accepts from the Receiver, all right, title and interest of the
Receiver in and to all of the assets described in Section 3.1 of the Standard
Terms directly attributable to the Branch,
(c) the Receiver hereby sells, assigns, transfers, conveys and
delivers to the Assuming Institution, and the Assuming Institution hereby
purchases and accepts from the Receiver, all right, title and interest of the
Receiver in and to each business described in Section 4.2 of the Standard Terms
directly attributable to the Branch,
(d) the Receiver hereby grants to the Assuming Institution each
option described in Section 4.1, Section 4.3 and
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Section 4.5 of the Standard Terms; provided that, the options set forth in
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Sections 4.1(a), 4.1(b), 4.3 and 4.5 are limited to assets and businesses that
are directly attributable to the Branch, and
(e) the Receiver and the Assuming Institution each hereby agree
to be bound by all of the other terms and conditions set forth in the Standard
Terms.
3. Determination of Assets, Liabilities and Businesses Attributable
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to the Branch.
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(a) The Receiver, in its sole discretion, shall determine which
assets, liabilities and businesses of the Failed Association are attributable to
the Branch.
(b) In the event of a conflict between the provisions of this
Agreement, on the one hand, and the provisions of any Other Branch Agreement, on
the other, the Receiver, in its sole discretion, shall determine which Acquiror
shall purchase or assume the assets or liabilities in question.
4. Alternative and Optional Provisions. For purposes of this
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Agreement, the Standard Terms are hereby supplemented, modified or amended as
follows:
(a) Deposits. The transfer of Deposits under Paragraph 2(a)
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above shall include all of the Deposits (other than Withheld Deposits) of the
Failed Association directly attributable to the Branch, as provided in Section
2.1, Alternative A, of the Standard Terms. The definition of "Insured Deposit"
in Section 1.34 of the Standard Terms, clause (f) in the definition of "Withheld
Deposit" in Section 1.68 of the Standard Terms, clause (v) of Section 3.4(a) of
the Standard Terms, and Section 7.2(b) of the Standard Terms are hereby deleted
in their entirety and reserved.
(b) Assets.
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(i) Sections 3.1(b), (c) and (d) of the Standard Terms are
hereby deleted in their entirety and reserved.
(ii) Section 3.1(g), Section 3.2(b), and Section 3.2(c) of
the Standard Terms are hereby deleted in their entirety and reserved.
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(iii) Section 3.2(d) and Section 4.1(c) of the Standard
Terms are hereby deleted in their entirety and reserved.
(c) Credit Card Business. The Assuming Institution shall neither
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acquire nor obtain an option to acquire the Failed Association's credit card
business. Section 4.2(a)(iv) of the Standard Terms is hereby deleted in its
entirety and reserved.
(d) Mortgage Loan Servicing. The Assuming Institution shall
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neither acquire nor obtain an option to acquire the Failed Association's
mortgage loan servicing business. Section 4.2(a)(v), Section 4.2(d) and the
bracketed material in Section 4.2(b) and Section 11.6 of the Standard Terms are
hereby deleted in their entirety and reserved.
(e) Trust Business. The Assuming Institution shall neither
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acquire nor obtain an option to acquire the Failed Association's Trust Business.
Section 4.3(a)(i) and Section 4.3(c)(iii) of the Standard Terms are hereby
deleted in their entirety and reserved.
(f) Subsidiaries. The Assuming Institution shall neither acquire
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nor obtain an option to acquire any capital stock in any of the Failed
Association's Subsidiaries. Section 4.4 and all references to Schedule E
contained in the Standard Terms are hereby deleted in their entirety and
reserved.
(g) Tax Reporting. The Assuming Institution's obligations under
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Section 4.6 of the Standard Terms with respect to Deposit Accounts Processed
shall be limited to any such accounts directly attributable to the Branch.
(h) Consideration. As consideration for the assets, rights and
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purchase options acquired by the Assuming Institution under this Agreement, and
in order to provide to the Assuming Institution assets equal to the liabilities
assumed under this Agreement, the Receiver shall pay to the Assuming Institution
the amount specified in Section 6.1, Alternative A of the Standard Terms.
5. Transition Period.
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(a) During the Transition Period, the Assuming Institution shall
cooperate with the Receiver and with each Other
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Acquiror in connection with the servicing of Assets and Liabilities as
contemplated by Article IX of the Standard Terms.
(b) If the Assuming Institution is not designated the Lead
Acquiror, notwithstanding Section 9.3 and Section 9.7(a) of the Standard Terms,
(i) one of the Other Acquirors shall be designated the Lead Acquiror and shall
hire or contract through a temporary employment agency and manage the Transition
Personnel, (ii) the Assuming Institution shall promptly remit to the Lead
Acquiror any and all monies received by the Assuming Institution during the
Transition Period in respect of Assets not purchased by the Assuming Institution
(including, without limitation, Assets purchased by any Other Acquiror and
Assets retained by or repurchased by the Receiver), and (iii) the Assuming
Institution shall arrange with the Lead Acquiror mutually acceptable terms
(consistent with the intent of this Agreement) for the provision of services and
other matters referred to in paragraph (c)(iii) below, which shall include a
waiver by the Assuming Institution of any claims it may have against the Lead
Acquiror relating to servicing of the Assets and Liabilities by the Transition
Personnel (other than any claims arising out of or relating to the Lead
Acquiror's failure to make good faith efforts to ensure that such servicing is
performed in accordance with the practices and procedures referred to in Section
9.3(g) of the Standard Terms), and an agreement by the Assuming Institution to
pay and reimburse the Lead Acquiror for the following:
(A) the Assuming Institution's Pro Rata Share of all out-
of-pocket costs and expenses directly attributable to
the Transition Personnel, including without limitation,
(A) if such Transition Personnel are hired directly,
all salaries, employment-related taxes, and out-of-
pocket costs and expenses for health care benefits, or
(B) if such Transition Personnel are hired through a
temporary employment agency, the fees charged by such
temporary employment agency to provide such personnel;
and
(B) in the event that the Lead Acquiror has hired the
Transition Personnel directly, and not through a
temporary employment agency, an administrative fee
equal to twelve per cent (12%) of the Assuming
Institution's Pro Rata Share of the sum of the
following amounts
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paid by the Lead Acquiror in accordance with Article
IX: (1) the total base salary (exclusive of overtime,
bonuses, incentives and severance pay) paid to
Transition Personnel and (2) the total reimbursable
out-of-pocket costs and expenses of providing health
care benefits (but not any other benefits) to such
Transition Personnel, and
(C) the Assuming Institution's Pro Rata Share of all other
out-of-pocket costs and expenses directly attributable
to the provision of data processing services pursuant
to Section 9.5 of the Standard Terms.
(c) If the Assuming Institution is designated the Lead Acquiror,
the Assuming Institution as Lead Acquiror (i) shall hire or contract through a
temporary employment agency such Transition Personnel as are required by the
Receiver, the Assuming Institution and the Other Acquirors to service their
respective Assets and Liabilities as provided in Section 9.3 of the Standard
Terms, (ii) shall remit to the Receiver on each Reimbursement Date any and all
monies received by the Assuming Institution in respect of Assets of the Receiver
(including, without limitation, Assets retained by or repurchased by the
Receiver), together with interest thereon as provided in Section 9.7(a) of the
Standard Terms, and (iii) shall arrange with each Other Acquiror mutually
acceptable terms (consistent with the intent of this Agreement) for (A) clearing
of checks and other cash items by the Assuming Institution on behalf of such
Other Acquiror, (B) daily remittance to such Other Acquiror of any additional
deposits received by the Assuming Institution in respect of Deposits assumed by
such Other Acquiror, (C) periodic remittance to such Other Acquiror of any
monies received by the Assuming Institution in respect of Assets purchased by
such other Acquiror and not repurchased by the Receiver, (D) the reimbursement
to the Assuming Institution by the Other Acquirors of their respective Pro Rata
Shares of (i) all out-of-pocket costs and expenses directly attributable to the
salaries, employment-related taxes, and health care benefits of the Transition
Personnel, or if the Transition Personnel are hired through a temporary
employment agency, the fees charged by such temporary employment agency to
provide such personnel, and (ii) all out-of-pocket costs and expenses directly
attributable to the provision of data processing services pursuant to Section
9.5 of the Standard Terms, (E) payment of the twelve per cent (12%)
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administrative fee described in Paragraph 5(b)(iii)(B) above, if applicable, and
(F) such other matters as are deemed necessary or appropriate by the Assuming
Institution or such Other Acquiror in connection with the provision of services
by the Transition Personnel. All settlements between the Assuming Institution
and any Other Acquiror shall be made directly between the Assuming Institution
and such Other Acquiror independent of the Receiver.
(d) Records that pertain both to Assets and Liabilities
transferred to the Assuming Institution as well as Assets and Liabilities
retained by the Receiver or transferred to any Other Acquiror shall either be
separated by the Receiver or assigned to the Lead Acquiror, in accordance with
Section 8.1(b) of the Standard Terms. If it is designated the Lead Acquiror, the
Assuming Institution shall permit the Receiver and any Other Acquiror access to
all such Records which pertain to any Asset or Liability transferred to the
Receiver or such Other Acquiror, and to use, inspect, make extracts from or
request copies of such Records, and shall further allow such party the temporary
possession, custody and use of original Records which pertain to any Asset or
Liability transferred to such party, for any lawful purpose and upon reasonable
terms and conditions; provided, that storage, retrieval and duplication costs
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for such Records shall be shared among the parties in accordance with Section
8.1(b) and Section 8.4(d) of the Standard Terms.
(e) The Assuming Institution shall hold any and all information
it may obtain regarding Assets and Liabilities not purchased or assumed by the
Assuming Institution (including, without limitation, Assets and Liabilities
purchased or assumed by any Other Acquiror and Assets and Liabilities
repurchased by the Receiver) in strict confidence and shall not use such
information in any manner except as contemplated by this Agreement.
6. Additional Representation. In addition to the representations
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and warranties set forth in Article XI of the Standard Terms, the Assuming
Institution represents and warrants to the Receiver that it has received and
reviewed a copy of the Standard Terms.
7. Additional Closing Condition. In addition to the conditions set
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forth in Sections 10.1 and 10.3 of the Standard Terms, the obligations of the
Receiver under this Agreement are subject to the satisfaction of the following
condition: Each of the Other Acquirors shall have entered into its respective
Other
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Branch Agreement and all of the conditions to the Receiver's and each such Other
Acquiror's obligations set forth in Article X of the Standard Terms (as
incorporated by reference in each such Agreement) shall have been satisfied or
waived.
8. Notices. As provided in Section 13.7 of the Standard Terms,
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addresses for notices shall be as follows:
RECEIVER
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Resolution Trust Corporation
Receiver of Western Federal Savings Bank
0000 XxxXxxxxx Xxxx.
Xxxxxxx Xxxxx, XX 00000-0000
Attention: Vice President (RTC)
with a copy to:
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Resolution Trust Corporation
Receiver of Western Federal Savings Bank
0000 XxxXxxxxx Xxxx.
Xxxxxxx Xxxxx, XX 00000-0000
Attention: Assistant General Counsel (RTC)
and further additional copies to such Resolution Trust Corporation offices as
the Receiver may reasonably request from time to time,
ASSUMING INSTITUTION
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Pan American Bank, FSB
0000 Xxxxx Xx Xxxxxx Xxxx, X.X. Xxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: President
9. Schedules. The following schedules contemplated by the Standard
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Terms are attached hereto and incorporated herein by this reference:
SCHEDULE A-1 Certain Other Assets
SCHEDULE A-2 Certain Assets Subject to Call
SCHEDULE B PSA Expected Prepayment Rates
SCHEDULE C Other Excluded Assets
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SCHEDULE D Certain Services Provided by the
Failed Association
SCHEDULE E Certain Subsidiaries
SCHEDULE F Certain Services Provided to the Failed
Association
SCHEDULE G Other Withheld Deposits
SCHEDULE H Branch or Branches (Branch
transactions only)
SCHEDULE I Acquirors (Branch transactions only)
SCHEDULE J Allocation of Assets to Branches (Limited
branch transactions only)
10. GOVERNING LAW. THIS 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 IN WHICH THE BRANCH IS
LOCATED.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives as of the date first above
written.
RESOLUTION TRUST CORPORATION AS
RECEIVER OF WESTERN FEDERAL SAVINGS BANK
MARINA DEL REY, CALIFORNIA
ATTEST:
By: /s/[SIGNATURE ILLEGIBLE] /s/[SIGNATURE ILLEGIBLE]
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PAN AMERICAN BANK, FSB
SAN MATEO, CALIFORNIA
ATTEST:
By: /s/XXXXXXXX X. GRILL /s/[SIGNATURE ILLEGIBLE]
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