EXECUTION COPY
AFB TAX AGREEMENT
This AFB TAX AGREEMENT (this "Agreement") is entered
into as of October 31, 1995 by and among the Federal Deposit
Insurance Corporation (the "FDIC"), as Manager of the FSLIC
Resolution Fund (the "FRF"), which is the transferee of the
assets and liabilities of the Federal Savings and Loan Insurance
Corporation (the "FSLIC") (the FDIC as Manager of the FRF is
herein referred to as the "FDIC Manager"), Guaranty Federal Bank,
F.S.B., Dallas, Texas ("Guaranty"), Guaranty Holdings Inc. I
("Guaranty Holdings I"), a savings and loan holding company
incorporated under the laws of the state of Delaware of which
Guaranty is a wholly-owned subsidiary, and Temple-Inland Inc.
("Temple-Inland"), a corporation incorporated under the laws of
the state of Delaware (Guaranty Holdings I and Temple-Inland
collectively, the "Acquirers").
RECITALS
A. American Federal Bank, F.S.B., Dallas, Texas
("AFB"), LSST Financial Services Corporation ("LSST"), and the
FSLIC entered into an Assistance Agreement, dated August 18, 1988
(as amended, the "AFB Assistance Agreement").
B. Guaranty, the Acquirers, and the FSLIC are parties
to an Assistance Agreement, dated September 30, 1988 (the
"Guaranty Assistance Agreement").
C. Americity Federal Savings Bank ("Americity") and
the FSLIC entered into an assistance agreement, dated November
18, 1988 (the "Americity Assistance Agreement"). On December 18,
1991, Americity, the FDIC Manager, and the Resolution Trust
Corporation entered into a Termination Agreement and a Tax
Benefits Cancellation Agreement (collectively, the "Americity
Termination Agreement") which terminated most of the provisions
of the Americity Assistance Agreement. (The Americity Assistance
Agreement and the Americity Termination Agreement are referred to
collectively herein as the "Americity Agreements".) On July 1,
1992, Americity merged with and into AFB. The FDIC Manager
subsequently notified AFB pursuant to the Americity Termination
Agreement that the obligations to share certain tax benefits, in
accordance with Section 9 of the Americity Assistance Agreement,
survived the termination of the Americity Assistance Agreement.
D. On November 12, 1993, by means of a stock purchase
and merger, Guaranty acquired AFB and, in connection therewith,
assumed certain benefits and obligations under the AFB Assistance
Agreement and the Americity Agreements. An election under
section 338(h)(10) of the Internal Revenue Code was made with
respect to Guaranty's acquisition of AFB. In anticipation of
this transaction, on September 10, 1993, AFB, LSST, Lone Star
Technologies, Inc. ("Lone Star"), Guaranty, the Acquirers, and
the FDIC Manager entered into a tax benefit agreement (the "Lone
Star Tax Benefit Agreement"), which provides, in part, for (i)
the assumption by Lone Star of certain obligations under the AFB
Assistance Agreement and the Americity Agreements with respect to
certain tax attributes retained or inherited by Lone Star (or
members of the affiliated group of corporations of which Lone
Star is a member) on account of the section 338(h)(10) election,
and (ii) the release of Guaranty and the Acquirers from any
liability with respect to such tax attributes.
E. Contemporaneously with the execution of this
Agreement, the FDIC Manager, Guaranty, and the Acquirers are
entering into (i) a Termination Agreement (the "Guaranty
Termination Agreement"), whereby the parties are terminating the
provisions of the Guaranty Assistance Agreement (except as
otherwise provided in the Guaranty Termination Agreement); (ii) a
Termination Agreement (the "AFB Termination Agreement"), whereby
the parties are terminating the provisions of the AFB Assistance
Agreement and the Americity Agreements (except as otherwise
provided in the AFB Termination Agreement); and (iii) certain
collateral agreements and documents, including a tax agreement
among Guaranty, the Acquirers and the FDIC Manager ("GFB Tax
Agreement").
F. By this Agreement, the FDIC Manager, Guaranty, and
the Acquirers desire to provide for a complete termination of all
parties' rights, duties and obligations to each other arising
under sections 9, 16(e)(1), and 18(c) of the AFB Assistance
Agreement, any provision of the Americity Agreements, and the
Lone Star Tax Benefit Agreement, except those rights, duties, and
obligations assumed by Lone Star pursuant to the Lone Star Tax
Benefit Agreement and the rights, duties, and obligations of the
FDIC Manager relating to Lone Star pursuant to the Lone Star Tax
Benefit Agreement.
G. The capitalized terms not otherwise defined herein
shall have the meanings given such terms in the AFB Termination
Agreement, the GFB Termination Agreement or the GFB Tax
Agreement, as the case may be.
AGREEMENT
In consideration of the mutual promises and covenants
contained herein, and of other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, and
notwithstanding anything to the contrary under the terms of the
AFB Assistance Agreement, the Americity Agreements, the Lone Star
Tax Benefit Agreement, or any related agreement, the parties
hereby agree as follows:
Section 1. Tax Benefits Settlement. The parties
hereto, after analysis, discussion and negotiations, have
determined to settle all outstanding AFB and Americity tax
issues, and any obligations Guaranty or the Acquirers may have to
the FDIC Manager under the Lone Star Tax Benefit Agreement,
without any further payment from any party. This tax benefits
settlement is the product of concessions on the various issues
resolved by this Agreement by both Temple Inland and Guaranty, on
the one hand, and the FDIC Manager, on the other.
Section 2. Release; Accord and Satisfaction.
(a) The parties to this Agreement agree and
acknowledge that the releases provided under sections 10.1 and
10.2 of the Guaranty Termination Agreement and sections 10.1 and
10.2 of the AFB Termination Agreement encompass any and all
issues relating to sections 9, 16(e)(1) and 18(c) of the AFB
Assistance Agreement, any provision of the Americity Agreements,
and the Lone Star Tax Benefit Agreement; provided, however, that
nothing in this Agreement, the Guaranty Termination Agreement, or
the AFB Termination Agreement shall constitute a release or a
waiver by Guaranty or the Acquirers of any and all rights, causes
of action, suits, or claims against the United States or any
agency or instrumentality thereof (other than the FDIC Released
Persons) based on legislation that resulted in the reduction or
elimination of contractual benefits with respect to the September
30, 1988, acquisition of substantially all of the assets and the
secured and deposit liabilities of Delta, FFSL, and GFSL, and in
the event that any such claim is brought, the FDIC Manager shall
not be obligated to pay the expenses of such litigation and shall
not be entitled to share in any recoveries; and provided,
further, that nothing in this Agreement, the Guaranty Termination
Agreement, or the AFB Termination Agreement shall constitute a
release or waiver by the FDIC Manager of any of its rights under
paragraph 2 of the Lone Star Tax Benefit Agreement (relating to
certain obligations of Lone Star specified therein).
(b) Execution of this Agreement by each party shall
effect a complete accord and satisfaction of any and all
obligations and liabilities of such party under sections 9,
16(e)(1), and 18(c) of the AFB Assistance Agreement, any
provision of the Americity Agreements, and the Lone Star Tax
Benefit Agreement (other than the obligations and liabilities, if
any, of the FDIC to Lone Star, or of Lone Star to the FDIC,
pursuant to the Lone Star Tax Agreement); and, thenceforth, such
party shall be fully discharged from any obligation or liability
of any kind in connection therewith, including, without
limitation, any and all actions, causes of action, suits, debts,
sums of money, bonds, covenants, agreements, promises, damages,
judgments, claims and demands whatsoever, known or unknown,
suspected or unsuspected, at law or in equity. No payment,
credit, or debit with respect to either Section 9 of the AFB
Assistance Agreement or any provision of the Americity Agreements
shall be subject to the provisions of Articles 4, 5, or 6 of
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either the Guaranty Termination Agreement or the AFB Termination
Agreement.
(c) Notwithstanding the foregoing provisions of this
section 2, Guaranty, the Acquirers, and the FDIC Manager shall
retain their respective rights to enforce this Agreement.
Section 3. Miscellaneous.
Section 3.1 Amendments. No amendment,
modification, or waiver of any provision of this Agreement, nor
any consent to any departure therefrom by any party, shall in any
event be effective unless the same shall be embodied in a writing
signed by all parties hereto, and then such waiver or consent
shall be effective only in the specific instance and for the
specific purpose for which it is given.
Section 3.2 Notices. Any notice, request,
claim, demand, consent, approval, or other communication to any
party hereto shall be deemed effective when received and shall be
given in writing, and delivered in person against receipt
therefor, or sent by certified mail, postage prepaid or by
facsimile transmission (with a hard copy mailed at the same
time), to such party at its address set forth below (with copies
as indicated below) or at such other address as such party shall
hereafter furnish in writing to the other parties hereto.
(a) If to Guaranty:
Guaranty Federal Bank, F.S.B.
0000 Xxxxx Xxxxx Xxxxxxxxxx
Xxxxxx, Xxxxx 00000
Attention: President
Facsimile No.: (000) 000-0000
With a copy to:
Guaranty Federal Bank, F.S.B.
0000 Xxxxx Xxxxx Xxxxxxxxxx
Xxxxxx, Xxxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
and
Temple-Inland Inc.
000 Xxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
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Attention: General Counsel
Facsimile No.: (000) 000-0000 or
(000) 000-0000
(b) If to Temple-Inland:
Temple-Inland Inc.
000 Xxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000 or
(000) 000-0000
With a copy to:
Guaranty Federal Bank, F.S.B.
0000 Xxxxx Xxxxx Xxxxxxxxxx
Xxxxxx, Xxxxx 00000
Attention: President
Facsimile No.: (000) 000-0000
and
Guaranty Federal Bank, F.S.B.
0000 Xxxxx Xxxxx Xxxxxxxxxx
Xxxxxx, Xxxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
(c) If to the FDIC Manager:
Federal Deposit Insurance Corporation
Division of Resolutions
Assisted Acquisitions (FRF)
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Assistant Director (FRF)
Facsimile No.: (000) 000-0000
With a copy to:
Federal Deposit Insurance Corporation
Legal Division
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
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Attention: Assistant General Counsel
(Resolutions)
Facsimile No.: (000) 000-0000
Notices received at or before 5:00 p.m. local time on a business
day shall be effective the date received. Notices received after
5:00 p.m. local time on a business day shall be deemed received
on the next business day.
Section 3.3 Waiver. Except as otherwise set forth in
this Agreement, no failure or delay on the part of any party to
this Agreement in exercising any right, privilege, power, or
remedy, under this Agreement, and no course of dealing among the
parties hereto, shall operate as a waiver of such right,
privilege, power, or remedy nor shall any single or partial
exercise of any right, privilege, power, or remedy under this
Agreement preclude any other or further exercise of such right,
privilege, power, or remedy. The rights, privileges, powers, and
remedies available to the parties hereto are cumulative and not
exclusive of any other rights, privileges, powers, or remedies
provided by statute, at law, in equity, or otherwise. No notice
to or demand on any party shall in any case entitle such party to
any other or further notice or demand in any similar or other
circumstances or constitute a waiver of the right of the party
giving such notice or making such demand to take any other or
further action in any circumstances without notice or demand.
Section 3.4 Governing Law. To the extent federal
law does not control, this Agreement and the rights and
obligations hereunder shall be governed by and construed in
accordance with the law of the State of Texas. Any legal action
or proceedings arising out of this Agreement shall be brought in
the federal courts of the United States of America located in the
District of Columbia or in the Northern District of Texas, and
each party hereto submits to the exclusive jurisdiction of such
courts and hereby waives any objections on the grounds of venue,
forum non conveniens, or any similar grounds.
Section 3.5 Severability. Whenever possible, each
provision of this Agreement shall be interpreted in such a manner
as to be effective and valid under all applicable laws. However,
in the event that any provision of this Agreement shall be held
to be prohibited or invalid under any applicable law, or declared
unenforceable, then all of the remaining provisions of this
Agreement shall, to the fullest extent possible, remain in full
force and effect and shall be binding on the parties hereto;
provided, however, that this Section 3.5 shall be of no force or
effect if the exclusion of such provision or portion thereof
shall render the remaining provisions of this Agreement incapable
of observance or shall cause this Agreement as a whole to fail of
its essential purpose.
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Section 3.6 Successors and Assigns. This Agreement
shall be binding upon and shall inure to the benefit for the
parties hereto and, except as otherwise provided in this
Agreement, their respective successors and assigns; provided,
however, that except for a successor to Guaranty, any Acquirer or
the FDIC Manager by merger, consolidation, liquidation,
succession, or change of control, this Agreement may not be
assigned to any person or entity nor may any rights or
obligations under this Agreement be transferred or delegated to
or vested in any other person or entity without the prior written
consent of the FDIC Manager, Guaranty, and the Acquirers.
Section 3.7 Headings. The headings contained in
this Agreement are for convenience only and shall not affect the
construction of any provision of this Agreement.
Section 3.8 Entire Agreement. This Agreement
embodies the entire agreement among the parties hereto relating
to the subject matters herein, and supersedes all prior
agreements and understandings among the parties hereto, oral or
written, relating to such matters.
Section 3.9 Third-Party Beneficiaries. Except as
expressly provided in this Agreement, no provision of this
Agreement is intended to nor shall it benefit any person other
than the parties hereto.
Section 3.10 Execution in Counterparts. This
Agreement may be executed in separate counterparts, each of which
when executed and delivered shall be deemed to be an original,
and all of which taken together shall constitute one and the same
Agreement.
Section 3.11 Computation of Time. Should the
operative date for a party's response or action under any
particular provision of this Agreement occur on a Saturday or
Sunday or a Federal holiday, then the first business day
following such day shall be operative date for purposes of such
provision.
Section 3.12 Continuing Cooperation. The FDIC Manager,
Guaranty, and the Acquirers each agree that in order to more
effectively carry out the intent and purposes of this Agreement
and the transactions contemplated hereby, as set forth in the
Recitals and the further terms and provisions hereof, the parties
hereto will cooperate in implementing such intent, purposes and
transactions which are to be accomplished and/or performed from
and after the Closing. Each party will use its good faith best
efforts to cooperate with one another to carry out the intent and
purposes hereof and perform each act required to be performed
from and after the Closing within the time periods provided
herein or, in the event no time is provided for a particular act
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or response, in a timely manner.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by themselves or their respective
officers, as the case may be, as of the day and year first above
written.
GUARANTY FEDERAL BANK, F.S.B.
By: ______________________
Name:_____________________
Title:____________________
GUARANTY HOLDINGS INC. I
By:______________________
Name:____________________
Title:___________________
TEMPLE-INLAND INC.
By:______________________
Name:____________________
Title:___________________
FEDERAL DEPOSIT INSURANCE
CORPORATION, AS MANAGER OF THE
FSLIC RESOLUTION FUND
By:______________________
Name:____________________
Title:___________________
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