EXHIBIT 10.17
WHOLE PURCHASE AND ASSUMPTION AGREEMENT
THIS WHOLE PURCHASE AND ASSUMPTION AGREEMENT
("Agreement") dated as of April 29, 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(b) below (in such
capacity, the "Receiver") and Pan American Bank, FSB, a federal savings bank
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(b) 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) or the FDI
Act, 12 U.S.C. Sections 1823(c)(2)(B) and 1823(k)(l)(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 is necessary to meet the obligation of the
Corporation to provide insurance coverage for the insured deposits in such
Failed
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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 (Theta version dated July 26, 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 terms
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shall have the following meanings:
(a) "Association Closing" shall mean the close of business of the
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Failed Association on April 29, 1994.
(b) "Failed Association" shall mean Pan American Federal Savings Bank,
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formerly a federal savings association under the Home Owners' Loan Act, as
amended, 12 U.S.C. Section 1461, et seg., and having its principal place of
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business in San Mateo, California, which was closed pursuant to Order No. ____
of the Office of Thrift Supervision.
(c) "Premium" shall mean a premium in the amount of $808,000.00.
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(d) "Pro Rata Share" shall have-the meaning set forth in Section 1.52,
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Alternative A of the Standard Terms.
(e) "Related Agreements" shall mean the Indemnity Agreement and the
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following minority assistance documents: (i) Application for Interim Capital
Assistance dated September 7, 1993 submitted by Pan American Bank FSB and Pan
American Financial, Inc.; (ii) Minority Ownership Affidavit dated September 7,
1993 submitted by Pan American Bank, FSB and Pan American Financial, Inc. (iii)
Interim Capital Assistance Agreement dated April 29, 1994 made and entered into
by Pan American Financial, Inc., Pan American Bank, FSB and the Resolution Trust
Corporation, in its corporate capacity; (iv) Stock Pledge Agreement dated April
29, 1994 made between Pan American Financial, Inc. and the Resolution Trust
Corporation in its corporate capacity; (v) Promissory Note made by Pan American
Financial, Inc. dated April 29, 1994 in the amount of six million nine hundred
thirty thousand dollars ($6,930,000.00); (vi) Stock Power executed in blank by
Pan American Financial, Inc. with
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Signature Guarantee; and (vii) Interim Capital Assistance Agreement Officer's
Certificate dated April 29, 1994 signed by the Chairman of the Board of Pan
American Financial, Inc. and Pan American Bank, FSB.
2. Purchase and Assumption. On the terms and conditions set forth in the
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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,
(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,
(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,
(d) the Receiver hereby grants to the Assuming Institution each option
described in Section 4.1, Section 4.3, Section 4.4 and Section 4.5 of the
Standard Terms, 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. Alternative and Optional Provisions. For purposes of this Agreement,
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the Standard Terms are hereby supplemented, modified or amended as follows:
(a) Deposits. The transfer of Deposits under Paragraph 2(a) above
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shall include all of the Deposits (other than Withheld Deposits) of the Failed
Association, as provided in Section 2.1, Alternative A of the Standard Terms.
The definition of "Insured Deposit" in Section 1.33 of the Standard Terms,
clause (f) in the definition of "Withheld Deposit" in Section 1.67 of the
Standard Terms, clause (v) of Section 3.5(a) of the Standard Terms, and Section
7.2(b) of the Standard Terms are hereby deleted in their entirety and reserved.
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(b) Description of Schedule A Assets. Assets transferring under
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Section 3.1(h) of the Standard Terms are described on Schedule A by reference to
the Failed Association's ledger account titles or specific asset identification
codes as shown on the Failed Association's Books as of Association Closing, as
provided in Section 3.2(c), Alternative A of the Standard Terms. As set forth in
Section 3.2(c) of the Standard Terms, if no putback period is specified in
Schedule A for an asset portfolio, the Assuming Institution must notify the
Receiver within thirty (30) days of Association Closing of any misclassified
assets in such asset portfolio for which the Assuming Institution requests
reclassification.
(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 neither
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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) Consideration. As consideration for the assets, putback rights and
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purchase options acquired by the Assuming Institution pursuant to 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.
(f) Businesses Engaged in Through Certain Subsidiaries. The first
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sentence of Section 4.4 of the Standard Terms is hereby modified to read: "The
Receiver hereby grants to the Assuming Institution an exclusive option for the
period set forth below to purchase all of the Receiver's right, title and
interest in and to all (but not less than all) capital stock of any Subsidiary
of the Failed Association listed on Schedule G, at the percentage of Book Value
as of Association Closing set forth on Schedule G." The remaining provisions of
Section 4.4 of the Standard Terms shall remain unmodified.
4. Additional Representation. In addition to the representations and
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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.
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5. Notices. As provided in Section 12.7 of the Standard Terms, addresses
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for notices shall be as follows:
Receiver
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Resolution Trust Corporation
Receiver of Pan American Federal Savings Bank
Room 424
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▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Attention: H. ▇▇▇▇▇▇ ▇▇▇▇
Director, Office of Field Resolutions
with a copy to:
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Resolution Trust Corporation
Receiver of Pan American Federal Savings Bank
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Attention: Assistant General Counsel (RTC)
(for express mail delivery only: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
92660)
Resolution Trust Corporation
Receiver of Pan American Federal Savings Bank
P. 0. ▇▇▇ ▇▇▇▇
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Attention: Claims/Settlements
(for express mail delivery only: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
92660)
and further additional copies to such Resolution Trust
Corporation offices as the Receiver may reasonably request from time to time,
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Assuming Institution
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Pan American Bank, FSB
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Attention: ▇▇▇▇▇▇▇▇ ▇. Grill, President
with a copy to:
Pan American Financial, Inc.
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▇▇▇▇ ▇▇▇▇▇▇ of the Stars, ▇▇▇▇▇ ▇▇▇▇
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Attention: ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
6. Schedules. The following schedules contemplated by the Standard Terms
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are attached hereto and incorporated herein by this reference:
Schedule A Certain Other Assets
Schedule A-l Certain Investment Grade Securities and
Government-Backed Mortgage Securities
Schedule B Certain First Mortgage Loans
Schedule C PSA Expected Prepayment Rates
Schedule D Certain Derivative Mortgage Securities
Schedule E Other Excluded Assets
Schedule F Certain Services Provided by the Failed Association
Schedule G Certain Subsidiaries
Schedule H Certain Services Provided to the Failed Association
Schedule I Other Withheld Deposits
7. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS UNDER
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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 OF CALIFORNIA.
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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 PAN AMERICAN FEDERAL SAVINGS BANK
SAN MATEO, CALIFORNIA
Attest:
By: /s/ [SIGNATURE ILLEGIBLE] /s/ [SIGNATURE ILLEGIBLE]
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PAN AMERICAN BANK, FSB
SAN MATEO, CALIFORNIA
Attest:
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ ▇. GRILL
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PAN AMERICAN FEDERAL SAVINGS BANK
SAN MATEO CALIFORNIA
SCHEDULE A
CERTAIN OTHER ASSETS TRANSFERRED UNDER P & A AGREEMENT
Includes (In Thousands)
Delinquent Estimated Principal Yield/Price Yield/Price Acquiror
Title of Asset Portfolio and/or Advances Balance to Acquiror Put Period As of Closing As of Closing Will Purchase
Charge-off(s) Allowed (A:s of 03/31/93) (90 Days) Whole Portfolio "Selected Asset Yes/No
(1) (2) (3) (4) (5) (6) (7) (8)
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FIRST MORTGAGES-FIXED RATE: Neither No $14,328 90 FNMA+279.8b.p. FNMA+279.8 b.p. Yes
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Delinquent No $ 1,203 90 78.128% 96% Yes
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FIRST MORTGAGES-VARIABLE RATE: Neither No $48,102 90 92.711% 98% Yes
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Delinquent No $ 2,733 90 80.010% 96% Yes
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JUNIOR MORTGAGE LOANS/OLI Both No $ 279 60 91.190% N/A Yes
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CONSUMER LOANS/OLI:
Closed-End:
1. Mobile Home Loan: Both No $ 2 60 97.000% N/A Yes
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ALL OTHER LOANS/OLI:
Mortgage Loans:
1.5 or More Dwelling Units Neither No $33,553 90 89.357% 98% Yes
Non-Residential: -----------
2. Office Buildings Neither No $ 8,643 90 89.174 96% Yes
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3. Warehouse Buildings Neither No $ 4,187 90 85.945 96% Yes
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4. Restaurants/Bars Neither No $ 1,038 90 89.353 96% Yes
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Open-End:
1. Revolving Loans Secured by 1-4 Dwelling Units
2. Loans made pursuant to Credit Card Plans
3. Loans made pursuant to Overdraft Protection Plans
4. ________________
ALL OTHER LOANS/OTHER LOAN INTERESTS:
MORTGAGE LOANS:
1. Construction
2. 5 or More Dwelling Units
3. Non-Residential
4. Land
5. ________________
NONMORTGAGE LOANS:
1. Commercial
2. ________________
MORTGAGE SERVICING BUSINESS
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Title of Description of Asset Portfolio
Asset Portfolio (Ledger accounts/specific asset identification
codes)
(1) (1)
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FIRST MORTGAGE LOANS/OTHER LOAN
INTERESTS - FIXED RATE:
FIRST MORTGAGE LOANS/OTHER LOAN
INTERESTS - VARIABLE RATE:
JUNIOR MORTGAGE LOANS/OTHER LOAN
INTERESTS:
CONSUMER LOANS/OTHER LOAN
INTERESTS:
CLOSED-END:
1. Home Improvement Loans
2. Education Loans
3. Auto Loans
4. Mobile Home Loans
5. ________________
OPEN-END:
1. Revolving Loans Secured by 1-4 Dwelling Units
2. Loans made pursuant to Credit Card Plans
3. Loans made pursuant to Overdraft Protection Plans
4. ________________
ALL OTHER LOANS/OTHER LOAN
INTERESTS:
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MORTGAGE LOANS:
1. Construction
2. 5 or More Dwelling Units
3. Non-Residential
4. Land
5. ________________
NONMORTGAGE LOANS:
1. Commercial
2. ________________
MORTGAGE SERVICING BUSINESS
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Footnotes to Schedule A:
(1) The asset portfolio titles in Column 1 are for convenience only and shall
not affect the determination of which assets are transferred to the
Assuming Institution. The actual composition of each portfolio is
determined by reference to ledger accounts and/or specific asset
identification codes on the Failed Association's Books and Records as of
the date specified in Agreement (i.e., the Alternative and Optional
Provision Sections in Exhibit A, B, or C to the Standard Terms) as detailed
in Column 2 of Schedule A. The Assuming Institution shall purchase all
assets in each of the asset portfolios described in Column 2 of Schedule A,
subject to adjustment and/or reclassification as set forth in Section 3.2
of the Standard Terms; provided, however, that notwithstanding anything to
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the contrary contained herein, these asset portfolios do not include any
assets which are transferred under Section 3.1(a)-3.1(g) or which are
excluded under Section 3.6. Unless otherwise expressly provided herein,
the unfunded portion of any loans listed or described on this Schedule A
and wholly unfunded loans are not transferred to the Assuming Institution.'
(2) NEITHER: Asset portfolio does NOT include either Delinquent or
wholly charged-off (as of Association Closing) assets.
Delinquent: Asset portfolio includes Delinquent assets, but NOT any
asset that is wholly charged off the Books of the
Failed Association as of Association Closing.
Both: Asset portfolio includes both Delinquent AND wholly
charged-off (as of Association Closing) assets.
(3) "Yes" - An advance of funds or credit with respect to any Loan or Other
Loan Interest in this asset portfolio will not be deemed a "Disqualifying
Event" if such advance is made in accordance with Section 1.18(b)(i) and
(ii) of the Standard Terms.
"No" - Any advance of funds or credit with respect to any Loan or Other
Loan Interest in this asset portfolio will be deemed a "Disqualifying
Event" in accordance with Section 1.18 of the Standard Terms.
(4) Book Value indicated is an estimate only. Actual Book Value and
composition of this asset portfolio as of Association Closing may differ
due to generation of new loans, prepayments, change in delinquency status,
maturities and the like, and is subject to adjustment as set forth in
Article VII of the Standard Terms. Mortgage Servicing Business-Figure
provided is an estimate of the unpaid principal balance of the loans
serviced for others.
(5) "No Put"-No put option available for this asset portfolio.
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(6) For assets passing at the Book Value Purchase Price, this column indicates
the applicable percentage of Book Value; for assets passing at the Mortgage
Purchase Price, this column indicates the applicable additional yield
requirement. If the mortgage servicing business is being offered, this
column indicates the applicable percentage of the principal balance of
loans serviced for others. See definitions of "Book Value Purchase Price"
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and "Mortgage Purchase Price" in Article I of the Standard Terms; see also
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Section 4.2(a)(v) of the Standard Terms regarding the mortgage servicing
business.
(7) "N/A"-- Not available. The option to choose selected assets from this asset
portfolio is not available. The Assuming Institution may either keep the
entire portfolio at the "whole portfolio" price, or exercise its put
option, in which case ALL assets in this portfolio must be put back to the
Receiver. See Section 3.1(h) and Section 3.2(b) of the Standard Terms.
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