<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10/A
(Amendment No. 1)
GENERAL FORM FOR REGISTRATION OF SECURITIES
Pursuant to Section 12(b) or (g) of The Securities Exchange Act of 1934
FIRSTCITY LIQUIDATING TRUST
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(Exact name of registrant as specified in its charter)
Texas 06-6414468
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1021 Main, Suite 2600, Houston, Texas 77002
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (713) 651-7841
Securities to be registered pursuant to Section 12(b) of the Act: None
Securities to be registered pursuant to Section 12(g) of the Act:
Class "B" Beneficial Interests ("Class B Beneficial Interests")
in the Trust Established Under the Liquidating Trust Agreement
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(Title of class)
Class "C" Beneficial Interests ("Class C Beneficial Interests")
in the Trust Established Under the Liquidating Trust Agreement
- --------------------------------------------------------------------------------
(Title of class)
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FIRSTCITY LIQUIDATING TRUST
FORM 10/A
(Amendment No. 1)
Registration Statement
(Under the Securities Exchange Act of 1934)
(the "Exchange Act")
* * *
PRELIMINARY NOTE
On July 3, 1995 (the "Effective Date"), the FirstCity
Liquidating Trust (the "Trust") and certain other entities were established
pursuant to and upon consummation of the Joint Plan of Reorganization, dated
December 23, 1994, by First City Bancorporation of Texas, Inc., a Delaware
corporation (the "Debtor"), Official Committee of Equity Security Holders (the
"Equity Committee"), and J-Hawk Corporation ("J-Hawk"), with the Participation
of Cargill Financial Services Corporation, Under Chapter 11 of Title 11 of the
U.S. Code (the "Bankruptcy Code"), Case No. 392- 39474-HCA-11 (the "Joint
Plan"), as modified on March 1, 1995 by the First Modification to Joint Plan of
Reorganization, as corrected (the "First Modification"), on February 23, 1995
by the Second Modification to Joint Plan of Reorganization (the "Second
Modification") and on May 5, 1995 by the Third Modification to Joint Plan of
Reorganization (the "Third Modification") (the Joint Plan, the First
Modification, the Second Modification and the Third Modification are
collectively referred to herein as the "Plan"). The Plan was confirmed by
order of the U.S. Bankruptcy Court for the Northern District of Texas, Dallas
Division (the "Bankruptcy Court") entered on May 31, 1995. A copy of the Plan
is filed as Exhibit 2.1 to this Registration Statement which includes a
glossary of terms used in the Plan. Capitalized terms used in this
Registration Statement without other definition are used as defined in that
glossary.
* * *
Item 1. Business.
The Debtor was formed as a multi-bank holding company in 1988
for the purpose of reorganizing First City Bancorporation of Texas, Inc., a
Texas corporation. Beginning in the summer of 1990, the financial condition of
the Debtor began to deteriorate and worsened progressively throughout 1990 and
1991. On October 30, 1992, regulatory agencies closed the Debtor's banks. On
October 31, 1992, certain of the Debtor's unsecured creditors filed an
involuntary Chapter 11 bankruptcy petition against the Debtor in the Bankruptcy
Court. On November 23, 1992, the Debtor consented to the entry of an order for
relief against it under
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Chapter 11 of the Bankruptcy Code. Until July 3, 1995, the Debtor operated its
remaining businesses and managed its property as debtor-in-possession.
The Plan was confirmed by the Bankruptcy Court by an order
entered on May 31, 1995, and became effective on July 3, 1995. Pursuant to the
Plan and an Agreement and Plan of Merger between the Debtor and J-Hawk, on July
3, 1995, J-Hawk was merged (the "Merger") with and into the Debtor, with the
Debtor as the surviving entity. Pursuant to the Merger, (i) the former holders
of common stock of J-Hawk received, in the aggregate, approximately 49.9% of
the outstanding common stock of the surviving entity, in exchange for their
shares of J-Hawk common stock, (ii) approximately 50.1% of the outstanding
common stock of the surviving entity was distributed among former security
holders of the Debtor pursuant to the Plan and (iii) the name of the
corporation was changed to FirstCity Financial Corporation ("FirstCity"). As a
result of the implementation of the Plan and the consummation of the Merger,
FirstCity also issued (i) 9% senior subordinated notes (the "Senior
Subordinated Notes") in the aggregate amount of $106.7 million, (ii) warrants
to purchase 500,000 shares of its common stock at an exercise price of $25 per
share and (iii) special preferred stock (the "Special Preferred Stock") in the
aggregate amount of $51.7 million to certain former security holders of the
Debtor.
The Trust has not and, pursuant to the Liquidating Trust
Agreement, dated as of July 3, 1995, by and between First City Bancorporation
of Texas, Inc. and Fleet National Bank, successor to Shawmut Bank Connecticut,
National Association, as Trustee (the "Trust Agreement"), may not engage in the
conduct of a trade or business apart from the liquidation of the Trust-Owned
Affiliate Assets (as defined herein) and the winding up of the affairs of the
Debtor and its subsidiaries. Pursuant to Article VIII of the Trust Agreement,
the Trust shall terminate upon the date which is three (3) years and six (6)
months after the Effective Date; provided, however, that at least six (6)
months prior to such termination, the Portfolio Committee (as defined herein)
may, with the approval of the Bankruptcy Court, extend the term of the Trust if
necessary to the liquidating purpose thereof. Multiple extensions, if approved
by the Bankruptcy Court, are permissible, although the aggregate of all such
extensions shall not exceed five (5) years so that, in any event, the Trust
shall terminate no later than eight (8) years and six (6) months after the
Effective Date. A copy of the Trust Agreement is filed as Exhibit 3.1 to this
Registration Statement.
Pursuant to the Plan, substantially all of the legal and
beneficial interest in the assets of the Debtor, other than $20 million in cash
which was contributed by the Debtor to FirstCity, were transferred to the Trust
or to subsidiaries of the Trust. Such assets have been and will continue to be
liquidated over the anticipated three- year life of the Trust pursuant to the
terms of the Plan, the Trust Agreement and the Investment Management Agreement
(as defined herein). The non-cash assets of the Trust consist principally of
performing and non-performing loans, income producing real estate and interests
in real estate, and miscellaneous other assets and receivables (principally
from the FDIC (the "Federal Deposit Insurance Corporation")) transferred to the
Trust upon the consummation of the Plan.
In connection with the sale of the Debtor's banks by the FDIC
to certain other banks (the "Loss-Sharing Banks"), the FDIC entered into
certain agreements (the "Loss- Sharing Agreements") to guarantee certain
recoveries on loans acquired by the Loss-Sharing Banks. On
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July 12, 1995, in order to reduce the uncertain effect of the Loss-Sharing
Agreements on future distributions to the Trust by the FDIC, subsidiaries of
the Trust purchased assets for approximately $206 million from the Loss-Sharing
Banks (the "Loss-Sharing Settlement"). With the purchase of these assets, the
Loss-Sharing Banks released the FDIC from its future obligations under the
Loss-Sharing Agreements. The Loss Sharing Settlement was significant to the
Trust because it allowed the FDIC to eliminate the loss-sharing reserve that it
had maintained to cover the FDIC's obligations under the loss-sharing
guarantees, thereby eliminating the uncertainty of future reductions from the
reserve and increasing the initial distribution to be made by the FDIC to the
Trust.
Three Texas limited partnerships were created for the purposes
of holding substantially all of the assets of the Debtor for the Trust. The
names of such partnerships are FCLT Loans, L.P. ("Loans, L.P."), FCLT REO One,
L.P. ("REO One, L.P.") and FCLT REO Two, L.P. ("REO Two, L.P."). The Trust has
a 98% limited partner interest in Loans, L.P., which has a 98% limited partner
interest in each of REO One, L.P. and REO Two, L.P. The remaining 2% interest
is held by the respective corporate general partner of each of the limited
partnerships. FCLT Loans Asset Corp., a Texas corporation, is the corporate
general partner of Loans, L.P. Most of the assets transferred from the Debtor
to the Trust on or after the Effective Date (other than real property) are held
by Loans, L.P. FCLT REO One Asset Corp., a Texas corporation, is the corporate
general partner of REO One, L.P. Certain real property transferred from the
Debtor to the Trust on or after the Effective Date is held by REO One, L.P.
FCLT REO Two Asset Corp., a Texas corporation, is the corporate general partner
of REO Two, L.P. All of the real property with respect to which potential
environmental liability concerns have been identified prior to the Effective
Date was transferred from the Debtor to the Trust on or after the Effective
Date and is currently held by REO Two, L.P. To date, management of the Trust
believes that there are no actual environmental liability concerns with respect
to the properties held by REO Two, L.P. In view, however, of the nature of the
assets REO Two, L.P. owns, it is possible that environmental liabilities could
arise in the future with respect to such properties.
In connection with the formation of the Trust, three classes
of beneficial interests in the Trust were issued. FirstCity is the sole holder
of a certificate representing the Class A beneficial interests (the "Class A
Beneficial Interests") of the Trust (the "Class A Certificate") and receives
distributions from the Trust in amounts sufficient to pay certain obligations
under the Senior Subordinated Notes and Special Preferred Stock which were
issued by FirstCity upon the implementation of the Plan and the consummation of
the Merger and also to pay certain expenses. Any excess proceeds are paid to
certain former security holders of the Debtor pursuant to the terms of the
certificates representing the Class B and Class C Beneficial Interests in the
Trust (the "Class B Certificates" and the "Class C Certificates",
respectively). Class C Certificate holders receive distributions, if any,
after all required payments to Class B Certificate holders. See Item 11 for a
further discussion of the beneficial interests in the Trust and their
respective distribution rights.
The Trust is administered by a four-person portfolio committee (the
"Portfolio Committee"). Pursuant to that certain Investment Management
Agreement, dated as of July 3, 1995, by and between the Trust, FirstCity and
the Trust- Owned Affiliates signatory thereto (the "Investment Management
Agreement"), the liquidation of the assets transferred to the Trust are
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managed by FirstCity, as Investment Manager, for a servicing fee as further
described in Item 7.
Item 2. Financial Information.
Reference is made to the financial statements (the "Trust
Financial Statements") of the Trust as of and for the period from July 3, 1995
through December 31, 1995 (hereinafter referred to as "1995") and for the three
months ended March 31, 1996, which are attached to this Registration Statement
as Appendix A, for certain financial information concerning the Trust and its
operations for such periods. The following information concerning the Trust's
financial performance and condition should be read in conjunction with the
Trust Financial Statements.
On July 3, 1995, the Debtor contributed approximately $183
million in net assets to the Trust, of which $135 million was cash and cash
equivalents. As discussed previously, in order to reduce the uncertain effect
of the Loss-Sharing Agreements on future distributions to the Trust by the
FDIC, subsidiaries of the Trust purchased assets for approximately $206 million
from the Loss-Sharing Banks on July 12, 1995. In order to fund this
transaction, the Trust used most of the cash contributed by the Debtor,
borrowed $73 million under a line of credit with two banks and was advanced
$4.7 million by FirstCity. In addition, letters of credit in the aggregate
amount of $27 million were issued in favor of the Loss-Sharing Banks.
Collections, net of advances, for 1995 totaled more than $107
million. As a result, the $4.7 million advance referenced above was repaid to
FirstCity by August 1995, and the $73 million loan was repaid by November 1995.
During 1995, the estimated fair value of the Trust's assets increased by $33.5
million. Several factors contributed to the significant increase in net asset
value of the Trust's assetsduring the six month period ended December 31, 1995.
First in order of magnitude was the increase in value of certain assets of the
Trust after their initial valuation, resulting from the subsequent occurrence
of certain unforeseen or contingent events that enhanced the value of such
assets by resolving various fundamental uncertainties that had a depressive
effect on their initial valuations. The valuation of two of the Trust's assets
is illustrative of how this factor operated to increase the net asset value of
the Trust assets during the relevant period. One of the Trust's assets
consists of two parcels of property and a related piece of litigation (the "REO
Asset"). At the time of the initial valuation, the real property was valued at
approximately $13 million and the related litigation, still actively contested
at the time, was valued at only approximately $5 million, resulting in an
aggregate value of approximately $18 million. Subsequently, the parties to the
litigation entered into a settlement requiring payments to the Trust which
effectively increased the aggregate value of the REO Asset to approximately $32
million, an increase of approximately $14 million over the original valuation.
Another asset of the Trust is a large note on a building, the value of which is
dependent on a certain lease (the "Lease"). Principally because the expiration
of the Lease was imminent at the time of the initial valuation, and the Trust
was uncertain whether the Lease could be renewed, the value initially assigned
to the building and related note was only approximately $22 million. When the
Lease was later renewed, and the uncertainty as to the value of the building
and related note clarified, the year-end value of the note was
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increased to approximately $33 million, an increase of approximately $11
million over its initial valuation. The cases of the REO Asset and the
building and related note account, in the aggregate, for approximately $25
million, or approximately 75%, of the increase in the net asset value of the
Trust's assets in 1995. A second factor contributing to the sharp increase in
the net asset value of the Trust was the discovery after the initial valuation
of approximately $5 million in assets which were previously unknown to be held
by the Trust. The addition of these assets accounts for another 15% of the
increase in net asset value. Although it is not feasible to quantify their
respective contributions to the remaining portion of the increase, the Trust
believes that among the factors accounting for the residual component of the
increase in net asset value are: (i) the appreciation in value of certain
assets attributable to a favorable interest rate environment and the
stimulating effect this had on the marketability of real estate; (ii) increased
earnings from accelerated collections on certain assets; (iii) the increase in
the estimated market value of the Trust's assets that naturally occurs as the
remaining life of the Trust (and concomitantly the discount factor applied in
calculating net asset value) decreases; and (iv) the enhanced value of certain
assets as the Trust and the servicer's knowledge and understanding of the
assets increased.
During the first quarter of 1996, the estimated fair value of the
Trust's assets increased by approximately $15 million. Such increase in the
net asset value of the Trust's assets is attributable to several factors,
including loan recoveries that exceeded anticipated recoveries by approximately
$1.4 million, accounting for 9% of the increase in net asset value of the
Trust, and an increase in the estimated residual value of the dividend from the
FDIC to the Trust, in the approximate amount of $3.5 million, accounting for
approximately 23% of the increase in net asset value of the Trust. Other
factors which contributed to the enhancement of the net asset value of the
Trust's assets, which are difficult to quantify, include (i) the appreciation
in value of certain assets attributable to a favorable interest rate
environment and the effect of such favorable interest rates on the
marketability of real estate and (ii) the increase in the estimated market
value of the Trust's assets that naturally occurs as the remaining life of the
Trust (and concomitantly the discount factor applied in calculating net asset
value) decreases.
During 1995, interest expense on loans and advances was $1.7 million,
and administrative expenses totaled $8.6 million. Included in administrative
expenses is $3.1 million in servicing fees paid to FirstCity and $3.4 million
of administrative claims related to the Debtor and legal fees. In the first
quarter of 1996, administrative expenses totaled $3.3 million, of which $1.1
million was servicing fees paid to FirstCity.
Non-cash trust assets at March 31, 1996 and December 31,
1995 are comprised of the following (dollars in thousands):
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<TABLE>
<CAPTION>
MARCH 31, 1996 DECEMBER 31, 1995
--------------------------- ----------------------------
LEGAL CLAIM ESTIMATED LEGAL CLAIM ESTIMATED
OR ASSIGNED GROSS CASH OR ASSIGNED GROSS CASH
TYPE OF ASSET VALUE FLOW VALUE FLOW
- ------------- ------------ ---------- ------------ -----------
<S> <C> <C> <C> <C>
Borrowers' obligation on
outstanding balance of:
Performing loans . . . . . . . . . . . $ 135,781 $ 121,598 $ 139,705 $ 134,381
Nonperforming loans . . . . . . . . . 185,661 50,020 225,921 60,454
Receivable from the FDIC . . . . . . . . . 19,000 19,000 33,000 33,000
Real estate and other assets . . . . . . . 48,022 33,224 60,734 33,305
------------ ---------- ------------ -----------
Total . . . . . . . . . . . . . . . . 388,464 223,842 459,360 261,140
------------ ---------- ------------ -----------
Discount required to reflect
trust assets at estimated fair
value . . . . . . . . . . . . . . . (221,599) (56,977) (266,156) (67,936)
------------ ---------- ------------ -----------
Trust assets, net . . . . . . . . . . . . $ 166,865 $ 166,865 $ 193,204 $ 193,204
============ ========== ============ ===========
</TABLE>
At December 31, 1995, estimated gross cash flow ("EGCF") on 253
performing loans was $134 million, and collections on these assets in the first
quarter of 1996 were $10.7 million. EGCF was $102 million on the 22 loans over
$1 million in the performing loan category. In the first quarter of 1996, $7.8
million was collected on the 180 year-end nonperforming loans with EGCF of
$60.5 million. Sixteen of the nonperforming loans were over $1 million and had
combined year-end EGCF of $38.6 million.
In the first quarter of 1996, $17.7 million of the FDIC receivable was
collected. At year-end, the EGCF on 44 real estate parcels and other assets
totaled $33.3 million, of which seven had an EGCF over $1 million (totaling
$27.6 million). $5.4 million was collected in the first quarter from real
estate and other assets.
At December 31, 1995, the net asset value attributable to the Class A
Certificate (of which the sole holder is FirstCity) was $162 million, of which
$106.7 million is allocated to redemption of the Senior Subordinated Notes (an
obligation of FirstCity), $51.7 million is allocated to the nominal stated
value of FirstCity's Special Preferred Stock and $3.9 million is allocated to
accrued, but undeclared, dividends on Special Preferred Stock. The Trust
distributed $4.7 million to FirstCity for payment of interest on the Senior
Subordinated Notes in 1995. The Class B Beneficial Interests were valued at
$39.5 million at year-end. Distributions to Class C Certificate holders are
not ever expected.
The net asset values are derived from estimates of the fair values of
the net assets of the Trust which are the results of discounting, at
appropriate discount rates, the currently estimated cash flows projected to be
realized from the collection, liquidation and disposition of the non-cash
assets held by the Trust. There can be no assurance, however, that such net
asset values will ultimately be realized. See Note A to Consolidated Financial
Statements.
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In the first quarter of 1996, the $27 million in letters of credit was
reduced to zero, and a term loan was established for borrowings up to $61
million. The Trust also distributed $53.3 million in March 1996 to FirstCity,
as sole holder of the Class A Certificate, which FirstCity used for the early
redemption of outstanding Senior Subordinated Notes. As a result of such
redemption, (i) the Trust borrowed $19.8 million under the term loan in March
1996 (which was repaid in early May 1996) and (ii) the net asset value of the
Class A Beneficial Interests, as of March 31, 1996, was reduced to $111
million. Based on an election by the Trust, interest, payable monthly, on a
portion of the borrowings is at prime plus 1%, and interest on the remaining
balance is at one-month LIBOR (as defined herein) plus 3.25%. Substantially
all of the assets of the Trust are pledged to secure the loan.
As of March 31, 1996, the Class B Beneficial Interests had increased
in value to $47.5 million. Such increase was due in part to an actual increase
in the value of the Trust's assets during the first quarter of 1996, although
the increase also reflects in part both accelerated collections and a better
understanding of the value of the Trust's assets. At the end of the first
quarter, the Class C Beneficial Interests remained valueless.
On June 26, 1996, FirstCity issued a press release announcing its
intent to redeem the remaining $53.3 million of its Senior Subordinated Notes
at 100% of face value plus interest. To effect the early redemption of the
Senior Subordinated Notes due in 1997, the Trust will primarily distribute
proceeds from the liquidation of the Trust's assets to FirstCity, although the
balance of approximately $20 million (maximum) will be funded by existing lines
of credit of the Trust. As a result of such redemption, the net asset value of
the Class A Beneficial Interests (held solely by FirstCity) will be reduced to
$59 million.
Pursuant to that certain Settlement Agreement dated as of June 22,
1994, as amended as of January 30, 1995 (the "Settlement Agreement"), by and
among the FDIC, in its corporate capacity ("FDIC-Corporate"), the FDIC, in its
capacity as receiver of each of certain banks (the "FDIC-Receivers") and the
Debtor and its related entities (the "First City Parties"), the FDIC-Receivers
were given the authority to, among other things, effect distributions of the
Surplus (as defined in the Settlement Agreement) generated out of the First
City Bank Receiverships (as defined in the Plan) to the First City Parties and
defend certain litigation and other disputed matters of the First City Parties,
the FDIC- Receivers, FDIC-Corporate and/or certain other parties. Loans, L.P.
is currently negotiating an agreement with the FDIC, in both its corporate
capacity and its capacity as a receiver, pursuant to which the FDIC-Receivers
would make an early final cash distribution of the Surplus and close the First
City Bank Receiverships prior to the originally anticipated closing date. As a
condition to the closing of the First City Bank Receiverships and the receipt
of the final distribution of the Surplus, Loans, L.P. may be required, among
other things, to provide indemnity to the FDIC- Receivers against any unknown
claims or expenses in an aggregate amount up to $10 million. Although such
negotiations are still in their early stages, it is anticipated that such
negotiations will be finalized by the end of July 1996. However, there can be
no assurances that the negotiations will result in an agreement between the
parties, in which case the First City Bank Receiverships will remain open and
any future distributions of Surplus to the Trust by the FDIC-Receivers will
continue to be governed by the terms of the Settlement Agreement.
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Item 3. Properties.
The Trust does not have any material physical properties,
except for such properties that are held for sale.
Item 4. Security Ownership of Certain Beneficial Owners and Management.
(a) Since the Trust has no outstanding "voting
securities" within the meaning of the Exchange Act and the regulations
thereunder, the disclosure requirements of Form 10 pertaining to 5% holders of
voting securities are not applicable.
(b) The following table sets forth certain information
with respect to the beneficial ownership of the Class B and Class C Beneficial
Interests, as of June 24, 1996, by the sole executive officer of the Trust and
the members of the Portfolio Committee. The Trustee is not the beneficial
owner of any Class B or Class C Beneficial Interests.
<TABLE>
<CAPTION>
NUMBER OF CLASS B BENEFICIAL INTERESTS
AND PERCENTAGE OF OUTSTANDING
CLASS B BENEFICIAL INTERESTS
AS OF JUNE 24, 1996
--------------------------------------
BENEFICIAL PERCENT
NAME AND ADDRESS OF OWNER OR IDENTITY OF GROUP OWNERSHIP OF CLASS
- ---------------------------------------------- --------- --------
<S> <C> <C>
Robert W. Brown . . . . . . . . . . . . . . . . . . . . . . . . . . -- (1) --
Richard E. Bean . . . . . . . . . . . . . . . . . . . . . . . . . . 98,100(2) 4.0
Rick R. Hagelstein . . . . . . . . . . . . . . . . . . . . . . . . -- (2) --
David Palmer . . . . . . . . . . . . . . . . . . . . . . . . . . . 139,539(2) 5.7
All Portfolio Committee members as a group (4 persons) . . . . . . 237,639 9.7
</TABLE>
(1) Mr. Brown is the President of FCLT Loans Asset Corp., the corporate
general partner of Loans, L.P., and a member of the Portfolio
Committee. See Item 5 below for further background information
regarding Mr. Brown and his employment history for the past five
years.
(2) Messrs. Bean, Hagelstein and Palmer are members of the Portfolio
Committee. See Item 5 below for further background information
regarding the members of the Portfolio Committee and their respective
employment histories for the past five years.
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<TABLE>
<CAPTION>
NUMBER OF CLASS C BENEFICIAL INTERESTS
AND PERCENTAGE OF OUTSTANDING
CLASS C BENEFICIAL INTERESTS
AS OF JUNE 24, 1996
--------------------------------------
BENEFICIAL PERCENT
NAME AND ADDRESS OF OWNER OR IDENTITY OF GROUP OWNERSHIP OF CLASS
- ---------------------------------------------- --------- --------
<S> <C> <C>
Robert W. Brown . . . . . . . . . . . . . . . . . . . . . . . . . . 197 *
Richard E. Bean . . . . . . . . . . . . . . . . . . . . . . . . . . -- --
Rick R. Hagelstein . . . . . . . . . . . . . . . . . . . . . . . . 1,487(1) *
David Palmer . . . . . . . . . . . . . . . . . . . . . . . . . . . -- --
All Portfolio Committee members as a group (4 persons) . . . . . . 1,684 *
</TABLE>
- --------------------------
* Less than 1%
(1) The 1,487 Class C Beneficial Interests are held of record by ATARA I,
LTD., a Texas limited partnership ("ATARA"). ATARA is principally
engaged in the investment in FirstCity's common stock. The sole
general partner of ATARA is ATARA Corp., a Texas corporation ("ATARA
Corp."), which is also principally engaged in the investment in
FirstCity's common stock. Mr. Hagelstein may be deemed to
beneficially own all such certificates by virtue of being the Chairman
of the Board and President of ATARA Corp., and by reason of the fact
that his wife is the only other officer or director of ATARA Corp. and
owns 33.33% of the outstanding shares of common stock of ATARA Corp.
(c) Because the Trust does not have any "voting
securities" within the meaning of the Exchange Act and the regulations
thereunder, changes in ownership of voting securities will not result in a
change of control of the Trust. Pursuant to the terms of the Trust Agreement,
all of the management and executive authority over the Trust resides in the
four-member Portfolio Committee. The initial members of the Portfolio
Committee were designated in the Trust Agreement and will serve for the
duration of the Trust. However, in the event of any member's earlier death,
resignation or removal, such member shall be replaced pursuant to the terms of
the Trust Agreement as set forth in Item 5 hereof.
The Trust has no knowledge of any arrangements which may result in a
change of control of the Trust. However, in the event that the position on the
Portfolio Committee held by Robert W. Brown is vacated for any reason, the
number of Portfolio Committee members will be permanently reduced to three. In
such instance, all three of the current remaining members of the Portfolio
Committee will be affiliated with FirstCity and, as a result, FirstCity may be
deemed to have exclusive control over Portfolio Committee decisions.
Item 5. Directors and Executive Officers.
The description of the Trust Agreement provided below and as
provided in Items 1, 6 and 12 hereof is only a summary and is qualified in its
entirety by reference to the Trust Agreement, a copy of which is filed as
Exhibit 3.1 to this Registration Statement.
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Role of the Portfolio Committee
Pursuant to Article IV of the Trust Agreement, except where
expressly limited by the terms of the Trust Agreement, all of the management
and executive authority over the Trust resides in the four-member Portfolio
Committee (subject to increase and reduction). The Trust Agreement provides
that such four members are initially Rick R. Hagelstein, the Chief Credit
Officer of FirstCity (the "Chief Credit Officer Member Position"), Robert W.
Brown (the "Robert W. Brown Member Position"), and Richard Bean and David
Palmer, as the two members designated by the Equity Committee (the "Equity
Committee Member Positions"). All have been members of the Portfolio Committee
since the Effective Date. Background information and the employment histories
of Messrs. Bean, Brown, Hagelstein and Palmer are set forth below.
Richard E. Bean, 52, has been Executive Vice President and
Chief Financial Officer of Pearce Industries, Inc. since 1976, which company,
through its subsidiaries, markets a variety of oilfield equipment and
machinery. Prior to the Effective Date, Mr. Bean was Chairman of the Equity
Committee. Mr. Bean is currently a director of FirstCity.
Robert W. Brown, 47, has been President of FCLT Loans Asset
Corp. since the Effective Date. As of the Effective Date, Mr. Brown served as
Executive Vice President and Secretary of FirstCity. After the Effective Date,
he resigned from FirstCity to devote substantially all of his time to the
Trust. Mr. Brown was Chief Financial Officer of the Debtor beginning in 1991.
He served as Executive Vice President of the Debtor from 1990 to 1992, became a
member of the Debtor's Board of Directors in 1992 and served as President of
the Debtor from 1993 through the Effective Date. Mr. Brown was a director and
officer of the Debtor when the Debtor filed a plan of reorganization under the
Federal bankruptcy laws in December 1994.
Rick R. Hagelstein, 49, has been Executive Vice President and
Chief Credit Officer of FirstCity since the Effective Date, and was Executive
Vice President and Chief Credit Officer of J-Hawk from 1990 until the Merger.
From 1988 to 1990, Mr. Hagelstein was Executive Vice President of ASK
Corporation, a manufacturer of solar energy devices. Mr. Hagelstein is also
currently a director of FirstCity.
David Palmer, 53, has been a private investor for the past 25
years. Prior to the Effective Date, Mr. Palmer was a member of the Equity
Committee. From 1970 to 1995, Mr. Palmer was a Professor of Philosophy at the
State University of New York--Fredonia, New York. Mr. Palmer is currently a
director of FirstCity.
Pursuant to the terms of the Trust Agreement, each member of
the Portfolio Committee serves as such for the duration of the Trust, subject
to such member's earlier death, resignation or removal; however, any member of
the Portfolio Committee may resign at any time provided that he gives at least
ten days' written notice to the Portfolio Committee, the Trustee, FirstCity and
the Investment Manager. Any member of the Portfolio Committee may be removed
at any time by a vote of a majority of the other members of the Portfolio
Committee (a) for fraud, willful misconduct or breach of fiduciary duty in
connection with the affairs of the Trust or (b) for such mental or physical
disability as substantially prevents such member from
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<PAGE> 12
performing his duties as such member. In the event of a vacancy on the
Portfolio Committee, the following rules govern the appointment of a
replacement: (a) the Chief Credit Officer Member Position shall exist for the
duration of the Trust, and such position shall automatically be filled by the
successor to the Chief Credit Officer of FirstCity who is promptly appointed by
FirstCity; (b) the Robert W. Brown Member Position shall be permanently
eliminated, and the number of members thereafter constituting the Portfolio
Committee shall be permanently reduced to three; and (c) the two Equity
Committee Member Positions shall exist for the duration of the Trust, and any
vacancy shall be filled by the holder of the largest number of outstanding
Class B Beneficial Interests or, if such holder is a legal entity rather than a
natural person, any designee thereof.
Pursuant to the Trust Agreement, a majority of the total
number of members of the Portfolio Committee constitutes a quorum for purposes
of voting on any transaction of business of the Trust. In the event that the
members of the Portfolio Committee are split equally with respect to any vote,
and the members holding the two Equity Committee Member Positions have voted
the same way, the votes of such members prevail and will be the vote of the
entire Portfolio Committee.
The Portfolio Committee has sole control and authority over
the management and conduct of the liquidation of the Trust-Owned Affiliate
Assets (as defined herein). Such powers include in large part, but are not
limited to, supervising and directing the Trustee in its management and
liquidation of the Trust-Owned Affiliate Assets in accordance with the terms of
the Trust Agreement; causing the proper person to object, prosecute objections,
litigate, settle and resolve issues with respect to Claims (as defined in the
Plan), causes of action, preferences, fraudulent conveyances and related
matters; retaining counsel and other professionals for the Trust or any
Trust-Owned Affiliate (as defined herein), subject to the Investment Management
Agreement and any other agreements entered into by the Portfolio Committee; and
taking or causing to be taken any and all such other actions as deemed
necessary or desirable to effectuate and carry out the purposes of the Trust
Agreement and the Plan. The Portfolio Committee may use its discretion in
delegating, among other things, the power and authority to the Investment
Manager to liquidate the non-cash Trust-Owned Affiliate Assets.
For purposes of the foregoing paragraph, a "Trust-Owned
Affiliate" is defined as any corporation, partnership or other entity
substantially wholly-owned, directly or indirectly, by the Trust heretofore
existing or hereafter created, including without limitation REO One, L.P., REO
Two, L.P. and Loans, L.P. "Trust-Owned Affiliate Assets" means (1) cash and
cash equivalents of the Trust-Owned Affiliates; (2) the Loss-Sharing Assets,
except to the extent otherwise provided in a separate written agreement between
the Trustee and the Debtor approved by the Portfolio Committee; (3) the FDIC
Assets (as defined in the Plan), except to the extent otherwise provided in a
separate written agreement between the Trustee and the Debtor approved by the
Portfolio Committee; (4) the Contingent Asset Claims (as defined in the Plan),
except to the extent otherwise provided in a separate written agreement between
the Trustee and the Debtor approved by the Portfolio Committee; (5) all of the
Debtor's other-owned, non-cash assets (including without limitation the Interim
Trust-Owned Affiliate Assets (as defined in the Plan) and the capital stock of
certain subsidiaries of the Debtor), except to the extent otherwise provided in
a separate written agreement between the Trustee and the Debtor approved by the
Portfolio Committee; and (6) all proceeds of and interest or other amounts
earned on, the Trust-
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<PAGE> 13
Owned Affiliate Assets set forth above in clauses (1) through (5), and all
proceeds of and interest or other amounts earned on any Trust-Owned Affiliate
Assets, in each case received by or on behalf of the Trustee in connection with
the management, servicing, disposition or investment of such assets; provided,
however, that any and all assets of J-Hawk immediately prior to the Effective
Date which became assets of FirstCity as a result of the Merger on the
Effective Date do not constitute Trust-Owned Affiliate Assets.
Role of the Trustee
Although all of the management and executive authority over
the Trust resides in the Trustee, the Trustee functions as a directed Trustee
under the sole and absolute discretion of the Portfolio Committee and may not
exercise discretion in the management and conduct of the liquidation of the
Trust-Owned Affiliate Assets. The Trustee has no authority or right to refuse
to act when so ordered or directed to do so by the Portfolio Committee. The
Trustee is Fleet National Bank. There have been no changes in the Trustee
through the date of this Registration Statement.
Legal title to all of the Trust Assets and Trust-Owned
Affiliate Assets are vested in the Trustee, unless otherwise directed by the
Portfolio Committee. The duties as Trustee constitute a principal business
endeavor of the Trustee, which devotes such time as is necessary to fulfilling
all of its duties. Although it does have other business responsibilities, the
Trustee is on call and at the disposal of the Trust at all times.
The Trustee serves for the duration of the Trust, subject to
earlier death, resignation or removal. The Trustee is subject to removal for
(i) fraud or willful misconduct, (ii) if the Trustee is a natural person, such
physical or mental disability as substantially prevents the Trustee from
performing his duties as a Trustee or (iii) by the holder of the Class A
Certificate representing the Class A Beneficial Interests, in its capacity as
such.
Role of the Investment Manager
Pursuant to the terms of the Investment Management Agreement,
the role of the Investment Manager is to manage and service collection and
liquidation of the Trust-Owned Affiliate Assets. Such duties include, but are
not limited to, the following: (i) providing customary asset management and
loan servicing and disposition services for the Trust-Owned Affiliate Assets,
which includes the expeditious liquidation of the non-cash Trust-Owned
Affiliate Assets in a manner that maximizes the value of the Trust-Owned
Affiliate Assets, taken as a whole, while minimizing the risks associated
therewith; (ii) coordinating the timely delivery of the quarterly lock-box
report; (iii) furnishing a report quarterly (or more frequently if requested)
to the Trust and the Trust-Owned Affiliates that summarizes the status of
collection efforts for the non-cash Trust-Owned Affiliate Assets, inclusive of
a forecast of projected collections; (iv) maintaining the books and records of
the Trust and the Trust-Owned Affiliates with respect to all servicing and
liquidation efforts and activities; (v) providing a quarterly list of all
Trust-Owned Affiliate Assets and any REO Properties (as defined in the
Investment Management Agreement) to the Trust and the Trust-Owned Affiliates;
(vi) preparing monthly financial statements of the Trust for the Portfolio
Committee and the Trustee and (vii) fully performing
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<PAGE> 14
all of its obligations under the Plan in a timely manner. In exchange for such
services, the Investment Manager is paid an incentive fee, which is described
more fully in Item 7 below.
The Investment Manager's performance of the foregoing duties
is overseen and directed by the Portfolio Committee pursuant to the terms of
the Investment Management Agreement and the Trust Agreement. The Portfolio
Committee also reviews and approves budgets prepared by the Investment Manager
for each Trust-Owned Affiliate Asset, which reflect projected net collections
for each asset.
The Investment Management Agreement shall terminate upon the
occurrence of any of the following events: (i) termination of the Trust
pursuant to the terms of the Trust Agreement; (ii) full discharge of all of the
Investment Manager's duties under the Investment Management Agreement, or
earlier upon the written agreement of the parties thereto; (iii) removal of the
Investment Manager if, upon petition to the Bankruptcy Court by the Portfolio
Committee, and after notice and hearing, the Bankruptcy Court determines that
the Investment Manager has acted or failed to act in a manner constituting
gross negligence or a willful breach of its fiduciary duty or a material breach
of its obligations under the Investment Management Agreement or (iv) among
other things, upon the occurrence of any petition, application or order for
relief by or with respect to the Investment Manager as a debtor under the
Bankruptcy Code, at the option of the Trust and the Trust-Owned Affiliates. In
the event that the Trust and the Trust-Owned Affiliates exercise any right of
termination pursuant to the foregoing terms, such parties may enter into a new
loan servicing and liquidation contract with a replacement investment manager,
at such servicing fee and on such other terms and conditions as are set forth
in the Trust Agreement.
Item 6. Executive Compensation.
Compensation of the Trustee
Section 3.8 of the Trust Agreement provides as follows with
respect to compensation of the Trustee:
As compensation for services as Trustee hereunder and under
any other agreements to which the Trustee is a party as contemplated
by the Plan, the Trustee shall receive such compensation as shall be
agreed upon from time to time by the Portfolio Committee, on behalf of
the Trust, and the Trustee. Any changes to such compensation (whether
with respect to amount, method, timing or otherwise) must first be
approved in writing by the Portfolio Committee.
The compensation paid by the Trust to the Trustee during 1995
consisted of a one time acceptance fee of $9,000 and payments of administrative
and registrar fees aggregating approximately $26,500. Unless renegotiated,
annual administrative and registrar fees to be paid to the Trustee shall remain
constant. Administrative fees consist of, among other things, fees associated
with: (i) maintenance of all records and files required of the Trustee
pursuant to the Trust's operative documents; (ii) compliance with all Trust
Agreement provisions that require Trustee action; (iii) establishment of cash
accounts and the proper administration of such as described in the Trust
Agreement; (iv) prompt response to inquiries from the certificate holders
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<PAGE> 15
and other interested parties and (v) preparation of periodic statements and
reports, as required. Registrar fees consist of, among other things, fees
associated with: (i) maintenance of the name, address and taxpayer
identification number of each of the certificate holders; (ii) distribution of
debt service payments; (iii) reconciliation of paying agent accounts; (iv)
issuance of 1099's, 1099B's and other required tax information and (v)
completion and delivery of all necessary reports with the Securities and
Exchange Commission.
Compensation of the Portfolio Committee
Pursuant to the terms of Article X of the Trust Agreement, the
Portfolio Committee consists of the following four members: Rick R. Hagelstein
in the Chief Credit Officer Member Position, Robert W. Brown in the Robert W.
Brown Member Position, and two members as designated by the Equity Committee,
who at present are Richard Bean and David Palmer. Pursuant to Section 10.1.1 of
the Trust Agreement, Messrs. Bean and Palmer, or their respective successors,
each receives compensation for his services as a member of the Portfolio
Committee in an amount equal to $12,000 per annum, payable in $3,000 increments
on the first day of each calendar quarter. In addition, pursuant to a
resolution of the Board of Directors of Loans Asset Corp., Messrs. Bean and
Palmer each receive $1,000 for each Portfolio Committee meeting which they
attend. The other two members are not separately compensated for their
services as members of the Portfolio Committee.
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<PAGE> 16
Compensation of Robert W. Brown
As President of FCLT Loans Asset Corp, Mr. Brown received cash
and non-cash compensation from the Effective Date through December 31, 1995 as
set forth in the following table:
<TABLE>
<CAPTION>
ANNUAL COMPENSATION(2)
NAME AND -------------------------------- ALL OTHER
PRINCIPAL POSITION YEAR(1) SALARY BONUS COMPENSATION(3)
- --------------------------- ------- ----------- ------------ ---------------
<S> <C> <C> <C> <C>
Robert W. Brown 1995 $ 125,000 $ -- $ 3,412
- President of FCLT
Loans Asset Corp.
</TABLE>
(1) The employment of Mr. Brown as President of FCLT Loans Asset Corp.
commenced on July 3, 1995.
(2) Only reflects salary paid to Mr. Brown from July 3, 1995 through December
31, 1995. If Mr. Brown had received salary from the beginning of the
fiscal year, his salary would have been $250,000.
(3) The total amount indicated under "All Other Compensation" consists of (a)
amounts contributed to match a portion of his contributions under a 401(k)
plan ($ 2,507), (b) excess premiums paid on supplemental life insurance
policies ($539) and (c) premiums paid on long term disability insurance
policies ($366).
Mr. Brown's compensation is determined as set forth in that
certain employment agreement (the "Brown Employment Agreement"), effective as
of July 3, 1995, by and between FCLT Loans Asset Corp. and Mr. Brown, a copy of
which is attached hereto as Exhibit 10.2. The Brown Employment Agreement
provides for Mr. Brown's employment with FCLT Loans Asset Corp. and his duties
to the Trust for a term commencing on July 3, 1995 and terminating three years
later. Mr. Brown's duties include his membership on the Portfolio Committee of
the Trust, the management and payment of creditor claims and the liquidation of
the assets of the Trust pursuant to the terms of the Trust Agreement. In
compensation for such services, Mr. Brown is paid an annual salary of $250,000.
The Brown Employment Agreement also provides for several performance-oriented
conditional bonuses which are determined as follows: (i) a conditional bonus
in the amount of $250,000 shall be paid to Mr. Brown within thirty (30) days of
the fulfillment of all of the following: (a) all Class 1, 2, 3, 4, 5 and 8
creditor claims (in the approximate amount of $80 million) are paid in full in
accordance with the terms of the Plan, (b) the holders of the Senior
Subordinated Notes are paid in full (in the approximate amount of $115 million,
including interest) and (c) the holders of the Special Preferred Stock and the
holders of Class B Certificates are paid in cash a total of $100 million; (ii)
a conditional bonus in the amount of $250,000 shall be paid to Mr. Brown within
thirty (30) days of the fulfillment of all of the conditions set forth in (i)
above and if an additional aggregate $30 million has been paid to the Class B
Certificate holders and (iii) a conditional bonus in an amount equal to 1.67%
of all additional aggregate payments to the holders of the Special Preferred
Stock, the Class B Certificates and the Class C Certificates shall be paid to
Mr. Brown within thirty (30) days of each such additional distribution. The
payment of such conditional bonuses to Mr. Brown are to be determined by the
Portfolio Committee. Mr. Brown is also eligible for enrollment in certain
benefit plans which FCLT Loans Asset Corp. may have in effect from time to
time, including, but not
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<PAGE> 17
limited to, hospital, surgery, major medical, dental, vacation, sick leave,
disability and life insurance on the same terms and conditions as these
benefits are provided for or made available to other employees. Mr. Brown is
currently a participant in the 401(k) plan of FirstCity, although payments,
proportionate to any contribution made into the 401(k) plan by Mr. Brown,
are made into such plan on Mr. Brown's behalf by the Trust. Negotiations are
underway to amend the Brown Employment Agreement to extend Mr. Brown's term of
employment to coincide with the termination of the Trust.
In addition to the bonuses set forth in the Brown Employment
Agreement, pursuant to Section 9.8 of the Plan, Mr. Brown, along with C. Ivan
Wilson, Joe S. Greak and certain other employees of the Trust, is to share in a
bonus pool and executive long-term incentive plan, the provisions of which are
set forth in Exhibit O to the Plan. Pursuant to Exhibit O, Mr. Brown received
an initial cash payment from the bonus pool in the amount of $500,000
immediately prior to the formation of the Trust. From the Effective Date
through December 31, 1995, no awards were given under such bonus pool or
executive long-term incentive plan. Mr. Brown's unpaid bonuses will be
forfeited in the event that he terminates the Brown Employment Agreement or is
terminated by FCLT Loans Asset Corp. prior to the date of the expiration of the
Brown Employment Agreement.
Compensation of the Investment Manager
The liquidation of the assets transferred to the Trust
pursuant to the Plan are managed by FirstCity, in return for which FirstCity
receives a servicing fee as set forth in the Investment Management Agreement.
See Item 7 below for a more detailed discussion regarding the compensation
arrangement between the Trust and FirstCity.
Reimbursement Arrangement with FirstCity
The Trust has entered into an oral reimbursement arrangement
(the "Reimbursement Arrangement") with FirstCity. Pursuant to such
Reimbursement Arrangement, FirstCity pays the salaries of and disburses the
checks to all of the employees on the payroll of the Trust. The Trust then
reimburses FirstCity for all sums paid out to the employees of the Trust by
FirstCity.
Item 7. Certain Relationships and Related Transactions.
Investment Management Agreement with FirstCity
Pursuant to the Plan, the liquidation of the Debtor's assets
transferred to the Trust is serviced by FirstCity pursuant to an Investment
Management Agreement between the Trust and FirstCity. Under the terms thereof,
FirstCity receives an incentive fee ("Incentive Fee") equal to (1) 3% of all
cash proceeds derived from the assets owned by the Trust and its subsidiaries
(including assets acquired pursuant to the Loss-Sharing Settlement Agreement
("Net Cash Proceeds") plus (2) 5% of the Net Cash Proceeds (excluding net
proceeds realized from Contingent Assets Claims, as defined in the Plan)
realized above $248.6 million, as adjusted (the "Estimated Threshold
Collection Amount") up to an amount equal to $25 million in excess
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<PAGE> 18
of the Estimated Threshold Collection Amount; 10% of the Net Cash Proceeds
(excluding net proceeds realized from Contingent Asset Claims) realized above
$25 million in excess of the Estimated Threshold Collection Amount up to an
amount equal to $50 million in excess of the Estimated Threshold Collection
Amount; and 15% of the Net Cash Proceeds (excluding net proceeds realized from
Contingent Asset Claims) realized above $50 million in excess of the Estimated
Threshold Collection Amount. For the period of July 3, 1995 through December
31, 1995, the Trust paid FirstCity an Incentive Fee of $3.1 million.
Interest Distributions to FirstCity as Class A Certificate
Holder
As the sole holder of the Class A Certificate, FirstCity
receives distributions of interest from the Trust to (i) pay certain expenses,
(ii) pay obligations under its Senior Subordinated Notes, $106.7 million of
which were issued by FirstCity as a result of the implementation of the Plan
and the consummation of the Merger and (iii) redeem and pay dividends on $51.7
million of Special Preferred Stock which was issued to certain former security
holders of the Debtor as a result of the implementation of the Plan and the
consummation of the Merger.
On March 29, 1996, the Trust paid amounts to FirstCity, as
sole holder of the Class A Certificate, sufficient to retire half of the debt
represented by the Senior Subordinated Notes. As a result, as of such date,
the value of the Class A Certificate was reduced by approximately $53.3
million.
Item 8. Legal Proceedings.
The Trust is involved in various legal proceedings in the ordinary
course of business. In the opinion of management of the Trust, the resolution
of such matters should not have a material adverse impact on the financial
condition, results of operations or liquidity of the Trust.
Item 9. Market Price of and Dividends on the Registrant's Common Equity and
Related Stockholder Matters.
The Class A Certificate is held by FirstCity. Through December 31,
1995, the Trust had distributed $4.7 million to FirstCity as the sole Class A
Certificate holder. In the first quarter of 1996, the Trust distributed an
additional $55.7 million to FirstCity.
The Class B Beneficial Interests (traded under the symbol "FCFCL") and
Class C Beneficial Interests (traded under the symbol "FCFCZ") have been
trading over the counter as of July 3, 1995. The high and low prices of Class
B Beneficial Interests through year-end 1995 were $14.00 and $1.00,
respectively, in the third quarter and $15.75 and $12.00, respectively, in the
fourth quarter. The high and low prices of Class B Beneficial Interests for
the first and second quarter of 1996 were $18.50 and $15.19, respectively, in
the first quarter and $24.00 and $17.75, respectively, in the second quarter.
The number of Class B Certificate
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<PAGE> 19
holders of record on June 30, 1996 was 88. As of July 1, 1996, the Class B
Beneficial Interests were trading at a high and a low of $22.38.
The high and low prices of Class C Beneficial Interests through
year-end 1995 were $.01 and $.001 in the third quarter and $.01 in the fourth
quarter. The high and low prices of Class C Beneficial Interests for the first
and second quarter of 1996 were $.01. As of July 1, 1996, the Class C
Beneficial Interests were trading at a high and a low of $.01. The number of
Class C Certificate holders of record on June 30, 1996 was 560.
No distributions were made to Class B or Class C Certificate holders
in 1995. See Item 11 for a description of distribution priorities.
Item 10. Recent Sales of Unregistered Securities.
The Trust's securities were issued pursuant to the Plan, and their
issuance was exempt from the registration requirements of the Securities Act of
1933, as amended, pursuant to Section 1145 of the Bankruptcy Code.
Item 11. Description of Registrant's Securities to be Registered.
The Class A, B and C Certificates represent beneficial interests in
the Trust established pursuant to the Plan. The description herein of such
securities is qualified by reference to the Plan and the Trust Agreement,
copies of which are filed with this Registration Statement as Exhibit 2.1 and
Exhibit 3.1, respectively.
The Class A Certificate is held solely by FirstCity. Distributions of
interest from the Trust with respect to the Class A Certificate are used by
FirstCity to pay certain expenses, to retire the Senior Subordinated Notes in
the aggregate amount of $106.7 million and to redeem and pay dividends on the
Special Preferred Stock, which has a nominal stated value of $51.7 million.
Under the terms of the Special Preferred Stock, FirstCity is only required to
redeem such stock and to declare dividends thereon to the extent it receives
sufficient funds from the Trust to make such payments.
The Class B Beneficial Interests were distributed to holders of
Existing Series B Interests (as defined in the Plan) of the Debtor and Existing
Series E Interests (as defined in the Plan) of the Debtor on the Effective Date
under the Trust Agreement and pursuant to the Plan, having such rights as
provided for in the Trust Agreement and as set forth below. As of June 30,
1996, there were 2,460,911 Class B Beneficial Interests. As of the end of the
fiscal year, the Class B Certificates were valued at $39.5 million. As of the
end of the first quarter of 1996, the Class B Certificates were valued at $47.5
million.
The Class C Beneficial Interests were distributed to holders of
Existing Common Interests (as defined in the Plan) of the Debtor on the
Effective Date under the Trust Agreement and pursuant to the Plan, having such
rights as provided for in the Trust Agreement and as set forth below. As of
June 30, 1996, there were 738,273 Beneficial Interests outstanding under the
Class C Certificates.
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<PAGE> 20
Pursuant to the Loan Agreement, dated as of July 11, 1995, among
Loans, L.P., Fleet National Bank and NationsBank of Texas, N.A. (the "Senior
Note Loan Agreement"), filed herewith as Exhibit 10.3, and the Trust Agreement,
the Trust is required to apply all proceeds from liquidation and disposition of
the Trust's assets first to payment of normal operating expenses, including the
servicing fee to FirstCity, and unpaid administrative claims of the Debtor.
Second, the Trust's proceeds are remitted to the senior lenders for payment of
principal and interest. Third, the Trust's proceeds are distributed to
FirstCity, the sole Class A Certificate holder, for payment of principal, due
in two equal installments on September 30, 1996 and 1997, and interest, at an
annual rate of 9%, on $106.7 million Senior Subordinated Notes payable, an
obligation of FirstCity, and cumulative quarterly cash dividends ($5.8 million
accrued and undeclared at March 31, 1996) at the annual rate of $3.15 per share
(on 2,460,911 shares) and redemption of the nominal stated value of $51.7
million of FirstCity Special Preferred Stock on September 30, 1998. On March
29, 1996, the Trust distributed $53.3 million to FirstCity, as sole holder of
the Class A Certificate, for the early redemption of Senior Subordinated Notes.
The Trust intends to distribute an additional $53.3 million to FirstCity on
July 26, 1996, for the early redemption of the remaining Senior Subordinated
Notes at 100% of face value plus interest.
The fourth order of distribution is payments pursuant to employment
agreements with certain former employees of the Debtor. Fifth, Class B
Certificate holders (and, pursuant to bonus agreements, certain former
employees of the Debtor) are entitled to distributions up to the Pour-Over
Level. The Pour-Over Level (approximately $124 million at March 31, 1996) is
the liquidation preference on July 3, 1995 of the Debtor's Series B and Series
E preferred stock, less the nominal stated value of FirstCity Special Preferred
Stock and the book value of FirstCity common stock issued to the Series B and
Series E holders, plus interest at an annual rate of 6.5% from July 3, 1995.
Lastly, Class C Certificate holders receive distributions, if any, after all
required payments to Class B Certificate holders. No distributions to Class C
Certificate holders are anticipated.
The ultimate amounts to be distributed to the holders of the
beneficial interests will result from the cash flow actually realized from the
liquidation of the non-cash trust assets and contingent asset claims.
Item 12. Indemnification of Directors and Officers.
The Trust Agreement provides that except in the case of (i) acts or
omissions of a Trustee as shall constitute fraud, willful misconduct or gross
negligence or (ii) acts or omissions of an officer, employee or agent of the
Trust where the Trustee acted with gross negligence or willful misconduct in
the selection, retention or supervision of such officer, employee or agent of
the Trust, each Trustee (including former Trustees) is indemnified by the Trust
from losses, claims, damages, liabilities or expenses (including, without
limitation, reasonable attorneys' fees, disbursements and related expenses) in
connection with any action, suit, proceeding or investigation brought or
threatened against such Trustee in his capacity as such or in any other
capacity contemplated by the Trust Agreement or the Plan or in connection with
any matter arising out of or related to the Plan, the Trust Agreement or the
affairs of the Trust.
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<PAGE> 21
The Trust Agreement also provides that except in the case of acts or
omissions by a person acting in his capacity as a member of the Portfolio
Committee or as an officer or director of a Trust-Owned Affiliate (each such
person an "Indemnified Person") as shall constitute fraud, willful misconduct
or gross negligence, each Indemnified Person is indemnified by the Trust from
losses, claims, damages, liabilities or expenses (including, without
limitation, reasonable attorneys' fees, disbursements and related expenses) in
connection with any action, suit, proceeding or investigation brought or
threatened against such Indemnified Person in his capacity as such or in
connection with any matter arising out of or related to the Trust Agreement or
the affairs of the Trust.
The Trust maintains a professional liability, directors and officers
liability and corporate reimbursement policy, insuring the Portfolio Committee
and certain other persons related to the Trust, including Robert W. Brown,
against certain claims.
Item 13. Financial Statements and Supplementary Data.
The financial statements and supplementary information of the Trust
filed with this Registration Statement are included as Appendix A hereto.
Item 14. Changes in and Disagreements with Accountants on Accounting
and Financial Disclosure.
On January 24, 1996, the Trust engaged KPMG Peat Marwick LLP ("KPMG")
to serve as its independent accountants, such engagement to be effective as of
the Effective Date through the period ending December 31, 1995 and thereafter.
The engagement of KPMG was recommended and approved by the Portfolio Committee
on January 24, 1996.
During the Debtor's two most recent fiscal years prior to the Merger,
no audited financial statements of the Debtor were prepared, and therefore, no
report on such financial statements were prepared. Prior thereto, Arthur
Andersen & Co. LLP served as the Debtor's independent accountants.
Item 15. Financial Statements and Exhibits.
(a) Financial Statements
The financial statements and supplementary information of the Trust
filed with this Registration Statement are included as Appendix A hereto.
(b) Exhibits
The following financial statements, supplementary information and
exhibits are filed with this Registration Statement:
20
<PAGE> 22
<TABLE>
<CAPTION>
Exhibit
No. Description
- ------- ----------------------------------------------------------------------------------------------------------------
<S> <C>
2.1* Joint Plan of Reorganization for First City Bancorporation of Texas, Inc., as modified, under Chapter 11
of the United States Bankruptcy Code, as confirmed by the U.S. Bankruptcy Court for the Northern
District of Texas, Dallas division on May 31, 1995.
3.1* The Liquidating Trust Agreement, dated as of July 3, 1995, by and between First City Bancorporation of
Texas, Inc. and Shawmut Bank Connecticut, National Association (now Fleet National Bank), as Trustee.
4.1* Form of Class B Certificate.
4.2* Form of Class C Certificate.
10.1* Investment Management Agreement, dated as of July 3, 1995, by and between FirstCity, as Investment
Manager, and the Trust.
10.2* Employment Agreement, effective as of July 3, 1995, by and between FCLT Loans Asset Corp. and Robert W.
Brown.
10.3* Loan Agreement, dated as of July 11, 1995, among Loans, L.P., Fleet National Bank, as Agent and as
Lender, and NationsBank of Texas, N.A., as Lender.
10.4** Settlement Agreement, dated as of June 22, 1994, as amended as of January 30, 1995, by and among FDIC-
Corporate, the FDIC-Receivers and the First City Parties.
22.1* Subsidiaries of the Trust.
</TABLE>
__________________________________
* Filed as the exhibit indicated to the Registration Statement on Form 10
filed with the Securities and Exchange Commission on May 1, 1996.
** Filed herewith.
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<PAGE> 23
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
FLEET NATIONAL BANK, as Trustee
Date: July 10, 1996 /s/ Susan T. Keller
---------------------------------------
Name: Susan T. Keller
----------------------------------
Title: Vice President
---------------------------------
<PAGE> 24
APPENDIX A
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
FirstCity Liquidating Trust and Subsidiaries
<TABLE>
<CAPTION>
Page
----
<S> <C>
Independent Auditors' Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F-2
Consolidated Statements of Net Assets in Liquidation
March 31, 1996 (unaudited) and December 31, 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F-3
Consolidated Statements of Income and Changes in
Net Asset Value in Liquidation
Three Months Ended March 31, 1996 (unaudited) and Inception to
December 31, 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F-3
Consolidated Statements of Cash Flows
Three Months Ended March 31, 1996 (unaudited) and Inception to
December 31, 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F-4
Notes to Consolidated Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F-5
</TABLE>
F-1
<PAGE> 25
INDEPENDENT AUDITORS' REPORT
The Portfolio Committee and Certificate Holders
FirstCity Liquidating Trust:
We have audited the accompanying consolidated statement of net
assetsin liquidation of FirstCity Liquidating Trust and subsidiaries as of
December 31, 1995, and the related consolidated statements of income and
changes in net asset value in liquidation, and cash flows for the period from
July 3, 1995 (effective date of inception) through December 31, 1995. These
consolidated financial statements are the responsibility of the Trust's
management. Our responsibility is to express an opinion on these consolidated
financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a reasonable basis
for our opinion.
As described in Note A to the consolidated financial statements, the
Joint Plan of Reorganization by First City Bancorporation of Texas, Inc.
("Debtor"), Official Committee of Equity Security Holders, and J-Hawk
Corporation, with the participation of Cargill Financial Services Corporation
was confirmed on May 31, 1995 and became effective July 3, 1995. Pursuant to
the Joint Plan, assets of the Debtor transferred to FirstCity Liquidating Trust
will be liquidated in accordance with Joint Plan terms for the benefit of the
holders of the beneficial interest in such assets. Accordingly, the Trust is
using a liquidation basis of accounting.
In our opinion, the consolidated financial statements referred to
above present fairly, in all material respects, the net assets in liquidation
of FirstCity Liquidating Trust and subsidiaries as of December 31, 1995, and
the income and changes in net asset values in liquidation and cash flows for
the period from July 3, 1995 (effective date of inception) to December 31, 1995
in conformity with generally accepted accounting principles.
KPMG Peat Marwick LLP
Ft. Worth, Texas
February 13, 1996
F-2
<PAGE> 26
FIRSTCITY LIQUIDATING TRUST AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF NET ASSETS IN LIQUIDATION
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
MARCH 31, DECEMBER 31,
1996 1995
---------------- --------------
(UNAUDITED)
<S> <C> <C>
Assets, at estimated fair value
-------------------------------
Cash and cash equivalents . . . . . . . . . . . . . . . . . . . . . . $ 9,617 $ 11,260
Note receivable from FirstCity Financial Corporation . . . . . . . . - 2,000
Investment in or receivable for FirstCity senior subordinated
notes payable . . . . . . . . . . . . . . . . . . . . . . . . 4,089 -
Trust assets, net, pledged to secure senior notes payable to banks . 166,865 193,204
-------------- -------------
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . 180,571 206,464
-------------- -------------
Less liabilities at face or estimated amount
--------------------------------------------
Senior notes payable to banks, secured . . . . . . . . . . . . . . . 19,800 -
Estimated administrative claims . . . . . . . . . . . . . . . . . . . 1,107 3,486
Payables and accrued liabilities . . . . . . . . . . . . . . . . . . 1,296 1,197
-------------- -------------
Total liabilities . . . . . . . . . . . . . . . . . . . . . . 22,203 4,683
-------------- -------------
Commitments and contingencies . . . . . . . . . . . . . . . . . . . . - -
Trust net asset value attributable to:
--------------------------------------
Class "A" Certificate, held by FirstCity Financial Corporation . . . 110,838 162,245
Class "B" Certificate, 2,460,911 units outstanding . . . . . . . . . 47,530 39,536
Class "C" Certificate, 738,273 units outstanding . . . . . . . . . . - -
-------------- -------------
Total net asset value . . . . . . . . . . . . . . . . . . . . $ 158,368 $ 201,781
============== =============
</TABLE>
CONSOLIDATED STATEMENTS OF INCOME AND
CHANGES IN NET ASSET VALUE IN LIQUIDATION
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
THREE MONTHS INCEPTION TO
ENDED MARCH 31, DECEMBER 31,
1996 1995
---------------- --------------
(UNAUDITED)
<S> <C> <C>
Changes in fair value of trust assets . . . . . . . . . . . . . . . . $ 15,323 $ 33,548
Interest income on short-term investments . . . . . . . . . . . . . . 323 375
Interest expense . . . . . . . . . . . . . . . . . . . . . . . . . . (15) (1,741)
Administrative expense . . . . . . . . . . . . . . . . . . . . . . . (3,325) (8,552)
-------------- -------------
Net income . . . . . . . . . . . . . . . . . . . . . . . . . . 12,306 23,630
-------------- -------------
Net asset value, beginning of period . . . . . . . . . . . . . . . . 201,781 -
Contribution of net assets by First City Bancorporation of
Texas, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . - 182,872
Principal distribution on Class "A" Certificate . . . . . . . . . . . (53,345) -
Interest distribution on Class "A" Certificate . . . . . . . . . . . (2,374) (4,721)
-------------- -------------
Net asset value, end of period . . . . . . . . . . . . . . . . . . . $ 158,368 $ 201,781
</TABLE>
See accompanying notes to consolidated financial statements.
F-3
<PAGE> 27
FIRSTCITY LIQUIDATING TRUST AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
THREE MONTHS INCEPTION TO
ENDED MARCH 31, DECEMBER 31,
1996 1995
---------------- --------------
(UNAUDITED)
<S> <C> <C>
Cash flows from operating activities:
Net income . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 12,306 $ 23,630
Adjustments to reconcile net income to net cash provided
by (used in) operating activities:
Changes in fair value of trust assets . . . . . . . . . . . . (15,323) (33,548)
Collections on trust assets, net of advances . . . . . . . . . 41,573 107,371
Purchase of Loss-Sharing assets . . . . . . . . . . . . . . . - (205,513)
Decrease in other liabilities . . . . . . . . . . . . . . . . (2,280) (9,319)
-------------- -------------
Net cash provided by (used in) operating activities . . . . 36,276 (117,379)
-------------- -------------
Cash flows from financing activities:
Borrowings under notes payable to banks . . . . . . . . . . . . . 19,800 73,000
Payments of notes payable to banks . . . . . . . . . . . . . . . - (73,000)
Advance from FirstCity Financial Corporation . . . . . . . . . . - 4,728
Repayment of advance from FirstCity Financial Corporation . . . . - (4,728)
Advance to FirstCity Financial Corporation . . . . . . . . . . . - (2,000)
Repayment of advance to FirstCity Financial Corporation . . . . . 2,000 -
Purchase of FirstCity senior subordinated notes . . . . . . . . . (4,000) -
Capital contribution of First City Bancorporation
of Texas, Inc. . . . . . . . . . . . . . . . . . . . . . . . . - 135,360
Interest and principal distribution on Class "A" Certificate . . (55,719) (4,721)
-------------- -------------
Net cash provided by (used in) financing activities . . . . . (37,919) 128,639
-------------- -------------
Net increase (decrease) in cash . . . . . . . . . . . . . . . . . $ (1,643) $ 11,260
Cash, beginning of period . . . . . . . . . . . . . . . . . . . . 11,260 -
-------------- -------------
Cash, end of period . . . . . . . . . . . . . . . . . . . . . . . $ 9,617 $ 11,260
Supplemental disclosure of cash flow information:
Cash paid during the period for:
Interest . . . . . . . . . . . . . . . . . . . . . . . . . $ - $ 1,741
Non-cash financing activities:
Non-cash net assets contributed by First City
Bancorporation of Texas, Inc. . . . . . . . . . . . . . $ - $ 47,512
</TABLE>
See accompanying notes to consolidated financial statements.
F-4
<PAGE> 28
FIRSTCITY LIQUIDATING TRUST AND SUBSIDIARIES
Notes to Consolidated Financial Statements
March 31, 1996
(A) Summary of Significant Accounting Policies
The unaudited consolidated financial statements of FirstCity
Liquidating Trust reflect, in the opinion of management, all
adjustments, consisting only of normal and recurring adjustments,
necessary to present fairly FirstCity Liquidating Trust's net assets
in liquidation at March 31, 1996, and its changes in net asset value
in liquidation and cash flows for the three month period ended March
31, 1996.
(1) Description of Business
The Joint Plan of Reorganization by First City Bancorporation of
Texas, Inc. (the "Debtor"), Official Committee of Equity Security
Holders, and J-Hawk Corporation ("J-Hawk"), with the Participation of
Cargill Financial Services Corporation, under Chapter 11 of the United
States Bankruptcy Code, Case No. 392-39474-HCA-11 (the "Plan of
Reorganization"), was confirmed by the Bankruptcy Court for the
Northern District of Texas, Dallas Division, by an order entered on
May 31, 1995, and became effective on July 3, 1995. Pursuant to the
Plan of Reorganization, and an Agreement and Plan of Merger between
the Debtor and J-Hawk, on July 3, 1995, J-Hawk was merged (the
"Merger") with and into First City Bancorporation of Texas, Inc., and
the name of the corporation was changed to FirstCity Financial
Corporation ("FirstCity").
Pursuant to the Plan, substantially all of the legal and beneficial
interests in the assets of the Debtor, other than $20 million in cash
contributed to FirstCity, were transferred to FirstCity Liquidating
Trust (the "Trust"), or to subsidiaries of the Trust. Such assets
will be liquidated over the life of the Trust pursuant to the terms
thereof. FirstCity, as the sole holder of the Class "A" Certificate
under the Trust, will receive from the Trust amounts sufficient to pay
certain expenses and FirstCity's obligations under its 9% senior
subordinated notes and its special preferred stock. Any amounts in
excess of such sums shall be paid to certain of the former security
holders of the Debtor pursuant to the terms of the Class B and the
Class C certificates of beneficial interests in the Trust. The Trust
is administered by a four-person portfolio committee (the "Portfolio
Committee"). The liquidation of the Trust's assets is managed by
FirstCity pursuant to an Investment Management Agreement between the
Trust and FirstCity. The net assets of the Debtor transferred to the
Trust on July 3, 1995, consisted of the following (dollars in
thousands):
<TABLE>
<S> <C>
Cash and cash equivalents $ 135,360
Trust assets 61,514
Estimated claims and accrued liabilities (14,002)
---------------
$ 182,872
===============
</TABLE>
F-5
<PAGE> 29
FirstCity Liquidating Trust and Subsidiaries
Notes to Consolidated Financial Statements
(continued)
In connection with the sale of the Debtor's banks by the FDIC to
third-party acquirers (the "Loss-Sharing Banks"), the FDIC guaranteed
certain recoveries on loans acquired by the Loss-Sharing Banks.
(These agreements are referred to as "Loss-Sharing Agreements".) On
July 12, 1995, in order to reduce the uncertain effect of the
Loss-Sharing Agreements on future distributions to the Trust by the
FDIC, subsidiaries of the Trust purchased assets (the "Loss-Sharing
Settlement") for approximately $206 million from the Loss-Sharing
Banks. With the purchase of these assets, the Loss-Sharing Banks
released the FDIC from its future obligations under the Loss-Sharing
Agreements.
(2) Principles of Consolidation
The accompanying consolidated financial statements include the
accounts of FirstCity Liquidating Trust and its subsidiaries
(collectively referred to as the "Trust"). All significant
intercompany transactions and balances have been eliminated in
consolidation.
(3) Cash Equivalents
For purposes of the statement of cash flows, the Trust considers all
highly liquid debt instruments with original maturities of three
months or less to be cash equivalents. The Trust, at December 31,
1995, and periodically throughout the year, has maintained balances in
various operating and money market accounts in excess of federally
insured limits. At December 31, 1995, substantially all cash balances
were in excess of federally insured limits. In accordance with the
Liquidating Trust Agreement, all cash balances are maintained at
institutions with at least $100 million of capital stock and surplus
and whose short-term debt obligations are rated by at least two
nationally recognized rating agencies in one of the two highest
categories.
(4) Trust Assets
The net assets of the Trust are carried at estimated fair values which
are the results of discounting, at appropriate discount rates, the
currently estimated cash flows projected to be realized from the
collection, liquidation and disposition of the noncash assets held by
the Trust. Such assets consist principally of performing and
nonperforming loans, income producing real estate and interests in
real estate, and miscellaneous other assets and receivables
(principally from the FDIC) transferred to the Trust upon the
consummation of the Plan. The estimates of the future cash flows from
which the net asset value of the Trust was derived are made under the
direction of the management of the Trust based upon information
available and believed to be reliable. There can be no assurance,
however, that the estimates resulting from such reviews or the net
asset values derived from such estimates will ultimately be realized
due to the highly judgmental assumptions which were made in developing
estimates of the amount and timing of future
F-6
<PAGE> 30
FirstCity Liquidating Trust and Subsidiaries
Notes to Consolidated Financial Statements
(continued)
cash flows to be realized upon the liquidation of the types of assets
such as those held by the Trust.
In addition to the assets described above, the Trust also holds
certain contingent asset claims, such as claims against the former
Directors and Officers of First City Bancorporation of Texas, Inc.,
claims under fidelity bonds, and judgments and deficiencies arising
from charged off loans to former borrowers of the Debtor's banks. The
estimated future cash flows from which the net asset value of the
Trust was derived include estimated future collections which might be
realized from such claims only when such amounts are reasonably
certain and estimable. As a result, there can be no assurance that
there will ever be any material collections realized from such
contingent asset claims.
Trust assets are revalued at least quarterly and adjustments to
estimated fair values are included in operating results in the period
in which they become known. Loans are considered performing if debt
service payments are made in accordance with the original or
restructured terms of the notes. Interest on loans is recognized as
part of the proceeds from disposition of trust assets.
Foreclosed assets acquired in settlement of notes are recorded at
estimated fair value. Costs relating to the development and
improvement of property and holding costs are considered in the
development of estimated fair values.
(5) Income Taxes
Under current federal and state laws, the Trust shall be treated as a
grantor trust owned by the beneficiaries holding beneficial interest
therein. For tax purposes, any item of income or loss is allocated
among the certificate holders. Therefore, no provision has been made
for income taxes in the accompanying consolidated financial
statements.
(B) Trust Assets
Trust assets are comprised of the following (dollars in thousands):
<TABLE>
<CAPTION>
MARCH 31, 1996 DECEMBER 31, 1995
-------------------------- ----------------------------
LEGAL CLAIM ESTIMATED LEGAL CLAIM OR ESTIMATED
OR ASSIGNED GROSS CASH ASSIGNED GROSS CASH
TYPE OF ASSET VALUE FLOW VALUE FLOW
- ---------------------------------- ------------- ----------- --------------- -----------
(UNAUDITED)
<S> <C> <C> <C> <C>
Borrowers' obligation on
outstanding balance of:
Performing loans $ 135,781 $ 121,598 $ 139,705 $ 134,381
Nonperforming loans 185,661 50,020 225,921 60,454
Receivable from the FDIC 19,000 19,000 33,000 33,000
Real estate and other assets 48,022 33,224 60,734 33,305
------------ ----------- -------------- -----------
Total 388,464 223,842 459,360 261,140
------------ ----------- -------------- -----------
Discount required to reflect trust
assets at estimated fair value (221,599) (56,977) (266,156) (67,936)
------------ ----------- -------------- -----------
Trust assets, net $ 166,865 $ 166,865 $ 193,204 $ 193,204
</TABLE>
F-7
<PAGE> 31
FIRSTCITY LIQUIDATING TRUST AND SUBSIDIARIES
Notes to Consolidated Financial Statements
(continued)
For each asset, estimates of income, expense and net cash flow on a
monthly basis through the expected final disposition date are
prepared. The individual asset budget is developed based upon factors
which include physical inspection of the asset or the collateral
underlying the related loan, local market conditions, contractual
payments or rents, and discussions with the relevant borrower. The
Trust's management periodically reevaluates and revises its projected
monthly cash flows on an asset by asset basis. At December 31, 1995
and March 31, 1996, the projected monthly cash flows were discounted
at 11% to reflect the Trust assets at estimated fair value.
(C) Senior Notes Payable to Banks
At December 31, 1995, theTrust had a revolving line of credit with two
banks for borrowings of up to $100 million, subject to borrowing base
limits. The line matures in June 1997. In connection with the
Loss-Sharing Settlement, $73 million was borrowed by the Trust and $27
million in letters of credit were issued in favor of the Loss-Sharing
Banks (see Note G). Payments reduced the outstanding balance to zero
in November1995. Based on an election by the Trust, interest, payable
monthly, on a portion of the borrowings is at prime plus 1%, and
interest on the remaining balance is at onemonth LIBOR (as defined)
plus 3.25%. Substantially all trust assets are pledged to secure
these borrowings.
In the first quarter of 1996, an amendment to the line of credit
reduced the letters of credit to zero and established a term loan for
borrowings up to $61 million. The term loan expires December 31,
1996, and can only be used for distributions on the Class A
Certificate. In connection with the early redemption of senior
subordinated notes (see Note E), $19.8 million was borrowed in March
1996 (and repaid in early May).
(D) Estimated Claims
Estimated claims represent unpaid bankruptcy administrative claims and
claims for expense reimbursement of professionals providing services
to or for the benefit of the Debtor; all such claims are subject to
approval of the Bankruptcy Court. The December 31, 1995 balance
includes a $2 million claim by FirstCity for reimbursement of
expenses. In November 1995, the Trust advanced FirstCity $2 million
under a note, earning prime plus 2%, which was repaid in February 1996.
(E) Distribution Priorities
Pursuant to the Senior Note Loan Agreement and the Liquidating Trust
Agreement, the Trust is required to apply all proceeds from
liquidation and disposition of trust assets first
F-8
<PAGE> 32
FIRSTCITY LIQUIDATING TRUST AND SUBSIDIARIES
Notes to Consolidated Financial Statements
(continued)
to payment of normal operating expenses, including a servicing fee to
FirstCity, and unpaid administrative claims of the Debtor.
Second,Trust proceeds are remitted to the senior lenders for payment
of principal and interest (see Note C). Third, Trust proceeds are
distributed to FirstCity, the sole Class A Certificate holder, for
payment of principal, due in two equal installments on September 30,
1996 and 1997, and interest, at an annual rate of 9%, on $106.7
million senior subordinated notes payable, an obligation of FirstCity;
and cumulative quarterly cash dividends ($3.9 million accrued and
undeclared at December 31, 1995) at the annual rate of $3.15 per share
(on 2,460,911 shares) and redemption of nominal stated value of $51.7
million of FirstCity special preferred stock on September 30, 1998.
On January 24, 1996, the Portfolio Committee approved, subject to
certain conditions met on February 12, 1996, the distribution of $53.3
million to FirstCity for the early redemption of senior subordinated
notes payable in March 1996. In the first quarter of 1996, the Trust
distributed $53.3 million to FirstCity for the early redemption of
senior subordinated notes and held (through purchase) $2 million
principal of senior subordinated notes at March 31, 1996. On June 26,
1996, the Trust announced the planned distribution of $53.3 million to
FirstCity for the early redemption of remaining senior subordinated
notes payable on July 26, 1996.
The fourth order of distribution is payments pursuant to employment
agreements with certain former employees of the Debtor. Fifth, Class
B Certificate holders (and, pursuant to bonus agreements, certain
former employees of the Debtor) are entitled to distributions up to
the Pour-Over Level. The bonus pool and executive long-term incentive
plan provides for the payment of $750,000 in bonuses to certain former
employees of the Debtor after the Trust achieves approximately $275
million of collections, another bonus payment of $750,000 after
approximately $30 million of additional collections, and the payment
of bonuses in the amount of 5% of all collections in excess of $305
million. The Pour-Over Level (approximately $122 million at December
31, 1995) is the liquidation preference on July 3, 1995, of the
Debtor's Series B and Series E preferred stock, less the nominal
stated value of FirstCity special preferred stock and the book value
of FirstCity common stock issued to the Series B and Series E holders,
plus interest at an annual rate of 6.5% from July 3, 1995. Lastly,
Class C Certificate holders receive distributions, if any, after all
required payments to Class B Certificate holders. No distributions to
Class C Certificate holders are anticipated.
The ultimate amounts to be distributed to the holders of the A, B and
C Certificates will result from the cash flow actually realized from
the liquidation of the non-cash trust assets and contingent asset
claims. The determination of the net asset value of the Trust in the
accompanying consolidated statement of net assets is based upon
estimates of future cash flows. The actual cash flows and the timing
of such cash flows may vary
F-9
<PAGE> 33
FIRSTCITY LIQUIDATING TRUST AND SUBSIDIARIES
Notes to Consolidated Financial Statements
(continued)
significantly from those estimates, thus affecting the final
distributions to the Certificate holders.
(F) Investment Management Agreement
Pursuant to an investment management agreement, FirstCity manages the
liquidation of trust assets and the Trust will pay FirstCity a 3%
servicing fee on collections (as defined) up to a specified level of
collections. Thereafter, the servicing fee percentage increases with
additional levels of collections. Administrative expenses include
$1.1 million (unaudited) in the three months ended March 31, 1996 and
$3.1 million for the period from inception through December 31, 1995,
for servicing fees.
(G) Contingencies
Letters of credit totaling $27 million were issued to the Loss-Sharing
Banks in connection with the Loss- Sharing Settlement. Any draws
(none of which have occurred through December 31, 1995) on the letters
of credit will be paid by making an advance under the revolving line
of credit (Note C). In early 1996, the letters of credit were reduced
to $19.5 million. Agreements in the first quarter of 1996 reduced the
remaining $19.5 million in letters of credit to zero.
The Trust is involved in various legal proceedings in the ordinary
course of business. In the opinion of management of the Trust, the
resolution of such matters should not have a material adverse impact
on the financial condition, results of operations or liquidity of the
Trust.
F-10
<PAGE> 34
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No. Description
- ------- ----------------------------------------------------------------------------------------------------------------
<S> <C>
2.1* Joint Plan of Reorganization for First City Bancorporation of Texas, Inc., as modified, under Chapter 11
of the United States Bankruptcy Code, as confirmed by the U.S. Bankruptcy Court for the Northern
District of Texas, Dallas division on May 31, 1995.
3.1* The Liquidating Trust Agreement, dated as of July 3, 1995, by and between First City Bancorporation of
Texas, Inc. and Shawmut Bank Connecticut, National Association (now Fleet National Bank), as Trustee.
4.1* Form of Class B Certificate.
4.2* Form of Class C Certificate.
10.1* Investment Management Agreement, dated as of July 3, 1995, by and between FirstCity, as Investment
Manager, and the Trust.
10.2* Employment Agreement, effective as of July 3, 1995, by and between FCLT Loans Asset Corp. and Robert W.
Brown.
10.3* Loan Agreement, dated as of July 11, 1995, among Loans, L.P., Fleet National Bank, as Agent and as
Lender, and NationsBank of Texas, N.A., as Lender.
10.4** Settlement Agreement, dated as of June 22, 1994, as amended as of January 30, 1995, by and among FDIC-
Corporate, the FDIC-Receivers and the First City Parties.
22.1* Subsidiaries of the Trust.
</TABLE>
__________________________________
* Filed as the exhibit indicated to the Registration Statement on Form 10
filed with the Securities and Exchange Commission on May 1, 1996.
** Filed herewith.
<PAGE> 1
EXHIBIT 10.4
- --------------------------------------------------------------------------------
SETTLEMENT AGREEMENT
Dated June 22, 1994
AMONG
THE FEDERAL DEPOSIT INSURANCE CORPORATION,
in its corporate capacity,
THE FEDERAL DEPOSIT INSURANCE CORPORATION,
in its capacity as receiver of the First City Banks listed herein,
FIRST CITY BANCORPORATION OF TEXAS,INC.,
AND
THE FCBOT AFFILIATED ENTITIES
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE I: DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II: CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE III: ACTIONS TO BE TAKEN AT CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.1 Declaration of Initial Dividend . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.2 Payment of Cash Dividend Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.3 Distribution of the Assets Dividend . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.4 Adjustments to Cash Dividend Amount . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.5 FCBOT Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.6 Guarantees of FCBOT Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.7 Distribution of Surplus to the First City-Houston Receivership . . . . . . . . . . . . . 7
Section 3.8 Mutual Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.9 Stock-Repurchase Claim; FCBOT Professional-Liability Claim . . . . . . . . . . . . . . . 7
Section 3.10 Dismissal of the Litigation and the Claims . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.11 Release of Deposit Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.12 Cross-Guarantee Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV: TRANSFER OF ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 4.1 Final Asset Pool . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 4.2 Contracting for Sale/Compromising an Asset . . . . . . . . . . . . . . . . . . . . . . . 10
Section 4.3 Due Diligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 4.4 MANNER OF CONVEYANCE; LIMITED WARRANTY . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 4.5 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE V: FUTURE RECEIVERSHIP DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.1 Discretionary Future Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.2 Future Distributions of Surplus in Excess of the Surplus
Cushion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.3 Priority of Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 5.4 Payment of Interest on Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
</TABLE>
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TABLE OF CONTENTS (continued)
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ARTICLE VI: COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 6.1 Reports Regarding the First City Receiverships . . . . . . . . . . . . . . . . . . . . . 16
Section 6.2 Reports Regarding Loss-Sharing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.3 Tax Returns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.4 Annual Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.5 Settlement of Loss-Sharing Arrangements . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.6 Settlement of BONY Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.7 Settlement of Certain Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 6.8 Waiver of Cross-Guarantee Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 6.9 Stay of Litigation and Cross-Guarantee Proceeding . . . . . . . . . . . . . . . . . . . 18
Section 6.10 Surplus Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 6.11 Motion for Approval of Settlement Agreement . . . . . . . . . . . . . . . . . . . . . . 19
Section 6.12 Cooperation; Transfer of Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 6.13 Limitation on Administrative Expenses . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VII: CONDITIONS PRECEDENT TO CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 7.1 Conditions Precedent to Obligations of the FDIC . . . . . . . . . . . . . . . . . . . . 20
Section 7.2 Conditions Precedent to Obligations of the First City
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE VIII: REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 8.1 Representations and Warranties Pertaining to the First
City Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 8.2 Representations and Warranties of the FDIC . . . . . . . . . . . . . . . . . . . . . . . 26
Section 8.3 Unrecovered Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE IX: MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 9.1 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 9.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 9.3 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 9.4 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 9.5 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 9.6 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 9.7 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
</TABLE>
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TABLE OF CONTENTS (continued)
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Section 9.8 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 9.9 Exhibits and Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 9.10 Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 9.11 Further Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 9.12 Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 9.13 Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 9.14 No Admission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SCHEDULES:
SCHEDULE A: FCBOT Affiliated Entities
SCHEDULE B: Litigation
SCHEDULE C: Purchase and Assumption Agreements
SCHEDULE 3.9(d): Payments Under FCBOT Professional Liability Note
SCHEDULE 4.1(a): Assets of the First City Receiverships as of May 31, 1994
SCHEDULE 5.3(d): Surplus Assignments
SCHEDULE 8.1(a): Exceptions to Representations & Warranties
EXHIBITS:
EXHIBIT 3.5: FCBOT Note
EXHIBIT 3.6: Guarantee of FCBOT Note
EXHIBIT 3.8: Mutual Release
EXHIBIT 3.9(e): Form of Assignment of Professional Liability Claims
EXHIBIT 3.10(a): Joint Motion for Dismissal of the Litigation
EXHIBIT 3.10(b): Release of FCBOT Rights Regarding Cross-Guarantee Assessments of the First City Banks
EXHIBIT 3.10(c): Joint Motion to Dismiss Cross-Guarantee Proceeding
EXHIBIT 4.1(b)(1): Form of Deed
EXHIBIT 4.1(b)(2): Form of Bill of Sale
EXHIBIT 4.1(b)(3): Form of Assignment
EXHIBIT 7.1(c): Legal Opinion - First City Parties
EXHIBIT 7.2(d): Legal Opinion - FDIC
</TABLE>
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SETTLEMENT AGREEMENT
This SETTLEMENT AGREEMENT ("Agreement") dated as of June 22, 1994, is
entered into by and among the Federal Deposit Insurance Corporation ("FDIC"),
in its corporate capacity ("FDIC-Corporate"); the FDIC-Receivers (as
hereinafter defined); First City Bancorporation of Texas, Inc., a bank holding
company incorporated in the State of Delaware ("FCBOT") and its related
entities listed on Schedule A hereto (hereinafter collectively referred to as
the "FCBOT Affiliated Entities") (FCBOT and the FCBOT Affiliated Entities
hereinafter collectively referred to as the "First City Parties").
RECITALS
WHEREAS, the FDIC was appointed receiver of each of (i) the twenty
First City subsidiary banks closed on October 30, 1992 (the "First City
Subsidiary Banks"), (ii) the twenty bridge banks organized with respect to the
First City banks closed on October 30, 1992 (the "First City Bridge Banks"),
and (iii) Collecting Bank, N.A. (the FDIC in such capacities is hereinafter
referred to as the "FDIC-Receivers", the banks referred to in clauses (i) and
(iii) are hereinafter referred to as the "First City Banks", and the
receiverships created by the closure of the banks referred to in clauses (i),
(ii) and (iii) are hereinafter referred to as the "First City Receiverships");
and
WHEREAS, FCBOT and FCB Holdings, Inc. were the shareholders of the
twenty First City Subsidiary Banks and are accordingly entitled, pursuant to 12
U.S.C. Section 1821(d)(11)(B) (as in force at the time the First City
Subsidiary Banks were closed), to any funds remaining in the receiverships for
such banks after payment in full of all proven claims and administrative
expenses; and
WHEREAS, the FDIC-Receivers and the First City Parties desire to
engage in a settlement whereby (i) the FDIC- Receivers effect distributions of
the Surplus (as hereinafter defined) generated out of the First City
Receiverships to the First City Parties and (ii) the termination and full and
final settlement, as between the parties to the Mutual Release (as hereinafter
defined), of certain litigation and other disputed matters of the First City
Parties, the FDIC- Receivers, FDIC-Corporate and/or certain other parties, as
set forth in Schedule B hereto (the "Litigation"), is effected.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
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ARTICLE I
DEFINITIONS
"Approval Order" shall have the meaning provided in Section 7.1(g).
"Assistance Agreement" means that certain Assistance Agreement dated
April 19, 1988 among the FDIC, First City Bancorporation of Texas, Inc., a
Texas corporation, FCBOT, the subsidiary banks of First City Bancorporation of
Texas, Inc. specified therein, Donaldson, Lufkin & Jenrette Securities
Corporation and A. Robert Abboud.
"BONY Litigation" shall have the meaning provided in Section 6.6.
"BONY Settlement Amount" shall have the meaning provided in Section
6.6.
"Calendar Quarter" means a quarterly period, but beginning on the
Closing Date and ending on September 30, 1994, for the first period, and for
quarterly periods thereafter each successive three-month period ending on June
30, September 30, December 31, March 31, June 30, or September 30, of any year.
"Cash Dividend Amount" shall have the meaning provided in Section 3.2.
"Chartering Authority" means the Comptroller of the Currency with
respect to the First City Subsidiary Banks that were national banks and the
Texas Banking Commissioner with respect to the First City Subsidiary Banks that
were chartered under the laws of the state of Texas.
"Closing" shall have the meaning provided in Article II.
"Closing Date" means the date on which the Closing occurs.
"Collecting Bank Receiver" shall have the meaning provided in Section
6.7(a).
"Collecting Bank Senior Notes" means the senior notes issued by
Collecting Bank, N.A. to the First City Banks in connection with the Assistance
Agreement.
"Cross-Guarantee Proceeding" means the administrative proceeding
pursuant to the FDIC's cross guarantee authority, 12 U.S.C. Section 1815(e),
and Notice of Assessment dated October 30, 1992.
"EDS Allowed Claim" shall have the meaning provided in Section 3.4(c).
"EDS Litigation" shall have the meaning provided in Section 6.6.
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"Environmental Law" shall have the meaning provided in Section
4.5(b)(iii).
"Environmental Matter" shall have the meaning provided in Section
4.5(b)(ii).
"Execution Date" shall mean the date of the execution of this
Agreement by all parties hereto.
"FCASC" shall have the meaning provided in Section 6.7(a).
"FCBOT Professional-Liability Note" shall heave the meaning provided
in Section 3.9(b).
"FCBOT Note" shall have the meaning provided in Section 3.5.
"Final Asset Pool" shall have the meaning provided in Section 4.1(a).
"First City-Houston Receivership" means the two First City
Receiverships created by the closure of First City, Texas-Houston, National
Association and the closure of New First City, Texas-Houston, National
Association, taken as a whole.
"First City Tower Assets" means certain property in Houston, Texas
owned by the Houston-Receiver comprising (i) a fee simple interest in certain
real property in Block 135, Harris County, Texas and a leasehold estate in
certain adjacent land, and (ii) the Houston-Receiver's rights as lessor of that
real property under a ground lease to UIDC of Texas, Inc. as lessee.
"GCR Value" means the anticipated cash collections to be realized upon
liquidation of an asset, not including liquidation expenses, as such value may
be estimated from time to time by the FDIC-Receivers in their sole discretion.
"Group 55 Directors and Officers" shall have the meaning provided in
Section 3.9(b).
"Group 55 Professional-Liability Claims Settlement Agreement" shall
have the meaning provided in Section 3.9(b).
"Guarantee" shall have the meaning provided in Section 3.6.
"Hazardous Material" shall have the meaning provided in Section
4.5(b)(i).
"Houston-Receiver" means the FDIC as Receiver of New First City,
Texas-Houston, National Association.
"Initial Dividend" shall have the meaning provided in Section 3.1.
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"Loss-Sharing Purchase and Assumption Agreements" means each of the
three Purchase and Assumption Agreements entered into by (i) the FDIC as
Receiver of New First City, Texas-Austin, National Association and Frost
National Bank of San Antonio; (ii) the FDIC as Receiver of New First City,
Texas-Houston, National Association and Texas Commerce Bank National
Association; and (iii) the FDIC as Receiver of New First City, Texas-Dallas,
National Association and Texas Commerce Bank, National Association.
"Mutual Release" shall have the meaning provided in Section 3.8.
"Pledged Securities" shall have the meaning provided in Section
3.9(c).
"Professional-Liability Claims" means any interest, right, action,
claim or judgment that (A) is (i) held or owned by the First City Banks as of
October 30, 1992, or (ii) held or owned by FDIC-Corporate as a result of the
assignment in the Assistance Agreement of such claims arising prior to the
Commencement Date under the Assistance Agreement; (B) is against (x) any
officer, director, employee, accountant, attorney, consultant, or any other
person employed or retained by the First City Banks, or any subsidiary of such
banks, on or prior to October 30, 1992, arising out of any act or omission of
such person in such capacity, (y) any underwriter of financial institution
bonds, banker's blanket bonds, directors' and officers' liability policy, or
any other similar insurance policy of the First City Banks, or (z) any
shareholder or holding company of the First City Banks; and (C) arises out of
an act, omission, or other event that occurred on or before October 30, 1992,
regardless of when any such claim is discovered and regardless of whether any
such claim is made with respect to a financial institution bond, banker's
blanket bond, or any other insurance policy of the First City Banks in force as
of October 30, 1992.
"Property" shall have the meaning provided in Section 4.5(a).
"Purchase and Assumption Agreements" means those Purchase and
Assumption Agreements entered into by the FDIC and various acquirers on the
dates set forth of Schedule C hereto for the sale of the twenty bridge banks
organized with respect to the First City Banks closed on October 30, 1993.
"Release" shall have the meaning provided in Section 4.5(b)(iv).
"Security Agreement" shall have the meaning provided in Section
3.9(c).
"Surplus" means the amount determined by the FDIC-Receivers as stated
in the financial statements of the First City Receiverships, prepared by the
FDIC-Receivers in accordance with the standard accounting practices applied by
the FDIC to its receiverships and in the exercise of the full scope of
discretion allowed to the FDIC-Receivers by those practices, by which the
assets of a receivership exceed the sum of its
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expected liabilities and reserves (estimated consistently with paragraphs (a)
and (b) of Section 5.3), without any value attributed to the FCBOT Note, less
any payments that may be required by paragraphs (c) and (d) of Section 5.3.
"Surplus Cushion" shall have the meaning provided in Section 5.2.
"Term Sheet" means that Term Sheet for the Settlement of Claims and
Litigation Pending Between FCBOT and the FDIC dated January 18, 1994 and
executed by FCBOT, FDIC-Corporate and the FDIC-Receivers.
Capitalized terms not otherwise defined herein shall have the meanings
given such terms in the Purchase and Assumption Agreements.
ARTICLE II
CLOSING
The consummation of the transactions contemplated by this Agreement
shall take place at a closing (the "Closing") to be held at the offices of the
FDIC, 550 17th Street, NW, Washington, D.C. at 10:00 a.m., Washington, D.C.
time on the day which is the fifteenth (15th) business day following the date
upon which the Approval Order becomes final and nonappealable, or such other
time as to which the parties hereto may mutually agree; provided, that in the
event that the Approval Order becomes final and nonappealable on a date between
August 11, 1994, and August 26, 1994, inclusive, then the Closing shall be held
on August 31, 1994, or such other time as to which the parties hereto may
mutually agree.
ARTICLE III
ACTIONS TO BE TAKEN AT CLOSING
On the Closing Date, upon satisfaction of all conditions precedent set
forth in Article VII:
Section 3.1 Declaration of Initial Dividend. The FDIC-Receivers
shall declare an initial dividend from the First City Receiverships (the
"Initial Dividend"). The Initial Dividend shall be paid to FCBOT, on behalf of
the First City Parties, in the form of cash and assets as set forth in Sections
3.2, 3.3 and 3.4 hereof.
Section 3.2 Payment of Cash Dividend Amount. The FDIC-Receivers
shall pay or cause to be paid to FCBOT, on behalf of the First City Parties, by
wire transfer of immediately available funds, $107,000,000 (the "Cash Dividend
Amount"). The Cash Dividend Amount is subject to adjustment as provided in
Section 3.4 hereof.
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Section 3.3 Distribution of the Assets Dividend. The
FDIC-Receivers shall transfer to FCBOT, or to other First City Parties as
directed by FCBOT, all of the assets constituting the Final Asset Pool.
Section 3.4 Adjustments to Cash Dividend Amount.
(a) In the event that, as of the Closing Date, the
assets constituting the Final Asset Pool have an aggregate GCR Value
of less than $93,000,000, the Cash Dividend Amount shall be increased
by an amount equal to the amount by which the aggregate GCR Value of
the assets constituting the Final Asset Pool is less than $93,000,000.
A reconciliation shall be performed, at or promptly after Closing, to
determine whether the Cash Dividend Amount shall be increased as
necessary to reflect sales of receivership assets prior to Closing
Date that have not yet been reflected in the FDIC-Receivers' asset
schedules on the Closing Date.
(b) In the event that the parties to this Agreement
enter into settlement of the BONY Litigation as set froth in Section
6.6 herein, prior to the Closing Date, and the FDIC-Receivers fund
FCBOT's portion of that settlement, the amount so funded shall be
deducted from the Cash Dividend Amount.
(c) The Cash Dividend Amount shall be reduced to reflect
that portion of the amount funded by the FDIC-Receivers on behalf of
FCBOT for the purpose of settling the litigation involving the First
City-Houston Receivership, FCBOT, and Electronic Data Systems
Corporation ("EDS"). The amount to be deducted from the Cash Dividend
Amount shall be $5,500,000 minus payments, if any, received by EDS
from FCBOT prior to the Closing Date as payments of principal on the
"EDS Allowed Claim" up to $2,100,000 under Sections 5 and 6(b) of the
Compromise and Settlement Agreement dated March 31, 1994 among EDS,
FCBOT, FDIC-Corporate, and the FDIC- Receivers.
(d) In the event that prior to the Closing Date, the
Houston-Receiver assigns the First City Tower Assets to FCBOT, the
Cash Dividend Amount shall be reduced by two million dollars
($2,000,000).
(e) In the event that, prior to the Closing Date, the
parties consummate the settlement of certain furniture, fixtures, and
equipment issues as approved by the Bankruptcy Court on June 13, 1993,
the Cash Dividend Amount will be reduced by $826,525.50.
Section 3.5 FCBOT Note. FCBOT shall execute and deliver to the
FDIC-Receivers a note in the principal amount of $57,000,000 in the form of
Exhibit 3.5 hereto (the "FCBOT Note").
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Section 3.6 Guarantees of FCBOT Note. Each of the FCBOT
Affiliated Entities that is a transferee of Final Pool Assets having an
aggregate GCR Value of $3,000,000 or more, shall jointly and severally execute
a full and unconditional guarantee of FCBOT obligations under the FCBOT Note,
in the form of Exhibit 3.6 hereto (the "Guarantee").
Section 3.7 Distribution of Surplus to the First City-Houston
Receivership. The FDIC-Receivers shall make a cash contribution to the First
City-Houston Receivership an amount sufficient to enable the FDIC-Receiver for
the First City-Houston Receivership to pay in full all proven obligations of
that receivership in accordance with Section 5.3(a) hereof including
obligations set forth in Section 6.6 hereof. Such cash contribution to the
First City-Houston Receivership shall be made from the Surplus available for
distribution to the First City Parties, and shall be in addition to the Surplus
distributed in the Initial Dividend. The First City Parties hereby waive their
right to receive that portion of the Surplus used to make the cash contribution
to the first City-Houston Receivership, assign that right to the FDIC-Receiver
for the First City-Houston Receivership, and release the FDIC-Receivers from
any liability for using the Surplus to pay such obligations.
Section 3.8 Mutual Release. The parties to this Agreement shall
execute and deliver a mutual release in the form attached hereto as Exhibit 3.8
(the "Mutual Release"). The parties hereto agree to cooperate in good faith to
effectuate all of the terms and conditions of the Mutual Release, including
doing or causing their agents and attorneys to do whatever is reasonably
necessary to effectuate the signing, delivery, execution, filing, recording and
entry of any documents necessary to perform, evidence, effectuate, or confirm
the terms of the Mutual Release, including but not limited to the execution of
letters and certificates reasonably requested by third parties to evidence or
confirm the releases or assignments set forth therein.
Section 3.9 Stock-Repurchase Claim; FCBOT Professional-Liability
Note.
(a) Withdrawal of FDIC-Corporate Claim.
FDIC-Corporate's claim against FCBOT and the FDIC- Receivers arising
out of the joint and several obligation to repurchase stock of
Collecting Bank, N.A., contained in Section 2.2 of the Assistance
Agreement shall be withdrawn with prejudice.
(b) Cancellation of FCBOT Professional-Liability Note.
The FCBOT note held by FDIC-Corporate in connection with the execution
of the Settlement Agreement entered into among FDIC-Corporate, FCBOT,
First City Bancorporation of Texas, a Texas corporation, and First
City, Texas-Houston, N.A., dated March 18, 1992 (the "Group 55
Professional Liability Claims Settlement Agreement") providing for the
settlement of Professional- Liability Claims against fifty-five (55)
former directors and/or officers of the First City Parties (the "Group
55 Directors and Officers") arising prior to the Commencement Date as
specified in the Assistance Agreement (the "FCBOT
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Professional-Liability Note") shall be marked to indicate that it has
been cancelled and the original thereof shall be delivered at the
Closing to FCBOT.
(c) Release of Liens and Collateral. In connection with
the execution of the Group 55 Professional-Liability Claims Settlement
Agreement, certain First City Parties, including FCBOT, First City
Asset Servicing Company and First City Bancorporation of Texas, Inc.,
a Texas corporation, entered into a Security Agreement with
FDIC-Corporate, under which FDIC-Corporate was granted a security
interest in certain assets and collateral of the First City Parties in
order to secure payment of the FCBOT Professional-Liability Note (the
"Security Agreement"). FDIC-Corporate shall take all actions
necessary to (i) release all security interests in Pledged Securities,
as that term is defined in the Security Agreement; (ii) release all
security interests in Participation Interests, as that term is defined
in the Security Agreement (together with payments, if any, received
with respect to such Participation Interests); (iii) release all
security interests in all Collateral, as that term is defined in the
Security Agreement, such actions to include the filing of all
documents required under the Texas Uniform Commercial Code in order to
discontinue the effectiveness of all financing statements set forth in
Schedule 3.04 of the Security Agreement; and shall return all
originals of the Pledged Securities and any other Collateral in the
possession of or under the control of FDIC-Corporate or FDIC-Receivers
to FCBOT. In addition, FDIC-Corporate shall deliver to FCBOT, on
behalf of the Group 55 Directors and Officers, the releases held by
FDIC-Corporate pending payment in full of the FCBOT Professional-
Liability Note.
(d) Payment. As consideration for the actions described
in paragraphs (a), (b), and (c) above, the FDIC-Receivers shall pay to
FDIC-Corporate, and the First City Parties shall consent to such
payment, on the Closing Date, of $49,000,000 less any amounts
previously paid to FDIC-Corporate under the FCBOT
Professional-Liability Note. Attached hereto as Schedule 3.9(d) is a
list of payments which have been made to FDIC-Corporate under the
FCBOT Professional-Liability Note as of the Closing Date. Solely for
purposes of accounting for the payment made pursuant to this paragraph
(d), the FDIC Receivers shall allocate such payment among the First
City Receiverships on the basis of the outstanding principal amount of
the Collecting Bank Senior Notes held by each such receivership as of
May 31, 1994.
(e) Transfer of Professional-Liability Claims. The
FDIC-Receivers shall transfer, assign and convey to FCBOT, without
recourse, in the form of assignment attached hereto as Exhibit 3.9(e),
all of their right, title and interest in and to any
Professional-Liability Claims. Such Professional-Liability Claims
shall be assigned a GCR Value of zero for purposes of Sections 3.3 and
3.4 hereof.
Section 3.10 Dismissal of the Litigation and the Claims.
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(a) The parties hereto shall execute and file with the
appropriate courts a joint motion, in substantially the form of
Exhibit 3.10(a), to dismiss the Litigation.
(b) FCBOT shall execute an instrument in the form of
Exhibit 3.10(b) withdrawing any request that the FDIC-Receivers
participate, or assign to FCBOT the right to participate, in any
further administrative proceedings with respect to the cross-guarantee
assessments of the First City Banks under 12 U.S.C. Section 1815(e).
(c) The FDIC shall execute and file with the appropriate
administrative forum a joint motion, substantially in the form of
Exhibit 3.10(c), to dismiss the Cross-Guarantee Proceeding.
Section 3.11 Release of Deposit Accounts. The FDIC-Receiver for
the First City-Houston Receivership shall release the proceeds of the following
deposit accounts: (1) Operating Account NASSAU, Bank Number 4532 (remaining
balance of $500,040.80); (2) Benefits Account NASSAU, Bank Number 4532
(remaining balance of FCBOT share $2,030,157.69) (unless this account is
settled prior to Closing pursuant to a separate agreement); and (3) Operating
Account Number 10021237, Bank Number 4532 (remaining balance of $218,616.79).
Section 3.12 Cross-Guarantee Claims. The claims arising from the
FDIC's cross-guarantee authority, 12 U.S.C. Section 1815(e), and the Notice of
Assessment dated October 30, 1992, shall be deemed discharged upon, and to the
extent of, payments from the First City Receiverships under Section 5.3(a)(v)
hereof.
ARTICLE IV
TRANSFER OF ASSETS
Section 4.1 Final Asset Pool.
(a) The assets constituting the pool of assets to be
transferred from the FDIC-Receivers to FCBOT, or to one or more FCBOT
Affiliated Entities, on the Closing Date shall be all the assets of
the First City Receiverships (other than cash, cash equivalents,
receivers' certificates issued by the FDIC-Receivers, and collections)
held by the First City Receiverships as of the Closing Date, including
assets identified subsequent to the Execution Date (the "Final Asset
Pool"). Schedule 4.1(a) attached hereto sets forth substantially all
of the assets (other than cash, cash equivalents and collections) held
by the First City Receiverships as of May 31, 1994.
(b) Transfer of Final Asset Pool. On the Closing Date,
the FDIC-Receivers shall transfer, assign and convey to FCBOT, or to
one or more of the
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FCBOT Affiliated Entities as may be determined by FCBOT (other than
any such entity listed on Schedule 8.1(a)), without recourse, all of
the FDIC-Receivers' right, title, and interest in and to the Final
Pool Assets. The transfer of the assets of the Final Asset Pool shall
take place pursuant to deed, bill of sale or assignment, whichever is
appropriate, and in the form of such document attached hereto as
Exhibit 4.1(b)(1), (2) or (3).
Section 4.2 Contracting for Sale/Compromising an Asset. Until
the Closing Date, the FDIC-Receivers shall provide FCBOT at least ten (10) days
written notice prior to contracting for sale or agreeing to compromise any
asset of their respective First City Receiverships with a book value in excess
of $1,000,000. The FDIC-Receiver in its sole discretion shall be responsible
for the management of any such asset. FCBOT's right to receive such written
notice shall not be construed as granting FCBOT any right to determine the
disposition of any such asset or the taking of any action by the FDIC-Receiver
with regard to such asset. Nothing in this Agreement shall be construed as
granting the First City Parties a right of first refusal to purchase any assets
of the First City Receiverships. In the event that FCBOT expresses an interest
in purchasing any such assets that are being actively marketed, the
FDIC-Receivers shall deal with FCBOT in the same manner as they would deal with
any other party interest in purchasing such assets.
Section 4.3 Due Diligence. Until the Closing Date, the
FDIC-Receivers and FDIC-Corporate shall provide FCBOT the opportunity to
conduct due diligence on the assets held by the First City Receiverships, such
due diligence to be conducted in accordance with and subject to the limitations
of the Confidentiality Agreement between FCBOT and the FDIC-Receivers, dated
January 13, 1994.
Section 4.4 MANNER OF CONVEYANCE; LIMITED WARRANTY; NONRECOURSE.
THE CONVEYANCE OF ALL ASSETS, INCLUDING REAL AND PERSONAL PROPERTY INTERESTS,
TRANSFERRED TO THE FIRST CITY PARTIES UNDER THIS AGREEMENT SHALL BE MADE, AS
NECESSARY, BY RECEIVER'S DEED, RECEIVER'S BILL OF SALE, OR RECEIVER'S
ASSIGNMENT "AS IS", "WHERE IS", WITHOUT RECOURSE AND, EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED IN THIS AGREEMENT, WITHOUT ANY WARRANTIES WHATSOEVER WITH
RESPECT TO SUCH ASSETS, EXPRESS OR IMPLIED, WITH RESPECT TO TITLE,
ENFORCEABILITY, COLLECTIBILITY, DOCUMENTATION, OR FREEDOM FROM LIENS OR
ENCUMBRANCES (IN WHOLE OR IN PART), OR ANY OTHER MATTERS.
Section 4.5 Environmental Matters. The First City Parties
hereby release the FDIC-Receivers and FDIC- Corporate from any responsibility
for any potential Environmental Matters (as hereinafter defined) associated
with the assets, or collateral thereof, distributed to the First City Parties
pursuant to this Agreement. Additionally,
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FCBOT shall indemnify and hold harmless the FDIC-Receivers and FDIC-Corporate
from liabilities arising from any such environmental problems as follows:
(a) FCBOT agrees to defend, indemnify, and hold harmless
the FDIC-Receivers and FDIC-Corporate, their officers, directors and
employees from and against any and all claims, liabilities (including
strict liabilities), actions, demands, penalties, losses, costs, or
expenses (including, without limitation consultants' and attorneys'
fees and expenses, and cleanup or remediation costs), suits, costs of
any settlement or judgment and claims of any and every kind whatsoever
which may now or in the future be paid, incurred, or suffered by or
asserted against the FDIC-Receivers or FDIC-Corporate by any person,
entity, or governmental agency (including, without limitation, FCBOT
and any past or present occupant, licensee, or trespasser) for, with
respect to, or as a direct or indirect result of any Environmental
Matter related to any real property (or improvement situated thereon)
that is transferred to the First City Parties pursuant to this
Agreement or serves as collateral for a loan transferred to the First
City Parties pursuant to this Agreement (the "Property"), regardless
of whether such Environmental Matters occurred in the past, are now
occurring, or occur in the future. The indemnity created by this
paragraph shall not extend to any liabilities arising from acts or
omissions of the FDIC-Receivers, provided, however, that the First
City Parties acknowledge that such liabilities will be charged against
the First City Receiverships.
(b) For purposes of this Agreement, the following terms
shall have the definitions indicated:
(i) "Hazardous Material" shall mean (a)
any radioactive materials; (b) any substance or
material the transportation, storage, treatment,
handling, use, removal or Release (as hereinafter
defined) of which is subject to any Environmental
Law (as hereinafter defined); or (c) any substance
or material for which standards of conduct are
imposed under any Environmental Law. Without
limiting the generality of the foregoing, "Hazardous
Materials" shall include: asbestos and
asbestos-containing materials (whether or not
friable); urea-formaldehyde in any of its forms;
polychlorinated biphenyls; oil; used oil; petroleum
products and their by-products; lead based paint;
radon; and any substances defined as "hazardous
waste", "hazardous substances", "pollutants or
contaminants", "toxic substances", "hazardous
chemical", "hazardous air pollutants", or "toxic
chemical" under any Environmental Law.
(ii) "Environmental Matter" shall mean
any of the following: (a) the Release of any
Hazardous Material on or at the Property; (b) the
migration of any Hazardous Material onto or from the
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Property; (c) the environmental, health or safety
aspects of the transportation, storage, treatment,
handling, use or Release, whether any of the
foregoing occurs on or off the Property, of
Hazardous Materials in connection with the
operations or past operations of the Property; (d)
the violation, or alleged violation, of any
Environmental Law, order, permit or license of or
from any governmental authority, agency or court
relating to environmental, health or safety matters;
(e) the presence of any underground storage tanks
within the confines of the Property; (f) the
presence of wetlands within the confines of the
Property; (g) the presence of any endangered species
on, in or around the Property; or (h) the
characterization of the Property as historical in
nature in any way.
(iii) "Environmental Law" shall mean any
federal, state or local laws, ordinances, permits or
regulations, or any common law, regarding health,
safety, radioactive materials, or the environment,
including, but not limited to, the following federal
statutes: Clean Air Act (42 U.S.C. Sections 7401 et
seq.), Clean Water Act (42 U.S.C. Sections 1251 et
seq.), Resource Conservation and Recovery Act (42
U.S.C. Sections 6901 et seq.), Comprehensive
Environmental Response, Compensation, and Liability
Act (42 U.S.C. Sections 9601 et seq.), Emergency
Planning and Community Right-to-Know Act (42 U.S.C.
Sections 11001 et seq.), Safe Drinking Water Act (42
U.S.C. Sections 300f et seq.), Toxic Substances
Control Act (15 U.S.C. Sections 2601 et seq.),
Endangered Species Act of 1973 (16 U.S.C. Sections
1531 et seq.), Federal Insecticide, Fungicide and
Rodenticide Act (7 U.S.C. Sections 136 et seq.), and
the Occupational Safety and Health Act (29 U.S.C.
Sections 651 et seq.), each as amended, and any
regulations promulgated thereunder, guidances and
directives issued with respect thereto, or policies
adopted by authority thereunder.
(iv) "Release" shall mean the discharge,
disposal, deposit, injection, dumping, spilling,
leaking, leaching, placing, presence, pumping,
pouring, emitting, emptying, escaping or other
release of any Hazardous Material.
ARTICLE V
FUTURE RECEIVERSHIP DISTRIBUTIONS
Section 5.1 Discretionary Future Distributions. For so long as
any of the First City Receiverships remain open, the FDIC-Receivers shall
estimate the value of the assets and liabilities of the First City
Receiverships and shall determine whether it would
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be prudent to make a distribution of any Surplus from such receiverships. Such
determination shall take place not later than forty-five (45) days after the
end of the first Calendar Quarter after the Closing Date, and within forty-five
(45) days after the end of each Calendar Quarter thereafter. The distribution
of Surplus shall be made not later than thirty (30) days after the date of the
determination by the FDIC-Receivers that such distribution shall take place.
Future distributions of Surplus from the First City Receiverships under this
Section 5.1 shall be made at the sole discretion of the FDIC-Receivers and only
after all proven creditors and contingent liabilities of the First City
Receiverships have been fully reserved for or discharged, with the
determination of any such reserves remaining in the sole discretion of the
FDIC-Receivers. Future distributions of Surplus may be made to FCBOT in the
form of cash or assets of the First City Receiverships, or a combination of
cash and assets, as determined by the FDIC-Receivers. Any further transfer of
assets shall be made in accordance with Sections 4.3 and 4.4 hereof, and shall
be made pursuant to deed, bill of sale or assignment, whichever is appropriate,
and in the form of such document attached hereto as Exhibit 4.1(b)(1), (2) or
(3). The determination of the FDIC-Receivers whether any such future
distribution shall be made under this Section 5.1 and the amount and timing of
any such future distribution shall be conclusive on all parties to this
Agreement.
Section 5.2 Future Distributions of Surplus in Excess of the
Surplus Cushion. Regardless of whether any distribution is made pursuant to
Section 5.1, in the event that as of the end of any Calendar Quarter the
consolidated balance sheet of the First City Receiverships shows an estimated
Surplus of more than "Surplus Cushion" (as hereinafter defined) then the
FDIC-Receivers shall declare and pay a distribution in an amount by which the
estimated Surplus exceeds the Surplus Cushion. The Surplus Cushion is defined
as (i) $75,000,000 plus (ii) the amount, if any, by which the sum of (x) the
net loss-sharing payments made by the First City Receivers to the acquirers of
the First City Bridge Banks on an aggregate basis through the end of the
quarter and (y) the reserve set by the FDIC-Receivers as of the end of such
quarter for future loss-sharing payments, exceeds $130,000,000. Such
determination shall take place not later than forty-five (45) days after the
end of the first Calendar Quarter after the Closing Date, and within forty-
five (45) days after the end of each Calendar Quarter thereafter. The
distribution of Surplus in excess of the Surplus Cushion shall be made not
later than thirty (30) days after the date of the determination by the
FDIC-Receivers that such distribution shall take place. For purposes of
determining the amount of the estimated Surplus for any given quarter, there
shall be no value attributed to the FCBOT Note. Future distributions of
Surplus may be made to FCBOT in the form of cash or assets of the First City
Receiverships, or a combination of cash and assets, as determined by the
FDIC-Receivers. Any further transfer of assets shall be made in accordance
with Sections 4.3 and 4.4 hereof, and shall be made pursuant to deed, bill of
sale or assignment, whichever is appropriate, and in the form of such document
attached hereto as Exhibit 4.1(b)(1), (2) or (3). The determination of the
FDIC-Receivers as to the amount of the estimated Surplus, the amount of the
reserves for future loss-sharing
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payments, and the resulting amount of any distribution made under this Section
5.2 shall be conclusive on all parties to this Agreement.
Section 5.3 Priority of Payments. Amounts realized on the
assets of the First City Receiverships shall be applied to claims, as allowed
by the FDIC-Receivers, in the following priority:
(a) To pay in full any proven and unpaid claims against the First
City Receiverships, in the order of priority established by
applicable law. Such claims include:
(i) Any administrative expenses of the FDIC-Receivers,
including both direct and indirect expenses, which
shall be (i) determined and allocated in accordance
with the standard practices applied by the FDIC to
its receiverships, but (ii) subject to the
limitations on such expenses arising after the
Closing Date as and to the extent set forth in
Section 6.13. The determinations and allocations of
the FDIC-Receivers with respect to administrative
expenses shall be conclusive on all parties to this
Agreement.
(ii) Any unpaid claims of uninsured depositors and
general creditors (including those of the First
City-Houston Receivership, if not already made whole
under Section 3.7 hereof).
(iii) FDIC-Corporate's subrogated claim arising from the
transfer of the bulk of the First City
Receiverships' liabilities to the acquirers of the
First City Bridge Banks.
(iv) Any claim by FDIC-Corporate for reimbursement of
funds advanced to the First City Receiverships to
cover loss-sharing payments and other obligations of
the First City Receiverships to the acquirers of the
First City Bridge Banks.
(v) FDIC-Corporate's cross-guarantee claim asserted in
the Notice of Assessment dated October 30, 1992, as
it may be adjusted to reflect actual losses (but not
including the claim arising out of the
preferred-stock repurchase obligation contained in
the 1988 Assistance Agreement, separately settled
under Section 3.9(a) hereof.)
(b) To FDIC-Corporate to reimburse FDIC-Corporate for any other
unrecovered expenses associated with the sale of the First
City Bridge Banks, such as indemnity payments to the
acquirers.
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(c) To the FDIC-Receiver for any First City Receivership whose
financial statements show asset value insufficient to pay
expected liabilities in full (without giving effect to the
FCBOT Note), to the extent of any such expected deficiency.
(d) To FDIC-Corporate and the FDIC Receivers pursuant to any
assignments to one or more of them by FCBOT or FCB Holdings,
Inc., of surplus of the First City Receiverships, to the
extent that payment under such assignments has not yet been
made in full, including interest to the extent provided for in
such instruments of assignment. Those assignments executed as
of the date hereof are listed on Schedule 5.3(d). The parties
hereto contemplate that other certain such assignments may be
executed prior to the Closing Date.
(e) To FCBOT.
Section 5.4 Payment of Interest on Claims.
(a) Third-party claims against the First City
Receiverships (other than the First City-Houston Receivership) shall
accrue interest at the statutory rate of six percent (6%) as set forth
in Tex. Civ. St. Art. 5069-1.03 (Vernon's Tex. Civ. St. Ann. 1994).
Claims of FDIC-Corporate against the First City Receiverships (other
than the First City-Houston Receivership) shall accrue interest at the
rate determined by the FDIC as the rate payable on escrowed funds held
by FDIC-Corporate for the FDIC-Receivers, which shall be calculated
monthly based on the monthly average interest rate offered on One Day
U.S. Treasury Certificates, weighted by the daily Certificate
purchases of the Bank Insurance Fund. Any such interest payments
shall be made only after the principal amounts of such third-party
claims and claims of FDIC-Corporate have been paid in full. The
FDIC-Receivers' escrowed funds held by FDIC-Corporate and
FDIC-Corporate's subrogated claim against the FDIC-Receivers shall
each stop accruing interest at any rate as of January 1, 1994.
(b) In the event that a Surplus arises in the First
City-Houston Receivership at any time, then such Surplus shall be
applied to (i) payment to FCBOT of any amount contributed to the First
City-Houston Receivership on or after the Closing Date under Sections
3.7 and 5.3(c) hereof, and (ii) if and when such amount has been paid
in full, payment of interest on claims against the First City-Houston
Receivership at the rates provided in paragraph (a) above with respect
to the other First City Receiverships.
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ARTICLE VI
COVENANTS
Section 6.1 Reports Regarding the First City Receiverships. Not
later than forty-five (45) days after the end of the first Calendar Quarter
after the Closing Date, and within forty-five (45) days after the end of each
Calendar Quarter thereafter, for so long as any of the First City Receiverships
have not been terminated, the FDIC- Receivers shall deliver to FCBOT with
respect to each of the First City Receiverships that had not yet been
terminated as of the beginning of such Calendar Quarter:
(a) A balance sheet as of the end of such Calendar Quarter;
(b) A statement of income for such Calendar Quarter;
(c) The monthly account trial balance for liquidation accounting
as of the end of each month in such Calendar Quarter;
(d) A list of all assets with their current GCR Values remaining
in such First City Receiverships as of the end of such
Calendar Quarter; provided however, that this list shall not
include the GCR Value of any assets that are being actively
marketed at the time of the distribution of such list; and
(e) A litigation summary report listing by case name, civil action
number and court, (i) all cases newly filed against the
FDIC-Receiver during such Calendar Quarter, (ii) all cases
against the FDIC-Receiver settled or otherwise resolved during
such Calendar Quarter (including a statement generally
describing the settlement or other resolution and the amount
paid or recoveries received by the First City Receiverships in
connection with the settlement or other resolution), (iii) a
brief description of the status of all remaining litigation
pending against the FDIC-Receiver as of the end of such
Calendar Quarter, and (iv) such other information as the
parties may agree. Such report shall not include any dollar
estimates of any potential liability the FDIC-Receiver may
have under any such litigation or any material or information
subject to an attorney-client or other applicable privilege or
information that may be protected by the work product
doctrine.
The Deputy Director, Division of Finance, of the FDIC, or a designee with
delegated authority, shall certify that all balance sheets, statements of
income, and account trial balances provided to FCBOT in accordance with (a),
(b), and (c) above are consistent with the requirements of this Agreement and
with standard FDIC policies and practices with respect to receivership
accounting. The FDIC shall notify FCBOT of any change in the standard
accounting practices applied by the FDIC to its receiverships that results in
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a material change to the Surplus of the First City Receiverships. Such
notification shall be provided to FCBOT in conjunction with the reports
required by this Section.
Section 6.2 Reports Regarding Loss-Sharing. For each Calendar
Quarter ending after the Closing Date and for so long as any of the three First
City Receivers that are parties to a Loss-Sharing Purchase and Assumption
Agreement continue to receive Quarterly Certificates under the terms of such
Loss-Sharing Purchase and Assumption Agreement, the respective FDIC-Receivers
shall deliver to FCBOT, not later than seven (7) days after receipt by the
FDIC-Receivers of any Quarterly Certificates with respect to such Calendar
Quarter, a summary certificate or report detailing the aggregate amount of
Charge-offs, Recoveries and Net Charge-Offs taken by the Assuming Bank with
respect to Shared-Loss Assets during such Calendar Quarter and the aggregate
amount of Reimbursable Expenses and/or Recovery Expenses of such Assuming Bank
during such Calendar Quarter, all as reported by such Assuming Bank to the
FDIC-Receiver.
Section 6.3 Tax Returns. The FDIC-Receivers shall provide to
FCBOT, promptly after the filing thereof, copies of any federal income tax
returns for the First City Receiverships.
Section 6.4 Annual Reports. The FDIC-Receivers shall provide to
FCBOT, promptly after the preparation thereof, copies of each annual report or
accounting prepared with respect to the First City Receiverships pursuant to 12
U.S.C. Section 1821(d)(15)(B).
Section 6.5 Settlement of Loss-Sharing Arrangements. Neither
FDIC-Corporate nor the FDIC-Receivers shall enter into any agreement with the
Assuming Banks under the Loss-Sharing Purchase and Assumption Agreements to
compromise or settle their remaining obligations, as a whole, under the
loss-sharing provisions of the Loss-Sharing Purchase and Assumption Agreements
without the prior consent of FCBOT (which consent shall not be unreasonably
withheld); provided, that the FDIC-Receivers shall be entitled to make whatever
payments are contractually required under such Loss-Sharing Purchase and
Assumption Agreements.
Section 6.6 Settlement of BONY Litigation. The parties to this
Agreement hereby agree to cooperate in the process of settling that certain
litigation involving the FDIC-Receivers, FCBOT and Bank of New York, styled as
The Bank of New York (Delaware), a Delaware Banking Corporation, 1105 N. Market
Street, Wilmington, Delaware 19711 v. Federal Deposit Insurance Corporation as
a separate receiver for First City, Texas-Dallas et. al, Civ. Ac. No. 93-0724
(RL), United States District Court for the District of Columbia, and the proof
of claim filed by the Bank of New York (Delaware) against FCBOT in case no.
392-39474-HCA-11, United States Bankruptcy Court for the Northern District of
Texas, Dallas Division (the "BONY Litigation"). Upon reaching a definitive
settlement with all relevant parties, resulting in the termination of the BONY
Litigation, the FDIC-Receivers shall fund $2.5 million of the
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total $5.5 million settlement for the BONY Litigation (the "BONY Settlement
Amount"). If such settlement is reached prior to the Closing Date, the
FDIC-Receivers shall, in addition, pay FCBOT's portion of the BONY Settlement
Amount, up to an amount not to exceed $3 million, with such payment to be
deducted from the Cash Dividend Amount to be distributed to FCBOT on the
Closing Date, in accordance with Section 3.4(b) hereof.
Section 6.7 Settlement of Certain Claims.
(a) Prior to the Closing Date, FDIC-Corporate, the
FDIC-Receiver for Collecting Bank, N.A. (the "Collecting Bank
Receiver") and First city Asset Servicing Company ("FCASC") shall
enter into an agreement whereby, with respect to all assets which are
the subject of dispute between FDIC-Corporate, the Collecting Bank
Receiver and FCASC, those disputes shall be compromised and all claims
relating to such assets shall be released. The agreement shall
further provide for the mutual release of FDIC-Corporate, the
Collecting Bank Receiver and FCASC with respect to such claims.
(b) Prior to the Closing Date, FDIC-Corporate, the
FDIC-Receivers, and FCBOT shall enter into one or more agreements
whereby, with respect to all assets which are the subject of dispute
between FDIC-Corporate, the FDIC-Receivers, and FCBOT, those disputes
shall be compromised and all claims relating to such assets shall be
released. The agreement(s) shall further provide for the mutual
release of FDIC-Corporate, the FDIC- Receivers, and FCBOT with respect
to such claims.
Section 6.8 Waiver of Cross-Guarantee Claim. FDIC-Corporate
hereby waives, effective as of the Closing Date and contingent upon the Closing
occurring as contemplated by this Agreement, any claim it may have against
Citizens State Bank, Sealy, Texas arising under 12 U.S.C. Section 1815(e) in
connection with the closing of the First City Banks on October 30, 1992.
Section 6.9 Stay of Litigation and Cross-Guarantee Proceeding.
The parties hereby acknowledge that they have entered into an agreement to stay
the Litigation and an agreement to stay the Cross-Guarantee Proceeding until an
order is entered by the bankruptcy court having jurisdiction over FCBOT, either
approving or denying the a motion of FCBOT seeking court approval of the terms
of this Agreement. In connection with the above-referenced agreements to stay,
the parties have made or will promptly make joint application to all
appropriate courts and administrative bodies to enter orders to stay all such
proceedings. The parties hereby agree to take all actions necessary (i) for
the stay of the Litigation to remain in effect until the issuance of an order
by the appropriate court for the dismissal of the Litigation, in accordance
with Section 3.10(a) hereof, and (ii) for the stay of the Cross-Guarantee
Proceeding to remain in effect until the Closing Date. This obligation shall
not survive termination of this Agreement.
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Section 6.10 Surplus Statements. From the Execution Date and for
so long as any of the First City Receiverships have not yet been terminated, a
statement of the Surplus of the First City Receiverships as of the end of each
Calendar Quarter during such period shall be delivered to FCBOT not later than
45 days after the end of such Calendar Quarter.
Section 6.11 Motion for Approval of Settlement Agreement. FCBOT
agrees to file with the Bankruptcy Court, promptly and in no event later than
30 days after the Execution Date, a motion for approval of this Agreement and
to seek a hearing on such motion as soon as possible. The FDIC agrees to
support such a motion by FCBOT.
Section 6.12 Cooperation; Transfer of Records. The
FDIC-Receivers agree to cooperate with FCBOT for purposes of the transfer to
FCBOT of records in the possession of the FDIC-Receivers as of Closing with
respect to the assets in the Final Asset Pool and with respect to the
Professional Liability Claims, other than records subject to the
attorney-client privilege, work product doctrine or applicable privacy laws, if
any.
Section 6.13 Limitation on Administrative Expenses.
(a) In the event the Closing occurs on or before August
31, 1994, the FDIC agrees that, except as set forth in this Section
6.13, it will no longer accrue or charge any administrative expenses
against any of the First City Receiverships after September 30, 1994.
Administrative expenses (not including indirect expenses or overhead
charges) may be accrued and/or charged against the First City
Receiverships with respect to periods after September 30, 1994 only to
the extent such expenses are directly related to the administration of
the Loss-Sharing Purchase and Assumption Agreements or the termination
of any of the First City Receiverships; provided that, any such
administrative expenses shall be determined, accrued and charged
consistent with the standard practices applied by the FDIC to its
receiverships; provided further that, such administrative expenses
accrued or charged with respect to periods after September 30, 1994
shall in no event exceed $4 million in the aggregate. Subject to the
foregoing limitations, the determinations and allocations of the
FDIC-Receivers with respect to administrative expenses shall be
conclusive on all parties to this Agreement.
(b) For purposes of paragraph (a), direct expenses
incurred in pursuing and defending litigation on behalf of and against
any of the First City Receiverships shall not be treated as
administrative expenses. Such litigation related expenses (not
including indirect expenses or overhead charges) may be accrued and/or
charged against the First City Receiverships as direct expenses in the
ordinary course and subject to no express dollar limitation.
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(c) In the event that, for any reason whatsoever, the
Closing does not occur on or before August 31, 1994, the limitations
set forth in paragraph (a) above shall not apply and administrative
expenses, including both direct and indirect expenses, shall be
accrued and charged against the First City Receiverships, in
accordance with the standard practices applied by the FDIC to its
receiverships. The determinations and allocations of the
FDIC-Receivers with respect to administrative expenses shall be
conclusive on all parties to this Agreement.
(d) In applying the provisions of this Section 6.13,
time is of the essence.
ARTICLE VII
CONDITIONS PRECEDENT TO CLOSING
Section 7.1 Conditions Precedent to Obligations of the FDIC.
The obligations of the FDIC under this Agreement are subject to the
satisfaction of the following conditions on or prior to the Closing Date:
(a) Certified Resolutions of the First City Parties.
The FDIC shall have received a Secretary's Certificate from each First
City Party, dated the Closing Date, certifying that (i) the Board of
Directors of such First City Party has duly adopted a resolution, a
copy of which shall be attached to such Secretary's Certificate,
approving the substantive terms of this Agreement, authorizing the
consummation of the transactions contemplated by this Agreement and
authorizing one or more officers of such First City Party to execute
and deliver this Agreement and all necessary ancillary documents; (ii)
such resolution is in full force and effect; and (iii) such resolution
has not been amended or modified in any respect.
(b) Incumbency Certificates of the First City Parties.
The FDIC shall have received a Secretary's Certificate from each First
City Party dated the Closing Date and certifying as to each person
executing this Agreement on behalf of such First City Party and each
person executing an Officer's Certificate required under paragraph (f)
below with respect to such First City Party that (i) such person was
or is an officer of such First City Party holding the office or
offices specified therein as of the date of this Agreement or the
Closing Date, as appropriate and (ii) the signature of each such
person set forth on such certificate is his or her genuine signature.
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<PAGE> 25
(c) Legal Opinions. The FDIC shall have received from
counsel to each of the First City Parties an opinion dated the Closing
Date and substantially in the form attached as Exhibit 7.1(c).
(d) Proceedings. All corporate and other proceedings
taken in connection with the transactions contemplated by this
Agreement, and all documents incident thereto, shall be satisfactory
in form and substance to the FDIC, and the FDIC shall have received
such counterpart originals or certified or other copies of such
documents as the FDIC may request.
(e) Consents and Approvals. The FDIC shall have
received satisfactory evidence that any and all governmental
approvals, letters of non-objection, or other third party consents,
including any stockholder or judicial consents, have been given which
may be required in connection with the execution, delivery and
performance of this Agreement, and all documents incident thereto, by
each of the First City Parties.
(f) Accuracy of Representations and Warranties;
Performance. The representations and warranties of each of the First
City Parties set forth in Section 8.1 of this Agreement shall be true
and correct in all material respects on and as of the date hereof and
on and as of the Closing Date, and each of the First City Parties
shall have performed or complied with all covenants, agreements, and
conditions herein that it is required to perform or comply with on or
prior to the date hereof or the Closing Date. The FDIC shall have
received one or more Officer's Certificates from each of the First
City Parties, dated the Closing Date, certifying that the foregoing
conditions have been fulfilled, with respect to such First City Party.
(g) Approval Order. The FDIC shall have received
satisfactory evidence of the entry of a final, non-appealable order or
orders of the Bankruptcy Court (collectively, the "Approval Order")
approving the terms of this Agreement and the merger of FCB Holdings,
Inc. into FCBOT; provided, however, that the FDIC may at its option,
and with the agreement of the First City Parties, elect to close upon
the settlement described in this Agreement if the Approval Order is
not yet final and nonappealable, or has been appealed and has not yet
been affirmed. The Approval Order shall require that any Order
confirming a plan of reorganization for FCBOT entered by the
Bankruptcy Court shall provide that the FCBOT Note and the Guarantee
required by this Agreement shall be enforceable obligations of the
signatories thereto, including, without limitation, the reorganized
FCBOT.
(h) Merger. The FDIC shall have received satisfactory
evidence that FCB Holdings, Inc. has been merged with and into FCBOT.
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(i) Abboud Dismissal. The FDIC shall have received
satisfactory evidence that the following lawsuits brought by Mr. A.
Robert Abboud against the FDIC-Receivers, have been dismissed: (i)
A. Robert Abboud v. Federal Deposit Insurance corporation, as Receiver
for First City, Texas-Dallas, Civil Action No. 3:93-CV-1951-D, United
States District Court for the Northern District of Texas, Dallas
Division; and (ii) A. Robert Abboud v. Federal Deposit Insurance
Corporation, as Receiver for First City, Texas-Houston, N.A., Civil
Action No. 3:93-CV-2432-P, United States District Court for the
Northern District of Texas, Dallas Division.
(j) No Material Adverse Change. There shall have been
no material adverse change in the financial condition of the First
City Receiverships subsequent to the date of this Agreement.
(k) Releases. The office of the Comptroller of the
Currency and the Texas Banking Commissioner shall have received a
release, similar in scope to the form of release attached hereto as
Exhibit 3.8, from each of the First City Parties.
Section 7.2 Conditions Precedent to Obligations of the First
City Parties. The obligations of the First City Parties under this Agreement
are subject to the satisfaction of the following conditions on or prior to the
Closing Date:
(a) Accuracy of Representations and Warranties;
Performance. The representations and warranties of the FDIC set forth
in Section 8.2 of this Agreement shall be true and correct in all
material respects on and as of the date hereof and on and as of the
Closing Date, and the FDIC shall have performed or complied with all
covenants, agreements, and conditions herein that it is required to
perform or comply with on or prior to the date hereof or the Closing
Date.
(b) Certified Resolution. FCBOT shall have received a
copy of the resolution of the FDIC's Board of Directors (i) approving
and authorizing the transactions contemplated by this Agreement on
behalf of the FDIC, and (ii) authorizing one or more representatives
of the FDIC to execute and deliver this Agreement and all documents
incidental thereto, such resolution to be certified by the Executive
Secretary or the Deputy Executive Secretary of the FDIC (A) to be a
copy of a resolution duly adopted at a meeting of the Board of
Directors of the FDIC, and (B) that such resolution has not been
amended or rescinded and is in full force and effect.
(c) Incumbency Certificate. FCBOT shall have received a
certificate from the FDIC, signed by its Executive Secretary or Deputy
Executive Secretary, which shall certify as to each person executing
this Agreement and any other documents incidental thereto on behalf of
the FDIC that (i) such person is an officer of the
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<PAGE> 27
FDIC holding the office or offices specified therein as of the date of
such execution, and (ii) the signature of each such person set forth
on such certificate is his or her genuine signature.
(d) Legal Opinion. FCBOT shall have received a signed
opinion addressed to FCBOT from an Associate General Counsel of the
FDIC, dated the Closing Date and substantially in the form of Exhibit
7.2(d) hereto.
(e) Releases. The First City Parties shall have
received a release, similar in scope to the form of release attached
hereto as Exhibit 3.8, from each of the Office of the Comptroller of
the Currency and the Texas Banking Commissioner.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
Section 8.1 Representations and Warranties Pertaining to the
First City Parties. Each of the First City Parties (with respect to itself and
its individual affairs) represents and warrants to FDIC-Corporate and the FDIC-
Receivers as follows:
(a) Corporate Existence and Authority. Except as set
forth on Schedule 8.1(a), each of First City Parties (i) is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation and each has full power and authority to
own and operate its properties and to conduct its business as now
conducted by it, (ii) is duly qualified and in good standing as a
foreign corporation authorized to do business in each jurisdiction
where such qualification is necessary under applicable law and in
which the failure to so qualify would have a material adverse effect
on its ability to perform (financially or otherwise) its obligations
under this Agreement, and (iii) has full power and authority to
execute and deliver this Agreement and to perform its obligations
under this Agreement in accordance with its terms. Each of the First
City Parties has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement and the
performance of the transactions contemplated hereby.
(b) Third Party Consents. No governmental authority or
other third party consents (including but not limited to approvals,
licenses, registrations, or declarations) are required in connection
with execution, delivery, or performance by the First City Parties of
this Agreement, other than (i) the Approval Order, and (ii) such
consents as have been duly obtained and are in full force and effect.
(c) Execution and Enforceability. This Agreement has
been duly executed and delivered by each of the First City Parties.
Upon the due authorization, execution and delivery of this Agreement
by FDIC-Corporate and the FDIC-
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<PAGE> 28
Receivers, and issuance of the Approval Order, this Agreement will
constitute the legal, valid and binding obligation of each of them,
enforceable in accordance with its terms.
(d) Compliance with Law.
(i) None of the First City Parties, nor any of
their subsidiaries, is in violation of any statute,
regulation, order, decision, judgment, or decree of, or any
restriction imposed by, the United States of America, any
State, municipality, or other political subdivision or any
agency of any of the foregoing, or any court or other tribunal
having jurisdiction over any of the First City Parties or any
of their subsidiaries or any assets of any such person, or any
foreign government or agency thereof having such jurisdiction,
or any securities exchange or securities quotation system on
which its securities are listed or quoted, with respect to the
conduct of the business of any of the First City Parties or of
any of their subsidiaries, or their ownership of the
properties of any of the First City Parties or any of their
subsidiaries, which, either individually or in the aggregate
with all other such violations, would materially and adversely
affect (x) the business, operations, or condition (financial
or otherwise) of (A) such First City Party or subsidiary, if
the First City Party is FCBOT, FCB Holdings, Inc., or a
guarantor under a Guarantee, or (B) the First City Parties,
taken as a whole, if such First City Party is not among those
identified in clause (A) preceding, or (y) the ability of any
of the First City Parties to perform, satisfy, or observe any
obligation or condition under this Agreement.
(ii) The execution, delivery and performance by
the First City Parties of this Agreement will not result in
any violation by any of the First City Parties of, or be in
conflict with, any provision of any applicable law or
regulation, or any order, writ, or decree of any court or
governmental authority.
(e) Compliance with Obligations.
(i) None of the First City Parties, nor any of
their subsidiaries, is in violation or breach of or in default
under any obligation, agreement, covenant, or condition
contained in its charter or organizational documents, articles
of incorporation, or by-laws, which violation, breach, or
default, either individually or in the aggregate with all such
other violations, breaches and defaults, would materially and
adversely affect the business, operations or condition
(financial or otherwise) of any of the First City Parties, or
the ability of any of the First City Parties, to perform,
satisfy, or observe any obligation or condition under this
Agreement.
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<PAGE> 29
(ii) None of the First City Parties, nor any of
their subsidiaries, is in violation or breach of or in default
under any contract, lease, or other instrument to which any of
the First City Parties or any of their subsidiaries is a party
(or which is binding on any of the First City Parties or any
of their subsidiaries or any assets of any such person), which
violation, breach, or default, either individually or in the
aggregate with all such other violation, breaches and
defaults, would materially and adversely affect (x) the
business, operations or condition (financial or otherwise) of
(A) such First City Party or subsidiary, if the First City
Party is FCBOT, FCB Holdings, Inc. or a guarantor under a
Guarantee, or (B) the First City Parties, taken as a whole, if
such First City Party is not among those identified in clause
(A) preceding, or (y) the ability of any of the First City
Parties to perform, satisfy, or observe any obligation or
condition under this Agreement.
(iii) The execution, delivery and performance by
each of the First City Parties of this Agreement will not
result in a violation, breach of, or default under or be in
conflict with: (A) its organizational documents or charter,
articles of incorporation or association, or by-laws, or (B)
any other agreement or instrument to which any of the First
City Parties or any of their subsidiaries is a party, or which
is binding on any of the First City Parties or any of their
subsidiaries or the assets of any such person, or (C) any
order, decree, award, or judgment issued by any court or other
tribunal which is binding on any of the First City Parties or
any of their subsidiaries or any assets of any such person,
and will not result in the creation of any lien on the assets
of any of the First City Parties or any of their subsidiaries.
(f) Litigation. (i) Except as set forth in the Proposed
First Amended Disclosure Statement for the First Amended Plan of
Reorganization of First City Bancorporation of Texas, Inc. under
Chapter 11 of the Bankruptcy Code, dated May 31, 1994, there is no
legal action, suit, investigation or proceeding (whether or not any of
the First City Parties or any of their subsidiaries is a party
thereto) pending or threatened against any of the First City Parties
or any of their subsidiaries or any assets of any such person which
questions the validity of this Agreement or any of the transactions
contemplated hereby or which would, if adversely determined, either
individually or in the aggregate with all such other actions, suits,
investigations or proceedings if adversely determined, materially and
adversely affect the business, operations, or condition (financial or
otherwise) of any of the First City Parties or the ability of any of
the First City Parties to perform, satisfy, or observe any obligation
or condition under this Agreement.
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(ii) There is not in effect or in force any
injunction or order of any court or government agency
restraining the transactions contemplated by this Agreement.
Section 8.2 Representations and Warranties of the FDIC.
FDIC-Corporate and the FDIC-Receivers (each with respect to itself and its
individual affairs) represent and warrant to the First City Parties as follows,
in each case assuming valid appointment of each of the FDIC-Receivers by the
respective Chartering Authority:
(a) Power. FDIC-Corporate and the FDIC-Receivers have
the legal power and authority to enter into and perform this Agreement
and to carry out the terms hereof. The execution, delivery, and
performance by FDIC-Corporate and the FDIC-Receivers of this Agreement
do not violate any provision of Federal law administered by them.
(b) Authorization, Execution and Enforceability. The
execution and delivery by FDIC-Corporate and the FDIC-Receivers of
this Agreement and the performance by FDIC-Corporate and the
FDIC-Receivers of their obligations hereunder have been duly
authorized by all necessary action on the part of FDIC-Corporate and
the FDIC-Receivers. This Agreement has been duly executed and
delivered by FDIC-Corporate and the FDIC-Receivers, and upon the due
authorization, execution, and delivery of this Agreement by the First
City Parties, this Agreement shall be the legal, valid, and binding
obligation of FDIC-Corporate and the FDIC-Receivers, enforceable in
accordance with its terms.
Section 8.3 Unrecovered Expenses. FDIC-Corporate represents and
warrants that, to its actual knowledge, as of December 31, 1993, there are no
unrecovered expenses associated with the sale of the First City Bridge Banks
(other than claims for indemnification made or to be made by the Assuming Banks
under the Purchase and Assumption Agreements) that in the aggregate would have
a material adverse effect on the financial condition of the First City
Receiverships as of such date, taken as a whole. For purposes of this
representation, "actual knowledge" of FDIC- Corporate as to any item shall mean
that such item is actually known to the liquidator-in-charge of the First City
Receiverships.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Amendments. No amendment, modification, or waiver
of any provision of this Agreement, and no 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
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all parties, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
Section 9.2 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
overnight courier service to such party, and shall also be sent by facsimile
(with copies as indicated below) at its address set forth below or at such
other address as such party shall hereafter furnish in writing to the other
parties.
(a) If to FDIC-Corporate:
Director - DOR
Federal Deposit Insurance Corporation
550 17th Street, N.W.
Washington, D.C. 20429
Fax Number: (202) 898-7024
With a copy to: General Counsel
Federal Deposit Insurance Corporation
550 17th Street, N.W.
Washington, D.C. 20429
Fax Number: (202) 898-7394
(b) If to the FDIC-Receivers:
Regional Director - DAS
Federal Deposit Insurance Corporation
5080 Spectrum Drive
Dallas, Texas 75248
Fax Number: (214) 663-2970
and
Associate Director (Operations) - DAS
Federal Deposit Insurance Corporation
550 17th Street, N.W.
Washington, D.C. 20429
Fax Number: (202) 898-8569
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<PAGE> 32
With a copy to: Regional Counsel
Federal Deposit Insurance Corporation
5080 Spectrum Drive
Dallas, Texas 75248
Fax Number: (214) 663-2970
(c) If to any First City Party, to FCBOT:
President & Chief Operating Officer
First City Bancorporation of Texas, Inc.
1021 Main Street
Suite 2600
Houston, Texas 77002
Fax Number: (713) 651-1710
With a copy to: Stephen A. Goodwin, Esq.
Carrington, Coleman, Sloman &
Blumenthal, L.P.
200 Crescent Court, Suite 1500
Dallas, Texas 75210
Fax Number: (214) 855-1333
Section 9.3 Waiver. No failure or delay on the part of any
party 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, or the exercise of any other right, privilege, power or remedy. The
rights, privileges, powers, and remedies available to the parties 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 in any case shall 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 9.4 Governing Law. This Agreement and the rights and
obligations hereunder 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
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with the law of the State of Texas without regard to the principles of conflict
of law thereof.
Section 9.5 Termination. (a) In the event that any of the
conditions precedent to the obligations of the FDIC to consummate the Closing
of the transactions contemplated by this Agreement (other than the expiration
of any appeal period with respect to the Approval Order, or if the Approval
Order has been appealed, the final disposition of such appeal) cannot be
satisfied or fulfilled by December 31, 1994, the FDIC shall have the option to
effect the termination of this Agreement.
(b) If an appeal has been taken from the Approval Order
and the FDIC does not elect to close the transaction pending such appeal
pursuant to Section 7.1(g), then any of the First City Parties or the FDIC
shall have the option to effect the termination of this Agreement if the
Approval Order has not been affirmed in a final and nonappealable order by
December 31, 1997.
(c) Ten (10) days prior to the date upon which any of
the First City Parties or the FDIC exercises its option to declare the
termination of this Agreement effective, such termination party shall deliver
to all other Parties to this Agreement a written notice of its intent to
exercise such option. In the event of the termination of this Agreement
pursuant to paragraph (a) or (b) of this Section 9.5, this Agreement shall
become void and have no effect. The respective representations, warranties,
obligations, covenants, and agreements of the parties shall not survive the
termination of this Agreement pursuant to paragraph (a) or (b) of this Section
9.5.
(d) In the event that (i) at any time prior to the entry
by the Bankruptcy Court of a final nonappealable order confirming a plan of
reorganization for FCBOT, the FCBOT Note or the Guarantee ceases to be a legal,
valid and binding obligation of the signatories thereto, enforceable in
accordance with its respective terms, or (ii) any such order fails to provide
that the FCBOT Note and the Guarantee shall be the legal, valid and binding
obligations of the signatories thereto, enforceable in accordance with their
terms, then, in either case, the obligations of the FDIC under Articles V and
VI of this Agreement shall terminate and the FDIC shall have no further
obligation thereunder; provided, however, that the FDIC's statutory
obligations, if any, under 12 U.S.C. Section 1821 (including, without
limitation, FDIC's statutory obligation under 12 U.S.C. Section 1821(d)(11)(B))
to the First City Parties shall not be affected by any termination under this
Section 9.5(d).
Section 9.6 Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto, and, except
as otherwise provided in this Agreement, their respective successors and
assigns.
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Section 9.7 Headings. The headings contained in this Agreement
are for convenience only and shall not affect the construction of any provision
of this Agreement.
Section 9.8 Entire Agreement. This Agreement, together with all
Exhibits thereto, embody the entire agreement among the parties hereto relating
to the subject matters herein, and supersedes all prior agreements and
understandings among the parties, oral or written, relating to such matters.
Section 9.9 Exhibits and Schedules. All Exhibits and Schedules
attached hereto are an integral part of this Agreement.
Section 9.10 Third Party Beneficiaries. Except as to the parties
released under Section 3.8, and as to whom litigation is dismissed under
Section 3.10 or claims waived under Section 6.8, no provision of this Agreement
is intended to benefit any person other than the parties hereto.
Section 9.11 Further Actions. Each party shall execute and
deliver to each other party such other and further instruments and shall take
such corporate action, obtain such approvals, and take such other and further
actions as such other party may reasonably request to effectuate the
transactions contemplated by this Agreement.
Section 9.12 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 9.13 Costs and Expenses. Except to the extent otherwise
specifically provided herein, each party hereto agrees to pay all costs and
expenses incurred by it in connection with or incidental to the matters
contained in this Agreement, including any fees and disbursements to attorneys
and accountants.
Section 9.14 No Admission. It is understood and agreed by the
parties to this Agreement that this settlement is not to be construed as an
admission of any fact or law and is without any admission of liability by any
party hereto. Nothing contained herein or in the Schedules or Exhibits
referred to herein shall be used by the parties in any other transaction,
constitute evidence in any other proceeding, or shall be relevant to any
alleged liability on the part of any party. The parties to this Agreement have
agreed on the basis for this settlement before the taking of testimony, without
trial, and without adjudication of any issue of fact or law.
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<PAGE> 35
IN WITNESS WHEREOF the parties have caused this Agreement to be duly
executed by their respective officers as of the day and year first above
written.
FEDERAL DEPOSIT INSURANCE CORPORATION,
in its corporate capacity
By: /s/ ROGER A. HOOD
-----------------------------------
Name: Roger A. Hood
---------------------------------
Title: Deputy to the Chairman
--------------------------------
FEDERAL DEPOSIT INSURANCE CORPORATION,
in its capacity as the FDIC-Receivers
By: /s/ ROGER A. HOOD
-----------------------------------
Name: Roger A. Hood
---------------------------------
Title: Deputy to the Chairman
--------------------------------
FIRST CITY BANCORPORATION OF TEXAS,
INC., a Delaware corporation
By: /s/ C. IVAN WILSON
----------------------------------
Name: C. Ivan Wilson
--------------------------------
Title: Chm of the Board & CEO
-------------------------------
FCB HOLDINGS, INC.
By: /s/ ROBERT W. BROWN
----------------------------------
Name: Robert W. Brown
--------------------------------
Title: President
------------------------------
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<PAGE> 36
FINANCIAL CENTER, INC.
By: /s/ ROBERT W. BROWN
-------------------------------
Name: Robert W. Brown
-----------------------------
Title: President
----------------------------
FIRST CITY PORTFOLIO, INC.
By: /s/ ROBERT W. BROWN
-------------------------------
Name: Robert W. Brown
-----------------------------
Title: President
----------------------------
BROADWAY CENTER, INC.
By: /s/ ROBERT W. BROWN
-------------------------------
Name: Robert W. Brown
-----------------------------
Title: President
----------------------------
FIRST CITY ASSET SERVICING COMPANY
By: /s/ ROBERT W. BROWN
-------------------------------
Name: Robert W. Brown
-----------------------------
Title: President
---------------------------
FCB REAL ESTATE SERVICES, INC.
By: /s/ ROBERT W. BROWN
-------------------------------
Name: Robert W. Brown
-----------------------------
Title: President
----------------------------
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<PAGE> 37
CENTRAL TEXAS INSURANCE AGENCY, INC.
By: /s/ ROBERT W. BROWN
---------------------------------
Name: Robert W. Brown
-------------------------------
Title: President
------------------------------
CITIZENS STATE BANK SEALY
By: /s/ LEROY ZAPALAC
---------------------------------
Name: Leroy Zapalac
-------------------------------
Title: CEO/President
------------------------------
FIRST CITY ENERGY FINANCE COMPANY
By: /s/ ROBERT W. BROWN
---------------------------------
Name: Robert W. Brown
-------------------------------
Title: President
------------------------------
FIRST CITY FINANCIAL CORPORATION
By: /s/ ROBERT W. BROWN
---------------------------------
Name: Robert W. Brown
-------------------------------
Title: President
------------------------------
FIRST CITY LIFE INSURANCE COMPANY
By: /s/ ROBERT W. BROWN
---------------------------------
Name: Robert W. Brown
-------------------------------
Title: Vice President
------------------------------
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<PAGE> 38
FIRST CITY PAYROLL MANAGEMENT COMPANY
By: /s/ ROBERT W. BROWN
------------------------------------
Name: Robert W. Brown
----------------------------------
Title: President
---------------------------------
NEW FIRST SECURITY NATIONAL CORPORATION
By: /s/ ROBERT W. BROWN
------------------------------------
Name: Robert W. Brown
----------------------------------
Title: President
---------------------------------
FCFC ENERGY CORP.
By: /s/ ROBERT W. BROWN
------------------------------------
Name: Robert W. Brown
----------------------------------
Title: President
---------------------------------
FIRST CITY BANCORPORATION OF TEXAS, a
Texas Corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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<PAGE> 39
SCHEDULE A
FCBOT Affiliated Entities
(1) FCB Holdings, Inc.
(2) Financial Center, Inc.
(3) First City Portfolio, Inc.
(4) Broadway Center, Inc.
(5) First City Asset Servicing Company
(6) FCB Real Estate Services, Inc.
(7) Central Texas Insurance Agency, Inc.
(8) Citizens State Bank Sealy
(9) First City Energy Finance Company
(10) First City Financial Corporation
(11) First City Life Insurance Company
(12) First City Payroll Management Company
(13) New First Security National Corporation
(14) FCFC Energy Corp.
(15) First City Bancorporation of Texas, a Texas corporation
<PAGE> 40
SCHEDULE B
LITIGATION
(1) First City Bancorporation of Texas, Inc. et al. v. FDIC, Cause No.
3:93-CV-2286-T, United States District Court for the Northern District
of Texas, Dallas Division.
(2) First City Bancorporation of Texas, Inc. et al. v. FDIC, Cause No.
3:93-CV-1959-R, United States District Court for the Northern District
of Texas, Dallas Division.
(3) First City Bancorporation of Texas, Inc. et al. v. FDIC, Cause No.
3:93-CV-2416-P, United States District Court for the Northern District
of Texas, Dallas Division.
(4) First City Bancorporation of Texas, Inc. et al. v. FDIC, Cause No.
3:93-CV-2369-R, United States District Court for the Northern District
of Texas, Dallas Division.
(5) Financial Center, Inc. v. FDIC, Civil Action No. C-93-337, United
States District Court for the Southern District of Texas, Corpus
Christi Division.
(6) First City Bancorporation of Texas, Inc. et al. v. FDIC, Adv.
392-3798, United State District Court for the Northern District of
Texas, Dallas Division.
(7) First City Bancorporation of Texas, Inc. et al. v. FDIC, Cause No.
3:93-CV-2253-T, United States District Court for the Northern District
of Texas, Dallas Division.
(8) First City Asset Servicing Company v. FDIC, Cause No. 3:93-CV-2251,
United States District Court for the Northern District of Texas,
Dallas Division.
(9) First City Bancorporation Real Estate Services v. FDIC, Cause No.
3:93-CV-2250-T, United States District Court for the Northern District
of Texas, Dallas Division.
<PAGE> 41
SCHEDULE C
PURCHASE AND ASSUMPTION AGREEMENTS
<TABLE>
<CAPTION>
FIRST CITY ASSUMING BANK DATE OF P&A
- ---------- ------------- -----------
RECEIVERSHIP
- ------------
<S> <C> <C>
NFC, Texas-Alice, NA Alice Bank of Texas February 13, 1993
NFC, Texas-Aransas, NA Corpus Christi Nat'l Bank February 13, 1993
NFC, Texas-Austin, NA Frost Nat'l Bank of SA February 13, 1993
NFC, Texas-Beaumont, NA Texas Commerce-Beaumont February 24, 1993
NFC, Texas-Bryan College Victoria Bank & Trust Co. February 28, 1993
Station, NA
NFC, Texas-Corpus Christi Mercantile Bank, Brownsville February 14, 1993
NA
NFC, Texas-Dallas, NA Texas Commerce-Dallas February 13, 1993
NFC, Texas-El Paso, NA Sunwest March 6, 1993
NFC, Texas-Graham, NA First National of Olney February 13, 1993
NFC, Texas-Houston, NA Texas Commerce Bank, NA February 13, 1993
NFC, Texas-Kountze, NA Citizens Bank, Kilgore Februry 28, 1993
NFC, Texas-Lake Jackson, NA First Heights Bank, FSB February 13, 1993
NFC, Texas-Lufkin, NA First Com'l Corp-Little Rock February 13, 1993
NFC, Texas-Madisonville, NA FBOP Corp. Oak Park, IL February 28, 1993
NFC, Texas-Midland, NA Texas Commerce-Midland February 13, 1993
NFC, Texas-Orange, NA First Heights Bank, FSB February 13, 1993
NFC, Texas-San Angelo, NA First Nat'l Bank Lubbock February 13, 1993
NFC, Texas-San Antonio, NA Frost Nat'l Bank of SA February 13, 1993
NFC, Texas-Sour Lake, NA Citizens Bank, Kilgore February 28, 1993
NFC, Texas-Tyler, NA First Com'l Corp.-Little Rock February 13, 1993
</TABLE>
<PAGE> 42
SCHEDULE 3.9(d)
PAYMENTS UNDER FCBOT PROFESSIONAL LIABILITY NOTE
<TABLE>
<CAPTION>
Date Received by FDIC-Corporate Amount
------------------------------- ------
<S> <C> <C>
(1) 3/10/92 $12,040,198.12
(cash portion plus
late penalty)
(2) 6/24/92 $479,219.18
(note interest)
(3) 7/17//92 $4,270,934.67
(principal payment)
(4) 7/20/92 $104,781.91
(note interest)
(5) 8/24/92 $101,237.70
(note interest &
late penalty)
(6) 8/24/92 $89,867.21
(principal payment)
(7) 9/21/92 $89,862.42
(note interest)
(8) 10/20/92 $91,668.19
(note interest)
</TABLE>
- --------------------------------------------------
TOTAL CASH RECEIVED BY FDIC-CORPORATE
UNDER THE FCBOT PROFESSIONAL LIABILITY NOTE: $17,267,769.40
<PAGE> 43
SCHEDULE 4.1(a)
ASSETS OF THE FIRST CITY RECEIVERSHIPS AS OF MAY 31, 1994
<PAGE> 44
FIRST CITY FINS 4523 - 4542 BY DESCENDING BV 09:19
LISTING AS OF 06/01/94
COSTCTR-40407 BANK NUMBER 4523
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04523 50101346-1 567,497.41
04523 00419480-1 63,706.97
04523 50107527-1 8,514.81
04523 50101335-1 7,527.90
04523 50107526-1 6,942.59
04523 50107528-1 6,072.00
04523 50101329-1 4,210.00
---------------
BANK 664,471.68
</TABLE>
N - 7
COSTCTR-40407 BANK NUMBER-4524
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04524 50101375-1 186,404.35
04524 50101358-1 16,436.00
04524 00409250-1 11,926.36
04524 50107543-1 11,637.36
04524 50101370-1 11,078.23
04524 50101354-1 1.00
04524 50101355-1 1.00
---------------
BANK 237,484.30
</TABLE>
N - 7
COSTCTR-40407 BANK NUMBER-4525
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04525 50101432-1 21,245,891.26
04525 50101429-1 1,269,712.88
04525 50101386-1 557,600.00
04525 00021623-3 478,970.70
04525 00410885-1 467,566.29
04525 50101434-1 60,439.60
04525 50101436-1 21,793.38
04525 00419414-1 18,166.89
04525 00419402-1 9,457.05
04525 50101428.1 8,762.00
</TABLE>
<PAGE> 45
FIRST CITY FINS 4523 - 4542 BY DESCENDING BV 09:19 2
LISTING AS OF 06/01/94
COSTCTR-40407 BANK NUMBER-4525
(continued)
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04525 00419410-1 8,440.37
04525 00419400-1 8,374.40
04525 00419408-1 8,087.27
04525 00419393-1 7,599.79
04525 00419392-1 6,845.05
04525 00419390-1 6,587.94
04525 00419395-1 4,670.47
04525 00419111-1 4,171.27
04525 00419394-1 3,782.34
04525 00419404-1 3,608.16
04525 00419412-1 3,602.97
04525 50101437-1 2,262.46
---------------
BANK 24,206,392.54
</TABLE>
N - 22
COSTCTR-40407 BANK NUMBER-4527
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04527 50101447-1 1,368,901.04
04527 00411176-1 38,611.59
04527 50101450-1 7,666.45
04527 50107566-1 7,103.03
04527 50107567-1 2,783.03
04527 50107570-1 1,072.58
04527 50101454-1 851.30
---------------
BANK 1,427,120.06
</TABLE>
N - 8
COSTCTR-40407 BANK NUMBER-4528
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04528 50101497-1 4,024,370.30
04528 50101494-1 940,801.84
04528 50101487-1 229,000.00
</TABLE>
<PAGE> 46
FIRST CITY FINS 4523 - 4542 BY DESCENDING BV 09:19 3
LISTING AS OF 06/01/94
COSTCTR-40407 BANK NUMBER-4528
(continued)
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04528 00419191-1 225,481.88
04528 00417833-1 181,205.00
04528 50101488-1 162,743.00
04528 50101509-1 108,224.64
04528 50107600-1 86,568.16
04528 50107573-1 80,000.00
04528 50101485-1 68,200.00
04528 50101457-1 55,000.00
04528 00419192-1 53,664.05
04528 50107602-1 38,915.96
04528 00419194-1 24,182.00
04528 50101499-1 20,835.34
04528 00411178-1 16,625.13
04528 50101512-1 4,988.38
04528 50101500-1 4,380.19
04528 50107574-1 1,568.15
04528 50101510-1 1,202.46
---------------
BANK 6,327,956.48
</TABLE>
N - 20
COSTCTR-40407 BANK NUMBER-4530
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04530 00411103-1 1,119,297.85
04530 50101521-1 242,084.47
04530 00403838-1 17,059.60
04530 00403833-1 16,686.21
04530 00403835-1 16,684.44
04530 00403830-1 16,558.25
04530 00403841-1 16,432.94
04530 00403837-1 15,930.90
04530 00403812-1 14,050.17
04530 00403834-1 12,835.93
04530 50101548-1 7,020.01
04530 50107629-1 5,259.27
04530 50101523-1 4,479.19
---------------
BANK 1,504,379.23
</TABLE>
N - 13
<PAGE> 47
FIRST CITY FINS 4523 - 4542 BY DESCENDING BV 09:19 4
LISTING AS OF 06/01/94
COSTCTR-40407 BANK NUMBER-4532
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04532 50101653-1 158,751.14
</TABLE>
N - 1
COSTCTR-40407 BANK NUMBER-4534
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04534 00411182-1 87,591.35
04534 50101555-1 80,148.31
04534 50101559-1 638.95
---------------
BANK 168,378.61
</TABLE>
N - 3
COSTCTR-40407 BANK NUMBER-4536
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04536 50101565-1 108,380.21
04536 00410768-1 26,257.85
04536 50101566-1 669.58
04536 00420801-1 1.00
---------------
BANK 135,308.64
</TABLE>
N - 4
COSTCTR-40407 BANK NUMBER-4537
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04537 50101577-1 2,360,934.40
04537 50101573-1 605,028.38
04537 50101572-1 584,087.38
04537 00419229-1 261,315.35
04537 00403845-1 122,327.00
04537 50101579-1 3,805.73
04537 50107713-1 3,761.10
</TABLE>
<PAGE> 48
FIRST CITY FINS 4523 - 4542 BY DESCENDING BV 09:19 5
LISTING AS OF 06/01/94
COSTCTR-40407 BANK NUMBER-4537
(continued)
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04537 50107710-1 2,014.56
04537 50101585-1 671.82
---------------
BANK 3,943,945.72
</TABLE>
N - 9
COSTCTR-40407 BANK NUMBER-4539
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04539 50101591-1 1,322,161.28
04539 00419232-1 139,895.12
04539 50101595-1 14,751.19
---------------
BANK 1,476,807.59
</TABLE>
N - 3
COSTCTR-40407 BANK NUMBER-4540
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04540 50101623-1 11,390,101.90
04540 50101622-1 1,378,229.90
04540 50101619-1 401,000.00
04540 50101598-1 300,000.00
04540 00411171-1 266,758.36
04540 50101613-1 96,604.00
04540 50101609-1 60,035.00
04540 50101605-1 57,256.00
04540 50101610-1 18,751.00
04540 00403827-1 10,000.00
04540 50101632-1 2,311.96
---------------
BANK 13,981,048.12
COSTCTR 54,232,044.11
</TABLE>
N - 11
<PAGE> 49
FIRST CITY FINS 4523 - 4542 BY DESCENDING BV 09:19 6
LISTING AS OF 06/01/94
COSTCTR-40450 BANK NUMBER-4525
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04525 50101382-1 7,548,869.81
04525 50101426-1 89,730.00
---------------
BANK 7,638,599.81
</TABLE>
N - 2
COSTCTR-40450 BANK NUMBER-4526
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04526 50100613-1 3,324,980.84
04526 50100609-1 2,304,906.44
04526 50100612-1 1,505,040.98
04526 50100608-1 881,461.01
04526 50107759-1 463,222.45
04526 50100634-1 109,282.27
04526 50100611-1 37,960.22
04526 00402157-1 19,797.46
04526 50107749-1 10,288.18
04526 50100636-1 9,180.39
04526 50107751-1 6,446.01
04526 50107748-1 4,828.84
04526 50107747-1 4,449.07
04526 50107750-1 1,515.96
04526 50100614-1 547.61
04526 50100605-1 1.00
---------------
BANK 8,683,908.73
</TABLE>
N - 16
COSTCTR-40450 BANK NUMBER-4528
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04528 50107601-1 5.00
</TABLE>
N - 1
<PAGE> 50
FIRST CITY FINS 4523 - 4542 BY DESCENDING BV 09:19 7
LISTING AS OF 06/01/94
COSTCTR-40450 BANK NUMBER-4529
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04529 50100779-1 35,593,646.43
04529 50100776-1 10,279,560.39
04529 50100777-1 5,173,249.36
04529 00409890-1 3,066,875.59
04529 00402455-1 2,921,344.38
04529 00409888-1 2,148,183.86
04529 00402123-1 2,000,000.00
04529 00421207-1 1,987,500.00
04529 00400892-1 1,848,575.26
04529 50107808-1 1,590,848.67
04529 50100775-1 1,116,086.66
04529 50107775-1 910,632.71
04529 00413035-1 844,786.56
04529 00420019-1 836,254.97
04529 00418079-1 787,955.00
04529 00409895-1 750,000.12
04529 00022694-3 713,886.38
04529 00424445-1 441,454.73
04529 00424703-1 441,454.73
04529 00423892-1 387,977.90
04529 00402470-1 381,036.39
04529 50100737-1 356,117.05
04529 00402124-1 314,030.49
04529 00402093-1 311,516.32
04529 00418077-1 300,000.00
04529 00402633-1 290,000.00
04529 50100755-1 246,214.51
04529 00402117-1 240,968.60
04529 00418080-1 233,500.00
04529 50100648-1 210,000.00
04529 00402092-1 180,347.50
04529 00402134-1 163,814.96
04529 00411528-1 150,000.00
04529 00402132-1 147,500.00
04529 00424462-1 144,415.12
04529 50100694-1 140,000.00
04529 00423890-1 129,000.00
04529 50100725-1 120,000.00
04529 50100681-1 113,000.00
04529 00402094-1 110,702.22
04529 00423852-1 97,600.00
04529 00402118-1 90,494.51
04529 00405807-1 68,444.75
04529 00402112-1 66,710.20
04529 50100654-1 65,000.00
04529 00402091-1 63,413.74
04529 00402089-1 53,215.27
04529 50107794-1 47,860.05
04529 00424118-1 47,651.46
</TABLE>
<PAGE> 51
FIRST CITY FINS 4523 - 4542 BY DESCENDING BV 09:19 8
LISTING AS OF 06/01/94
COSTCTR-40450 BANK NUMBER-4529
(continued)
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04529 00402103-1 45,811.87
04529 50107796-1 45,736.44
04529 00423866-1 40,400.00
04529 50100730-1 36,311.15
04529 50100731-1 36,311.15
04529 50100778-1 35,776.81
04529 50100680-1 35,500.00
04529 00423485-1 35,245.85
04529 00402106-1 32,073.85
04529 50100671-1 30,441.00
04529 00402100-1 24,778.43
04529 00420034-1 23,960.50
04529 50100807-1 21,030.99
04529 50100853-1 15,703.54
04529 50107804-1 15,143.28
04529 50107801-1 14,212.09
04529 00402104-1 14,000.00
04529 50100640-1 13,524.08
04529 50100780-1 12,441.12
04529 50107793-1 11,485.34
04529 50107807-1 10,642.58
04529 50100810-1 10,078.34
04529 00420020-1 10,000.00
04529 00422813-1 6,125.30
04529 50100806-1 5,991.40
04529 50107785-1 5,985.23
04529 50100785-1 5,538.12
04529 50107772-1 5,474.33
04529 50100802-1 5,009.45
04529 50100794-1 4,336.83
04529 00423901-1 4,230.34
04529 50100804-1 4,219.45
04529 50107797-1 4,104.35
04529 50107789-1 3,843.33
04529 50100784-1 3,638.92
04529 50107791-1 3,549.03
04529 00421727-1 3,505.20
04529 50100819-1 2,485.18
04529 50107773-1 2,224.54
04529 50100803-1 2,204.96
04529 50100812-1 2,182.14
04529 50100793-1 2,165.00
04529 50100792-1 1,889.47
04529 50100789-1 1,864.52
04529 50100790-1 1,864.52
04529 50100791-1 1,848.39
04529 50100809-1 1,672.30
04529 50107790-1 1,602.56
</TABLE>
<PAGE> 52
FIRST CITY FINS 4523 - 4542 BY DESCENDING BV 09:19 9
LISTING AS OF 06/01/94
COSTCTR-40450 BANK NUMBER-4529
(continued)
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04529 50107765-1 1,560.00
04529 50100817-1 1,537.22
04529 50100799-1 1,504.65
04529 50100781-1 1,377.48
04529 50100801-1 1,353.15
04529 50100824-1 1,333.44
04529 50100787-1 1,320.70
04529 50100788-1 1,320.70
04529 50107788-1 1,090.41
04529 50100815-1 1,088.01
04529 50100797-1 1,022.50
04529 50100800-1 1,010.30
04529 00421739-1 786.60
04529 50107795-1 626.08
04529 50107764-1 600.00
04529 50107768-1 600.00
04529 50107766-1 270.00
04529 50107774-1 193.10
04529 50107802-1 1.00
04529 50107803-1 1.00
04529 50107805-1 1.00
04529 50107806-1 1.00
---------------
BANK 79,399,588.45
</TABLE>
N - 119
COSTCTR-40450 BANK NUMBER-4531
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04531 50100859-1 275,876.88
04531 50107811-1 30,362.70
04531 50107809-1 11,401.73
04531 50100857-1 5,785.00
----------------
BANK 323,426.31
</TABLE>
N - 4
<PAGE> 53
FIRST CITY FINS 4523 - 4542 BY DESCENDING BV 09:19 10
LISTING AS OF 06/01/94
COSTCTR-40450 BANK NUMBER-4532
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04532 50101680-1 130,125,069.63
04532 00424972-1 19,780,000.00
04532 00406619-1 11,634,002.00
04532 00406623-1 11,348,740.00
04532 00407763-1 10,320,721.00
04532 50101774-1 8,070,039.69
04532 00410131-1 5,792,557.47
04532 00407782-1 5,168,821.00
04532 50107961-1 4,500,000.00
04532 00410000-1 4,482,556.48
04532 50107923-1 4,092,504.92
04532 00413446-1 4,062,554.98
04532 00406625-1 3,505,624.71
04532 50107962-1 2,953,593.72
04532 00406627-1 2,891,476.54
04532 50101690-1 2,820,995.92
04532 00408092-1 2,799,068.21
04532 00408063-1 2,675,516.87
04532 50107966-1 2,212,746.00
04532 00412961-1 2,076,730.00
04532 00022725-3 1,873,254.48
04532 50107946-1 1,486,411.00
04532 00408061-1 1,438,728.93
04532 00407781-1 830,000.05
04532 00410015-1 828,660.44
04532 50107965-1 813,224.00
04532 50101691-1 799,817.81
04532 00421195-1 782,000.00
04532 50101689-1 765,225.06
04532 50101769-1 739,566.48
04532 50101687-1 704,380.00
04532 00410001-1 693,614.15
04532 50101688-1 676,684.22
04532 50101692-1 577,835.62
04532 00424350-1 532,500.00
04532 00408059-1 467,822.02
04532 00410082-1 436,522.98
04532 00407758-1 406,431,00
04532 50107924-1 399,564.33
04532 50101672-1 357,581.11
04532 00410156-1 354,130.26
04532 00409993-1 336,740.82
04532 00408065-1 326,763.98
04532 00410158-1 312,883.91
04532 00423239-1 299,760.00
04532 50101693-1 287,123.29
04532 50101675-1 281,681.15
04532 50101762-1 281,592.60
04532 50101694-1 269,178.08
</TABLE>
<PAGE> 54
FIRST CITY FINS 4523 - 4542 BY DESCENDING BV 09:19 11
LISTING AS OF 06/01/94
COSTCTR 40450 BANK NUMBER-4532
(continued)
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04532 50101652-1 263,900.00
04532 00420528-1 254,000.00
04532 00410022-1 252,534.73
04532 50101776-1 240,559.50
04532 50101686-1 238,789.83
04532 00409453-1 238,480.31
04532 50101677-1 233,259.00
04532 00409462-1 207,944.00
04532 00413116-1 205,000.00
04532 50101668-1 201,465.00
04532 50107934-1 182,073.00
04532 50101695-1 179,452.05
04532 00409566-1 173,303.43
04532 50107964-1 130,000.00
04532 50101676-1 124,858.60
04532 50101664-1 120,484.03
04532 00424887-1 118,732.93
04532 00410280-1 118,297.36
04532 50101669-1 108,595.00
04532 50107940-1 104,714.63
04532 00408091-1 94,579.00
04532 00022827-3 93,071.32
04532 00409990-1 85,729.54
04532 00401418-1 78,033.32
04532 50107941-1 74,164.00
04532 00420527-1 57,000.00
04532 00424558-1 54,260.93
04532 00408069-1 51,913.00
04532 00416699-1 50,801.21
04532 50101773-1 45,047.55
04532 00410002-1 44,221.88
04532 50101636-1 42,000.00
04532 50107960-1 40,742.00
04532 50101643-1 40,266.69
04532 50101678-1 40,227.82
04532 00409992-1 38,295.59
04532 50101764-1 26,467.94
04532 00424891-1 25,185.70
04532 50101679-1 22,034.89
04532 50107943-1 21,490.00
04532 00423409-1 20,071.34
04532 00424866-1 19,577.22
04532 00424550-1 18,248.71
04532 00424867-1 15,474.05
04532 50101763-1 15,223.84
04532 00408058-1 15,067.00
04532 00408056-1 13,271.00
04532 00424663-1 13,018.74
</TABLE>
<PAGE> 55
FIRST CITY FINS 4523 - 4542 BY DESCENDING BV 09:19 12
LISTING AS OF 06/01/94
COSTCTR 40450 BANK NUMBER-4532
(continued)
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04532 50107938-1 10,978.00
04532 50101646-1 10,000.00
04532 00424715-1 8,709.44
04532 50101699-1 7,666.15
04532 00406628-1 3,975.84
04532 50101707-1 1,863.39
04532 00424889-1 1,584.35
04532 00022084-3 1,388.91
04532 00424717-1 1,313.90
04532 50107932-1 837.42
04532 50101761-1 810.74
04532 50107933-1 738.00
04532 00424634-1 663.32
04532 50101713-1 645.97
04532 50101756-1 458.81
04532 50101757-1 380.63
04532 50101755-1 375.38
04532 50101758-1 370.95
04532 50101754-1 354.63
04532 50101759-1 264.06
04532 50107948-1 180.48
04532 50107949-1 61.64
04532 00424745-1 1.00
04532 50101770-1 1.00
04532 50101772-1 1.00
04532 50101775-1 1.00
04532 50101777-1 1.00
04532 50101782-1 1.00
04532 50101783-1 1.00
---------------
BANK 264,578,553.60
</TABLE>
N - 126
COSTCTR-40450 BANK NUMBER-4533
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04533 50100867-1 23,777.32
04533 50100868-1 11,359.00
04533 50107812-1 1,114.91
04533 00410380-1 731.60
---------------
BANK 36,982.83
</TABLE>
N - 4
<PAGE> 56
FIRST CITY FINS 4523 - 4542 BY DESCENDING BV 09:19 13
LISTING AS OF 06/01/94
COSTCTR-40450 BANK NUMBER-4535
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04535 50100877-1 388,288.95
04535 50107827-1 64,538.30
04535 50100880-1 4,309.51
---------------
BANK 457,136.76
</TABLE>
N - 3
COSTCTR-40450 BANK NUMBER-4537
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04537 00401005-1 1.00
04537 00408494-1 1.00
04537 00408499-1 1.00
04537 00408504-1 1.00
---------------
BANK 4.00
</TABLE>
N - 4
COSTCTR-40450 BANK NUMBER-4538
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04538 50100886-1 278,330.41
04538 50107831-1 97,314.22
04538 00406195-1 24,828.33
04538 50100898-1 1,738.33
04538 50107828-1 1,014.91
---------------
BANK 403,226.20
</TABLE>
N - 5
COSTCTR-40450 BANK NUMBER-4541
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04541 50107833-1 157,439.39
</TABLE>
<PAGE> 57
FIRST CITY FINS 4523 - 4542 BY DESCENDING BV 09:19 14
LISTING AS OF 06/01/94
COSTCTR-40450 BANK NUMBER-4541
(continued)
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04541 50100903-1 10,852.19
04541 50100902-1 6,393.89
04541 50107832-1 2,860.24
----------------
BANK 177,545.71
</TABLE>
N - 4
COSTCTR-40450 BANK NUMBER-4542
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04542 50100911-1 5,433,159.71
04542 50107838-1 75,813.47
04542 50107839-1 5,756.08
04542 50100920-1 495.02
04542 50100922-1 1.00
04542 50107840-1 1.00
----------------
BANK 5,515,226.28
COSTCTR 367,214,203.68
----------------
421,446,247.79
</TABLE>
N - 6
Total N - 402
<PAGE> 58
FIRST CITY FIN 4543 [COLLECTING BANK] BY DESCENDING BV 09:21 1
LISTING AS OF 06/01/94
COSTCTR-40450 BANK NUMBER-4543
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04543 00425029-1 367,545.00
04543 50098753-1 203,655.00
04543 50099426-1 140,187.00
04543 50098790-1 7,254.00
----------------
BANK 718,641.00
----------------
COSTCTR 718,641.00
----------------
</TABLE>
N - 4
<PAGE> 59
FIRST CITY FIN 4543 [COLLECTING BANK] BY DESCENDING BV 09:21 2
LISTING AS OF 06/01/94
COSTCTR-40450 BANK NUMBER-4543
(continued)
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04543 00424992-1 8,788,934.70
04543 00405262-1 7,180,830.00
04543 50099006-1 6,594,387.18
04543 00397428-1 6,188,584.64
04543 00397891-1 5,307,936.30
04543 50099018-1 5,300,077.00
04543 50099017-1 3,707,017.50
04543 00397920-1 3,298,010.59
04543 00408541-1 3,236,664.54
04543 50099282-1 3,045,099.54
04543 50099008-1 2,737,996.55
04543 50099125-1 2,604,841.81
04543 00408847-1 2,400,000.00
04543 50099005-1 2,355,127.46
04543 50099004-1 2,279,743.38
04543 00413061-1 2,036,130.20
04543 50099259-1 1,749,947.94
04543 50099254-1 1,716,998.47
04543 00422491-1 1,518,021.70
04543 50099236-1 1,508,338.50
04543 00408851-1 1,428,559.29
04543 50099046-1 1,395,013.39
04543 00406852-1 1,324,508.39
04543 00414036-1 1,250,466.00
04543 00022984-3 1,237,500.00
04543 50099235-1 1,227,003.53
04543 50099194-1 1,170,612.92
04543 00413354-1 1,160,076.48
04543 50099040-1 1,152,482.00
04543 50098759-1 1,135,848.21
04543 50098791-1 1,113,592.00
04543 50099089-1 1,095,000.00
04543 50099176-1 1,058,610.42
04543 00418197-1 969,688.09
04543 50099305-1 931,672.75
04543 00397451-1 922,091.69
04543 00411022-1 919,632.00
04543 00022980-3 881,250.00
04543 00399076-1 877,434.20
04543 00419684-1 863,116.94
04543 50099253-1 831,300.90
04543 50098743-1 810,921.00
04543 50099458-1 804,710.00
04543 00023074-3 787,500.00
04543 50099296-1 778,091.49
04543 50099287-1 774,012.81
04543 00420954-1 743,750.00
04543 00418546-1 733,988.40
04543 50099262-1 733,770.36
</TABLE>
<PAGE> 60
FIRST CITY FIN 4543 [COLLECTING BANK] BY DESCENDING BV 09:21 3
LISTING AS OF 06/01/94
COSTCTR-40450 BANK NUMBER-4543
(continued)
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04543 50098906-1 684,029.33
04543 50098959-1 613,874.72
04543 50099188-1 598,879.25
04543 00407891-1 592,395.89
04543 50098975-1 590,965.54
04543 50099230-1 590,787.76
04543 00407669-1 571,297.69
04543 00415387-1 567,765.00
04543 00397895-1 546,546.73
04543 00422774-1 538,062.66
04543 50099190-1 536,506.10
04543 00406460-1 532,205.81
04543 50098989-1 531,094.55
04543 50098826-1 526,137.33
04543 50099096-1 510,331.60
04543 50098827-1 504,810.19
04543 50099374-1 500,000.00
04543 00424142-1 494,949.51
04543 50099174-1 486,346.04
04543 00408673-1 484,614.43
04543 50099136-1 480,865.01
04543 00403592-1 480,000.00
04543 50099204-1 475,000.00
04543 50099276-1 460,112.59
04543 00424646-1 457,788.67
04543 50099336-1 456,301.00
04543 50099019-1 456,127.02
04543 50098938-1 454,927.47
04543 50099082-1 454,520.68
04543 50099142-1 448,619.25
04543 50099373-1 446,000.00
04543 50099053-1 433,819.34
04543 50099039-1 423,263.16
04543 00402020-1 420,619.87
04543 00408565-1 387,200.68
04543 50099030-1 381,568.97
04543 50098971-1 380,194.49
04543 00402022-1 376,959.61
04543 00402653-1 374,489.96
04543 50099086-1 372,127.45
04543 50099121-1 371,000.00
04543 00397868-1 350,000.00
04543 50099302-1 350,000.00
04543 50099234-1 348,751.66
04543 50098793-1 337,816.00
04543 00411879-1 335,690.84
04543 00421471-1 314,058.00
04543 50098785-1 303,430.00
</TABLE>
<PAGE> 61
FIRST CITY FIN 4543 [COLLECTING BANK] BY DESCENDING BV 09:21 4
LISTING AS OF 06/01/94
COSTCTR-40450 BANK NUMBER-4543
(continued)
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04543 50099466-1 303,144.00
04543 50099070-1 300,646.86
04543 50099232-1 300,000.00
04543 50099168-1 296,576.78
04543 50099241-1 294,750.00
04543 50099350-1 291,501.00
04543 50099201-1 291,226.73
04543 50098821-1 287,775.00
04543 50098967-1 283,896.39
04543 00422515-1 283,811.15
04543 50099095-1 276,688.00
04543 50099107-1 272,000.00
04543 50099066-1 268,370.55
04543 50099062-1 266,000.00
04543 50099177-1 262,775.00
04543 00419188-1 260,000.00
04543 00411111-1 255,500.00
04543 50099079-1 255,287.68
04543 50099198-1 251,330.53
04543 50099192-1 251,176.58
04543 50099321-1 248,991.00
04543 50099159-1 244,142.58
04543 50099294-1 240,000.00
04543 50099205-1 233,999.44
04543 50098984-1 229,792.53
04543 50099214-1 227,367.61
04543 50099298-1 224,236.20
04543 50099001-1 223,230.25
04543 50099015-1 222,116.66
04543 00415978-1 221,320.58
04543 00419804-1 220,470.95
04543 00416194-1 213,343.52
04543 00416279-1 212,170.43
04543 50098957-1 206,984.18
04543 50099084-1 204,548.35
04543 50099488-1 201,125.87
04543 00407539-1 200,000.00
04543 50099007-1 196,125.56
04543 50099120-1 195,652.71
04543 50098754-1 195,292.00
04543 50099166-1 194,682.58
04543 50099002-1 193,614.49
04543 50099231-1 190,260.61
04543 50098946-1 185,697.90
04543 50099187-1 185,667.65
04543 00425196-1 185,376.13
04543 50099278-1 180,000.00
04543 50099499-1 178,982.00
</TABLE>
<PAGE> 62
FIRST CITY FIN 4543 [COLLECTING BANK] BY DESCENDING BV 09:21 5
LISTING AS OF 06/01/94
COSTCTR-40450 BANK NUMBER-4543
(continued)
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04543 50099493-1 178,164.07
04543 50099122-1 176,000.00
04543 50098992-1 175,643.60
04543 50099009-1 175,000.00
04543 00423540-1 170,209.38
04543 00419893-1 170,100.00
04543 00416651-1 170,000.00
04543 50099299-1 169,374.20
04543 00418100-1 166,687.02
04543 50099059-1 161,022.75
04543 50099375-1 160,953.27
04543 50099455-1 158,576.00
04543 00411020-1 156,042.94
04543 50099126-1 155,000.00
04543 50099193-1 153,454.64
04543 50099445-1 153,061.00
04543 50098815-1 152,605.00
04543 50099052-1 150,287.67
04543 50099010-1 150,000.00
04543 50098809-1 143,961.00
04543 50099033-1 142,613.29
04543 50099163-1 142,567.35
04543 00405798-1 142,353.80
04543 50099286-1 142,105.97
04543 50099083-1 137,242.01
04543 00424354-1 136,656.00
04543 50098752-1 135,823.00
04543 50098819-1 135,332.00
04543 50098993-1 132,000.00
04543 50099304-1 130,511.33
04543 50098760-1 128,502.00
04543 00404403-1 126,000.00
04543 00417951-1 125,002.55
04543 50099252-1 124,398.09
04543 50099293-1 123,938.32
04543 50098925-1 123,089.27
04543 50099237-1 121,069.04
04543 00417192-1 118,500.00
04543 50098939-1 117,467.58
04543 50098786-1 115,176.00
04543 00405582-1 114,525.75
04543 50099020-1 113,113.26
04543 50099195-1 111,000.00
04543 50098965-1 109,840.82
04543 50099261-1 105,412.29
04543 50099209-1 104,356.22
04543 50098837-1 101,966.14
04543 50098974-1 100,000.00
</TABLE>
<PAGE> 63
FIRST CITY FIN 4543 [COLLECTING BANK] BY DESCENDING BV 09:21 6
LISTING AS OF 06/01/94
COSTCTR-40450 BANK NUMBER-4543
(continued)
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04543 50099057-1 99,543.54
04543 50099044-1 96,602.67
04543 50099242-1 96,497.89
04543 00417081-1 95,915.74
04543 50099295-1 94,983.54
04543 50098931-1 93,211.00
04543 50099167-1 91,877.26
04543 50099032-1 90,813.62
04543 50099289-1 90,303.19
04543 50098976-1 90,000.00
04543 00408850-1 89,046.73
04543 50099507-1 88,449.42
04543 50098949-1 87,527.73
04543 50098762-1 86,632.00
04543 00425133-1 85,000.00
04543 00409774-1 84,647.04
04543 50099243-1 84,074.82
04543 50099491-1 83,994.52
04543 50099215-1 83,282.01
04543 50099208-1 82,723.32
04543 50099175-1 82,500.00
04543 50099226-1 82,236.20
04543 00417591-1 80,457.77
04543 00405581-1 79,632.90
04543 50099264-1 79,500.00
04543 50099284-1 79,370.02
04543 50099076-1 76,279.17
04543 50099285-1 74,625.32
04543 50098782-1 72,752.00
04543 50099038-1 71,433.39
04543 50098948-1 71,146.84
04543 50099117-1 70,633.46
04543 50099366-1 69,788.00
04543 50099034-1 69,621.10
04543 50099055-1 67,302.84
04543 00401632-1 66,616.57
04543 50099228-1 65,343.00
04543 00422174-1 61,200.00
04543 50099189-1 60,957.61
04543 00403120-1 60,785.36
04543 50099077-1 60,218.88
04543 50099124-1 60,000.00
04543 50099490-1 59,624.00
04543 50098945-1 59,540.27
04543 50099506-1 59,380.00
04543 50099135-1 58,649.25
04543 50099312-1 58,418.00
04543 50098977-1 57,939.57
</TABLE>
<PAGE> 64
FIRST CITY FIN 4543 [COLLECTING BANK] BY DESCENDING BV 09:21 7
LISTING AS OF 06/01/94
COSTCTR-40450 BANK NUMBER-4543
(continued)
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04543 50099152-1 57,773.04
04543 50099151-1 56,633.00
04543 50099244-1 56,377.22
04543 00414670-1 54,338.20
04543 50099292-1 54,236.97
04543 50098982-1 54,041.00
04543 00417166-1 52,700.00
04543 50099273-1 52,068.84
04543 00422173-1 50,901.30
04543 50099270-1 50,000.00
04543 50099202-1 49,853.03
04543 00404481-1 49,000.00
04543 00420201-1 48,304.15
04543 50099140-1 48,125.00
04543 50099279-1 45,000.00
04543 50099354-1 44,282.00
04543 50098997-1 44,000.00
04543 50098869-1 43,478.00
04543 50099297-1 42,399.29
04543 00407889-1 41,789.76
04543 50098956-1 41,281.09
04543 50099290-1 41,197.17
04543 50099303-1 40,988.08
04543 50099468-1 40,909.00
04543 00421769-1 40,380.00
04543 50099221-1 40,300.61
04543 50099092-1 39,090.99
04543 50099337-1 38,584.30
04543 50099097-1 37,500.00
04543 50099200-1 37,500.00
04543 50099345-1 36,376.00
04543 00408845-1 35,737.46
04543 50099501-1 35,489.00
04543 50099263-1 35,004.90
04543 50099280-1 34,859.35
04543 50099130-1 34,488.00
04543 50099229-1 33,307.56
04543 00417898-1 31,500.00
04543 00421773-1 31,500.00
04543 50099037-1 30,545.51
04543 00404486-1 30,000.00
04543 50099222-1 29,011.69
04543 50099206-1 27,974.00
04543 50099028-1 27,971.85
04543 50099137-1 27,573.04
04543 50098972-1 27,243.65
04543 50098944-1 27,228.48
04543 50099024-1 27,075.22
</TABLE>
<PAGE> 65
FIRST CITY FIN 4543 [COLLECTING BANK] BY DESCENDING BV 09:21 8
LISTING AS OF 06/01/94
COSTCTR-40450 BANK NUMBER-4543
(continued)
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04543 50099520-1 26,585.48
04543 50099149-1 24,482.16
04543 50099191-1 24,329.78
04543 50098891-1 24,038.91
04543 50099090-1 23,497.24
04543 50099213-1 23,452.09
04543 50098852-1 23,408.00
04543 50099210-1 22,919.64
04543 00401613-1 22,278.71
04543 50099045-1 22,163.19
04543 50099211-1 21,835.94
04543 50098964-1 21,596.86
04543 50098787-1 21,535.00
04543 50099035-1 21,104.56
04543 50099023-1 21,039.49
04543 00408967-1 20,836.53
04543 50099027-1 20,820.39
04543 50099145-1 20,687.24
04543 50098958-1 20,327.77
04543 50099100-1 20,287.80
04543 50099098-1 20,279.43
04543 50099217-1 20,273.66
04543 50099012-1 20,267.62
04543 50099115-1 20,263.53
04543 50098915-1 20,154.30
04543 50098842-1 20,000.00
04543 50099099-1 19,541.71
04543 50098943-1 19,475.35
04543 50098963-1 18,786.02
04543 50099031-1 18,442.54
04543 50098848-1 18,214.00
04543 50099064-1 17,645.92
04543 50098986-1 17,473.87
04543 50099063-1 16,332.46
04543 50098953-1 16,183.00
04543 50098921-1 15,093.86
04543 50098904-1 15,052.89
04543 00421668-1 15,025.36
04543 50099091-1 14,746.44
04543 00423091-1 13,655.59
04543 50098882-1 13,374.60
04543 50099069-1 13,119.97
04543 00415809-1 13,000.00
04543 00415811-1 13,000.00
04543 00415812-1 13,000.00
04543 00417121-1 13,000.00
04543 50098861-1 12,783.37
04543 50099022-1 12,725.12
</TABLE>
<PAGE> 66
FIRST CITY FIN 4543 [COLLECTING BANK] BY DESCENDING BV 09:21 9
LISTING AS OF 06/01/94
COSTCTR-40450 BANK NUMBER-4543
(continued)
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04543 50099365-1 12,700.00
04543 50099075-1 12,446.61
04543 50099041-1 12,222.21
04543 50099042-1 12,000.00
04543 50098962-1 11,609.89
04543 50098898-1 11,568.54
04543 50099131-1 11,305.62
04543 50099129-1 11,241.80
04543 50099288-1 11,014.46
04543 50098893-1 10,440.94
04543 50099116-1 9,977.40
04543 50099094-1 9,674.29
04543 50098909-1 9,266.41
04543 50099180-1 9,021.03
04543 50099051-1 8,897.18
04543 00414121-1 8,867.98
04543 50099093-1 8,542.94
04543 50098859-1 7,928.31
04543 50099118-1 7,887.69
04543 50098883-1 7,657.63
04543 50098884-1 7,577.17
04543 50098995-1 7,222.00
04543 50098922-1 6,842.34
04543 50098831-1 6,841.00
04543 50098961-1 6,781.23
04543 50098881-1 6,736.88
04543 50098832-1 6,000.00
04543 50098833-1 5,378.60
04543 50098824-1 5,309.00
04543 50098919-1 5,049.28
04543 00414672-1 5,000.00
04543 50099291-1 5,000.00
04543 50098866-1 4,256.67
04543 50098911-1 3,941.82
04543 50098876-1 3,862.03
04543 50099133-1 3,339.23
04543 50099106-1 3,302.15
04543 50099106-1 3,255.77
04543 50098880-1 3,159.08
04543 50099155-1 3,000.00
04543 50098917-1 2,827.97
04543 50099203-1 2,754.79
04543 50099085-1 2,697.36
04543 50098830-1 2,638.00
04543 50099240-1 2,348.51
04543 50098860-1 2,164.92
04543 50099134-1 2,028.95
04543 50098892-1 1,980.00
</TABLE>
<PAGE> 67
FIRST CITY FIN 4543 [COLLECTING BANK] BY DESCENDING BV 09:21 10
LISTING AS OF 06/01/94
COSTCTR-40450 BANK NUMBER-4543
(continued)
<TABLE>
<CAPTION>
LAMIS LOAN CURRENT
NUMBER BALANCE
<S> <C>
04543 50098895-1 1,970.95
04543 50098862-1 1,890.36
04543 50098896-1 1,799.21
04543 50098908-1 1,639.17
04543 50098870-1 1,606.72
04543 50098903-1 1,338.53
04543 50099281-1 1,294.21
04543 50099498-1 902.00
04543 50098877-1 817.30
04543 50098875-1 810.25
04543 50098868-1 710.53
04543 00420184-1 709.45
04543 50098878-1 658.43
04543 50098867-1 574.08
04543 50098874-1 351.21
04543 00397334-1 1.00
04543 00397335-1 1.00
04543 00397431-1 1.00
04543 00397437-1 1.00
04543 00397448-1 1.00
04543 00397449-1 1.00
04543 00420483-1 1.00
04543 50098853-1 1.00
04543 50099370-1 1.00
04543 50099371-1 1.00
04543 50099411-1 1.00
04543 00397926-1 0.01
04543 00397929-1 0.01
----------------
BANK 150,031,877.76
COSTCTR 150,031,877.76
----------------
150,750,518.76
</TABLE>
N = 413
Total N = 417
<PAGE> 68
SCHEDULE 5.3(d)
SURPLUS ASSIGNMENTS
<TABLE>
<CAPTION>
Transaction Amount of Assignment Date Assignee
- ----------- -------------------- ---- --------
<S> <C> <C> <C>
EDS Settlement $8.4 million plus amount of April 22, 1994 FDIC-Receiver
additional dividends, if any, (Houston)
on $10.5 million Receiver's
Certificate, plus interest on
$3.4 million
Operating Account $2,000,163.19 plus interest June 10, 1994 FDIC-Receiver
(Houston)
</TABLE>
<PAGE> 69
SCHEDULE 8.1(a)
[OMITTED]
<PAGE> 70
EXHIBIT 3.5
FCBOT NOTE
<PAGE> 71
Exhibit 3.5
NON-NEGOTIABLE PROMISSORY NOTE
$57,000,000.00 Houston, Texas
__________, 1994
FOR VALUE RECEIVED, the undersigned FIRST CITY BANCORPORATION
OF TEXAS, INC., a Delaware corporation ("FCBOT"), with its principal executive
offices located in Houston, Texas, hereby promises to pay to the order of the
FEDERAL DEPOSIT INSURANCE CORPORATION (the "FDIC"), in its capacity as RECEIVER
of each of (i) the twenty First City banks closed on October 30, 1992 (as
listed in Exhibit A attached hereto), (ii) the twenty bridge banks organized
with respect to those First City banks, and (iii) Collecting Bank, N.A. (the
FDIC in such capacities is hereinafter referred to collectively, as the
"FDIC-Receiver", the banks referred to in clauses (i) and (iii) are hereinafter
referred to as the "First City Banks", and the receiverships created by the
closure of the banks referred to in clauses (i), (ii) and (iii) are hereinafter
referred to as the "First City Receiverships"), the principal sum of
FIFTY-SEVEN MILLION DOLLARS AND NO/100 ($57,000,000.00), together with interest
on the outstanding balance thereof as and to the extent set forth in paragraph
8 below. Such payment by FCBOT shall be made upon the demand of the
FDIC-Receiver, or of the FDIC in its corporate capacity as successor thereto
following the termination of the First City Receiverships ("FDIC-Corporate"),
which demand may be made only to the extent provided herein.
This Promissory Note is being issued pursuant to that certain
agreement, dated June 22, 1994 (the "Settlement Agreement"), by and among FCBOT
and certain affiliated entities (as listed in Exhibit B attached hereto, the
"FCBOT Affiliated Entities"), the FDIC-Receiver, and the FDIC in its corporate
capacity.
1. Payments of principal and interest shall be made
payable to the FDIC in legal tender of the United States of America and shall
be made by wire transfer in accordance with the written instructions of the
FDIC delivered to FCBOT with or after any demand for payment made by the FDIC
under this Promissory Note. Payments of principal and itnerest due under this
Promissory Note shall be timely made without any right of setoff.
2. As used in this Promissory Note, the following terms
shall have the following meanings (all terms being defined
<PAGE> 72
FCBOT NOTE
PAGE 2
hereafter or in other provisions of this Promissory note in the singular to
have the same meanings when used in the plural and vice versa):
(a) "Adjusted Net Worth" means assets (other than any
receivable from the FDIC-Receiver for any expected future
distributions with respect to the First city Receiverships) minus
liabilities (other than this Promissory Note), stated in accordance
with generally accepted accounting principles.
(b) "Current Assets" means cash, cash equivalents, and
other assets that likely can be converted into cash within one year.
(c) "Current Liabilities" means liabilities now due or
expected to become due within one year.
(d) "Event of Default" has the meaning provided in
Section 5 below.
(e) "GCR Value" means the anticipated cash collections to
be realized upon liquidation of an asset, not including liquidation
expenses, as such value may be estimated from time to time by the
FDIC-Receiver in its sole discretion.
(f) "Liquidity Deficiency" means that aggregate current
Assets are less than aggregate Current Liabilities.
(g) "Net Worth Covenant" has the meaning provided in
Section 9(a) below.
(h) "Plan of Confirmation" means that plan which was
submitted by FCBOT and judicially confirmed pursuant to Section 1129
of the United States Bankruptcy Code (the "Bankruptcy Code").
3. The holder hereof may demand payment under this
Promissory Note if, upon the termination of the last of the First City
Receiverships FDIC-Corproate determines (which determination shall be final and
binding on FCBOT) that the final balance sheet of the first City Receiverships
(on a consolidated basis) following the termination of the First city
Receiverships demonstrates that the liabilities exceed the assets of the First
city Receiverships. In that event, FCBOT shall be liable under this Promissory
Note for the amount of such excess up to Fifty-Seven Million Dollars
($57,000,000) and shall pay the amount of such excess immediately upon demand
to the holder hereof. The holder hereof may make such demand at any time
within one year after the termination of the last of the First City
Receiverships, and this Promissory Note shall remain outstanding
<PAGE> 73
FCBOT NOTE
PAGE 3
until (i) payment has been made on the Promissory Note pursuant to a demand
made in accordance with this paragraph or (ii), if no demand is made within the
time specified above, the date which is one year after the termination of the
last of the First City Receiverships.
4. (a) If any quarterly balance sheet delivered
under Section 6.1(a) of the Settlement Ageement with respect to the
operations of the first city Receiverships shows an aggregate
consolidated Liquidity Deficiency, the FDIC-Receiver may make demand
on this Promissory Note in the amount of that Liquidity Deficiency,
and FCBOT shall be liable therefor, up to the amount of Fifty-Seven
Million Dollars ($57,000,000). FCBOT shall pay that amount to the
FDIC-Receiver on the later of (i) ninety (90) days after the demand,
or (ii) the date on which the FDIC-Receiver first has legal
obligation(s) (which determination shall be in the sole discretion of
the FDIC-Receiver) to pay liabilities in excess of cash or cash
equivalents then available. In the event that the date described in
clause (ii) of the immediately preceding sentence is the later date,
the FDIC-Receiver shall provide FCBOT with notice of at least
twenty-four (24) hours of its obligation to pay the amount of the
Liquidity Deficiency pursuant to this paragraph 4(a).
(b) Any principal amount of this Promissory Note
remaining after all payments have been made pursuant to a demand under
paragraph (a) above shall continue to be outstanding and available for
further demands pursuant to this Promissory Note.
(c) Any distributions made to FCBOT pursuant to
Sections 5.1 or 5.2 of the Settlement Ageement subsequent to any
payments under paragraph (a) above (including payments that reduce the
principal amount of the Promissory Note to zero) shall increase the
principal amount of the Promissory Note by the amounts of such
distributions, up to a maximum principal amount of fifty-seven million
dollars ($57,000,000).
5. The following events or conditions shall constitute
an Event of Default under this Promissory Note:
(a) FCBOT's failure to make any payment of
principal under this Promissory Note when it becomes due and payable;
(b) FCBOT's failure to duly and punctually
perform the Net Worth Covenant;
<PAGE> 74
FCBOT NOTE
PAGE 4
(c) FCBOT's failure to duly and punctually
perform any other covenant or obligation of this Promissory Note,
which failure shall continue for thirty (30) days after notice is
given to FCBOT by the FDIC-Receiver or FDIC-Corporate;
(d) FCBOT's failure to pay any principal or
interest on any debt that it outstanding in a principal amount of at
least five hundred thousand dollars ($500,000) in the aggregate, when
it becomes due and payable except to the extent the debt is disputed
in good faith, or is subject to rights of offset or other claims which
would in good faith reduce the amount of the debt claimed to be due
and payable;
(e) FCBOT's failure to pay debts generally when
they become due or the admission by FCBOT of its inability to pay its
debts generally;
(f) subsequent to the date hereof, FCBOT's (i)
application for or consent to the appointment of, or the taking of
possession by, a receiver, conservator, custodian, trustee, or
liquidator of itself or of all or a substantial part of its property;
(ii) making a general assignment for the benefit of its creditors;
(iii) commencing a voluntary case under the Bankruptcy Code, as now or
hereafter in effect; (iv) filing a petition seeking to take advantage
of any other law relating to bankruptcy, insolvency, reorganization,
winding up, or composition or readjustment of debts; (v) failing to
controvert in a timely and appropriate manner, or acquiescing in
writing to, any petition filed against it in an involuntary case under
the Bankruptcy Code; or (vi) taking any corporate action for the
purpose of effecting any of the foregoing;
(g) the commencement of a proceeding or case
after the date hereof without application or consent of FCBOT, in any
court of competent jurisdiction, seeking (i) its liquidation,
reorganization, dissolution, or winding up, or the composition or
readjustment of its debts, (ii) the appointment of a trustee,
receiver, custodian, liquidator, or the like of FCBOT or of all or
any substantial part of its assets, or (iii) similar relief in respect
of FCBOT under any law relating to bankruptcy, insolvency,
reorganization, winding up, or composition or adjustment of debts, and
such proceeding or case shall continue undismissed, or an order,
judgment, or decree approving or ordering any of the foregoing shall
be entered and continue unstayed and in effect, for a period of ninety
(90) days; or an order for relief against FCBOT shall be entered in an
involuntary case under the Bankruptcy Code.
<PAGE> 75
FCBOT NOTE
PAGE 5
6. If an Event of Default shall occur, the entire
outstanding principal balance of this Promissory Note (meaning the maximum
principal amount of fifty-seven million dollars ($57,000,000), minus any
amounts paid by FCBOT pursuant to Section 4(a) above, plus any increases
pursuant to Section 4(c) above) shall forthwith be accelerated and become and
be due and payable immediately without any other presentment, demand, protest,
or notice of any kind, all of which are hereby expressly waived.
7. If an Event of Default shall occur, and suit is
brought or an attorney is employed or expenses are incurred to collect any sum
payable under this Promissory Note or enforce any other obligations hereunder,
FCBOT shall pay to the holder hereof its reasonable attorneys' fees, expenses,
and court costs incurred in collection or attempting to collect this Promissory
Note.
8. This Promissory Note shall not bear interest until
payment under it has been accelerated by reason of an Event of Default;
thereafter this Promissory Note shall bear interest at a rate of six percent
(6%) per annum.
9. FCBOT agrees that so long as this Promissory Note is
outstanding, it will observe the following covenants for the benefit of the
holder hereof:
(a) FCBOT and its subsidiaries shall maintain a
consolidated Adjusted Net worth of not less than fifty-seven million
dollars ($57,000,000) (the "Net Worth Covenant").
(b) No dividend on any of FCBOT's or its
subsidiaries' capital stock may be declared or paid if after paying
such dividend the consolidated Adjusted Net Worth of FCBOT would be
less than $57,000,000.
(c) FCBOT shall pay or discharge, or cause to be
paid or discharged, before the same shall become delinquent, (i) all
taxes, assessments and governmental charges levied or imposed upon
FCBOT or any of its subsidiaries or upon the income, profits, or
property of FCBOT or any of its subsidiaries; and (ii) all lawful
claims for labor, materials, and supplies which, if unpaid, might by
law become a lien upon the property of FCBOT or any of its
subsidiaries, except to the extent that, and as long as, FCBOT is
contesting such taxes, assessments or charges or such claims in good
faith; in each case if the failure to do so would materially adversely
affect FCBOT's ability to meet the obligations evidenced by this
Promissory Note.
<PAGE> 76
FCBOT NOTE
PAGE 6
(d) Other than as expressly provided in the Plan of
Confirmation, neither FCBOT nor any of its subsidiaries shall (i)
dispose of (A) all or substantially all of its assets or (B) dispose
of any asset or assets with an aggregate book value greater than ten
million dollars ($10,000,000) (other than, in either case, the assets
in the Final Asset Pool that FCBOT receives as part of the Initial
Dividend from the First City Receiverships pursuant to the Settlement
Agreement); (ii) merge or consolidate with any other entity; or (iii)
acquire any other entity with assets greater than ten million dollars
($10,000,000), unless in the event of a transaction described in
clauses (ii) and (iii) above (1) if FCBOT is a party to such
transaction (X) FCBOT is the surviving entity or (Y) the surviving
entity expressly assumes FCBOT's obligations with respect to this
Promissory Note and (2) no Event of Default may exist with respect to
this Promissory Note as a result of such transaction.
(e) FCBOT shall not make contributions to, investments
in, loans to, or use its credit for, any of its subsidiaries (other
than a subsidiary that guarantees this Promissory Note) in an
aggregate amount exceeding three million dollars ($3,000,000);
provided, that such loans and credit facilities may be renewed on a
revolving basis as long as the aggregate amount outstanding at any
time, in combination with investments and contributions whenever made,
does not exceed three million dollars ($3,000,000).
(f) (i) Neither FCBOT nor any of its subsidiaries may
enter into any transaction with any affiliate if (X) the terms are
less favorable than would be obtained in a comparable arms-length
transaction, (Y) the transaction involves aggregate assets or
liabilities of at least three million dollars ($3,000,000), and (Z)
the consolidated Adjusted Net Worth of FCBOT and its subsidiaries is
less than seventy-five million dollars ($75,000,000) or would be less
than seventy-five million dollars ($75,000,000) as a result of such
transaction.
(ii) The following procedure may be implemented by
FCBOT on five (5) occasions during the term of this Promissory Note.
If FCBOT or any subsidiary wishes to enter into a transaction with an
affiliate, it may submit a description of the transaction and its
terms to the FDIC for its review. If the FDIC does not, within thirty
(30) days of receipt of the description of the transaction, object to
the transaction as described on the grounds that the terms involved
are less favorable than would be obtainable in a comparable arm's
length transaction, or that
<PAGE> 77
FCBOT NOTE
PAGE 7
the FDIC lacks sufficient information to make such a judgment, FCBOT
may proceed with the transaction, and it will be deemed to comply with
the covenant set forth in this paragraph 9(f). If the FDIC does
object, it will state its reasons for objecting and the manner in
which it believes the terms of the transaction are less favorable than
would be obtained in a comparable arms-length transaction, or if the
FDIC determines that it lacks sufficient information to make such
judgment, it will notify FCBOT of the information that it needs for
such purpose. Thereafter, if FCBOT goes forward with the transaction
on the terms described in the FDIC's objection (in the event that the
FDIC has described terms that it has determined to be acceptable), it
will be deemed to have complied with this paragraph; otherwise, if it
proceeds with the transaction as originally described despite the
concerns of the FDIC, FCBOT will be deemed to have violated the
covenant set forth in this paragraph 9(f).
(g) FCBOT and its subsidiaries will (i) maintain their
properties, and appropriate insurance thereon; and (ii) comply with
any applicable law or regulation, and any order, writ, judgment, or
decree of any court or governmental authority to which it is subject;
in each case, to the extent necessary to prevent any failure to comply
with the provisions of this paragraph from causing any materially
adverse effect on FCBOT's ability to meet its payment obligations on
this Promissory Note.
(h) Promptly, and in any event within five (5) days after
the occurrence of each Event of Default and each event which, with the
giving of notice or lapse of time, or both, would constitute an Event
of Default, in each case of which FCBOT or its subsidiaries have
knowledge, FCBOT shall provide to the FDIC- Receiver a statement of
its chief financial officer setting forth details of such Event of
Default or other event and the action that FCBOT has taken and
proposes to take with respect thereto, if any.
(i) As soon as available, and in any event within thirty
(30) days after the end of each of the first three (3) quarters of
each fiscal year of FCBOT and its subsidiaries, FCBOT shall provide to
the FDIC- Receiver or FDIC-Corporate the consolidated balance sheet of
FCBOT and its subsidiaries as of the end of such quarter and
consolidated statements of income, retained earnings and of cash flow
of FCBOT and its subsidiaries for the period commencing at the end of
the previous fiscal year and ending with the end of such quarter,
setting forth in each case in comparative form the corresponding
figures for the corresponding period of the preceding fiscal year, all
in
<PAGE> 78
FCBOT NOTE
PAGE 8
reasonable detail and duly certified (subject to year-end audit
adjustments) by the chief financial officer of FCBOT as having been
prepared in accordance with generally accepted accounting principles.
(j) As soon as available and in any event within one
hundred (100) days after the end of each fiscal year of FCBOT and its
subsidiaries, FCBOT shall provide to the FDIC-Receiver or
FDIC-Corporate (i) the consolidated balance sheet of FCBOT and its
subsidiaries as of the end of such fiscal year, (ii) consolidated
statements of income, retained earnings, and of cash flow of FCBOT and
its subsidiaries for such year, and (iii) accompanied by a report
thereon of an independent certified ublic accountant of recognized
national standing, which report shall state that such financial
statements fairly represent (or other such language as the Accounting
Standards Board of the American Institute of Certified Public
Accountants shall prescribe for the standard auditors' report) the
consolidated financial condition and results of operations of the
FCBOT and its subsidiaries as at the end of, and for, such fiscal
year.
(k) FCBOT and its subsidiaries shall provide to the
FDIC-Receiver or FDIC-Corporate copies of all regular, periodic, and
special reports and all registration statements, that the FCBOT or any
such subsidiary files with the Securities and Exchange Commission or
any governmental authority that may be substituted therefor, or with
any national securities exchange, immediately upon their transmittal
of such reports.
10. This Promissory Note may not be assigned or
transferred by the FDIC-Receiver, except by (i) operation of law, (ii) to the
statutory successor of the FDIC-Receiver, or (iii) upon termination of the
First City Receiverships, to FDIC-Corporate or its statutory successor.
11. This Promissory Note shall be construed in accordance
with and governed by the Federal law of the United States of America and, in
the absence of controlling Federal law, the laws of the State of Texas.
12. FCBOT hereby waives presentment, demand (except as
expressly required herein), notice of dishonor, protest, notice of protest, and
nonpayment, and further waives all exemptions to which it may now or hereafter
be entitled under the laws of the United States, the State of Texas, or any
other state of the United States to the extent such waiver is permissible under
applicable law, and further agrees that the holder hereof shall
<PAGE> 79
FCBOT NOTE
PAGE 9
have the right without notice, to deal in any way, at any time, with FCBOT, and
to grant any extension of time for payment of this Promissory Note or any other
time for payment of this Promissory Note or any other indulgence or forbearance
whatsoever, without in any way affecting the obligation of FCBOT hereunder and
without waiving any rights the holder of this Promissory Note may have
hereunder or by virtue of the laws of the United States, the State of Texas, or
any other state of the United States. The failure of the holder of this
Promissory Note to exercise any of its rights and remedies shall not constitute
a waiver of the right to exercise such right or remedy at that or any other
time. All rights and remedies of the holder hereof upon an Event of Default
shall be cumulative to the maximum extent permitted by applicable law.
Dated: _________________________, 1994
FIRST CITY BANCORPORATION OF TEXAS, INC.
By: ___________________________________
Title: ___________________________________
<PAGE> 80
EXHIBIT A
LIST OF FIRST CITY BANKS CLOSED ON OCTOBER 30, 1992
1. First City, Texas -- Houston, National Association
2. First City, Texas -- Dallas
3. First City, Texas -- Austin, National Association
4. First City, Texas -- Beaumont, National Association
5. First City, Texas -- El Paso, National Association
6. First City, Texas -- Midland, National Association
7. First City, Texas -- Bryan/College Station, National Association
8. First City, Texas -- Tyler, National Association
9. First City, Texas -- Alice, National Association
10. First City, Texas -- San Angelo, National Association
11. First City, Texas -- Lufkin, National Association
12. First City, Texas -- Orange, National Association
13. First City, Texas -- Madisonville, National Association
14. First City, Texas -- Graham, National Association
15. First City, Texas -- San Antonio, National Association
16. First City, Texas -- Corpus Christi
17. First City, Texas -- Aransas Pass
18. First City, Texas -- Lake Jackson
19. First City, Texas -- Sour Lake
20. First City, Texas -- Kountze
<PAGE> 81
EXHIBIT B
LIST OF FCBOT AFFILIATED ENTITIES
1. FCB Holdings, Inc.,
2. Financial Center, Inc.,
3. First City Portfolio, Inc.,
4. Broadway Center, Inc.,
5. First City Asset Servicing Company,
6. FCB Real Estate Services, Inc.,
7. Central Texas Insurance Agency, Inc.,
8. Citizens State Bank Sealy,
9. First City Energy Finance Company,
10. First City Financial Corporation,
11. First City Life Insurance Company,
12. First City Payroll Management Company,
13. New First Security National Corporation,
14. FCFC Energy Corp., and
15. First City Bancorporation of Texas, a Texas corporation
<PAGE> 82
EXHIBIT 3.6
GUARANTEE OF FCBOT NOTE
<PAGE> 83
Exhibit 3.6
GUARANTEE
The undersigned affiliated entities of First City
Bancorporation of Texas, Inc., a Delaware corporation ("FCBOT") (collectively,
the "FCBOT Affiliated Entities" or "Guarantors") hereby make the following
Guarantee to the following parties:
(a) the Federal Deposit Insurance Corporation (the
"FDIC") in its capacity as receiver of each of (i) the twenty First City banks
closed on October 30, 1992, (as listed in Exhibit A attached hereto), (ii) the
twenty bridge banks organized with respect to those First City banks, and (iii)
Collecting Bank, N.A. (the FDIC in such capacities is hereinafter referred to
as the "FDIC-Receivers," the banks referred to in clauses (i) and (iii) are
hereinafter referred to as the "First City Banks", and the receiverships
created by the closure of the banks referred to in clauses (i), (ii), and (iii)
are hereinafter referred to as the "First City Receiverships"); and
(b) following termination of the First City
Receiverships, the FDIC in its corporate capacity as successor to the
FDIC-Receivers ("FDIC-Corporate"); and
(c) any assignee of the Promissory Note permitted
pursuant to Section 10 of the Promissory Note ("Permitted Assignee").
All provisions of this Guarantee as set forth below shall refer to the
FDIC-Receivers, FDIC-Corporate, and any Permitted Assignee as the "FDIC
Parties".
WITNESSETH:
WHEREAS, FCBOT, the FCBOT Affiliated Entities, the FDIC-Receivers, and
the FDIC in its corporate capacity have been involved in litigation and other
disputed matters; and
WHEREAS, FCBOT, the FCBOT Affiliated Entities, the FDIC Receivers, and
the FDIC in its corporate capacity have entered into a Settlement Agreement
dated June 22, 1994 (the "Settlement Agreement"); and
WHEREAS, liquidation of the assets of the First City Receiverships is
expected to result in a "Surplus" as defined in the Settlement Agreement; and
WHEREAS, pursuant to Section 3.5 of the Settlement Agreement,
as consideration for the distribution of an Initial Dividend, and undertakings
with respect to subsequent dividends,
<PAGE> 84
FIRST CITY GUARANTEE
PAGE 2
from the First City Receiverships to FCBOT and the FCBOT Affiliated Entities, a
Promissory note in the principal sum of fifty-seven million dollars
($57,000,000) has been issued by FCBOT to the FDIC Receivers (the "Promissory
Note").
NOW, THEREFORE, in consideration of the mutual promises
contained in the Settlement Agreement, and for other good and valuable
consideration, receipt and sufficiency of which are hereby acknowledged:
1. Definitions. Terms used and not otherwise defined
herein shall have the meanings assigned to them in the Settlement Agreement.
2. Guarantee, Joint and Several Liability. Each of the
FCBOT Affiliated Entities hereby guarantees, jointly and severally, in full and
unconditionally, the due and punctual payment and performance by FCBOT of its
obligations under the Promissory Note to the FDIC Parties. This Guarantee is
an absolute, unconditional, and continuing guarantee by each Guarantor, as
co-obligor jointly and severally liable with FCBOT and each of the other
Guarantors and not merely as surety, of the full and punctual payment and
performance of each of FCBOT's obligations under the Promissory Note strictly
in accordance with its terms, as and when due, and not of their collectibility
only and is in no way conditioned upon any requirement that the FDIC Parties
first attempt to collect or otherwise enforce any of such obligations from or
against FCBOT or resort to any security for, or any other means of obtaining
payment of, any of such obligations which the FDIC Parties may now have or may
acquire after the date hereof, or upon any other contingency whatsoever. Upon
the maturity of any of the obligations under the Promissory Note, whether by
acceleration pursuant to an Event of Default (as defined in the Promissory
Note) or otherwise, the liabilities and obligations of the Guarantors hereunder
shall become forthwith due and payable to the FDIC Parties, without demand or
notice of any nature, all of which are expressly waived by the Guarantor.
Payments by the Guarantors hereunder may be required by the FDIC Parties, on
any number of occasions.
3. Guarantors' Further Agreements to Pay. Each
Guarantor further agrees, as the principal obligor and not as a guarantor, to
pay to the FDIC Parties, forthwith upon demand, in funds immediately available
to the FDIC Parties, all costs and expenses (including the court costs and
legal expenses) incurred or expended by the FDIC Parties, in connection with
this Guarantee and the enforcement hereof, together with interest or amounts
recoverable under this Guarantee from the time such amounts become due until
payment at the rate per annum then applicable to overdue principal of the
Promissory Note.
<PAGE> 85
FIRST CITY GUARANTEE
PAGE 3
4. Obligations Joint and Several; Reinstatement; Etc.
The obligations of each Guarantor hereunder are independent of the obligations
of FCBOT, and a separate actin or actions may be brought and prosecuted against
each Guarantor, whether action is brought against FCBOT or any other Guarantor
or whether FCBOT or any Guarantor be joined in any such action or actions.
Each Guarantor acknowledges that there are no conditions precedent to the
effectiveness of this Guarantee, and that this guarantee is in full force and
effect and is binding on the Guarantor as of the date written above, regardless
of whether the FDIC Parties obtain collateral or similar guarantees from others
or take any other action contemplated by this Guarantee. The liability of each
Guarantor hereunder shall be reinstated and revived and the rights of the FDIC
Parties shall continue with respect to any amount paid by FCBOT on account of
any obligation guaranteed hereby, which shall thereafter be required to be
restored or returned by the FDIC Parties upon the bankruptcy, insolvency, or
reorganization of FCBOT or for any other reason, all as though such amount had
not been paid.
5. FDIC Parties' Freedom to Deal with FCBOT and Other
Parties. The FDIC Parties shall be at liberty, without giving notice to or
obtaining the consent of any Guarantor, and without relieving any Guarantor of
any liability hereunder, to deal with FCBOT and with each other party who now
is or after the date hereof becomes liable in any manner for any of the
obligations under the Promissory Note, in such manner as the FDIC Parties in
their sole discretion deem fit, and to this end each Guarantor gives to the
FDIC Parties full authority in their sole discretion to do any or all of the
following things without notice or demand to the Guarantor and without in any
manner effecting the Guarantor's liability hereunder: (a) extend credit, make
loans, and afford other financial accommodations to FCBOT at such times, in
such amounts and on such terms as FCBOT may approve, (b) vary the terms and
grant extensions or renewals of any present or future indebtedness or
obligation (including, without limitation, the Promissory Note) to the FDIC
Parties of FCBOT or of any such other party (including, without limitation, any
increase or decrease in interest rates), (c) grant time, waivers, and other
indulgences in respect thereto, (d) vary, exchange, release or discharge,
wholly or partially, or delay in or abstain from perfecting and enforcing any
security or guarantee (including, without limitation, this Guarantee) or other
means of obtaining payment of any of the obligations under the Promissory Note
which the the FDIC Parties now have or may acquire after the date hereof, and
apply the proceeds of any thereof in such manner as the FDIC Parties may
determine in their discretion, (e) accept partial payments from FCBOT or any
such other party, (f) release or discharge, wholly or partially, any endorser
or guarantor, and (g) compromise or make any settlement or other arrangement
with FCBOT or any such party.
<PAGE> 86
FIRST CITY GUARANTEE
PAGE 4
6. Unenforceability of Obligations Against FCBOT. If
for any reason FCBOT has no legal existence or is under no legal obligation to
discharge any of its obligations under the Promissory Note, or if any of the
funds included in such obligations have become unrecoverable from FCBOT by
operation of law or for any other reason (other than by reason of a valid
defense of FCBOT that the terms of the Promissory Note do not require payment
as demanded), the Guarantors warrant jointly and severally that this Guarantee
shall nevertheless be binding on each Guarantor to the same extent as if each
Guarantor at all times had been the sole principal debtor of such obligations.
This Guarantee shall be in addition to any other guarantee or other security
for such obligations, and it shall not be prejudiced or rendered unenforceable
by the invalidity of any such other guarantee or security.
7. Limitation of Maximum Liability of Guarantor. The
maximum liability of a Guarantor under this Guarantee shall be limited to the
lesser of (A) the amount due and unpaid under the Promissory Note, and (A) the
amount due and unpaid under the Promissory Note, and (B) the greater of (I) the
fair market value, as of the Closing Date, of assets conveyed to such Guarantor
as of the Closing Date by the FDIC-Receivers, (II) ninety-five percent (95%) of
the Adjusted Net Worth of such Guarantor as of the date this Guarantee is
given, and (III) ninety-five percent (95%) of the Adjusted Net Worth of such
Guarantor at the earlier of the date of the commencement of any proceeding for
bankruptcy or insolvency involving such Guarantor or the date on which payment
under this Guarantee is sought. As used in this paragraph, "Adjusted Net
Worth" of a Guarantor as of any date shall mean the excess of (x) the amount of
the fair saleable value of the assets of such Guarantor as of such date,
determined in accordance with applicable bankruptcy or insolvency law, over (y)
the amount of all liability of such Guarantor, contingent or otherwise, as of
such date, determined in accordance with applicable bankruptcy or insolvency
law, excluding all potential liabilities incurred under this Guarantee.
8. No Setoff. All payments under this Guarantee shall
be made without any setoff, counterclaim, or other defense (other than a valid
defense of FCBOT that payment is not required under the terms of the Promissory
Note) to payment that any of the Guarantors may have or have had against the
FDIC Parties.
9. No Waiver. The rights of the FDIC Parties pursuant
to this Guarantee shall not be capable of being waived or varied otherwise than
by an express waiver or variation in writing. Any failure to exercise or any
delay in exercising any of such rights shall not operate as a waiver or
variation of that or any other such rights. Any defective or partial exercise
of
<PAGE> 87
FIRST CITY GUARANTEE
PAGE 5
any such rights shall not preclude any other or further exercise of that or any
other such rights. No act or course of conduct or negotiation on the part of
the FDIC Parties shall in any way preclude such parties from exercising any
such right or constitute a suspension or any variation of any such right. No
modification, extension, or release of indebtedness of FCBOT or any Guarantor
shall affect the liability hereunder of any other Guarantor.
10. Governing Law. This Guarantee shall be construed in
accordance with and governed by the Federal law of the United States of America
and, in the absence of controlling Federal law the laws of the State of Texas.
11. Waivers by Guarantors. Each of the Guarantors hereby
waives promptness, diligence, notice of acceptance of this Guarantee and notice
of any liability to which it may apply, and waives presentment, demand of
payment, protest, notice of dishonor or nonpayment of any such liabilities,
suit, or taking of other action by the FDIC Parties against, and any other
notice to, any party liable thereon (including such Guarantors or any other
guarantor). Each Guarantor also waives: (a) any right to require the FDIC
Parties to (i) proceed against any person, including FCBOT, (ii) proceed
against or exhaust any collateral held from FCBOT, and other guarantor, or any
other person, (iii) give any notice of the terms, time, and place of any public
or private sale of personal property security held from any person, or (iv)
pursue any other remedy in the FDIC Parties' power; and (b) any defense arising
by reason of (A) any disability or other defense of FCBOT, and other guarantors
or any other person, (B) the cessation from any cause whatsoever, other than
payment or performance in full, of any of the obligations of FCBOT under the
Promissory Note, any other guarantor or any other person (other than a
cessation by reason of a valid defense of such person that such obligation is
not required to be fulfilled under the terms of the Promissory Note), (c) any
act or omission by the FDIC Parties which directly or indirectly result in or
aids the discharge of FCBOT or any obligations under the Promissory note by
operation of law or otherwise, or (D) any election of remedies by the FDIC
Parties which destroys or impairs the Guarantor's subrogation rights or the
Guarantor's rights to proceed against FCBOT for the reimbursement including,
without limitation, any loss of rights the Guarantor may suffer by reason of
any rights, powers, or remedies of FCBOT in connection with any anti-deficiency
laws or any other laws limiting, qualifying, or discharging any of FCBOT's
obligations. Each Guarantor also irrevocably waives,the fullest extent
permitted by law, all defenses which at any time may be available in respect of
the Guarantor's obligations hereunder by virtue of any valuation, stay,
moratorium law or other similar law now or hereafter in effect. Each Guarantor
agrees that each of the
<PAGE> 88
FIRST CITY GUARANTEE
PAGE 6
waivers set forth above are made with the Guarantor's full knowledge of their
significance and consequences, and the Guarantor agrees that, under the
circumstances, the waivers are reasonable. If any of said waivers are
determined to be contrary to any applicable law or public policy, such waivers
shall be effective only to the extent permitted by law.
12. Sole Benefit. This Guarantee and all of its
provisions are for the sole benefit of the Guarantors and the FDIC Parties and
their respective successors and assigns, and nothing contained herein, whether
express or implied, shall be construed to confer any legal or equitable right,
remedy, or claim upon any person other than the parties hereto and their
respective successors and assigns.
13. Guarantors' Authority. Each Guarantor hereby
represents and warrants that it has full power and authority to execute and
deliver this Guarantee and to perform its obligations hereunder; that the
person executing this Agreement has been duly authorized to do so by the
Guarantor; and that this Guarantee constitutes a legal, valid, and binding
obligation of the Guarantor and is enforceable against the Guarantor in
accordance with its terms.
14. Successors and Assigns. This Guarantee, along with
all rights and benefits existing and to exist hereunder, shall be binding upon
each Guarantor and upon each Guarantor's successors and assigns and shall inure
to the benefit of the FDIC Parties and their successors and assigns.
Notwithstanding anything to the contrary contained herein, the sale, transfer,
and assignment of any portion of each Guarantor's assets shall not impair or
preclude the FDIC Parties' rights hereunder. No Guarantor may assign its
obligations hereunder.
15. Amendment. This Guarantee may not be amended as to a
Guarantor except by an instrument in writing executed by such Guarantor and the
FDIC-Parties.
Dated: __________, 1994
_________________________________
[GUARANTOR]
By: _______________________________
Title: ____________________________
<PAGE> 89
FIRST CITY GUARANTEE
PAGE 7
___________________________________
[GUARANTOR]
By: _______________________________
Title: ____________________________
___________________________________
[GUARANTOR]
By: _______________________________
Title: ____________________________
<PAGE> 90
EXHIBIT A
LIST OF FIRST CITY BANKS CLOSED ON OCTOBER 30, 1992
1. First City, Texas - Houston, National Association
2. First City, Texas - Dallas
3. First City, Texas - Austin, National Association
4. First City, Texas - Beaumont, National Association
5. First City, Texas - El Paso, National Association
6. First City, Texas - Midland, National Association
7. First City, Texas - Bryan/College Station, National Association
8. First City, Texas - Tyler, National Association
9. First City, Texas - Alice, National Association
10. First City, Texas - San Angelo, National Association
11. First City, Texas - Lufkin, National Association
12. First City, Texas - Orange, National Association
13. First City, Texas - Madisonville, National Association
14. First City, Texas - Graham, National Association
15. First City, Texas - San Antonio, National Association
16. First City, Texas - Corpus Christi
17. First City, Texas - Aransas Pass
18. First City, Texas - Lake Jackson
19. First City, Texas - Sour Lake
20. First City, Texas - Kountze
<PAGE> 91
EXHIBIT 3.8
MUTUAL RELEASE
<PAGE> 92
Exhibit 3.8
MUTUAL RELEASE
This Mutual Release, dated ____________, 1994, is made by and among
the following parties:
(a) First City Bancorporation of Texas, Inc., a Delaware
corporation ("FCBOT") and the following affiliated entities
(the "FCBOT Affiliated Entities") (FCBOT and the FCBOT
Affiliated Entities collectively the "First City Parties"):
(1) FCB Holdings, Inc.
(2) Financial Center, Inc.,
(3) First City Portfolio, Inc.,
(4) Broadway Center, Inc.,
(5) First City Asset Servicing Company,
(6) FCB Real Estate Services, Inc.,
(7) Central Texas Insurance Agency, Inc.,
(8) Citizens State Bank Sealy,
(9) First City Energy Finance Company,
(10) First City Financial Corporation,
(11) First City Life Insurance Company,
(12) First City Payroll Management Company,
(13) New First Security National Corporation,
(14) FCFC Energy Corp., and
(15) First City Bancorporation of Texas, a Texas
corporation;
(b) the Federal Deposit Insurance Corporation (the "FDIC") in its
corporate capacity ("FDIC-Corporate"); and
<PAGE> 93
FIRST CITY MUTUAL RELEASE
PAGE 2
(c) the FDIC in its capacity as receiver of each of (i) the twenty
First City banks closed on October 30, 1992, (as listed in Exhibit A attached
hereto), (ii) the twenty bridge banks organized with respect to those First
City banks (the First City Bridge Banks"), and (iii) Collecting Bank, N.A. (the
FDIC in such capacities is hereinafter referred to as the "FDIC-Receivers," the
banks referred to in clauses (i) and (iii) are hereinafter referred to as the
"First City Banks", and the receiverships created by the closure of the banks
referred to in clauses (i), (ii), and (iii) are hereinafter referred to as the
"First City Receiverships").
WITNESSETH:
WHEREAS, FDIC-Receivers, FDIC-Corporate, and the First City Parties,
in that certain Settlement Agreement dated as of June 22, 1994 (the "Settlement
Agreement"), agreed to the undertaking of certain obligations and continuing
relationships set out in the Settlement Agreement, in settlement of such
litigation and other disputed matters described in Exhibit B of this Release
(the "Litigation"), and the giving of certain releases to the undersigned
parties and to certain other parties as described in this Release.
NOW, THEREFORE, in consideration of the promises, undertakings, and
releases furnished herein and as provided in the Settlement Agreement, and for
other good and valuable consideration, receipt and sufficiency of which are
hereby acknowledged:
1. The First City Parties, for themselves, their successors,
assigns, and subsidiaries, and all who may purport to claim by, for, through or
under any one or more of them (collectively, the "First City Releasors") for
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, do hereby fully and unconditionally release and discharge,
individually and collectively, FDIC-Corporate, the FDIC-Receivers, the United
States of America, and their respective officers, directors, agents, employees,
subsidiaries, affiliates, predecessors, successors, assigns, representatives,
and all other acting on their behalf, past and present (collectively the "First
City Releases") of and from any and all Claims that the First City Releasors or
any of their successors or assigns or anyone claiming in a derivative capacity
from, through or under the First City Releasors or any of the foregoing, ever
jointly or individually had, now has or have, or hereafter can, shall or may
have against the First City Releasees, or any of them, for, upon, or by reason
of any matter, cause or thing whatsoever from the beginning of time up to the
date of this Mutual Release, including but not limited to the Claims asserted
in the Litigation described in Exhibit B acquired
<PAGE> 94
FIRST CITY MUTUAL RELEASE
PAGE 3
by the First City Releasors or which may hereafter be acquired by the First
city Releasors or which the First City Releasors may have by way of
subrogation.
2. The First City Releasors for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, do hereby fully
and unconditionally release and discharge individually and collectively any and
all contractors or agents now or formerly retained by any of the
FDIC-Receivers, FDIC-Corporate and/or any of the First City Bridge Banks, any
and all acquirers of the assets and liabilities of any of the First City Bridge
Banks, and any other party indemnified by any of the FDIC-Receivers,
FDIC-Corporate and/or any of the First City Bridge Banks against claims arising
out of or relating to the closing of any of the First City Banks, the operation
of any of the First City Bridge Banks, the sale of the assets and liabilities
of any of the First City Bridge Banks to the various acquirers, and the
operation of any of the First City Receiverships, and their respective
officers, directors, agents, employees, subsidiaries, affiliates, predecessors,
successors, assigns, representatives, and all other acting on their behalf,
past and present (collectively the "Third Party Releasees"), from any and all
Claims that the First City Releasors or any of their successors or assigns or
anyone claiming in a derivative capacity from, through or under the First City
Releasors or any of the foregoing, ever jointly or individually had, now has or
have, or hereafter can, shall or may have against the Third Party Releasees, or
any of them, arising out of or relating to the closing of any of the First City
Banks, the operation of any of the First City Bridge Banks, the sale of the
assets and liabilities of any of the First City Bridge Banks to the various
acquirers, and the operation of any of the First City Receiverships, from the
beginning of time up to the date of this Mutual Release.
3. Except as provided below in Section 4 hereof, FDIC-Corporate
and the FDIC-Receivers, for themselves, their successors, assigns and
subsidiaries, and all who may purport to claim by, for, through or under any
one or more of them (collectively the "FDIC Releasors") for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, do
hereby fully and unconditionally release and discharge, individually and
collectively, the First City Parties, and their respective officers, directors,
agents, employees, Subsidiaries, affiliates, predecessors, successors, assigns,
representatives, and all others acting on their behalf, past and present
(collectively the "FDIC Releasees") of and from any and all Claims that the
FDIC Releasors or any of their successors or assigns or anyone claiming in a
derivative capacity from, through or under the FDIC Releasors or any of the
foregoing, ever jointly or individually had, now has or have, or hereafter can,
shall or
<PAGE> 95
FIRST CITY MUTUAL RELEASE
PAGE 4
may have against the FDIC Releases, or any of them, for, upon, or by reason of
any matter, cause or thing whatsoever from the beginning of time up to the date
of this Mutual Release.
4. Excepted entirely from this Mutual Release are:
(a) all professional Liability Claims, as defined in
Section 8 below, which the FDIC Releasors ever had, now have, or may
hereafter have, whether any such has been or could be asserted.
(b) all Claims which FDIC-Corporate ever had, now has, or
may hereafter have, whether any such has been or could be asserted,
arising pursuant to the FDIC's bank regulatory or supervisory function
under Sections 7, 8, 18, 19, 24, 29, 32, or 38 of the Federal Deposit
Insurance Act, or under any hereafter enacted provision of the Federal
Deposit Insurance Act that provides for regulatory or supervisory
powers, including any such Claim against any officer, director, agent,
employee, or other "institution-affiliated party" (as that term is
defined in Section 3 of the Federal Deposit Insurance Act), past or
present, of any of the First City Parties or the former First City
Banks; provided, however, that any such Claim against an officer,
director, agent, employee or other "institution-affiliated party" of
any of the First City Parties or the former First City Banks for
restitution, reimbursement, indemnification, or guarantee against loss
or for civil money penalties shall be within the scope of the release
set forth in Section 3 above only if and to the extent that a tribunal
of competent jurisdiction has determined in a final, non-appealable
order that FCBOT had a legal obligation (existing on or before January
1, 1994) to indemnify such officer, director, agent, employee or other
"institution-affiliated party" from such Claim.
(c) all Claims which FDIC-corporate ever had, now has, or
may hereafter have, whether any such has been or could be asserted,
arising pursuant to the FDIC's cross-guarantee authority, 12 U.S.C.
Section 1815(e), by reason of the failure of any of the First City
Banks.
5. The FDIC-Receivers, FDIC-Corporate, and the First City Parties
acknowledge that a breach of this Mutual Release will cause great and
irreparable injury to the injured party for which there is no adequate remedy
at law. Without prejudice to any rights or remedies otherwise available to
such injured party, including compensatory damages, each such party shall be
entitled to equitable relief through an injunction if another party breaches or
threatens to breach any of the provisions of this Mutual Release.
<PAGE> 96
FIRST CITY MUTUAL RELEASE
PAGE 5
6. The FDIC-Receivers, FDIC-Corporate, and the First City Parties
each warrant that there has been no assignment or other transfer of any
interest in the Claims released herein and each has the full rights, powers,
title and authority to release any of the Claims released by it pursuant to the
terms hereof.
7. Each of the undersigned warrants that he or she is an
authorized representative of the party designated, is authorized to bind such
party, and gives and accepts this Mutual Release on that party's behalf.
8. As used in this Mutual Release, the following terms shall have
the following meanings:
(a) "Claims" means any and all claims or demands of
whatsoever nature, including without limiting the generality of the
foregoing, proceedings (including but not limited to all judicial
proceedings and administrative proceedings), obligations, losses,
actions, causes of action, suits, cross-claims, counterclaims,
third-party claims, administrative claims, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants, contracts,
leases, controversies, liens, subordinations, agreements, promises,
variances, trespasses, extents, executions, damages, judgments,
offsets, demands, allegations, costs and liabilities whether present
or future, whether known or unknown, whether suspected or unsuspected,
whether liquidated or unliquidated, whether choate or inchoate,
whether matured or unmatured, whether direct, indirect, or derivative,
whether fixed or contingent, whether secured or unsecured, and whether
or not the same are based upon breach of contract or any lease, tort,
piercing or alter ego theories, breach of any duty, breach of trust or
participation in any such breach of trust, violation of any law or
regulation, or otherwise in law, admiralty, equity or bankruptcy;
provided, however, that the term "Claims" shall not include any such
claims or demands arising wholly after the date hereof that are based
on, arise out of, or relate to (x) that certain Settlement Agreement
among the parties hereto dated as of June 22, 1994, or (y) any
agreement or instrument the execution of which is provided for in that
Settlement Agreement.
(b) "Assistance Agreement" means that certain Assistance
Agreement dated April 19, 1988, among the FDIC, First City
Bancorporation of Texas, Inc., a Texas corporation, FCBOT, the
subsidiary banks of First City Bancorporation of Texas, Inc. specified
therein, Donaldson, Lufkin & Jenrette Securities Corporation, and A.
Robert Abboud.
<PAGE> 97
FIRST CITY MUTUAL RELEASE
PAGE 6
(c) "Professional-Liability Claims" means any interest,
right, action, claim, or judgment that (A) is (i) held or owned by the
First City Banks as of october 30, 1992, or (ii) held or owned by
FDIC-Corporate as a result of the assignment in the Assistance
Agreement of such claims arising prior to the Commencement Date under
the Assistance Agreement; (B) is against (x) any officer, director,
employee, accountant, attorney, consultant or any other person
employed or retained by the First City Banks, or any subsidiary of
such banks, on or prior to October 30, 1992, arising out of any act or
omission of such person in such capacity; (y) any underwriter of
financial institution bonds, banker's blanket bonds, directors' and
officers' liability policy, or any other similar insurance policy of
the First City Banks, or (z) any shareholder or holding company of the
First City Banks; and (C) arises out of an act, omission, or other
event that occurred on or before October 30, 1992, regardless of when
any such claim is discovered and regardless of whether any such claim
is made with respect to a financial institution bond, banker's blanket
bond, or any other insurance policy of the First City Banks in force
as of October 30, 1992.
IN WITNESS WHEREOF the parties have caused this Agreement to be duly
executed by their respective officers as of the day and year first above
written.
<TABLE>
<S> <C>
FEDERAL DEPOSIT INSURANCE CORPORATION,
in its corporate capacity
By:
--------------------------------------------------------------------------
Name:
-------------------------------------------------------------------
Title:
-------------------------------------------------------------------
FEDERAL DEPOSIT INSURANCE CORPORATION,
in its capacity as the FDIC-Receivers
By:
--------------------------------------------------------------------------
Name:
-------------------------------------------------------------------
Title:
-------------------------------------------------------------------
FIRST CITY BANCORPORATION OF TEXAS,
INC., a Delaware corporation
</TABLE>
<PAGE> 98
FIRST CITY MUTUAL RELEASE
PAGE 7
<TABLE>
<S> <C>
By:
--------------------------------------------------------------------------
Name:
-------------------------------------------------------------------
Title:
-------------------------------------------------------------------
FCB HOLDINGS, INC.
By:
--------------------------------------------------------------------------
Name:
-------------------------------------------------------------------
Title:
-------------------------------------------------------------------
FINANCIAL CENTER, INC.
By:
--------------------------------------------------------------------------
Name:
-------------------------------------------------------------------
Title:
-------------------------------------------------------------------
FIRST CITY PORTFOLIO, INC.
By:
--------------------------------------------------------------------------
Name:
-------------------------------------------------------------------
Title:
-------------------------------------------------------------------
</TABLE>
<PAGE> 99
FIRST CITY MUTUAL RELEASE
PAGE 8
<TABLE>
<S> <C>
BROADWAY CENTER, INC.
By:
--------------------------------------------------------------------------
Name:
-------------------------------------------------------------------
Title:
-------------------------------------------------------------------
FIRST CITY ASSET SERVICING COMPANY
By:
--------------------------------------------------------------------------
Name:
-------------------------------------------------------------------
Title:
-------------------------------------------------------------------
FCB REAL ESTATE SERVICES, INC.
By:
--------------------------------------------------------------------------
Name:
-------------------------------------------------------------------
Title:
-------------------------------------------------------------------
CENTRAL TEXAS INSURANCE AGENCY, INC.
By:
--------------------------------------------------------------------------
Name:
-------------------------------------------------------------------
Title:
-------------------------------------------------------------------
CITIZENS STATE BANK SEALY
By:
--------------------------------------------------------------------------
Name:
-------------------------------------------------------------------
Title:
-------------------------------------------------------------------
</TABLE>
<PAGE> 100
FIRST CITY MUTUAL RELEASE
PAGE 9
<TABLE>
<S> <C>
FIRST CITY ENERGY FINANCE COMPANY
By:
--------------------------------------------------------------------------
Name:
-------------------------------------------------------------------
Title:
-------------------------------------------------------------------
FIRST CITY FINANCIAL CORPORATION
By:
--------------------------------------------------------------------------
Name:
-------------------------------------------------------------------
Title:
-------------------------------------------------------------------
FIRST CITY LIFE INSURANCE COMPANY
By:
--------------------------------------------------------------------------
Name:
-------------------------------------------------------------------
Title:
-------------------------------------------------------------------
FIRST CITY PAYROLL MANAGEMENT COMPANY
By:
--------------------------------------------------------------------------
Name:
-------------------------------------------------------------------
Title:
-------------------------------------------------------------------
NEW FIRST SECURITY NATIONAL CORPORATION
By:
--------------------------------------------------------------------------
Name:
-------------------------------------------------------------------
Title:
-------------------------------------------------------------------
</TABLE>
<PAGE> 101
FIRST CITY MUTUAL RELEASE
PAGE 10
<TABLE>
<S> <C>
FCFC ENERGY CORP.
By:
--------------------------------------------------------------------------
Name:
-------------------------------------------------------------------
Title:
-------------------------------------------------------------------
FIRST CITY BANCORPORATION OF TEXAS, a Texas Corporation
By:
--------------------------------------------------------------------------
Name:
-------------------------------------------------------------------
Title:
-------------------------------------------------------------------
</TABLE>
<PAGE> 102
EXHIBIT A
LIST OF FIRST CITY BANKS CLOSED ON OCTOBER 30, 1992
1. First City, Texas -- Houston, National Association
2. First City, Texas -- Dallas
3. First City, Texas -- Austin, National Association
4. First City, Texas -- Beaumont, National Association
5. First City, Texas -- El Paso, National Association
6. First City, Texas -- Midland, National Association
7. First City, Texas -- Bryan/College Station, National Association
8. First City, Texas -- Tyler, National Association
9. First City, Texas -- Alice, National Association
10. First City, Texas -- San Angelo, National Association
11. First City, Texas -- Lufkin, National Association
12. First City, Texas -- Orange, National Association
13. First City, Texas -- Madisonville, National Association
14. First City, Texas -- Graham, National Association
15. First City, Texas -- San Antonio, National Association
16. First City, Texas -- Corpus Christi
17. First City, Texas -- Aransas Pass
18. First City, Texas -- Lake Jackson
19. First City, Texas -- Sour Lake
20. First City, Texas -- Kountze
<PAGE> 103
SCHEDULE B
LITIGATION
(1) First City Bancorporation of Texas, Inc. et al. v. FDIC, Cause No.
3:93-CV-2286-T, United States District Court for the Northern District
of Texas, Dallas Division.
(2) First City Bancorporation of Texas, Inc. et al. v. FDIC, Cause No.
3:93-CV-1959-R, United States District Court for the Northern District
of Texas, Dallas Division.
(3) First City Bancorporation of Texas, Inc. et al. v. FDIC, Cause No.
3:93-CV-2416-P, United States District Court for the Northern District
of Texas, Dallas Division.
(4) First City Bancorporation of Texas, Inc. et al. v. FDIC, Cause No.
3:93-CV-2369-R, United States District Court for the Northern District
of Texas, Dallas Division.
(5) Financial Center, Inc. v. FDIC, Civil Action No. C-93-337, United
States District Court for the Southern District of Texas, Corpus
Christi Division.
(6) First City Bancorporation of Texas, Inc. et al. v. FDIC, Adv.
392-3798, United State District Court for the Northern District of
Texas, Dallas Division.
(7) First City Bancorporation of Texas, Inc. et al. v. FDIC, Cause No.
3:93-CV-2253-T, United States District Court for the Northern District
of Texas, Dallas Division.
(8) First City Asset Servicing Company v. FDIC, Cause No. 3:93-CV-2251,
United States District Court for the Northern District of Texas,
Dallas Division.
(9) First City Bancorporation Real Estate Services v. FDIC, Cause No.
3:93-CV-2250-T, United States District Court for the Northern District
of Texas, Dallas Division.
<PAGE> 104
EXHIBIT 3.9(e)
FORM OF ASSIGNMENT OF PROFESSIONAL LIABILITY CLAIMS
<PAGE> 105
Exhibit 3.9(e)
ASSIGNMENT OF PROFESSIONAL LIABILITY CLAIMS
STATE OF __________ )
) KNOW ALL MEN BY THESE PRESENTS
COUNTY OF _________ )
That the Federal Deposit Insurance Corporation (the "FDIC") in its
corporate capacity and in its capacity as receiver of each of (i) the twenty
First City banks closed on October 30, 1992, (as listed in Exhibit "A" attached
hereto), (ii) Collecting Bank, N.A. (the FDIC in such capacities is hereinafter
referred to as the "Assignor," and the banks referred to in clauses (i) and
(iii) are hereinafter referred to as the "First City Banks"), for full and
valuable consideration to it by First City Bancorporation of Texas, Inc., a
Delaware corporation ("Assignee"), the receipt of which is hereby acknowledged,
has ASSIGNED, TRANSFERRED, and CONVEYED, and by these presents does ASSIGN,
TRANSFER, and CONVEY unto Assignee those professional liability claims held by
the FDIC-Receivers as defined herein as the "Professional Liability Claims."
For purposes of this Assignment, "Professional-Liability Claims" means
any interest, right, action, claim, or judgment that (A) is (i) held or owned
by the First City Bank as of October 30, 1992, or (ii) held or owned by FDIC-
Corporate as a result of the assignment in the Assistance Agreement (as defined
herein) of such claims arising prior to the Commencement Date under the
Assistance Agreement (and that were not otherwise released pursuant to the
Settlement Agreement dated June 22, 1994); (B) is against (x) any officer,
director, employee, accountant, attorney, consultant, or any other person
employed or retained by the First City Banks, or any subsidiary of such banks,
on or prior to october 30, 1992, arising out of any act or omission of such
person in such capacity, (y) any underwriter of financial institution bonds,
banker's blanket bonds, directors' and officers' liability policy, or any other
similar insurance policy of the First City Banks, or (z) any shareholder or
holding company of the First City Banks; and (C) arises out of an act,
omission, or other event that occurred on or before October 30, 1992,
regardless of when any such claim is discovered and regardless of whether any
such claim is made with respect to a financial institution bond, banker's
blanket bond, or any other insurance policy of the First City Banks in force as
of October 30, 1992.
In addition, for purposes of this Assignment, "Assistance Agreement"
means that certain Assistance Agreement dated April
<PAGE> 106
19, 1988, among the FDIC, First City Bancorporation of Texas, Inc., a Texas
corporation, FCBOT, the subsidiary banks of First City Bancorporation of Texas,
inc. specified therein, Donaldson, Lufkin & Jenrette Securities Corporation,
and A. Robert Abboud.
This assignment includes, but is limited to, all of the Assignor's
right, title and interest, if any, in and to that certain Financial Institution
Bond No. 81260367-A (the "Bond") issued by Vigilant Insurance Company and other
entities executing the Bond as an Underwriter (collectively the "Underwriter")
including, without limitation, the right to any extension of time within which
an insured under such Bond is required to act and all claims and causes of
action of every kind and nature against the Underwriter described in the Bond.
EXECUTED THIS _____ day of ______________, 1994 in multiple originals.
ASSIGNOR:
FEDERAL DEPOSIT INSURANCE CORPORATION
in its corporate capacity and its capacity as the FDIC-Receivers
By:
------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
ASSIGNEE:
FIRST CITY BANCORPORATION OF TEXAS, INC.
By:
------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
Assignment of Notes and Liens
Page 2 of 4
<PAGE> 107
ACKNOWLEDGMENTS
STATE OF )
)
COUNTY OF )
This instrument was acknowledged before me on the ___ day of
__________________, 1994 by ___________________, (title of officer), of the
Federal Deposit Insurance Corporation in its capacity as the FDIC-Receivers, on
behalf of such entity.
-------------------------------------
Notary Public, State of
-------------
STATE OF )
)
COUNTY OF )
This instrument was acknowledged before me on the ___ day of
__________________, 1994 by ___________________, (title of officer), of the
First City Bancorporation of Texas, inc., a Delaware corporation, on behalf of
such entity.
-------------------------------------
Notary Public, State of
-------------
AFTER RECORDING RETURN TO:
First City Bancorporation of Texas, Inc.
1021 Main Street
Houston, Texas 77002
Assignment of Notes and Liens
Page 3 of 4
<PAGE> 108
EXHIBIT "A"
LIST OF FIRST CITY BANKS CLOSED ON OCTOBER 30, 1992
1. First City, Texas -- Houston, National Association
2. First City, Texas -- Dallas
3. First City, Texas -- Austin, National Association
4. First City, Texas -- Beaumont, National Association
5. First City, Texas -- El Paso, National Association
6. First City, Texas -- Midland, National Association
7. First City, Texas -- Bryan/College Station, National Association
8. First City, Texas -- Tyler, National Association
9. First City, Texas -- Alice, National Association
10. First City, Texas -- San Angelo, National Association
11. First City, Texas -- Lufkin, National Association
12. First City, Texas -- Orange, National Association
13. First City, Texas -- Madisonville, National Association
14. First City, Texas -- Graham, National Association
15. First City, Texas -- San Antonio, National Association
16. First City, Texas -- Corpus Christi
17. First City, Texas -- Aransas Pass
18. First City, Texas -- Lake Jackson
19. First City, Texas -- Sour Lake
20. First City, Texas -- Kountze
Assignment of Professional Liability Claims
Page 4 of 4
<PAGE> 109
EXHIBIT 3.10(a)
JOINT MOTION FOR DISMISSAL OF THE LITIGATION
<PAGE> 110
EXHIBIT 3.10(a)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
FIRST CITY BANCORPORATION OF )
TEXAS, INC., et al. ) Cause No. 3-93-CV-1959-R
) (consolidating
) Cause No. 3-93-CV-2253-D
Plaintiffs and Counter-Claimant ) Cause No. 3-93-CV-2250-T
) Cause No. 3-93-CV-2251-D
) Cause No. 3-93-CV-2369-R
) Cause No. 3-93-CV-2286-T
v. ) Cause No. 3-93-CV-2416-P
) Cause No. 3-94-CV-486-R)
FEDERAL DEPOSIT INSURANCE )
CORPORATION, et al. )
)
Defendants )
JOINT MOTION TO DISMISS
TO THE HONORABLE UNITED STATES DISTRICT COURT:
COMES NOW the Federal Deposition Insurance Corporation in its
corporate capacity and as Receiver for the banks identified in the Settlement
Agreement attached hereto as Exhibit A (collectively referred to hereinafter as
"FDIC"), First City Bancorporation of Texas, Inc. ("FCBOT"), FCBOT derivatively
for First City, Texas - Houston, N.A., First City Asset Servicing Company
("FCASC"), First City Portfolio, Inc., FCB Holdings, Inc. ("FCB Holdings"), FCB
Holdings derivatively for First City, Texas - Dallas; First City, Texas -
Austin, N.A.; First City, Texas - Beaumont, N.A.; First City, Texas - El Paso,
N.A.; First City, Texas - Midland, N.A.; First City, Texas -Bryan/College
Station, N.A.; First City, Texas -Tyler, N.A.; First City - San Angelo, N.A.;
First City, Texas -
<PAGE> 111
Lufkin, N.A.; First City, Texas - Orange, N.A.; First City - Madisonville,
N.A.; First City, Texas - Graham, N.A.; First City, Texas - San Antonio, N.A.;
First City, Texas - Corpus Christi; First City, Texas - Alice; First City,
Texas - Lake Jackson; First City, Texas - Aransas Pass; First City, Texas -Sour
Lake; First City, Texas - Kountze (collectively referred to hereinafter as the
"First City Parties"); the United States; the Office of the Comptroller of the
Currency ("OCC"); and the Texas Banking Commission ("TBC"); and would show the
Court as follows:
1. Cause No. 393-CV-2253-D was initiated by FCBOT on July 31, 1993 as
Adversary No. 393-3511 in the Bankruptcy Court. On September 24, 1993, FCBOT
amended its original pleading to assert additional claims and join additional
parties. On November 12, 1993, this Court withdrew the reference with respect
to Adversary No. 393-3511 and that adversary proceeding was docketed in the
district court as Cause No. 3-93-CV-2253-D.
2. Cause No. 3-93-CV-2286-T was initiated by FCBOT, et al., on September 24,
1993 in the Eastern District of Texas, Sherman and docketed in that court as
Cause No. 4:93-CV-242. An order was entered in November, 1993, transferring
Eastern District Court Cause No. 4:93-CV-242 to the Northern District of Texas,
Dallas Division, where it was docketed as Cause No. 3-93-CV-2286-T.
3. Cause No. 3-93-CV-2416-P was initiated by FCBOT, et al., on September 24,
1993, in the Western District of Texas, San Antonio Division, and docketed in
that court as Cause No. SA-93-CA-0759. An order was entered on November 19,
1993, transferring Western District Cause No. SA-93-CA-0759 to the Northern
District of Texas, Dallas Division, where it was docketed as Cause No.
3-93-CV-2416-P.
JOINT MOTION TO DISMISS - Page 2
<PAGE> 112
4. Cause No. 3-93-CV-2369-R was initiated by FCBOT, et al., on September 24,
1993, in the Southern District of Texas, Houston Division, where it was
docketed as Cause No. H-93-3008. An order was entered November 22, 1993,
transferring Southern District Cause No. H-93-3008 to the Northern District of
Texas, Dallas Division, where it was docketed as Cause No. 3-93-CV-2369-R.
5. Cause No. 3-93-CV-1959-R was initiated by FCBOT, et al., on September 24,
1993, in the Northern District of Texas, Dallas Division.
6. Cause No. 3-93-CV-2251-D was initiated by First City Asset Servicing
Company on September 24, 1993, in the Bankruptcy Court as Adversary No.
393-3607. On November 12, 1993, reference with respect to Adversary No.
393-3607 was withdrawn, and that adversary proceeding was docketed in the
district court as Cause No. 3-093-CV-2251-D.
7. Cause No. 3-93-CV-2250-T was initiated by FCB Real Estate Services, inc.,
on September 24, 1993, in the Bankruptcy Court as Adversary No. 393-3606. On
November 12, 1993, the reference with respect to Adversary No. 393-3606 was
withdrawn, and that adversary proceeding was docketed in the district court as
Cause No. 3-93-CV-2250-T.
8. Cause No. 3-94-CV-486-R was initiated by FCBOT, FCB Holdings, Inc., and
First City Portfolio, Inc., on February 4, 1994, in the United States District
Court for the District of Columbia as Civil Action No. 94-0218(JLG). An order
was entered on February 24, 1994, transferring Civil Action No. 94-0218 to the
Northern District of Texas, Dallas Division, where it was docketed as Cause No.
3-94-CV-486-B and then retransferred to the Honorable Jerry Buckmeyer, where it
was docketed as Cause No. 3-94-CV-486-F.
9. All of the above-referenced cases have been consolidated into a single
proceeding docketed under Cause No. 3-93- CV-1959-R.
10. On ___ __, 1994, the FDIC, the First City Parties, and entities
JOINT MOTION TO DISMISS - Page 3
<PAGE> 113
affiliated with the First City Parties that are not parties to these
consolidated cases, executed a Settlement Agreement pursuant to which these
parties agreed, among other things, that the claims and causes of action
asserted by and among them in these consolidated cases would be dismissed.
11. At the time the Settlement Agreement was executed, FCBOT was a debtor
under chapter 11 of title 11, United States Code. The Bankruptcy Court
administering the bankruptcy proceeding of FCBOT has approved the Settlement
Agreement.
12. As required by Section 3.8 of the Settlement Agreement, the First City
Parties and the FDIC executed a Mutual Release on __________ ___, 1994, in
which the First City Parties released claims against the FDIC and the United
States, and the FDIC released claims against the First City Parties. In
addition Mutual Releases were executed with the OCC and the TBC. Copies of the
three Mutual Releases are attached hereto as Exhibits B-1, B-2, and B-3. In
pertinent part, the Mutual Release provides for the release of all claims,
except for specific claims that are carved out as set forth therein.
13. In Section 3.10(a) of the Settlement Agreement, the Parties agreed to
execute and file this Joint Motion to Dismiss in order to dismiss this
litigation.
14. An Order was entered on February 7, 1994 in Cause No. 3-93-CV-1959-R
dismissing certain of the claims and causes of action asserted in these
consolidated cases. This Joint Motion to Dismiss seeks the dismissal of all
remaining claims.
JOINT MOTION TO DISMISS - Page 4
<PAGE> 114
ACCORDINGLY, the FDIC, the First City Parties, the United States, the
OCC, and the TBC respectfully request that the claims and causes of action set
forth in paragraphs 1 through 9 herein be dismissed with prejudice and in
accordance with the Settlement Agreement and the Mutual Release, and for such
other and further relief which this Court deems appropriate.
<TABLE>
<S> <C>
Respectfully submitted,
------------------------------------------------------------------
Clifford C. Ruder
Counsel
Steven J. Pruss
Counsel
Federal Deposit Insurance
Corporation
1910 Pacific Avenue
Suite 1100
Dallas, Texas 75201
Phone: (214) 220-3300
Fax: (214) 220-3478
ATTORNEYS FOR THE FEDERAL
DEPOSIT INSURANCE CORPORATION
AS RECEIVER FOR THE FIRST CITY
BANKS
------------------------------------------------------------------
Robert G. Clark
Senior Counsel
Gregory F. Taylor
Counsel
Patrick McGlone
Senior Attorney
Federal Deposit Insurance
Corporation
550 17th St., N.W.
Washington, DC 20429
Phone: (202) 736-0519
Fax: (202) 736-0584
</TABLE>
JOINT MOTION TO DISMISS - Page 5
<PAGE> 115
<TABLE>
<S> <C>
ATTORNEYS FOR THE FEDERAL
DEPOSIT INSURANCE CORPORATION
IN ITS CORPORATE CAPACITY
------------------------------------------------------------------
Fletcher L. Yarbrough
Peter Tierney
Lyman G. Hughes
Stephen A. Goodwin
Carrington, Coleman, Sloman
& Blumenthal, L.L.P.
200 Crescent Ct., Suite 1500
Dallas, Texas 75201
Phone: (214) 855-3000
Fax: (214) 855-1333
ATTORNEYS FOR FIRST CITY
BANCORPORATION OF TEXAS, INC.,
FIRST CITY ASSET SERVICING
COMPANY, FIRST CITY PORTFOLIO,
INC., FCB HOLDINGS, INC., AND FCB
REAL ESTATE SERVICES, INC.
------------------------------------------------------------------
Deborah D. Williamson
Cox & Smith Incorporated
112 East Pecan Street
Suite 2000
San Antonio, Texas 78205
ATTORNEY FOR FIRST CITY ASSET
SERVICING COMPANY
</TABLE>
JOINT MOTION TO DISMISS - Page 6
<PAGE> 116
<TABLE>
<S> <C>
------------------------------------------------------------------
John T. Stemplewicz
U.S. Department of Justice
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044
ATTORNEY FOR COMPTROLLER OF
THE CURRENCY OF THE UNITED
STATES AND THE UNITED STATES
OF AMERICA
------------------------------------------------------------------
Peter A. Winn
Special Assistant Attorney
General
714 Jackson Street, Suite 800
Dallas, Texas 75202-4506
ATTORNEY FOR TEXAS BANKING
COMMISSIONER
</TABLE>
JOINT MOTION TO DISMISS - Page 7
<PAGE> 117
EXHIBIT 3.10(b)
RELEASE OF FCBOT RIGHTS REGARDING
CROSS-GUARANTEE ASSESSMENTS
OF THE FIRST CITY BANKS
<PAGE> 118
Exhibit 3.10(b)
RELEASE OF FCBOT RIGHTS TO PARTICIPATE
IN CROSS-GUARANTEE PROCEEDINGS
First City Bancorporation of Texas, a Delaware corporation ("FCBOT")
and its affiliate FCB Holdings, Inc. (FCBOT and FCB Holdings, Inc.
collectively the "First City Releasors"), for good and valuable consideration
from the FDIC Parties (as defined herein), the receipt and sufficiency of which
are hereby acknowledged, do hereby fully and unconditionally release and
discharge any right or demand of the First City Releasors to participate, or to
require any of the FDIC Parties to participate on their behalf, in any
administrative proceedings with respect to the cross- guarantee assessments of
the First City Banks (as defined herein) under 12 U.S.C. Section 1815(e).
As used in this Release, "FDIC Parties" means (i) the Federal Deposit
Insurance Corporation (the "FDIC") in its corporate capacity; and (ii) the FDIC
in its capacity as receiver of each of (i) the twenty First City banks closed
on October 30, 1992, (as listed in Exhibit A attached hereto) (the "First City
Banks"), (ii) the twenty bridge banks organized with respect to those First
City banks, and (iii) Collecting Bank, N.A.
Each of the undersigned warrants that he or she is an authorized
representative of the party designated, is authorized to bind such party, and
gives and accepts this Release on that party's behalf.
IN WITNESS WHEREOF the parties have caused this Release to be duly
executed by their respective officers as of the day and year first above
written.
<TABLE>
<S> <C>
FIRST CITY BANCORPORATION OF TEXAS, INC., a Delaware corporation
By:
---------------------------------------------------------------------------
Name:
----------------------------------------------------------------------
Title:
----------------------------------------------------------------------
FCB HOLDINGS, INC.
By:
---------------------------------------------------------------------------
Name:
----------------------------------------------------------------------
Title:
----------------------------------------------------------------------
</TABLE>
<PAGE> 119
EXHIBIT A
LIST OF FIRST CITY BANKS CLOSED ON OCTOBER 30, 1992
1. First City, Texas - Houston, National Association
2. First City, Texas - Dallas
3. First City, Texas - Austin, National Association
4. First City, Texas - Beaumont, National Association
5. First City, Texas - El Paso, National Association
6. First City, Texas - Midland, National Association
7. First City, Texas - Bryan/College Station, National Association
8. First City, Texas - Tyler, National Association
9. First City, Texas - Alice, National Association
10. First City, Texas - San Angelo, National Association
11. First City, Texas - Lufkin, National Association
12. First City, Texas - Orange, National Association
13. First City, Texas - Madisonville, National Association
14. First City, Texas - Graham, National Association
15. First City, Texas - San Antonio, National Association
16. First City, Texas - Corpus Christi
17. First City, Texas - Aransas Pass
18. First City, Texas - Lake Jackson
19. First City, Texas - Sour Lake
20. First City, Texas - Kountze
<PAGE> 120
EXHIBIT 3.10(c)
JOINT MOTION TO DISMISS
CROSS-GUARANTEE PROCEEDING
<PAGE> 121
FEDERAL DEPOSIT INSURANCE CORPORATION
WASHINGTON, D.C.
- ---------------------------------------------------
)
In the Matter of )
)
FIRST CITY, TEXAS - AUSTIN, )
NATIONAL ASSOCIATION ) FDIC-92-316kk
AUSTIN, TEXAS, et al. )
)
(COMMONLY CONTROLLED INSURED )
DEPOSITORY INSTITUTIONS) )
)
- ---------------------------------------------------
JOINT MOTION FOR DISMISSAL OF ADMINISTRATIVE PROCEEDING
NOW COMES the Federal Deposit Insurance Corporation ("FDIC"),
by and through its Enforcement Counsel, and counsel for FDIC Receiver, and
move the FDIC Board of Directors ("Board") to enter an ORDER OF DISMISSAL in
the above-captioned action for the reasons set forth below:
1. In addition to the instant matter now pending before the
Board, First City Bancorporation of Texas, Inc. ("FCBOT"), and other affiliated
entities ("FCBOT Affiliated Entities") filed other claims against the FDIC in
both its corporate and receivership capacities.
2. On January 25, 1994, the Chairperson of the Settlement
Committee(1), pursuant to delegated authority, authorized the issuance of an
ORDER that stayed the administrative proceeding in this action in anticipation
of a settlement of all litigation between FCBOT, the FCBOT Affiliated Entities
and the FDIC in its corporate and receivership capacities.
- --------------------
(1)The Settlement Committee was established by the Chairperson
of the Board to coordinate the FDIC's interactions with FCBOT.
<PAGE> 122
2
3. The FDIC, in its corporate and receivership capacities, FCBOT,
and the FCBOT Affiliated Entities have entered into a Settlement Agreement
dated ____________, 1994 ("Settlement Agreement"), the terms and conditions of
which are incorporated herein by reference, which requires the parties to all
litigation to execute and file with the appropriate courts a joint motion to
dismiss the litigation.
WHEREFORE, FDIC Enforcement Counsel and Counsel for FDIC Receiver,
constituting all parties in the above- captioned action, respectfully request
that the Board dismiss the administrative proceeding entitled In the Matter of
First City Texas - Austin, National Association, Austin, Texas, et al.,
FDIC-92-316kk, with prejudice, in accordance with the terms of the Settlement
Agreement.
Respectfully submitted, this ___ day of _____________, 1994.
For FDIC Receiver: For FDIC Enforcement Counsel:
- -------------------------------- ----------------------------------------
Sharon Sivertsen Arthur L. Beamon
Assistant General Counsel Associate General Counsel
----------------------------------------
Nancy L. Alper
Counsel
<PAGE> 123
3
-----------------------------------
Richard A. Bogue
Counsel
-----------------------------------
Grovetta N. Gardineer
Senior Attorney
550 17th Street, N.W.
Washington, D.C. 20429
(202) 898-3905
FAX (202) 898-7394
<PAGE> 124
EXHIBIT 4.1(b)(1)
FORM OF DEED
<PAGE> 125
FEDERAL DEPOSIT INSURANCE CORPORATION
WASHINGTON, D.C.
- ---------------------------------------------------
)
In the Matter of )
)
FIRST CITY, TEXAS - AUSTIN, )
NATIONAL ASSOCIATION ) FDIC-92-316kk
AUSTIN, TEXAS, et al. )
)
(COMMONLY CONTROLLED INSURED )
DEPOSITORY INSTITUTIONS) )
)
- ---------------------------------------------------
ORDER OF DISMISSAL
WHEREAS, the Federal Deposit Insurance Corporation ("FDIC"), in its
corporate capacity, on October 30, 1992, pursuant to the provisions of section
5(e) of the Federal Deposit Insurance Act ("Act"), 12 U.S.C. Section 1815(e),
and the FDIC's Rules of Practice and Procedure, 12 C.F.R. Part 308, issued a
NOTICE OF ASSESSMENT OF LIABILITY, FINDINGS OF FACT AND CONCLUSIONS OF LAW,
ORDER TO PAY, AND NOTICE OF HEARING ("ASSESSMENT OF LIABILITY") assessing a
liability of $476,900,000 against First City, Texas - Austin, National
Association, Austin, Texas, et al. ("Liable Institutions"), for loss incurred
or reasonably anticipated to be incurred by the FDIC in connection with the
October 30, 1992 default of First City Texas - Houston, National Association,
Houston, Texas ("First City-Houston") and First City Texas - Dallas, Dallas,
Texas ("First City-Dallas"), commonly controlled insured depository
institutions; and
<PAGE> 126
2
WHEREAS, prior to being in receivership, the Liable Institutions,
First City-Houston and First City-Dallas were owned by First City
Bancorporation of Texas, Inc. ("FCBOT") and other affiliated entities ("FCBOT
Affiliated Entities"); and
WHEREAS, because of an impending settlement of all litigation with
FCBOT and FCBOT Affiliated Entities, including In the Matter of First City
Texas - Austin, National Association, Austin, Texas, et al., FDIC-92-316kk,
FDIC Enforcement Counsel and Counsel for FDIC Receiver filed a Joint Motion for
Stay of Administrative Proceeding ("Joint Motion") within the Board of
Directors of the FDIC ("Board"); and
WHEREAS, the Chairperson of the Settlement Committee, pursuant to
delegated authority, granted the Joint Motion authorizing the issuance of an
ORDER that stayed this administrative proceeding, and the ORDER was issued; and
WHEREAS, In addition to the instant matter now pending before the
Board, FCBOT and FCBOT Affiliated Entities filed other claims against the FDIC
in both its corporate and receivership capacities; and
WHEREAS, the FDIC, in both its corporate and receivership capacities,
FCBOT and FCBOT Affiliated Entities have entered into a Settlement Agreement
dated ____________, 1994 ("Settlement
<PAGE> 127
3
Agreement"), the terms and conditions of which are incorporated herein by
reference, which requires the partes to all litigation to execute and file with
the appropriate courts a joint motion to dismiss the litigation.
WHEREAS, FDIC Enforcement Counsel and Counsel for FDIC Receiver filed
a Joint Motion for Dismissal of Administrative Proceeding in accordance with
the terms and conditions of the Settlement Agreement.
IT IS HEREBY ORDERED, that good cause having been shown, the Joint
Motion for Dismissal of Administrative Proceeding filed herein is hereby
granted and the above-captioned administrative action is dismissed, with
prejudice, in accord with the terms of the Settlement Agreement.
Dated this _____ day of __________, 1994.
By direction of the Board of Directors.
---------------------------------------------
(SEAL)
<PAGE> 128
Exhibit 4.1(b)(1)
SPECIAL WARRANTY DEED
STATE OF TEXAS ) KNOW ALL MEN BY THESE PRESENTS:
)
COUNTY OF DALLAS )
THIS DEED, made this ___ day of ____________________, 1994, between
First City Bancorporation of Texas, Inc., a Delaware corporation ("FCBOT")
("Grantee") and the Federal Deposit Insurance Corporation in its capacity as
receiver of [Failed Bank and Related Bridge Bank]/[Collecting Bank] (the
"Grantor").
WITNESSETH, that the Grantor, for good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, has granted,
bargained, sold and conveyed, and by these presents does grant, bargain, sell,
convey and confirm deliver, unto the Grantee, its successors and assigns
forever, all of the Real Property, together with improvements, if any, situate,
lying and being in the County of ________, State of __________, described on
the Exhibit "A" which is attached hereto and legally incorporated herein for
all purposes.
TOGETHER with all and singular the hereditaments and appurtenances
thereto belonging, or in any wise appertaining, and the reversion, and
reversions, remainder and remainders, rents, issues and profits thereof,
mineral, oil and gas rights and profits, water rights and stock, all fixtures,
and all the estate, right, title, interest, claim and demand whatsoever of the
Grantor, either in law or equity, of, in and to the above bargained premises,
with the hereditaments and appurtenances;
TO HAVE AND TO HOLD the above-described premises, together with all
and singular the rights and appurtenances thereto in anywise belonging unto the
said Grantee, its successors and assigns forever and Grantors do hereby bind
themselves, their successors and assigns to WARRANT and FOREVER DEFEND, all and
singular the said premises unto the said Grantee, its successors and assigns,
against every person whomsoever lawfully claiming, or to claim the same, or any
part thereof, by, through, or under Grantors, but not otherwise.
When the context requires, singular nouns and pronouns
Special Warranty Deed
Page 1 of 3
<PAGE> 129
include the plural.
IN WITNESS WHEREOF, this Special Warranty Deed is executed this
_______ day of ___________________________, 1994.
FEDERAL DEPOSIT INSURANCE CORPORATION as
receiver of
------------------------------------
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
STATE OF TEXAS
COUNTY OF DALLAS
This instrument was acknowledged before me on the ___ day of
__________________, 1994 by _________________________________, [title of
officer], of the Federal Deposit Insurance Corporation in its capacity as
receiver of
-------------------------------------------------------------------.
------------------------------------
Notary Public, State of
------------
AFTER RECORDING RETURN TO:
First City Bancorporation of Texas, Inc.
1021 Main Street
Houston, Texas 77002
Special Warranty Deed
Page 2 of 3
<PAGE> 130
EXHIBIT "A"
Special Warranty Deed
Page 3 of 3
<PAGE> 131
EXHIBIT 4.1(b)(2)
FORM OF BILL OF SALE
<PAGE> 132
Exhibit 4.1(b)(2)
BILL OF SALE AND ASSIGNMENT OF INTERESTS
STATE OF TEXAS )
) KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF DALLAS )
WHEREAS, by a Special Warranty Deed (the "Deed") and Assignment of
Notes and Liens (the "Assignment") executed as of even date herewith, the
Federal Deposit Insurance Corporation in its capacity as receiver of [Failed
Bank and Related Bridge Bank] /[Collecting Bank] (the "Seller") has conveyed to
First City Bancorporation of Texas, Inc., a Delaware corporation (the
"Purchaser") the real property, (the "Transferred Real property") described on
Exhibit "A" attached hereto and made a part hereof for all purposes, together
with all improvements located thereon, as well as certain instruments
evidencing and securing loans of which Seller is the owner and holder that have
been assigned as "Transferred Loans" under the Assignment and described on
Exhibit "B" attached thereto and made a part hereof for all purposes (the
"Transferred Loans").
NOW, THEREFORE, WITNESSETH, that for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged:
1. the Seller has GRANTED, CONVEYED, SOLD, TRANSFERRED, SET-OVER,
and DELIVERED, and by these presents does hereby GRANT, CONVEY, SELL, TRANSFER,
SET-OVER and DELIVER unto the Purchaser, all of Seller's right, title and
interest in and to the improvements and fixtures located on the Transferred
Real Property;
2. the Seller has GRANTED, CONVEYED, SOLD, TRANSFERRED, SET-OVER
and DELIVERED, and by these presents does hereby GRANT, CONVEY, SELL, TRANSFER,
SET-OVER and DELIVER unto the Purchaser, all of Seller's right, title and
interest in and to the machinery, equipment, vehicles, furniture, tools, spare
parts, supplies, materials and all other personal property owned or leased by
Seller or any of its subsidiaries and located at the site of the Transferred
Real Property or pertaining to the Transferred Real Property;
3. the Seller has ASSIGNED, TRANSFERRED and SET-OVER and by these
presents does ASSIGN, TRANSFER and SET- OVER unto the
Bill of Sale and Assignment
Page 1 of 7
<PAGE> 133
Purchaser all of its right, title and interest in and to all agreements related
to the operation, ownership, sale, leasing, maintenance or development of the
Transferred Real Property, including, without limitation, (i) lease agreements
entered into with third party tenants, (ii) agreements for the purchase or sale
of goods, materials, supplies, tenant lists, media services, machinery, capital
assets or services, (iii) joint venture or partnership agreements with any
person, (iv) any other agreements related to the operation, ownership,leasing,
maintenance or development of the Transferred Real Property, and (v) security
deposits, prepaid expenses, or other items with respect to leases and the other
agreements listed in this paragraph 3 (collectively, the "Assigned Contracts"),
and will deliver to the Purchaser such originals or copies of such Assigned
Contracts as are in the Seller's possession;
4. the Seller has ASSIGNED, TRANSFERRED and SET-OVER and by these
presents does hereby ASSIGN, TRANSFER and SET-OVER unto the Purchaser such
originals or copies as are in Seller's possession of all operating data and
records of Seller relating to the Transferred Real Property and the Transferred
Loans, including but not limited to surveys, title work products, records,
blueprints, specifications, tenant lists, rent rolls, legal files, credit
information and correspondence;
5. the Seller has ASSIGNED, TRANSFERRED and SET-OVER and by these
presents does ASSIGN, TRANSFER and SET- OVER unto the Purchaser, all right,
title and interest of the Seller, in and to all trademarks, service marks,
trademark and service mark applications, trade names, trade rights, whether or
not registered, and assignable licenses and permits, in each case used in the
operation of the Transferred Real Property;
6. the Seller has GRANTED, CONVEYED, SOLD, TRANSFERRED, SET-OVER
and DELIVERED, and by these presents does hereby GRANT, CONVEY, SELL, TRANSFER,
SET-OVER and DELIVER unto the Purchaser, all of Seller's right, title and
interest in and to all tangible personal property that is not otherwise
transferred by this Bill of Sale and Assignment of Interests;
7. the Seller has GRANTED, CONVEYED, SOLD, TRANSFERRED, SET-OVER,
and DELIVERED, and by these presents does hereby GRANT, CONVEY, SELL, TRANSFER,
SET-OVER and DELIVER unto the Purchaser, all of the Seller's right, title and
interest in and to all securities representing the capital stock of the
subsidiaries of the Seller, in addition to securities obtained by the Seller
through foreclosure proceedings and such certifications or copies thereof as
are in the Seller's possession.
8. the Seller has GRANTED, CONVEYED, SOLD, TRANSFERRED, SET-OVER,
and DELIVERED, and by these presents does hereby GRANT,
Bill of Sale and Assignment
Page 2 of 7
<PAGE> 134
CONVEY, SELL, TRANSFER, SET-OVER, AND DELIVER unto the Purchaser, the
following: all environmental reports or information, warranties or guaranties
arising under any contract for labor or materials or with respect to any
acquisition of personal property, the right to phone numbers with respect to
the Transferred Real Property and the Transferred Loans, and claims and causes
of action that may exist against any of the transferred leases, and Seller will
deliver to Purchaser any copies of documents relevant to the aforementioned
interests in its possession.
9. the Seller has ASSIGNED, TRANSFERRED and SET-OVER and by these
presents does ASSIGN, TRANSFER and SET- OVER to the Purchaser all right, title
and interest of the Seller in all transferable permits, certificates of
occupancy, licenses, approvals and authorizations issued to Seller by Federal,
state or local governments or governmental authorities which are to the
knowledge and belief of Seller necessary or appropriate to comply with
applicable laws and regulations relating to any of the assets transferred by
this Bill of Sale and Assignment of Interests.
For value received, Seller warrants and agrees to defend title to the
assets transferred by this Bill of Sale and Assignment of Interests to
Purchaser and Purchaser's successors and assigns against all lawful claims by,
through, or under Seller but not otherwise.
SELLER EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY PURSUANT TO
SECTION 2-314 OF THE UNIFORM COMMERCIAL CODE AS ADOPTED BY THE APPLICABLE STATE
LAWS (THE "UCC") AND ANY WARRANTY WITH RESPECT TO FITNESS FOR A PARTICULAR
PURPOSE PURSUANT TO SECTION 2-315 OF THE UCC.
When the context requires, singular nouns and pronouns include the
plural.
EXECUTED in multiple originals on the ___ day of __________, 1994.
<TABLE>
<S> <C>
SELLER:
FEDERAL DEPOSIT INSURANCE CORPORATION as receiver for
------------------------
By:
-------------------------------------------------------------
Name:
-------------------------------------------------------------
Title:
-------------------------------------------------------------
</TABLE>
Bill of Sale and Assignment
Page 3 of 7
<PAGE> 135
<TABLE>
<S> <C>
PURCHASER:
FIRST CITY BANCORPORATION OF TEXAS,INC.
By:
-------------------------------------------------------------
Name:
-------------------------------------------------------------
Title:
-------------------------------------------------------------
</TABLE>
ACKNOWLEDGMENTS
STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the ___ day of
__________________, 1994 by ________________________________, [title of
officer], of the Federal Deposit Insurance Corporation in its capacity as
receiver of ______________________________.
-------------------------------
Notary Public, State of Texas
Bill of Sale and Assignment
Page 4 of 7
<PAGE> 136
STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the ___ day of
__________________, 1994 by ________________________________, [title of
officer], of First City Bancorporation of Texas, Inc., a Delaware corporation,
on behalf of such entity.
-------------------------------
Notary Public, State of Texas
AFTER RECORDING RETURN TO:
First City Bancorporation of Texas, Inc.
1021 Main Street
Houston, Texas 77002
Bill of Sale and Assignment
Page 5 of 7
<PAGE> 137
EXHIBIT "A"
Bill of Sale and Assignment
Page 6 of 7
<PAGE> 138
EXHIBIT "B"
Bill of Sale and Assignment
Page 7 of 7
<PAGE> 139
EXHIBIT 4.1(b)(3)
FORM OF ASSIGNMENT
<PAGE> 140
Exhibit 4.1(b)(3)
ASSIGNMENT OF NOTES AND LIENS
STATE OF ____________ )
) KNOW ALL MEN BY THESE PRESENTS
COUNTY OF ___________ )
That the Federal Deposit Insurance Corporation in its capacity as
receiver of [Failed Bank and Related Bridge Bank]/[Collecting Bank] (the FDIC
in such capacity is hereinafter referred to as the "Assignor"), for full and
valuable consideration to it in hand paid by First City Bancorporation of
Texas, Inc., a Delaware corporation ("Assignee"), the receipt of which is
hereby acknowledged, has ENDORSED, SOLD, ASSIGNED, TRANSFERRED, CONVEYED AND
DELIVERED, and by these presents does ENDORSE, SELL, ASSIGN, TRANSFER, CONVEY,
AND DELIVER, unto Assignee those certain promissory notes (the "Transferred
Loans") described on Exhibit "A" attached hereto and incorporated herein by
reference.
Being the legal owner and holder of the Transferred Loans and of each
lien and security interest securing their payment, Assignor likewise GRANTS,
SELLS, TRANSFERS, AND ASSIGNS unto Assignee each lien, security interest and
all other rights, equities, titles, and interests that Assignor has or to which
it may be entitled by virtue of being the legal owner and holder of the
Transferred Loans, including, but not limited to, all mortgages, deeds of trust
(collectively "Mortgages") and other collateral interests securing the Notes,
all assignments of leases and rents, all assignments of office, hotel, parking
and other management agreements, all assignments of contracts for construction
and architectural work, all security interests of Assignor in owned or leased
personal property of any of the borrowers under the Transferred Loans,
including but not limited to the Mortgages and other collateral listed on
Exhibit "B" hereto, together with all environmental and other indemnities given
to Assignor or any of its subsidiaries in connection with the Transferred Loans
or the liens securing same, together with any and all puts, options and rights
of Assignor to either sell the Transferred Loans or portions thereof to third
parties or acquire any real or personal property securing the Transferred
Loans.
TO HAVE AND TO HOLD the Transferred Loans, together with each lien and
security interest securing their payment, unto Assignee, its successors and
assigns forever, but without recourse on the undersigned Assignor in any event.
<PAGE> 141
The Assignor shall deliver to the Assignee such notice, Mortgages, and
other documents with respect to the Transferred Loans, or copies thereof, as
are in the Assignor's possession, and other documents contained in the
Assignor's loan files.
EXECUTED THIS ___ day of ____________________, 1994 in multiple
originals.
<TABLE>
<S> <C>
FEDERAL DEPOSIT INSURANCE CORPORATION in its capacity as the receiver of
------------------------------------------------------------------------------
By:
-------------------------------------------------------------
Name:
-------------------------------------------------------------
Title:
-------------------------------------------------------------
</TABLE>
ACKNOWLEDGMENTS
STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the ___ day of
__________________, 1994 by ________________________________, [title of
officer], of the Federal Deposit Insurance Corporation in its capacity as
receiver of ______________________________.
-------------------------------
Notary Public, State of Texas
AFTER RECORDING RETURN TO:
First City Bancorporation of Texas, Inc.
1021 Main Street
Houston, Texas 77002
Assignment of Notes and Liens
Page 2 of 4
<PAGE> 142
EXHIBIT "A"
Assignment of Notes and Liens
Page 3 of 4
<PAGE> 143
EXHIBIT "B"
Assignment of Notes and Liens
Page 4 of 4
<PAGE> 144
EXHIBIT 7.1(c)
LEGAL OPINION-FIRST CITY PARTIES
<PAGE> 145
[Opinion of Counsel to the First City Parties]
[Date]
Federal Deposit Insurance corporation
in its capacities as FDIC-Corporation and
FDIC-Receivers (as defined herein)
550 17th Street, N.W.
Washington, D.C. 20429
Ladies and Gentlemen:
We have acted as counsel to First City Bancorporation of Texas, Inc.,
a Delaware corporation ("FCBOT") and its related entities listed on Schedule A
hereto ("FCBOT Affiliated Entities") (FCBOT and the FCBOT Affiliated Entities
hereinafter collectively referred to as the "First City Parties") in connection
with that certain Settlement Agreement, dated as of _____, 1994 (the
"Settlement Agreement") among the Federal Deposit Insurance Corporation (the
"FDIC"), a corporation organized under the laws of the United States of
America, acting in its corporate capacity ("FDIC- Corporate"), the First City
Parties, and the FDIC as receiver of each of (i) the twenty subsidiary banks of
FCBOT closed on October 30, 1992, (ii) the twenty bridge banks organized with
respect to the twenty subsidiary banks of FCBOT closed on October 30, 1992, and
(iii) Collecting Bank, N.A. (the FDIC in such capacities is hereafter referred
to as the "FDIC- Receivers"). This opinion is furnished to you pursuant to
Section 7.1(c) of the Settlement Agreement. Capitalized terms not otherwise
defined herein shall have the meanings ascribed to them in the Settlement
Agreement or the Accord (as defined below).
This Opinion Letter is governed by and shall be interpreted in
accordance with the Legal Opinion Accord (the "Accord") of the ABA Section of
Business Law (1991). As a consequence, it is subject to a number of
qualifications, exceptions, definitions, limitations on coverage, and other
limitations, all as more particularly described in the Accord, and this Opinion
Letter should be read in conjunction therewith. The law covered by the
opinions expressed herein is limited to the laws of the State of Texas, the
general corporate laws of the State of Delaware and the federal laws of the
United States of America.
In our capacity as counsel to the First City Parties, we have examined
the Settlement Agreement and the FCBOT Note, Guarantee and Mutual Release
contemplated by the Settlement Agreement (collectively referred to herein as
the "Transaction Documents"). We have also examined such other documents and
records, including without limitation Public Authority Documents and
certificates of officers of the First City Parties, and have made
<PAGE> 146
Federal Deposit Insurance Corporation
_______________, 1994
Page 2
such other investigations, as we have deemed necessary and relevant to permit
us to deliver this Opinion Letter.
Based upon our examination of the documents and our investigations
referenced in this Opinion Letter, and based upon the assumptions set forth in
this Opinion Letter, but subject to the qualifications and limitations stated
herein, we are of the opinion, as of the date hereof, that:
1. Each of the First City Parties is a corporation
validly existing and in good standing under the laws of its
jurisdiction of incorporation. FCBOT is duly registered as a bank
holding company under the Bank Holding Company Act.
2. Each of the First City Parties has the corporate
power and authority to execute, deliver, and perform their respective
obligations under each of the Transaction Documents to which it is a
party in accordance with its terms. Each of the First City Parties has
taken all necessary corporate action to authorize the execution,
delivery, and performance of the Transaction Documents to which it is
a party and the performance of the transactions contemplated thereby.
3. The execution, delivery, and performance by each of
the First City Parties of each of the Transaction Documents to which
it is a party will not violate any law, regulation, or ruling or, to
our Actual Knowledge, any order, judgment, or decree to which the
First City Parties or any of their properties is subject.
4. The execution, delivery, and performance by each of
the First City Parties of each of the Transaction Documents to which
it is a party, will not result in a violation of, or constitute a
breach of, or a default under, its Constituent Documents or any other
material agreement or instrument known to us to which it or any of its
subsidiaries is a party (or which is binding on it or any of its
subsidiaries or any of the assets of any such person), or any order,
decree, award or judgment known to us issued by any court or other
competent tribunal and which is binding on it or any of its
subsidiaries or any assets of any such person, and will not result in
the creation of any lien on, or security interest in, the assets of
any of the First City Parties or any of their subsidiaries.
5. All consents of any state or federal governmental
authority or other third party (including without limitation,
approvals, licenses, registrations or declarations) that are required
in connection with the execution, delivery or performance by the First
City Parties of each of the Transaction Documents to which any of the
First City Parties is a party, and the transactions contemplated
thereby, have been obtained and are in full force and effect.
<PAGE> 147
Federal Deposit Insurance Corporation
_______________, 1994
Page 3
6. (a) To our Actual Knowledge, except as disclosed
on Exhibit 6(a) attached hereto, there is no legal action,
suit, investigation or proceeding (whether or not any of the
First City Parties or any of their subsidiaries is a party
thereto) pending or threatened against any of the First City
Parties or any of their subsidiaries or any assets of any such
person which questions the validity of each of the Transaction
Documents or any of the transactions contemplated thereby or
which would, if adversely determined, either individually or
in the aggregate with all such other actions, suits,
investigations, or proceedings, materially adversely affect
the business, operations or condition (financial or otherwise)
of any of the First City Parties or the ability of any of the
First City Parties to perform, satisfy or observe any
obligation or condition under any of the Agreements to which
it is a party.
(b) To our Actual Knowledge, there is not in
effect or in force any injunction or order of any court or
government agency restraining the transactions contemplated by
any of the Transaction Documents.
7. Each of the Transaction Documents has been duly
executed and delivered by each of the First City Parties which are
parties thereto, and each of the Transaction Documents is the legal,
valid and binding obligation of each of them, enforceable in
accordance with its respective terms.
8. The Transaction Documents have been approved by an
order of the Bankruptcy Court that either (a) has become final and
unappealable, or (b) if appealed, has been affirmed by an order that
has become final and unappealable.
9. FCB Holdings, Inc. has been validly and effectively
merged with and into FCBOT.
The opinions expressed herein are delivered to you solely in
connection with the Agreements and the transactions contemplated thereby.
Without our express written consent in each instance this opinion may not be
relied upon in any manner by any other person or referred to or quoted in any
document, report or financial statement, or filed with or delivered to any
governmental agency or other person or entity, except such disclosures as are
required by law.
Very truly yours,
Carrington, Coleman, Sloman
& Blumenthal, A Registered Limited
Liability Company
By:
----------------------------------
<PAGE> 148
EXHIBIT 7.2(d)
LEGAL OPINION-FDIC
<PAGE> 149
EXHIBIT 7.2(d)
Opinion of Counsel to the FDIC
First City Bancorporation of Texas, Inc., and
The FCBOT Affiliated Entities
1021 Main Street
Suite 2600
Houston, Texas 77002
Ladies and Gentlemen:
The undersigned is Acting Deputy General Counsel of the Federal
Deposit Insurance Corporation (the "FDIC"). This opinion is furnished to you
pursuant to Section 7.2(d) of the Settlement Agreement dated as of June 22,
1994, among the FDIC in its corporate capacity ("FDIC-Corporate"), First City
Bancorporation of Texas, Inc., a Delaware corporation and its related entities
listed on Schedule A hereto, and the FDIC-Receivers, as that term is defined in
the Settlement Agreement. Terms used herein which are defined in the
Settlement Agreement and which are not otherwise defined herein shall have the
meanings attributed to them in the Settlement Agreement.
Members of my staff and I have participated in the preparation of the
Settlement Agreement. In rendering this opinion I have examined or caused to
be examined, and relied upon, originals, or copies certified or otherwise
identified to my satisfaction, of the Settlement Agreement, all such corporate
records of the FDIC and such other documents and certificates of FDIC officials
and such other persons, and I have made or caused to be made such
investigations of law, as I have deemed appropriate as a basis for the opinions
expressed below.
Based upon and subject to the foregoing, it is my opinion that:
1. The FDIC has legal power and authority to execute, deliver and
perform its obligations under the Settlement Agreement. The execution,
delivery and performance by the FDIC of the Settlement Agreement will not
violate any provision of Federal law administered by the FDIC.
2. The execution and delivery by the FDIC of the Settlement
Agreement, and the performance by the FDIC of its obligations thereunder have
been duly authorized by all necessary action on the part of the FDIC. The
Settlement Agreement has been duly executed and delivered by the FDIC, and is
the legal, valid and binding obligation of the
<PAGE> 150
First City Bancorporation, Inc.
_______________, 1994
Page 2
FDIC, enforceable in accordance with its terms, except that its enforceability
may be subject to the application of general equitable principles (regardless
of whether enforcement is considered in proceedings at law or in equity).
In rendering this opinion, I express no opinion other than as to the
Federal law of the United States of America.
This opinion is furnished to you solely for your benefit and may be
relied upon by no other person. This opinion may not be used, circulated,
quoted or otherwise referred to for any other purpose.
Sincerely,
John G. Finneran, Jr.
Acting Deputy General Counsel
<PAGE> 151
AMENDMENT TO SETTLEMENT AGREEMENT
THIS AMENDMENT TO SETTLEMENT AGREEMENT dated as of January 30, 1995 is
entered into by and among THE FEDERAL DEPOSIT INSURANCE CORPORATION ("FDIC"),
in its corporate capacity ("FDIC-Corporate"); the FDIC-RECEIVERS (as defined in
the Settlement Agreement); FIRST CITY BANCORPORATION OF TEXAS, INC., a bank
holding company incorporated in the State of Delaware ("FCBOT") and its related
entities listed on Schedule A attached hereto and incorporated herein
(hereinafter collectively referred to as the "FCBOT Affiliated Entities")
(FCBOT and the FCBOT Affiliated Entities hereinafter collectively referred to
as the "First CitY Parties") .
R E C I T A L S:
WHEREAS, the parties hereto entered into that certain Settlement
Agreement dated as of June 22, 1994 (the "Settlement Agreement"); and
WHEREAS, the parties to the Settlement Agreement now wish to amend the
Settlement Agreement in certain respects as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Capitalized Terms. All of the capitalized terms used herein
shall have the same meaning as set forth in the Settlement Agreement unless
otherwise indicated.
2. Replacement of Schedule A. Schedule A attached to the
Settlement Agreement is hereby deleted and replaced with Schedule A attached
hereto. By virtue of the replacement of Schedule A, First City Bancorporation
of Texas, Inc., a Texas corporation, has been deleted and therefore will not be
an FCBOT Affiliated Entity nor one of the First City Parties for purposes of
the Settlement Agreement as amended hereby.
3. Replacement of Schedule B. Schedule B is hereby deleted and
replaced by Schedule B attached hereto to update the information concerning the
pending litigation.
4. Amendment to Article II. Article II is hereby amended by
deleting the proviso set forth therein.
5. Amendment to Section 3.1. The introductory sentence of Article
III shall be amended by removing the colon after "Article
<PAGE> 152
VII" and adding ", the parties shall take the following actions, each of which
shall be in a condition of the others."
6. Amendment to Section 3.4 (b). Section 3.4(b) is hereby amended
to read as follows: "Pursuant to Section 8 of that certain Compromise and
Settlement Agreement dated December 27, 1994, by and among Bank of New York
(Delaware), BNY Information Services, Inc., FCBOT, and the FDIC-Receivers, the
Cash Dividend Amount shall be reduced by three million dollars ($3,000,000)
plus interest thereon at the "Escrowed Funds Rate," as prescribed in Section 3
of that Compromise and Settlement Agreement from December 29, 1994, to the
Closing Date."
7. Amendment to Section 3.4 (e). Section 3.4(e) shall be amended
to read as follows: "Pursuant to Section 2.2 of that certain Compromise and
Settlement Agreement Regarding Furniture Fixtures and Equipment of July 13,
1994, by and among FCBOT, FCB Real Estate Services Inc. and the FDIC-Receivers,
the Cash Dividend Amount shall be reduced by $826,525.50."
8. Amendment to Section 3.7. Section 3.7 is hereby amended by
adding the following sentence after the second sentence of that section: "Such
cash contribution to the First City-Houston Receivership shall not reduce the
amount of the Initial Dividend."
9. Replacement of Schedule 3.9(d). Schedule 3.9(d) attached to
the Settlement Agreement is hereby amended and replaced by the Schedule 3.9(d)
attached hereto and incorporated herein.
10. Replacement of Exhibit 3.9(e). Exhibit 3.9(e) attached to the
Settlement Agreement is hereby amended by replacing it with Exhibit 3.9(e)
attached hereto and incorporated herein.
11. Replacement of Exhibits 4.1(b)(1), (2) and (3). Exhibits
4.1(b)(1),(2) and (3) attached to the Settlement Agreement are hereby amended
and replaced with Exhibits 4.1(b)(1), (2)(A), (2)(B), and (3) attached hereto
and incorporated herein.
12. Amendment to Section 4.5. The following language is added as
subparagraph (c) to Section 4.5:
(c) The FDIC-Receivers are not aware of the presence of
Hazardous Materials on or emanating from any property owned by any of
the FDIC-Receivers except as shown on Schedule 4.5(c) attached hereto
and are not aware of any claims that have been asserted or threatened
against any one or more of the FDIC-Receivers with respect to or in
any way relating to Hazardous Materials on or emanating from any of
the property or assets owned by the FDIC-Receivers.
-2-
<PAGE> 153
In conjunction with the addition of the aforementioned subparagraph (c) to
Section 4.5, Schedule 4.5(c) shall be added with the title "Property Affected
by Hazardous Materials." The Table of Contents shall be amended to reflect the
addition of Schedule 4.5(c).
13. Replacement of Schedule 5.3(d). Schedule 5.3(d) attached to
the Settlement Agreement is hereby amended and replaced by the Schedule 5.3(d)
attached hereto and incorporated herein
14. Replacement of Section 6.6 and Conforming Amendments to
Certain Definitions in Article I and to Section 3.7.
(i) As a result of the aforementioned amendment to Section 3.4(b),
the title and text of Section 6.6 shall be removed, and the Section shall be
reserved. The Table of Contents shall be amended to reflect this amendment with
respect to Section 6.6.
(ii) The definitions of "BONY Litigation" and "BONY Settlement
Amount" shall be removed.
(iii) Section 3.7 is hereby amended by deleting the following
language from the fifth line of that Section: "including obligations set forth
in Section 6.6 hereof."
15. Replacement of Obligations Under Section 6.11. Section 6.11
shall be replaced by the following:
Section 6.11 Approval of Settlement Agreement. FCBOT
shall timely seek the Bankruptcy Court's approval of this
Agreement, either by motion seeking such approval or by motion
for confirmation of a Plan of Reorganization incorporating
this Agreement. The FDIC agrees to support such a motion for
approval or such a Plan of Reorganization to the extent that
it incorporates this Agreement, and also may support any other
Plan of Reorganization to the extent that such other Plan
incorporates this Agreement.
The Table of Contents shall be amended to reflect this revision of Section
6.11.
16. Amendment to Exhibit 7.1(c). Exhibit 7.1(c) is hereby amended
by adding the following sentence as the penultimate sentence of the Legal
Opinion included in that Exhibit: "The opinions expressed herein are unaffected
by any of the First City Parties' being identified on Schedule 8.1(a) of the
Settlement Agreement."
-3-
<PAGE> 154
17. Deletion from Section 7.1(g). Section 7.1(g) is hereby amended
by deleting the following language from the last sentence thereof "the
signatories thereto," and replacing that language with "such signatories
thereto as are within the jurisdiction of the Bankruptcy Court,". In addition,
the following language is hereby added as the introductory clause of the last
sentence of Section 7.1(g): "If the Approval Order is not an order confirming a
Plan of Reorganization for FCBOT but is entered in advance of such a
confirmation order,".
18. Amendment to Section 7.2(d). Section 7.2(d) shall be amended
by replacing the reference to "an Associate General Counsel of the FDIC" with
"an Assistant General Counsel of the FDTC "
19. Amendment to Exhibit 7.2(d). Exhibit 7.2(d) shall be amended
by replacing the references to "Acting Deputy General Counsel" with "Assistant
General Counsel", and deleting the reference to "John G. Finneran. Jr."
20. Amendments to Section 8.1.
(i) Schedule 8.1(a) shall be replaced with the Schedule 8.1(a)
attached hereto and incorporated herein.
(ii) Section 8.1(d)(i) and 8.1(e)(i) shall each be amended by
adding the following to the beginning of each:
Except as reflected in any claims filed with any of the
FDIC-Receivers or in the FCBOT bankruptcy proceeding,
(iii) Section 8.1(e)(ii) is hereby amended by adding the following
to the beginning of that Section:
Except to the extent that the appointment of receivers for the
First City Banks and/or the bankruptcy of FCBOT constitutes an
event of default for purposes of any instrument covered under
this paragraph and except as reflected in any claims filed
with any of the FDIC-Receivers or in the FCBOT bankruptcy
proceeding,
(iv) Section 8.1(f)(i) is hereby amended by deleting the words
through "1994" in the first through fourth lines thereof and replacing them
with the following: "Except as set forth in the Omnibus Disclosure Statement
for the Plans of Reorganization for First City Bancorporation of Texas, Inc.
under Chapter 11 of the Bankruptcy Code dated December 23, 1994."
-4-
<PAGE> 155
21. Amendments to Section 9.5 of the Agreement and Related
Amendment to Section 7.1(g).
(i) Paragraphs (b) through (d) are redesignated as paragraphs (d)
through (f), and new paragraphs (b) and (c) are added as follows:
(b) If the Approval Order is entered at any time between
December 31, 1994, and December 31, 1997, the FDIC's termination
option under paragraph (a) above shall not thereafter be effective.
Any notice of intent to terminate that the FDIC delivers pursuant to
paragraph (e) below shall not be effective to terminate the
Agreement in accordance with paragraph (a) if the Approval Order is
entered before expiration of the 10-day period specified in
paragraph (e). For purposes of this paragraph (b), the date of entry
of the Approval Order shall be the date such order is entered by the
Bankruptcy Court without regard to any appeal period with respect to
such order or time required to dispose of any appeal taken from
such order.
(c) In the event that an Approval Order is entered but is
subsequently reversed, set aside, or materially modified, on appeal
or otherwise, then any of the First City Parties or the FDIC shall
have the option to effect the termination of this Agreement.
(ii) In paragraph (e) (as redesignated) of Section 9.5, the
references to "paragraph (a) or (b)" are replaced by references to "paragraph
(a), (c), or (d)".
(iii) In paragraph (f) (as redesignated) of Section 9.5, the
reference to "Section 9.5(d)" is replaced by a reference to "Section 9.5(f)".
(iv) Redesignated Section 9.5(f) shall be amended by deleting the
words from "(ii)" through "their terms," in the fourth through seventh lines
thereof and replacing them with the following:
(ii) any such order fails to provide that the FCBOT
Note and the Guarantee shall be the legal, valid and binding
obligations of such signatories thereto as are within the
jurisdiction of the Bankruptcy Court, enforceable against such
First City Parties in accordance with their terms,
-5-
<PAGE> 156
(v) Section 7.1(g) of the Agreement is amended by adding after the
first sentence thereof the following sentences:
The Approval Order shall expressly provide that, for so long
as the Agreement has not been terminated and the Approval
Order has not been reversed or set aside, no party in interest
may initiate, resume, or continue (x) any litigation stayed
under Section 6.9 hereof or (y) any other litigation against
the FDIC that is brought by, on behalf of, or in the name of
any of the First City Parties (other than litigation to
enforce performance of this Agreement). For purposes of this
paragraph, "party in interest" shall include, but not be
limited to, (i) FCBOT and all parties controlled by it, (ii)
all official and ad hoc committees in the FCBOT bankruptcy
proceeding, (iii) all proponents of plans of reorganization
with respect to FCBOT, (iv) all parties claiming on the basis
of debt or equity interests in FCBOT, and (v) all successors
and assignees of the foregoing.
22. Execution in Counterparts. This Amendment 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.
23. Ratification. The parties hereby ratify, adopt and confirm all
of the terms and provisions of the Settlement Agreement as amended by this
Amendment to Settlement Agreement and agree that the same are and shall remain
in full force and effect as amended hereby.
THIS AMENDMENT TO SETTLEMENT AGREEMENT is executed as of this 28th day
of January, 1995.
FEDERAL DEPOSIT INSURANCE CORPORATION,
in its corporate capacity
By:/s/Roger A. Hood
-----------------------------------
Name: Roger A. Hood
Title: Deputy to the Vice Chairman
FEDERAL DEPOSIT INSURANCE CORPORATION,
in its capacity as the FDIC-Receivers
By:/s/Roger A. Hood
----------------------------------
Name: Roger A. Hood
Title: Deputy to the Vice Chairman
-6-
<PAGE> 157
FIRST CITY BANCORPORATION OF TEXAS, INC.,
a Delaware Corporation
By:/s/C. Ivan Wilson
--------------------------------------
Name: C. Ivan Wilson
Title: Chair. & CEO
FCB HOLDINGS, INC.
By:/s/Robert W. Brown
--------------------------------------
Name: Robert W. Brown
Title: President
FINANCIAL CENTER, INC.
By:/s/Robert W. Brown
--------------------------------------
Name: Robert W. Brown
Title: President
FIRST CITY PORTFOLIO, INC.
By:/s/Robert W. Brown
--------------------------------------
Name: Robert W. Brown
Title: President
BROADWAY CENTER, INC.
By:/s/Robert W. Brown
--------------------------------------
Name: Robert W. Brown
Title: President
FIRST CITY ASSET SERVICING COMPANY
By:/s/Robert W. Brown
--------------------------------------
Name: Robert W. Brown
Title: President
-7-
<PAGE> 158
FCB REAL ESTATE SERVICES, INC.
By:/s/Robert W. Brown
--------------------------------------
Name: Robert W. Brown
Title: President
CENTRAL TEXAS INSURANCE AGENCY, INC.
By:/s/Robert W. Brown
--------------------------------------
Name: Robert W. Brown
Title: President
CITIZENS STATE BANK SEALY
By:/s/Leroy Zapman
--------------------------------------
Name: Leroy Zapman
Title: President
FIRST CITY ENERGY FINANCE COMPANY
By:/s/Robert W. Brown
--------------------------------------
Name: Robert W. Brown
Title: President
FIRST CITY FINANCIAL CORPORATION
By:/s/Robert W. Brown
--------------------------------------
Name: Robert W. Brown
Title: President
FIRST CITY LIFE INSURANCE COMPANY
By:/s/Robert W. Brown
--------------------------------------
Name: Robert W. Brown
Title: Vice President
-8-
<PAGE> 159
FIRST CITY PAYROLL MANAGEMENT COMPANY
By:/s/Robert W. Brown
--------------------------------------
Name: Robert W. Brown
Title: Vice President
NEW FIRST SECURITY NATIONAL CORPORATION
By:/s/Robert W. Brown
--------------------------------------
Name: Robert W. Brown
Title: Vice President
FCFC ENERGY CORP.
By:/s/Robert W. Brown
--------------------------------------
Name: Robert W. Brown
Title: Vice President
-9-
<PAGE> 160
SCHEDULE A
FCBOT AFFILIATED ENTITIES
(1) FCB Holdings, Inc.
(2) Financial Center, Inc.
(3) First City Portfolio, Inc.
(4) Broadway Center, Inc.
(5) First City Asset Servicing Company
(6) FCB Real Estate Services, Inc.
(7) Central Texas Insurance Agency, Inc.
(8) Citizens State Bank Sealy
(9) First City Energy Finance Company
(10) First City Financial Corporation
(11) First City Life Insurance Company
(12) First City Payroll Management Company
(13) New First Security National Corporation
(14) FCFC Energy Corp.
-10-
<PAGE> 161
SCHEDULE B
LITIGATION
(1) First City Bancorporation of Texas, Inc. et al. v.
FDIC, Cause No. 3:93-CV-2286-T, United States District Court for the
Northern District of Texas, Dallas Division.*
(2) First City Bancorporation of Texas, Inc. et al. v.
FDIC, Cause No. 3:93-CV-1959-R, United States District Court for the
Northern District of Texas, Dallas Division.*
(3) First City Bancorporation of Texas, Inc. et al. v.
FDIC, Cause No. 3:93-CV-2416-P, United States District Court for the
Northern District of Texas, Dallas Division.*
(4) First City Bancorporation of Texas Inc. et al. v.
FDIC, Cause No. 3:93-CV-2369-R, United States District Court for the
Northern District of Texas, Dallas Division.*
(5) Financial Center Inc. v. FDIC, Civil Action No. C-93-337, United
States District Court for the Southern District of Texas, Corpus
Christi Division.
(6) First City Bancorporation of Texas Inc. et al. v.
FDIC, Adv. 292-3798, United States District Court for the Northern
District of Texas, Dallas, Division.
(7) First City Bancorporation of Texas Inc. et al. v.
FDIC, Cause No. 3:93-CV-2253-T, United States District Court for the
Northern District of Texas, Dallas Division.*
(8) First City Asset Servicing Company v. FDIC, Cause No. 3:93-CV-2251,
United States District Court for the Northern District of Texas,
Dallas Division.*
(9) First City Bancorporation Real Estate Services v.
FDIC, Cause No 3:93-CV-2250-T, United States District Court for the
Northern District of Texas, Dallas Division.*
-11-
<PAGE> 162
(10) First City Bancorporation of Texas, Inc. et al. v.
FDIC, Cause No. 94-0218, United States District Court for the District
of Columbia.*
(11) Financial Center, Inc. v. FDIC, et al., Civil Action No. C-94-40,
United States District Court for the Southern District of Texas.
____________________
* Each of these cases has been consolidated under Cause
No. 3:93-CV-1959-R in the United States District Court for the
Northern District of Texas. Cases 1, 3, 4, and 10 originated in
other districts; each case was first transferred to the Northern
District of Texas, assigned a Northern District case number
(shown above), and then consolidated with No. 3:93-CV-1959-R.
-12-
<PAGE> 163
SCHEDULE 3.9(D)
PAYMENTS UNDER FCBOT PROFESSIONAL LIABILITY NOTE
<TABLE>
<CAPTION>
Date Received by FDIC-Corporate Amount
------------------------------- ------
<S> <C> <C>
(1) 3/10/92 $12,040,603.74
(cash portion plus
late penalty)
(2) 6/24/92 $479,219.18
(note interest)
(3) 7/17/92 $4,270,934.67
(principal payment)
(4) 7/20/92 $104,781.91
(note interest)
(5) 8/24/92 $101,237.70
(note interest &
late penalty)
(6) 8/24/92 $89,867.21
(principal payment)
(7) 9/21/92 $89,862.42
(note interest)
(8) 10/20/92 $91,668.19
(note interest)
</TABLE>
In addition, an amount of $600,000 in cash that FDIC-Corporate is holding in a
non-interest bearing, trust account for application to the FCBOT
Professional-Liability Note shall be deemed to have been so applied, and FCBOT
releases any further claim to that amount.
- --------------------------------------------
TOTAL CASH RECEIVED BY FDIC-CORPORATE
UNDER THE FCBOT PROFESSIONAL LIABILITY NOTE: $17,868,175.02
-13-
<PAGE> 164
SCHEDULE 4.5(C)
PROPERTY AFFECTED BY HAZARDOUS MATERIALS
-14-
<PAGE> 165
SCHEDULE 5.3(D)
SURPLUS ASSIGNMENTS
<TABLE>
<CAPTION>
TRANSACTION AMOUNT OF ASSIGNMENT DATE ASSIGNEE
----------- -------------------- ---- --------
<S> <C> <C> <C>
EDS Settlement $8.4 million plus amount of April 22, 1994 FDIC-Receiver (Houston)
additional dividends, if any,
on $10.5 million Receiver's
Certificate, plus interest on
$3.4 million
Operating Account $2,000,163.19 plus interest June 10, 1994 FDIC-Receiver (Houston)
FF&E Settlement $826,525.50 plus interest July 13, 1994 FDIC-Receivers
BONY Settlement $3,000,000 plus interest December 27, 1994 FDIC-Receivers
</TABLE>
-15-
<PAGE> 166
SCHEDULE 8.1(a)
EXCEPTIONS TO REPRESENTATIONS and WARRANTIES
First City Bancorporation of Texas, Inc., a Delaware corporation, is
not in good standing in the State of Texas. Further, reports show a franchise
tax balance due to the State of Delaware of approximately $360,000.00.
First City Asset Servicing Company is not in good standing in the
State of Texas.
First City Financial Corporation is not in good standing in Delaware
and has forfeited its charter there.
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<PAGE> 167
EXHIBIT 3.9(e)
ASSIGNMENT OF PROFESSIONAL LIABILITY CLAIMS
STATE OF TEXAS )
) KNOW ALL MEN BY THESE PRESENTS
COUNTY OF _________ )
That the FEDERAL DEPOSIT INSURANCE CORPORATION (the "FDIC") in its
corporate capacity and in its capacity as receiver of each of (i) the twenty
First City banks closed on October 30, 1992, (as listed in Exhibit A attached
hereto) and (ii) Collecting Bank, N.A. (the FDIC in such capacities is
hereinafter referred to as the "Assignor," and the banks referred to in clauses
(i) and (ii) are hereinafter referred to as the "First City Banks"), for full
and valuable consideration to it by FIRST CITY BANCORPORATION OF TEXAS, INC., a
Delaware corporation ("Assignee), the receipt of which is hereby acknowledged,
has ASSIGNED, TRANSFERRED, and CONVEYED, and by these presents does ASSIGN,
TRANSFER, and CONVEY unto Assignee those professional liability claims held by
the FDIC-Receivers as defined herein as the "Professional Liability Claims."
For purposes of this Assignment, "Professional-Liability Claims" means
any interest, right, action, claim, or judgment that (A) is (i) held or owned
by the First City Banks as of October 30, 1992, or (ii) held or owned by
FDIC-Corporate as a result of the assignment in the Assistance Agreement (as
defined herein) of such claims arising prior to the Commencement Date under the
Assistance Agreement (and that were not otherwise released pursuant to the
Settlement Agreement dated June 22, 1994); (B) is against (x) any officer,
director, employee, accountant, attorney, consultant, or any other person
employed or retained by the First City Banks, or any subsidiary of such banks,
on or prior to October 30, 1992, arising out of any act or omission of such
person in such capacity, (y) any underwriter of financial institution bonds,
banker's blanket bonds, directors' and officers' liability policy, or any other
similar banks or insurance policy insuring or protecting in anyway the First
City Banks from loss, or (z) any shareholder or holding company of the First
City Banks; and (C) arises out of an act, omission, or other event that
occurred on or before October 30, 1992, regardless of when any such claim is
discovered and regardless of whether any such claim is made with respect to a
financial institution bond, banker's blanket bond, or any other insurance
policy of the First City Banks in force as of October 30, 1992.
In addition, for purposes of this Assignment, "Assistance Agreement"
means that certain Assistance Agreement dated April 19, 1988, among the FDIC,
First City Bancorporation of Texas,
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<PAGE> 168
Inc., a Texas corporation, FCBOT, the subsidiary banks of First City
Bancorporation of Texas, Inc. specified therein, Donaldson, Lufkin & Jenrette
Securities Corporation, and A. Robert Abboud.
This assignment includes, but is not limited to, all of the Assignor's
rights, title and interest, if any, in and to claims arising under or pursuant
to that certain Financial Institution Bond No. 81260367-A issued by Vigilant
Insurance Company and other entities executing such Bond as an Underwriter
(collectively the "Underwriter") and that certain Financial Institution Bond(s)
for the period from July 20, 1992 to July 20, 1993 (including but not limited
to those bearing the number 501/JCF9200015 through 9200019) issued by the
Underwriters as defined therein including, without limitation, the right to any
extension of time within which an insured under any such Bond is required to
act and all claims and causes of action of every kind and nature against the
Underwriter described in any such bonds.
EXECUTED THIS _____ day of ________________________, 1995 in multiple
originals.
ASSIGNOR:
FEDERAL DEPOSIT INSURANCE CORPORATION
in its corporate capacity and its
capacity as the FDIC-Receivers
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
ASSIGNEE:
FIRST CITY BANCORPORATION OF TEXAS, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
-18-
<PAGE> 169
ACKNOWLEDGMENTS
STATE OF )
)
COUNTY OF )
This instrument was acknowledged before me on the _____ day of
__________________, 1995 by ______________________________ [title of officer],
of the Federal Deposit Insurance Corporation in its capacity as the
FDIC-Receivers, on behalf of such entity.
----------------------------------------
Notary Public, State of
-----------------
STATE OF )
)
COUNTY OF )
This instrument was acknowledged before me on the _____ day of
_______________, 1995 by ___________________________________, [title of
officer], of First City Bancorporation of Texas, Inc., a Delaware corporation,
on behalf of such entity.
----------------------------------------
Notary Public, State of
-----------------
AFTER RECORDING RETURN TO:
First City Bancorporation of Texas, Inc.
1021 Main Street
Houston Texas 77002
-19-
<PAGE> 170
EXHIBIT 4.1(b)(1)
RECEIVER'S DEED
DATE: 19
------------------------------, ------
GRANTOR: Federal Deposit Insurance Corporation, as Receiver for
- --------------------------, ------------------------------------------------,
Texas.
GRANTOR'S MAILING ADDRESS (INCLUDING COUNTY):
---------------------------------------
---------------------------------------
GRANTEE:
---------------------------------------
GRANTEE'S MAILING ADDRESS (INCLUDING COUNTY):
---------------------------------------
---------------------------------------
CONSIDERATION: Good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged.
PROPERTY: The real property described on Exhibit A attached hereto and
incorporated herein by reference, together with all rights and appurtenances
thereto, including without limitation any right, title and interest of Grantor
in and to adjacent streets, roads, alleys and rights of way, together with all
buildings and other improvements situated thereon, together with all fixtures
and other property attached thereto (the "Property").
Grantor, for the consideration set forth above and subject to general
real estate taxes on the Property for the current year and subsequent
assessments for prior years due to change in land usage or ownership, the
payment of which Grantee hereby assumes, zoning laws, regulations, and
ordinances of municipal and other governmental authorities, if any, affecting
the Property as well as all exceptions, restrictions, reservations,
encumbrances, access limitations and other conditions affecting the Property
and title thereto, GRANTS, SELLS and CONVEYS to Grantee the Property.
TO HAVE AND TO HOLD the Property, together with all and singular the
rights and appurtenances thereunto in anywise belonging unto said Grantee and
Grantee's successors and assigns forever.
-20-
<PAGE> 171
However, this Conveyance is made without warranty of any kind either
express or implied, including without limitation any warranties that might
arise by common law or pursuant to Section 5.023 of the Texas Property Code, as
may be hereafter amended or superseded.
GRANTEE, BY ITS ACCEPTANCE OR DELIVERY OF THIS DEED, ACKNOWLEDGES THAT
(i) GRANTOR HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS
ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES
OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR
WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A)
THE VALUE, NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT
LIMITATION, THE WATER, SOIL AND GEOLOGY, (B) THE INCOME TO BE DERIVED FROM THE
PROPERTY, (C) THE SUITABILITY OF THE SUBJECT PROPERTY FOR ANY AND ALL
ACTIVITIES AND USES WHICH GRANTEE MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR
BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR
REGULATIONS OF ANY APPLICABLE GOVERNMENT AUTHORITY OR BODY, (E) THE
HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE PROPERTY, (F) THE MANNER OR QUALITY OF THE
CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY, (G) THE
MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY, OR (H) ANY
OTHER MATTER WITH RESPECT TO THE PROPERTY, AND SPECIFICALLY, THAT GRANTOR HAS
NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS
REGARDING COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTIONS, POLLUTION OR LAND USE
LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS, INCLUDING THE DISPOSAL OR
EXISTENCE, IN OR ON THE PROPERTY, OR ANY HAZARDOUS MATERIALS; (ii) GRANTEE HAS
FULLY INSPECTED THE PROPERTY AND THAT THE CONVEYANCE AND DELIVERY HEREUNDER OF
THE PROPERTY IS "AS IS" AND "WITH ALL FAULTS"; AND (iii) NO WARRANTY HAS ARISEN
THROUGH TRADE, CUSTOM OR COURSE OF DEALING WITH GRANTOR. BY ACCEPTANCE OF THIS
DEED, GRANTEE SPECIFICALLY ASSUMES ALL RISKS, COSTS AND LIABILITIES OF WHATEVER
NATURE ARISING OUT OF THE CONDITION OF THE PROPERTY.
-21-
<PAGE> 172
When the context requires, singular nouns and pronouns include the
plural.
EXECUTED this ___________ day of __________________________, 199__.
FEDERAL DEPOSIT INSURANCE CORPORATION,
as Receiver for
-----------------------------------------------------
By: ------------------------------------------------
Name: -----------------------------------------------
Its: Attorney-in-Fact
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<PAGE> 173
ACKNOWLEDGMENT
STATE OF TEXAS )
)
COUNTY OF ________________ )
This instrument was acknowledge before me on ______________,
199__, by_________________________ , Attorney-in-Fact on behalf of the FEDERAL
DEPOSIT INSURANCE CORPORATION as Receiver for _________________________________
________________________________, on behalf of said entity.
----------------------------------------
Notary Public, State of Texas
-23-
<PAGE> 174
EXHIBIT A
[Legal Description]
-24-
<PAGE> 175
EXHIBIT 4.1(b)(2)(A)
BILL OF SALE (REAL ESTATE RELATED)
STATE OF TEXAS )
)
COUNTY OF )
That the undersigned (hereinafter called "Seller"), for good and
valuable consideration, the receipt and sufficiency of which are hereby
expressly acknowledged, has GRANTED, BARGAINED, SOLD, TRANSFERRED, DELIVERED
AND CONVEYED and by these presents does hereby GRANT, BARGAIN SELL, TRANSFER,
DELIVER and CONVEY unto _________________ (hereinafter called "Buyer") its
successors and assigns, all of the Seller's right, title and interest to all of
the personal property used in connection with the ownership, operation,
maintenance or management of the improvements located on that certain tract of
land described in Exhibit A, which is attached hereto, made a part hereof and
incorporated herein by reference as is fully set forth at this point.
Such personal property is in a used condition, and Seller is neither a
manufacturer nor distributor of, nor dealer or merchant in such personal
property.
SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO
SUCH PERSONAL PROPERTY INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE,
MERCHANTABILITY, FITNESS, QUALITY, PROFITABILITY, STATE OF REPAIR, OR
SUITABILITY, EITHER EXPRESSED OR IMPLIED, AND SUCH PERSONAL PROPERTY IS SOLD IN
AN "AS IS, WHERE IS," CONDITION WITH ANY AND ALL FAULTS. BY ACCEPTANCE OF
DELIVERY OF SUCH PERSONAL PROPERTY, BUYER AFFIRMS THAT BUYER HAS NOT RELIED ON
SELLER'S SKILL OR JUDGMENT TO SELECT OR FURNISH SUCH PERSONAL PROPERTY FOR ANY
PARTICULAR PURPOSE, THAT SELLER HAS MADE NO WARRANTY THAT SUCH PERSONAL
PROPERTY IS FIT FOR ANY PARTICULAR PURPOSE, THAT THERE ARE NO REPRESENTATIONS
OR WARRANTIES, EITHER EXPRESSED, IMPLIED OR STATUTORY, THAT EXTEND BEYOND THE
DESCRIPTION OF SUCH PERSONAL PROPERTY SET FORTH HEREIN.
This instrument contains the final, complete and exclusive expression
of the agreement of Seller and Buyer and no course of dealing, usage of trade
or course of performance shall be relevant to explain or supplement any term
expressed in this instrument.
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<PAGE> 176
By acceptance of delivery of such personal property, Buyer
acknowledges that Buyer has examined such personal property as fully as desired
to determine its value and condition.
TO HAVE AND TO HOLD the aforesaid personal property unto Buyer, and
Buyer's successors and assigns forever.
EXECUTED this ______ day of _____________________, 19___
FEDERAL DEPOSIT INSURANCE
CORPORATION, as Receiver for
--------------------------------
By:
-----------------------------
Name:
---------------------------
Its: Attorney-in-Fact
-26-
<PAGE> 177
ACKNOWLEDGEMENT
STATE OF TEXAS )
)
COUNTY OF ________________ )
This instrument was acknowledged before me on
_________________________________________________________________, 19___, by
_________________________________, Attorney-in-Fact on behalf of the FEDERAL
DEPOSIT INSURANCE CORPORATION, as Receiver for ________________________________
_______________, on behalf of said entity.
----------------------------------------
Notary Public, State of Texas
-27-
<PAGE> 178
EXHIBIT A
[Legal Description]
-28-
<PAGE> 179
EXHIBIT 4.1(b)(2)(B)
BILL OF SALE (Non-Real Estate Related)
The FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver of
________________________________________________________________________________
_________________________________________ ("Assignor"), for value received and
pursuant to the terms and conditions of that certain Settlement Agreement
between Assignor and First City Bancorporation of Texas, Inc., a Delaware
corporation ("Assignee"), dated June 22, 1994, does hereby assign, convey and
deliver to Assignee without recourse, all right, title and interest of Assignor
in and to the ___________________________________________ described in Exhibit
A, attached hereto, and made a part hereof for all purposes.
DISCLAIMER
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ASSIGNOR MAKES NO
REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO SERVICES OR DATA MADE
AVAILABLE BY ASSIGNOR, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF FITNESS
FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. ASSIGNOR ASSUMES NO RESPONSIBILITY
IN CONNECTION WITH THE USE OF ANY OF THE SERVICES OR DATA MADE AVAILABLE BY
ASSIGNOR. ASSIGNEE AGREES THAT ASSIGNOR SHALL NOT BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR THE LOSS OF
PROFIT, REVENUE, OR DATA ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT.
BY ACCEPTANCE OF THIS ASSIGNMENT, ASSIGNEE ACKNOWLEDGES THAT ASSIGNOR
HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATIONS AS TO THE PHYSICAL CONDITION
OF THE PROPERTY, OR ANY OTHER MATTER AFFECTING OR RELATED TO THE PROPERTY.
ASSIGNEE EXPRESSLY AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE
PROPERTY IS CONVEYED "AS IS" AND "WITH ALL FAULTS," AND ASSIGNOR EXPRESSLY
DISCLAIMS, AND ASSIGNEE ACKNOWLEDGES AND ACCEPTS THAT ASSIGNOR HAS DISCLAIMED,
AND ALL REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY KIND, ORAL OR WRITTEN,
EXPRESS OR IMPLIED, CONCERNING THE PROPERTY, INCLUDING, WITHOUT LIMITATION, (i)
THE VALUE, CONDITION, MERCHANTABILITY, HABITABILITY, MARKETABILITY,
PROFITABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE, OF THE
PROPERTY, (ii) THE MANNER OR QUALITY OF THE CONSTRUCTION, OR THE MATERIALS, IF
ANY, INCORPORATED INTO THE CONSTRUCTION, AND (iii) THE MANNER OF REPAIR,
QUALITY OF REPAIR, STATE OF REPAIR OR LACK OF REPAIR OF ANY SUCH IMPROVEMENTS.
BY ASSIGNEE'S ACCEPTANCE OF THIS ASSIGNMENT, ASSIGNEE REPRESENTS THAT ASSIGNEE
HAS MADE ALL INSPECTIONS OF THE PROPERTY TO DETERMINE ITS VALUE AND CONDITION
DEEMED NECESSARY OR APPROPRIATE BY ASSIGNEE, INCLUDING, WITHOUT LIMITATION,
INSPECTIONS FOR THE PRESENCE OF ASBESTOS, PESTICIDE RESIDUES, HAZARDOUS WASTE,
AND
-29-
<PAGE> 180
OTHER HAZARDOUS MATERIALS.
IN WITNESS WHEREOF, Assignor has caused this Bill of Sale to be
executed this _______________ day of , 19__.
FEDERAL DEPOSIT INSURANCE CORPORATION
as Receiver for
----------------------
-------------------------------------
By
-----------------------------------
Name
---------------------------------
Attorney-in-Fact
-30-
<PAGE> 181
ACKNOWLEDGMENT
STATE OF TEXAS )
)
COUNTY OF ________________ )
This instrument was acknowledged before me on this ________ day of
_________________, 199__, by _____________________,
Attorney-in-Fact of the FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver of
_________________________, a corporation organized and existing under the laws
of the United States of America, on behalf of such corporation, in the capacity
therein stated.
-----------------------------------------
Notary Public, State of Texas
-31-
<PAGE> 182
EXHIBIT 4.1(b)(3)
ASSIGNMENT OF NOTE AND LIEN
For valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the FEDERAL DEPOSIT INSURANCE CORPORATION as Receiver of
________________________________________________________________________________
_______________________________________________________________________________
herein called "Assignor," whose address is Southwest Service Center, 5080
Spectrum Drive, Suite 1000E, Dallas, Texas 75248, hereby transfers, assigns,
delivers, and sets over to FIRST CITY BANCORPORATION OF TEXAS, INC., a Delaware
corporation ("Assignee"), without recourse, all of Assignor's right, title and
interest in and to the Promissory Notes, together with any and all extension(s)
of said Notes, and all liens, security interests, claims, rights, collateral,
guaranties and other documents securing the payment thereof, which are listed on
Exhibit A, attached hereto and incorporated herein for all purposes.
DISCLAIMER
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ASSIGNOR MAKES NO
REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO SERVICES OR DATA MADE
AVAILABLE BY ASSIGNOR, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF FITNESS
FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. ASSIGNOR ASSUMES NO RESPONSIBILITY
IN CONNECTION WITH THE USE OF ANY OF THE SERVICES OR DATA MADE AVAILABLE BY
ASSIGNOR. ASSIGNEE AGREES THAT ASSIGNOR SHALL NOT BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR THE LOSS OF
PROFIT, REVENUE, OR DATA ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT.
BY ACCEPTANCE OF THIS ASSIGNMENT, ASSIGNEE ACKNOWLEDGES THAT ASSIGNOR
HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATIONS AS TO THE PHYSICAL CONDITION
OF THE PROPERTY, OR ANY OTHER MATTER AFFECTING OR RELATED TO THE PROPERTY.
ASSIGNEE EXPRESSLY AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE
PROPERTY IS CONVEYED "AS IS" AND "WITH ALL FAULTS," AND ASSIGNOR EXPRESSLY
DISCLAIMS, AND ASSIGNEE ACKNOWLEDGES AND ACCEPTS THAT ASSIGNOR HAS DISCLAIMED,
ANY AND ALL REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY KIND, ORAL OR
WRITTEN, EXPRESS OR IMPLIED, CONCERNING THE PROPERTY, INCLUDING, WITHOUT
LIMITATION, (i) THE VALUE, CONDITION, MERCHANTABILITY, HABITABILITY,
MARKETABILITY, PROFITABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR USE OR
PURPOSE, OF THE PROPERTY; (ii) THE MANNER OR QUALITY OF THE CONSTRUCTION, OR
THE MATERIALS, IF ANY, INCORPORATED INTO THE CONSTRUCTION; AND (iii) THE MANNER
OF REPAIR, QUALITY OF REPAIR, STATE OF REPAIR OR LACK OF REPAIR OF ANY SUCH
IMPROVEMENTS. BY ASSIGNEE'S ACCEPTANCE OF THIS ASSIGNMENT, ASSIGNEE REPRESENTS
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<PAGE> 183
THAT ASSIGNEE HAS MADE ALL INSPECTIONS OF THE PROPERTY TO DETERMINE ITS VALUE
AND CONDITION DEEMED NECESSARY OR APPROPRIATE BY ASSIGNEE, INCLUDING, WITHOUT
LIMITATION, INSPECTIONS FOR THE PRESENCE OF ASBESTOS, PESTICIDE RESIDUES,
HAZARDOUS WASTE, AND OTHER HAZARDOUS MATERIALS.
THIS DISCLAIMER APPLIES TO ALL PROMISSORY NOTES, EXTENSIONS, LIENS,
SECURITY INTERESTS, CLAIMS, RIGHTS, GUARANTIES, DOCUMENTS AND COLLATERAL
SECURING THE PAYMENT OF ANY PROMISSORY NOTE.
IN WITNESS WHEREOF, Assignor has caused this Assignment to be executed
this _________________ day of , 19_______________.
FEDERAL DEPOSIT INSURANCE CORPORATION
as Receiver for
-----------------------
---------------------------------------
By
------------------------------------
Name:
----------------------------------
Attorney-in-Fact
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<PAGE> 184
ACKNOWLEDGEMENT
STATE OF TEXAS )
)
COUNTY OF ________________ )
This instrument was acknowledged before me on this ______ day of
_______________________,
199__, by ___, Attorney-in-Fact of the FEDERAL DEPOSIT INSURANCE CORPORATION,
as Receiver of __________________________________________, a corporation
organized and existing under the laws of the United States of America, on
behalf of such corporation, in the capacity therein stated.
----------------------------------------
Notary Public, State of Texas
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