<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 12, 1997
FILE NO.: 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
UNITED PANAM FINANCIAL CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 6162 95-3211687
(STATE OR OTHER (PRIMARY STANDARD (I.R.S. EMPLOYER
JURISDICTION OF INDUSTRIAL IDENTIFICATION NUMBER)
INCORPORATION OR CLASSIFICATION CODE
ORGANIZATION) NUMBER)
1300 SOUTH EL CAMINO REAL
SAN MATEO, CALIFORNIA 94402
(650) 345-1800
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------
LAWRENCE J. GRILL
PRESIDENT AND CHIEF EXECUTIVE OFFICER
1300 SOUTH EL CAMINO REAL
SAN MATEO, CALIFORNIA 94402
(650) 345-1800
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
PAUL H. IRVING, ESQ. TODD H. BAKER, ESQ.
MANATT, PHELPS & PHILLIPS, LLP GIBSON, DUNN & CRUTCHER LLP
11355 WEST OLYMPIC BOULEVARD ONE MONTGOMERY STREET, SUITE 3100
LOS ANGELES, CALIFORNIA 90064 SAN FRANCISCO, CALIFORNIA 94104
(310) 312-4196 (415) 393-8200
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement has become effective.
----------------
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [_]
----------------
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED
MAXIMUM
AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF OFFERING REGISTRATION
SECURITIES TO BE REGISTERED PRICE(1) FEE
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<S> <C> <C>
Common Stock, $0.01 par value(2)..................... $80,500,000 $24,394
</TABLE>
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(1) Estimated pursuant to Rule 457(a) solely for the purpose of calculating
the registration fee.
(2) Includes shares which the Underwriters have the option to purchase solely
to cover over-allotments, if any.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED NOVEMBER 12, 1997
SHARES
UNITED PANAM FINANCIAL CORP. [LOGO]
COMMON STOCK
All of the shares of Common Stock offered hereby (the "Offering") are being
sold by United PanAm Financial Corp., a Delaware corporation (the "Company").
Prior to the Offering, there has been no public market for the Common Stock. It
currently is anticipated that the initial public offering price will be between
$ and $ per share. See "Underwriting" for a discussion of factors to be
considered in determining the initial public offering price.
The Company has applied for quotation of the Common Stock on the Nasdaq
National Market under the symbol "UPFC."
SEE "RISK FACTORS" COMMENCING ON PAGE 12 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED BY POTENTIAL PURCHASERS OF THE COMMON STOCK OFFERED
HEREBY.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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<TABLE>
<CAPTION>
PRICE TO UNDERWRITING PROCEEDS TO
PUBLIC DISCOUNT(1) COMPANY(2)
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<S> <C> <C> <C>
Per Share..................................... $ $ $
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Total(3)...................................... $ $ $
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</TABLE>
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(1) See "Underwriting" for information relating to indemnification of the
Underwriters and other matters.
(2) Before deducting expenses payable by the Company estimated to be $750,000.
(3) The Company has granted the Underwriters a 30-day option to purchase up to
additional shares of Common Stock on the same terms and conditions as
set forth above, solely to cover over-allotments, if any. If such option is
exercised in full, the total Price to Public, Underwriting Discount and
Proceeds to Company will be $ , $ and $ , respectively. See
"Underwriting."
The shares of Common Stock are offered by the Underwriters named herein,
subject to receipt and acceptance by them and subject to their right to reject
any order in whole or in part. It is expected that delivery of the certificates
representing such shares will be made against payment therefor at the offices
of NationsBanc Montgomery Securities, Inc. on or about , 1997.
-----------
NationsBanc Montgomery Securities, Inc. Piper Jaffray Inc.
The date of this Prospectus is , 1997
<PAGE>
[MAP OF THE UNITED STATES SHOWING THE LOCATION OF THE COMPANY'S OFFICES.]
The Company intends to furnish its stockholders with annual reports
containing financial statements audited by independent certified public
accountants and quarterly reports containing unaudited financial information
for each of the first three quarters of each fiscal year.
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE COMMON STOCK,
INCLUDING PURCHASES OF THE COMMON STOCK TO STABILIZE ITS MARKET PRICE,
PURCHASES OF THE COMMON STOCK TO COVER SOME OR ALL OF A SHORT POSITION IN THE
COMMON STOCK MAINTAINED BY THE UNDERWRITERS AND THE IMPOSITION OF PENALTY
BIDS. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE "UNDERWRITING."
2
<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by, and should be read in
conjunction with, the more detailed information and the financial statements,
including the notes thereto, appearing elsewhere in this Prospectus. Except as
otherwise specified, all information in this Prospectus (i) reflects a 1,875-
for-1 stock split effected in November 1997, (ii) assumes no exercise of the
Underwriters' over-allotment option and (iii) excludes 2,287,500 shares of
Common Stock reserved for issuance under the Company's 1997 Employee Stock
Incentive Plan (the "Stock Incentive Plan"). See "Management--Stock Incentive
Plan" and "Underwriting." Unless the context indicates otherwise, all
references herein to the "Company" refer to United PanAm Financial Corp. and
its subsidiaries on a consolidated basis.
This Prospectus contains forward-looking statements, including statements of
the Company's strategies, plans, objectives, expectations and intentions, which
are subject to a variety of risks and uncertainties. The Company's actual
results could differ materially from those anticipated in these forward-
looking statements as a result of certain factors, including those set forth
under "Risk Factors" and elsewhere in this Prospectus. The cautionary
statements made in this Prospectus should be read as being applicable to all
related forward-looking statements wherever they appear in this Prospectus.
THE COMPANY
The Company is a diversified specialty finance company engaged primarily in
originating and acquiring for investment or sale residential mortgage loans,
personal automobile insurance premium finance contracts and retail automobile
installment sales contracts. The Company targets customers who generally cannot
obtain financing from traditional lenders. These customers usually pay higher
loan origination fees and interest rates than those charged by traditional
lenders to gain access to consumer financing. The Company believes that
management's experience in originating, assessing, pricing and managing credit
risk enables the Company to earn attractive risk-adjusted returns. The Company
has funded its operations to date principally through retail deposits and
Federal Home Loan Bank ("FHLB") advances at its federal savings bank
subsidiary, Pan American Bank, FSB (the "Bank"), and whole loan sales, and
expects to complete its first securitization of mortgage loans in December
1997. The Company's strategy is to undertake controlled geographic expansion of
its existing businesses, with particular emphasis in the near term on the
national expansion of its mortgage finance operations, and to evaluate possible
entry into other specialty finance businesses which provide the opportunity for
attractive risk-adjusted returns.
The Company believes that the Bank currently is the largest Hispanic-
controlled savings association in California. The Company commenced operations
in 1994, as a Hispanic-controlled financial institution, by purchasing from the
Resolution Trust Corporation (the "RTC") certain assets and assuming certain
liabilities of the Bank's predecessor, Pan American Federal Savings Bank. The
Company has used the Bank as a base for expansion into its current specialty
finance businesses. In 1995, the Company commenced its insurance premium
finance business through a joint venture with BPN Corporation ("BPN"), which
the Company believes to be the second largest provider of financing for
consumer automobile insurance premiums in California. In 1996, the Company
commenced its current mortgage and automobile finance businesses.
Mortgage Finance. The Company originates and sells subprime mortgage loans
secured primarily by first mortgages on single family residences through its
subsidiary, United PanAm Mortgage Corp., and the Bank (such business, together
with the Bank's mortgage finance activities, "UPAM"). UPAM's targeted mortgage
customers are considered "subprime" because of factors such as impaired credit
history or high debt-to-income ratios compared to customers targeted by
traditional mortgage lenders. UPAM's customers use the proceeds of the mortgage
loans primarily to finance the purchase of a home, debt consolidation, home
improvements, education and other consumer needs, and may benefit from
consolidating existing consumer debt through mortgage loans with
3
<PAGE>
lower monthly payments. The Company believes that the subprime residential
mortgage market is highly fragmented and that success in this market depends
primarily on the ability to provide superior customer service and competitive
pricing. UPAM seeks to (i) locate experienced loan officers in geographic
proximity to large population centers, (ii) issue conditional loan approvals
promptly, generally within 24 hours after receipt of an application, (iii)
avoid imposing unnecessarily restrictive conditions on loan approvals, (iv)
fund loans on a timely basis (generally within 15 to 20 days following
conditional approval) and in accordance with approved terms, and (v)
competitively price loans according to market conditions.
UPAM's mortgage loan originations have grown from $36.7 million for the nine
months ended September 30, 1996 to $336.9 million for the nine months ended
September 30, 1997. The average loan-to-value ratio ("LTV") on mortgage loans
originated by UPAM during the nine months ended September 30, 1997 was
approximately 75%. UPAM's operating strategy is to maintain a balance between
retail and wholesale origination of mortgage loans. Approximately 41% of the
mortgage loans originated by UPAM during the nine months ended September 30,
1997 were originated through the direct solicitation of borrowers by mail and
telemarketing (retail loan originations), with the balance originated through
independent loan brokers (wholesale loan originations). At September 30, 1997,
UPAM had six retail loan offices and five wholesale loan centers originating
mortgage loans in 19 states, and intends to balance its future growth between
retail offices (four of which are forecasted to be opened in the fourth quarter
of 1997) and wholesale loan centers. UPAM currently sells substantially all of
its loan originations to mortgage companies and investors through whole loan
packages offered for bid several times each month. During the nine months ended
September 30, 1997, UPAM sold $273.1 million of mortgage loans at a weighted
average sales price equal to 105.9% of the unpaid principal balance of the
loans sold. The Company expects to complete its first securitization of
mortgage loans in December 1997 and, thereafter, to sell or securitize mortgage
loans on a periodic basis. See "Risk Factors--General--Securitizations."
Insurance Premium Finance. In May 1995, the Company entered into a joint
venture with BPN under the name "ClassicPlan" (such business, "IPF"). BPN was
founded in 1982. Under this joint venture, which commenced operations in
September 1995, (i) the Bank underwrites and finances automobile insurance
premiums in California and (ii) BPN markets this financing primarily to
independent insurance agents that sell personal automobile insurance in
California and, thereafter, services such loans for the Bank. The Bank lends to
individuals for the purchase of single premium automobile insurance policies.
The Bank's collateral is the unearned insurance premium, which is held by the
insurance company and refundable to IPF in the event the underlying insurance
policy is canceled. The Company does not sell or have the risk of underwriting
the underlying insurance policy. The Company's portfolio of insurance premium
finance contracts has grown from 66,247 contracts in the aggregate gross amount
of $31.3 million at September 30, 1996 to 123,371 contracts in the aggregate
gross amount of $47.3 million at September 30, 1997, primarily as a result of
changes in California's automobile insurance laws. During the nine months ended
September 30, 1997, IPF originated 99,558 insurance premium finance contracts
in the aggregate gross amount of $117.1 million, as compared to 63,533 such
contracts in the aggregate gross amount of $73.4 million during the nine months
ended September 30, 1996. The Company believes that success in the insurance
premium finance business depends on developing relationships with independent
insurance agents and efficient and accurate servicing and collection systems.
The Company has an option to purchase BPN, commencing on April 29, 1999 at an
agreed price. See "Business--Insurance Premium Finance--Relationship with BPN."
Automobile Finance. The Company acquires, holds for investment and services
subprime retail automobile installment sales contracts ("auto contracts")
generated by franchised and independent dealers of used automobiles through the
Bank and its subsidiary, United Auto Credit Corporation (such business,
"UACC"). UACC's customers are considered "subprime" because of factors such as
impaired credit history or high debt-to-income ratios compared to customers of
traditional automobile lenders. The Company believes that success in the
subprime automobile finance business depends upon controlled growth,
disciplined underwriting, strong
4
<PAGE>
corporate internal audit procedures and focused servicing and collection
efforts at each of its local branches. The Company's portfolio of auto
contracts has grown from 651 contracts in the aggregate gross amount (excluding
unearned financing charges) of $6.4 million at September 30, 1996 to 3,619
contracts in the aggregate gross amount of $32.0 million at September 30, 1997.
During the nine months ended September 30, 1997, the Company acquired 2,859
auto contracts in the aggregate gross amount of $29.8 million, as compared to
669 auto contracts in the aggregate gross amount of $6.7 million during the
nine months ended September 30, 1996. At September 30, 1997, the Company
marketed its automobile finance program from seven branch offices in California
and one each in Arizona and Utah. During the nine months ended September 30,
1997, UACC approved 13.7% and funded 12.2% of the applications for auto
contracts it received.
The Bank. The Bank has been the principal funding source to date for the
Company's residential mortgage, insurance premium and automobile finance
businesses, primarily through the Bank's deposits, FHLB advances and whole loan
sales. In addition, the Bank holds a portfolio of primarily traditional
residential mortgage loans acquired from the RTC in 1994 and 1995 at a discount
from book value, which loans aggregated $87.2 million (before unearned
discounts and premiums) at September 30, 1997. The Bank maintains four branches
in Northern California and one in Southern California, and has focused its
branch marketing efforts on building a middle income customer base, including
efforts targeted at local Hispanic communities. As of September 30, 1997,
deposits totaled $210.8 million with a weighted average interest rate of 5.20%.
In the future, the Company intends to operate its mortgage finance business
principally through United Pan Am Mortgage Corp. The Company intends to
continue funding its insurance premium and automobile finance businesses
entirely through the Bank for the foreseeable future.
BUSINESS STRATEGY
Growth Strategy. The Company intends to capitalize on its competitive
strengths by expanding its core businesses and entering other specialty finance
businesses which provide the opportunity for attractive risk- adjusted returns.
The Company's growth strategy includes the following key elements.
. Geographic Expansion of Existing Businesses. The Company intends to
expand its residential mortgage and automobile finance businesses into
new geographic areas, principally by opening offices staffed by
experienced local marketing and management personnel. The Company
believes that an emphasis on management with local experience, coupled
with comprehensive underwriting standards and financial controls, will
permit growth in loan originations without compromising loan
performance. The Company also may expand its insurance premium finance
business as opportunities arise outside of California. See "Risk
Factors--General--Management of Growth."
. Entry into New Specialty Finance Businesses. The Company continually
evaluates expansion into other specialty finance businesses which
provide the opportunity for attractive risk-adjusted returns in markets
(i) which it believes are underserved by traditional lenders or are
undergoing change, (ii) which are highly fragmented with no participant
having significant market share, or (iii) in which it can attract the
required management experience to assess, price and manage the credit
risk and, thereby, generate attractive risk-adjusted returns. The
Company may enter such new businesses on a de novo basis or through
acquisitions. See "Risk Factors--General--Management of Growth."
Operating Strategy. The Company's operating strategy includes the following
key elements.
. Centralized Risk Management Controls. For each of its businesses, the
Company has implemented comprehensive risk management policies and
portfolio parameters which are designed to identify the types and amount
of risk that can prudently be taken in each business. The Company
continually monitors the performance of each of its businesses against
these policies and parameters.
5
<PAGE>
. Decentralized Management. The management of each of the Company's
businesses is responsible for its day-to-day operations, subject to
centralized risk management controls and individualized, goal oriented
incentive compensation programs that support the achievement of credit
quality, growth and profitability objectives. The Company believes that
the delegation of responsibility to the management of each business has
enabled the Company to attract, promote and retain experienced managers,
to provide high levels of customer service and to respond promptly to
changes in market conditions.
. Diversified Funding Sources. The Company has funded its lending
businesses to date primarily through the Bank's deposits, as well as
FHLB advances and whole loan sales. The Company believes that bank
deposits are a stable and cost-effective funding source which provide it
with a competitive advantage. To further diversify its funding sources,
in October 1997 the Company obtained a $100 million master repurchase
facility to finance the anticipated growth in its mortgage lending
operations. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations--Liquidity and Capital Resources--
Master Repurchase Agreement." The Company expects to complete its first
securitization of mortgage loans in December 1997 and, thereafter, to
sell or securitize mortgage loans on a periodic basis. The Company will,
in the future, consider the sale or securitization of other financial
assets. See "Risk Factors--General--Securitizations" and "Management's
Discussion and Analysis of Financial Condition and Results of
Operations--General--Mortgage Finance."
The Company was incorporated in Delaware on August 31, 1989. The Company's
principal executive offices are located at 1300 South El Camino Real, San
Mateo, California 94402, and its telephone number is (650) 345-1800.
6
<PAGE>
THE OFFERING
Common Stock offered by the Company... shares
Common Stock to be outstanding after
the Offering.......................... shares(1)
Use of proceeds....................... To repay certain indebtedness to
existing stockholders and for general
corporate purposes, including financing
the growth of the Company's existing
businesses, with particular emphasis on
the expansion of UPAM and the
development or acquisition of other
specialty finance businesses. See "Use
of Proceeds."
Proposed Nasdaq National Market
symbol................................ UPFC
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(1) Excludes 2,287,500 shares reserved for issuance under the Stock Incentive
Plan, of which (i) 1,580,000 shares were subject to options outstanding as
of November 7, 1997, at a weighted average exercise price of $4.55 per
share, and (ii) 140,000 shares are subject to options to be granted to
certain directors and officers concurrently with the completion of the
Offering, at an exercise price equal to either the initial public offering
price or 110% of the initial public offering price. See "Management--Stock
Incentive Plan."
7
<PAGE>
SUMMARY CONSOLIDATED FINANCIAL AND OPERATING DATA
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
APRIL 29, 1994 AT OR FOR THE AT OR FOR THE
(INCEPTION) YEAR ENDED NINE MONTHS
THROUGH DECEMBER 31, ENDED SEPTEMBER 30,
DECEMBER 31, ------------------ --------------------
1994 1995 1996 1996 1997
-------------- -------- -------- --------- ---------
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS
DATA
Interest income......... $ 6,882 $ 13,533 $ 16,561 $ 12,116 $ 18,314
Interest expense........ 3,573 7,727 7,853 5,752 8,193
-------- -------- -------- --------- ---------
Net interest income... 3,309 5,806 8,708 6,364 10,121
Provision for loan
losses................. 50 120 194 98 445
-------- -------- -------- --------- ---------
Net interest income
after provision for
loan losses.......... 3,259 5,686 8,514 6,266 9,676
-------- -------- -------- --------- ---------
Non-interest income
Gain on sale of
loans................ 3 90 2,333 854 15,260
Other non-interest
income............... 95 228 443 314 523
-------- -------- -------- --------- ---------
Total non-interest
income............. 98 318 2,776 1,168 15,783
-------- -------- -------- --------- ---------
Non-interest expense
Compensation and
benefits............. 1,564 2,750 5,248 3,365 12,195
Savings Association
Insurance Fund
special assessment... -- -- 820 -- --
Other expense......... 1,579 2,412 3,581 2,441 7,090
-------- -------- -------- --------- ---------
Total non-interest
expense............ 3,143 5,162 9,649 5,806 19,285
-------- -------- -------- --------- ---------
Income before income
taxes.................. 214 842 1,641 1,628 6,174
Income taxes............ 98 384 691 698 2,580
-------- -------- -------- --------- ---------
Net income.............. $ 116 $ 458 $ 950 $ 930 $ 3,594
======== ======== ======== ========= =========
Net income per common
share (pro forma)(1) .. $ 0.01 $ 0.04 $ 0.09 $ 0.09 $ 0.32
======== ======== ======== ========= =========
Weighted average common
shares outstanding
(pro forma)(1) ........ 10,886 10,886 10,886 10,886 11,344
======== ======== ======== ========= =========
BALANCE SHEET DATA
Total assets............ $180,024 $159,581 $187,598 $ 173,983 $ 283,262
Loans................... 53,176 131,794 134,821 140,882 152,500
Loans held for sale..... -- -- 20,766 9,605 70,241
Allowance for loan
losses................. (378) (5,250) (5,356) (5,313) (6,203)
Deposits................ 163,114 141,924 159,061 147,979 210,783
Notes payable........... 10,930 10,930 10,930 10,930 12,870
FHLB advances........... -- -- 4,000 4,000 35,000
Stockholders' equity.... 5,270 5,811 6,761 6,740 10,355
OPERATING DATA
Return on average
assets(2).............. 0.11% 0.27% 0.56% 0.75% 2.09%
Return on average
stockholders'
equity(2).............. 3.44% 8.51% 16.10% 21.38% 62.85%
Net interest margin..... 3.24% 3.61% 5.44% 5.41% 6.36%
</TABLE>
8
<PAGE>
<TABLE>
<CAPTION>
APRIL 29, 1994 AT OR FOR THE AT OR FOR THE
(INCEPTION) YEAR ENDED NINE MONTHS
THROUGH DECEMBER 31, ENDED SEPTEMBER 30,
DECEMBER 31, ---------------- ---------------------
1994 1995 1996 1996 1997
-------------- ------- ------- --------- ----------
<S> <C> <C> <C> <C> <C>
Stockholders' equity to
assets................. 2.93% 3.64% 3.60% 3.87% 3.66%
Tangible capital ratio
of Bank................ 8.50% 9.89% 8.85% 9.55% 7.06%
Core capital ratio of
Bank................... 8.50% 9.89% 8.85% 9.55% 7.06%
Risk-based capital ratio
of Bank................ 27.53% 17.19% 16.36% 16.82% 13.20%
ASSET QUALITY DATA
Nonaccrual loans,
net(3)................. $1,439 $ 5,240 $ 5,835 $ 5,221 $ 4,668
Real estate owned....... -- 298 988 714 637
Total non-performing
assets................. 1,439 5,538 6,823 5,935 5,305
Non-performing assets to
total assets........... 0.80% 3.47% 3.64% 3.41% 1.87%
Allowance for credit
losses to net loans.... 0.71% 3.98% 3.97% 3.77% 4.07%
General allowance for
credit losses to non-
performing loans(4).... 26.27% 82.80% 74.90% 82.34% 110.70%
SUBPRIME MORTGAGE FI-
NANCE DATA
Loan origination
activities(5)
Wholesale
originations......... -- -- $58,456 $ 34,818 $ 198,854
Retail originations... -- -- 13,055 1,899 138,025
------ ------- ------- --------- ----------
Total loan
originations....... -- -- 71,511 36,717 336,879
Percent of loans
secured by first
mortgages............ -- -- 95% 94% 97%
Weighted average
initial loan-to-value
ratio................ -- -- 72% 72% 75%
Originations by
product type
Adjustable-rate
mortgages.......... -- -- 85% 78% 87%
Fixed-rate
mortgages.......... -- -- 15% 22% 13%
Weighted average
interest rate
Adjustable-rate
mortgages.......... -- -- 9.55% 9.74% 9.42%
Fixed-rate
mortgages.......... -- -- 10.76% 10.64% 10.76%
Average balance per
loan................. -- -- $ 100 $ 100 $ 112
Loans sold through whole
loan transactions(6)... -- -- $50,142 $21,557 $273,080
Number of sales
offices................ -- -- 5 3 11
INSURANCE PREMIUM FI-
NANCE DATA
Loans originated........ -- $20,398 $99,012 $ 73,449 $ 117,119
Number of loans
originated............. -- 15,258 77,816 63,533 99,558
Average net yield on
loans originated....... -- 15.77% 13.62% 13.73% 14.04%
Average loan size at
origination............ -- $ 1.34 $ 1.27 $ 1.16 $ 1.18
Net charge-offs to
average loans(2)(7).... -- -- 0.38% 0.38% 0.27%
AUTOMOBILE FINANCE DATA
Gross contracts
purchased.............. -- -- $12,133 $ 6,724 $ 29,814
Number of contracts
purchased.............. -- -- 1,184 669 2,859
Average APR on contracts
purchased.............. -- -- 21.00% 21.00% 21.10%
Average discount on
contracts purchased.... -- -- 10.00% 10.00% 9.80%
Number of sales
offices................ -- -- 4 2 6
Gross amount financed
per contract........... -- -- $ 10.27 $ 10.05 $ 10.43
Net charge-offs to
average contracts(8)... -- -- 1.50% 0.20% 4.96%
</TABLE>
9
<PAGE>
- --------
(1) Net income per common share is based on the weighted average shares of
Common Stock and Common Stock equivalents outstanding during the period
adjusted for a 1,875-for-1 stock split effected in November 1997 and
includes all options issued below the estimated initial public offering
price within one year prior to the filing of the Registration Statement
calculated using the treasury stock method.
(2) Information for the nine months ended September 30, 1996 and 1997 and for
the period from April 29, 1994 (Inception) through December 31, 1994 is
annualized for comparability with year end information.
(3) Nonaccrual loans are net of specific loss allowances.
(4) General allowances represent provisions for losses not specifically
identified in the loan portfolio.
(5) Does not include conforming loans purchased from the RTC in the aggregate
principal amount of $75.9 million and $57.2 million in the year ended
December 31, 1995 and from April 29, 1994 (Inception) through December 31,
1994, respectively, and conforming loan originations of $4.5 million in the
year ended December 31, 1995.
(6) Does not include $3.5 million in conforming loan sales in the year ended
December 31, 1995.
(7) See "Business--Insurance Premium Finance--Servicing and Collection."
(8) See "Business--Automobile Finance--Servicing and Collection."
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ORGANIZATIONAL STRUCTURE
The following chart illustrates the relationship between the Company and its
principal operating subsidiaries and divisions prior to the Offering and
certain sources of financing.
- ------------------- ---------------------------
$2.0 million ---- United PanAm
Capital Loan(1) Financial Corp.
- ------------------- ---------------------------
100% Owned 100% Owned
----------------- ------------------ -------------------
United PanAm PanAmerican ------- $10.9 million
Mortgage Corp. Financial, Inc. RTC Interim
----------------- ------------------ Capital Assistance
Notes Payable(2)
100% Owned -------------------
-------------------
---------------------- $100 million
------- Master Repurchase
Pan American Bank, FSB Agreement(3)
-------------------
-------------------
------- Deposits and
---------------------- FHLB Advances
100% Owned(4) -------------------
-------------------- ---------------------
United Auto Credit Insurance Premium
Corporation Finance Division
-------------------- ---------------------
- -------
(1) See "Use of Proceeds" and Note 10 of Notes to Consolidated Financial
Statements.
(2) See "Management's Discussion and Analysis of Financial Condition and
Results of Operations--Liquidity and Capital Resources--RTC Notes Payable."
(3) See "Management's Discussion and Analysis of Financial Condition and
Results of Operations--Liquidity and Capital Resources--Master Repurchase
Agreement."
(4) United Auto Credit Corporation has granted to certain key employees the
right to purchase up to a 13.5% ownership interest in that corporation,
subject to certain performance standards, and may, in the future, grant
options to purchase an additional 1.5% interest. See "Management--Executive
Compensation--Employment Agreements" and "--Certain Transactions."
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RISK FACTORS
This Prospectus contains forward-looking statements, including statements
regarding the Company's strategies, plans and objectives, expectations and
intentions, which are subject to a variety of risks and uncertainties. The
Company's actual results could differ materially from those anticipated in
these forward- looking statements as a result of certain factors, including
those set forth in these "Risk Factors" and elsewhere in this Prospectus. The
cautionary statements made in this Prospectus should be read as being
applicable to all related forward-looking statements wherever they appear in
this Prospectus.
Prospective investors should consider carefully the following factors,
together with the other information contained in this Prospectus, in
evaluating an investment in the Common Stock offered hereby.
GENERAL
LIMITED OPERATING HISTORY
The Company purchased certain assets and assumed certain liabilities of Pan
American Federal Savings Bank from the RTC in 1994. In 1995, the Company
commenced its insurance premium finance business through a joint venture with
BPN, and in 1996 the Company commenced its subprime mortgage and automobile
finance businesses. Accordingly, the Company has only a limited operating
history upon which an evaluation of the Company and its prospects can be
based. See "Management's Discussion and Analysis of Financial Condition and
Results of Operations."
CREDIT-IMPAIRED BORROWERS
Loans made to borrowers who cannot obtain financing from traditional lenders
generally entail a higher risk of delinquency and default and higher losses
than loans made to borrowers with better credit. Such loans also have a more
limited secondary market than traditional loans. The actual rate of
delinquencies, defaults and losses on such loans could be more dramatically
affected by an economic slowdown or recession than those experienced in the
financial services industry generally. Substantially all of the Company's
mortgage and auto loans are made to individuals with impaired or limited
credit histories, limited documentation of income or higher debt-to-income
ratios than are permitted by traditional lenders. No assurance can be given
that the Company's underwriting criteria and collection methods will afford
adequate protection against the higher risks associated with loans to such
borrowers. If the Company experiences higher losses than anticipated, the
Company's financial condition, results of operations and business prospects
would be materially and adversely affected.
NEED FOR ADDITIONAL FINANCING
The Company's ability to maintain or expand its current level of lending
activity will depend on the availability and terms of its sources of
financing. The Company has funded its operations to date principally through
deposits and FHLB advances at the Bank and whole loan sales. The Bank competes
for deposits primarily on the basis of interest rates and, accordingly, the
Bank could experience difficulty in attracting deposits if it does not
continue to offer rates that are competitive with other financial
institutions. Certificate of deposit accounts ("CDs") constituted $177.7
million or 84.3% of the Bank's total deposits at September 30, 1997, of which
amount $139.4 million matures in one year or less. Increases in short-term
CDs, which tend to be more sensitive to interest rate movements than core
deposits, may cause the Bank's deposit base being less stable than if it had a
large amount of core deposits. Federal regulations restrict the Bank's ability
to lend to affiliated companies and limit the amount of non-mortgage consumer
loans that may be held by the Bank. Accordingly, the growth of the Company's
mortgage, insurance premium and automobile finance businesses will depend to a
significant extent on the availability of additional sources of financing.
There can be no assurance that the Company will be able to develop additional
financing sources on acceptable terms or at all. To the extent the Bank is
unable to maintain its deposits and the Company is unable to develop
additional sources of financing, the Company will have to restrict its lending
activities which would materially and adversely affect the
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Company's financial condition, results of operations and business prospects.
In addition, the Company's ability to raise additional equity financing may be
limited by the requirement that the Company repay the $10.9 million RTC
interim capital assistance loan (the "RTC Notes Payable") if the Bank ceases
to be a "minority-owned" business, as defined by the OTS, or Pan American
Financial, Inc. ("PAFI") obtains a material portion of its permanent
financing. Pursuant to the Company's loan agreement with the RTC, the Bank
would cease to be a "minority-owned business" if 50% or more of its capital
stock were owned or controlled by one or more non-minorities. The Company
believes that, upon completion of the Offering, it will be a minority-owned
business and that the Offering will not constitute permanent financing of
PAFI. However, there can be no assurances that the RTC will not view the
Offering as permanent financing and require repayment of the RTC Notes
Payable. In addition, the Company has pledged the shares of the Bank as
collateral for the RTC interim capital assistance loan. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations--
Liquidity and Capital Resources--RTC Notes Payable."
CONCENTRATION OF BUSINESS IN CALIFORNIA
The Company's lending activities are concentrated primarily in California
and are likely to remain so for the foreseeable future. At September 30, 1997,
82.0% of the dollar amount of the Company's loans were related to collateral
or borrowers located in California. The performance of these loans may be
affected by changes in California's economic and business conditions,
including its residential real estate market. In the recent past, the
California economy has experienced a significant recession with a resulting
decline in employment and the value of residential property. A decline in the
value of residential real estate may adversely affect the value of the
Company's collateral. In addition, California real estate is subject to
certain natural disasters, such as earthquakes and erosion-caused mudslides,
which are typically not covered by the standard hazard insurance policies
maintained by borrowers. Uninsured disasters may render borrowers unable to
repay loans made by the Company. The occurrence of adverse economic conditions
or natural disasters in California could have a material adverse effect on the
Company's financial condition, results of operations and business prospects.
RELIANCE ON SYSTEMS AND CONTROLS
The Company depends heavily upon its systems and controls, some of which
have been designed specifically for a particular business, to support the
evaluation, acquisition, monitoring, collection and administration of that
business. There can be no assurance that these systems and controls, including
those specially designed and built for the Company, are adequate or will
continue to be adequate to support the Company's growth. A failure of the
Company's automated systems, including a failure of data integrity or
accuracy, could have a material adverse effect upon the Company's financial
condition, results of operations and business prospects.
RELIANCE ON KEY EMPLOYEES
The Company is dependent upon the continued services of its key employees,
including Guillermo Bron, the Chairman of the Board, Lawrence J. Grill,
President and Chief Executive Officer, John T. French, President and Chief
Executive Officer of United PanAm Mortgage Corp., and Ray C. Thousand,
President and Chief Executive Officer of United Auto Credit Corporation. The
loss of the services of any such employee, or the failure of the Company to
attract and retain other qualified personnel, could have a material adverse
effect on the Company's financial condition, results of operations and
business prospects. Although the Company has entered into employment
agreements with certain key employees, including Messrs. Bron, Grill, French
and Thousand, there can be no assurance that these agreements will be
effective in retaining their services. See "Management."
COMPETITION
Each of the Company's businesses is highly competitive. Competition in the
Company's markets can take many forms, including convenience in obtaining a
loan, customer service, marketing and distribution channels, amount and terms
of the loan, loan origination fees and interest rates. Many of the Company's
competitors are substantially larger and have considerably greater financial,
technical and marketing resources than the Company.
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The Company's competitors in subprime mortgage finance include other consumer
finance companies, mortgage banking companies, commercial banks, credit
unions, savings associations and insurance companies. The Company competes in
the insurance premium finance business with other specialty finance companies,
independent insurance agents who offer premium finance services, captive
premium finance affiliates of insurance companies and direct bill plans
established by insurance companies. The Company competes in the subprime
automobile finance industry with commercial banks, the captive finance
affiliates of automobile manufacturers, savings associations and companies
specializing in subprime automobile finance, many of which have established
relationships with automobile dealerships and may offer dealerships or their
customers other forms of financing, including dealer floor plan financing and
lending, which are not offered by the Company. In attracting deposits, the
Bank competes primarily with other savings institutions, commercial banks,
brokerage firms, mutual funds, credit unions and other types of investment
companies.
The profitability of the Company's lending activities and the low barriers
to entry could attract additional competitors. Certain large, national finance
companies and mortgage originators have announced their intention to adapt
their mortgage loan origination programs and allocate resources to the
origination of subprime loans. The Company and its competitors may also face
increasing competition from government-sponsored entities, such as the Federal
National Mortgage Association ("FNMA") and the Federal Home Loan Mortgage
Corporation ("FHLMC"). FHLMC currently purchases what it terms "Alternative-A"
mortgage loans and has announced its intention to purchase what it terms "A-"
mortgage loans by the end of 1997. In addition, FHLMC has expressed its
intention to purchase so-called "B" and "C" mortgage loans in the future.
FHLMC also has purchased securities backed by subprime mortgage loans and has
re-securitized them for resale. Additional competition may lower the rates the
Company can charge borrowers, reduce the volume of the Company's loan
originations and increase demand for the Company's key employees and the
potential that such employees will leave the Company for its competitors.
Fluctuations in interest rates and general and localized economic conditions
also may affect the competition the Company faces. Competitors with lower
costs of capital have a competitive advantage over the Company. During periods
of declining interest rates, competitors may solicit the Company's customers
to refinance their loans. In addition, during periods of economic slowdown or
recession, the Company's borrowers may face financial difficulties and be more
receptive to offers of the Company's competitors to refinance their loans.
As the Company expands into new geographic markets, it will face additional
competition from lenders already established in these markets. There can be no
assurance that the Company will be able to compete successfully with these
lenders.
CHANGES IN INTEREST RATES
The Company's results of operations depend to a large extent upon its net
interest income, which is the difference between interest income on interest-
earning assets, such as loans and investments, and interest expense on
interest-bearing liabilities, such as deposits and other borrowings. When
interest-bearing liabilities mature or reprice more quickly than interest-
earning assets in a given period, a significant increase in market rates of
interest could have a material adverse effect on the Company's net interest
income. Further, a significant increase in market rates of interest could
adversely affect demand for the Company's financial products and services.
Interest rates are highly sensitive to many factors, including governmental
monetary policies and domestic and international economic and political
conditions, which are beyond the Company's control. The Company's liabilities
generally have shorter terms and are more interest rate sensitive than its
assets. Accordingly, changes in interest rates could have a material adverse
effect on the profitability of the Company's lending activities.
Adjustable-rate mortgage loans ("ARMs") totaled $293.4 million of the $336.9
million of mortgage loans originated by the Company during the nine months
ended September 30, 1997. The market values of ARMs are less sensitive to
changes in market interest rates than are the market values of fixed-rate
loans. The Company's ARMs generally are offered at an initial interest rate
below the fully indexed interest rate at origination. There can be no
assurance that the interest rate on these loans will reach the fully indexed
rate if the loans are pre-paid
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<PAGE>
or in the case of foreclosure. Further, although these loans are underwritten
at the fully indexed rate at origination, borrowers may encounter financial
difficulties as a result of increases in the interest rate over the life of
the loan. Certain ARMs also may be subject to periodic or lifetime payment
caps that result in a portion of the accrued interest being deferred and added
to the outstanding principal. This could result in receipt by the Company of
less cash income on its ARMs than it is required to pay on its related
borrowings which do not have such payment caps. Because the Company does not
believe that hedging against interest rate risks is cost-effective and because
the Company sells a substantial portion of its loans on a regular basis, the
Company currently does not employ hedging strategies to mitigate interest rate
risk. See "Management's Discussion and Analysis of Financial Condition and
Results of Operations--Management of Interest Rate Risk."
MANAGEMENT OF GROWTH
The Company has experienced rapid growth in each of its businesses and
intends to pursue growth for the foreseeable future, particularly in its
mortgage and automobile finance businesses. In addition, the Company intends
to broaden its product offerings to include additional types of consumer or,
in the case of IPF, commercial loans. Further, the Company may enter other
specialty finance businesses. This growth strategy will require additional
capital, systems development and human resources. There can be no assurance
that the Company will continue to (i) manage effectively its funding sources,
information and operating systems and human resources, (ii) expand
successfully and operate such businesses profitably, (iii) identify and hire
qualified employees to support its expansion plans, or (iv) accomplish such
expansion in a timely and cost-effective manner or, if achieved, that such
expansion will result in profitable operations. The failure of the Company to
implement its planned growth strategy would have a material adverse effect on
the Company's financial condition, results of operations and business
prospects.
SECURITIZATIONS
The Company expects to complete its first securitization of mortgage loans
in December 1997 and, thereafter, to sell or securitize mortgage loans on a
periodic basis. The Company will, in the future, consider the securitization
of other financial assets. The Company believes that the gain on sale from
such securitizations could represent a significant portion of the Company's
future revenues and net income. The Company's ability to complete
securitizations will depend on a number of factors, including conditions in
the securities markets generally, conditions in the asset-backed securities
market specifically, the performance of the Company's portfolio of securitized
loans and the Company's ability to obtain credit enhancement for its
securitized loans. If the Company were unable to securitize profitably a
sufficient number of its loans in a particular quarter, then the Company's
revenues for the quarter could decline, which could result in lower earnings
or a loss reported for the quarter. In addition, delays in closing a
securitization could require the Company to seek additional and alternative
funding under current and future credit facilities in order to finance
additional loan originations and purchases and could increase the Company's
interest rate risk by increasing the period during which newly originated
loans are held prior to sale.
In a securitization, the Company would sell loans that it has originated or
purchased to a trust for a cash purchase price and an interest in the loans
securitized called "residual interests." The cash portion of the purchase
price in many cases will be less than the carrying value of the related loan.
The Company will estimate the present value of the residual interests on its
balance sheet, and will project the expected cash flows over the life of the
residual interests, using prepayment and default assumptions that market
participants would use for similar financial instruments that are subject to
prepayment, credit and interest rate risks. The Company then will determine
the present value of these cash flows using an interest rate commensurate with
the risks involved. If the Company's actual experience differs materially from
the assumptions used in the determination of the present value of the residual
interests, future cash flows and earnings could be adversely affected.
Furthermore, because the Company does not have meaningful loan performance
data, the Company's assumptions will not be based on the actual performance of
its loans but on available historical loss data for comparable portfolios of
loans and the specific characteristics of the loans included in the Company's
securitizations. To the Company's knowledge, there currently is no active
market for the sale of these residual interests. No assurance can be given
that the residual interests could be sold at their stated value, if at all.
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The Company may rely on credit enhancements to guarantee senior certificates
in the securitization trusts. If the Company is unable to obtain credit
enhancement to guarantee the senior certificates, the Company might be unable
to securitize its loans, which could have a material adverse effect on the
Company's results of operations, financial condition and business prospects.
Although alternative structures to securitization trusts may be available,
there can be no assurance that the Company will be able to use these
structures or that these structures will be economically viable for the
Company. The Company's ability to obtain credit enhancement for its
securitizations also may be adversely affected by poor performance of the
Company's securitization trusts or the securitization trusts of others. The
inability of the Company to complete securitizations for any reason could have
a material adverse effect on the Company's results of operations, financial
condition and business prospects.
CHANGES IN GENERAL ECONOMIC CONDITIONS
Each of the Company's businesses is affected directly by changes in general
economic conditions, including changes in employment rates, prevailing
interest rates and real wages. During periods of economic slowdown or
recession, the Company may experience a decrease in demand for its financial
products and services, an increase in its servicing costs, a decline in
collateral values and an increase in delinquencies and defaults. A decline in
collateral values and an increase in delinquencies and defaults increase the
possibility and severity of losses. Because substantially all of the Company's
loans are made to borrowers who generally cannot obtain financing from
traditional lenders, its actual rates of delinquency, default and loss could
be more dramatically affected by an economic slowdown or recession than those
experienced in the financial services industry generally. Although the Company
believes that its underwriting criteria and collection methods enable it to
manage the higher risks inherent in loans made to such borrowers, no assurance
can be given that such criteria or methods will afford adequate protection
against such risks. Any sustained period of increased delinquencies, defaults
or losses would materially and adversely affect the Company's financial
condition, results of operations and business prospects.
RISKS ASSOCIATED WITH MORTGAGE FINANCE
DEPENDENCE ON WHOLE LOAN SALES FOR FUTURE EARNINGS
The gain on sale generated by whole loan sales has represented and will
continue to represent a significant source of the Company's earnings. During
the nine months ended September 30, 1997, UPAM sold substantially all of its
loan originations in the secondary market to a limited number of institutional
purchasers and plans to sell a significant number of loans it originates
through whole loan sales in the future. There can be no assurance that such
purchasers will continue to purchase UPAM's loans, and UPAM's failure to
replace successfully such loan purchasers, would have a material adverse
effect on the Company's financial condition, results of operations and
business prospects. Further, adverse conditions in the asset-backed
securitization market could adversely affect the Company's ability to complete
whole loan sales, as many of UPAM's whole loan purchasers securitize loans
purchased from UPAM. During the nine months ended September 30, 1997, UPAM
sold loans to 13 institutional purchasers, three of which purchased
approximately 76% of the total loans sold by UPAM in that period.
CONTINGENT RISKS
During the period that mortgage loans are held for sale, UPAM is subject to
various risks associated with its lending business, including borrower
default, foreclosure and the risk that a rapid increase in interest rates
would result in a decline in the value of loans held for sale, thus reducing
or eliminating any gain on sale on such loans.
RISK OF DECLINING VALUE OF COLLATERAL
The Company's mortgage finance business may be materially and adversely
affected by declining real estate values. Any material decline in real estate
values reduces the ability of borrowers to use home equity to support
borrowings and increases the LTV of loans previously made by the Company,
thereby weakening collateral
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coverage and increasing the possibility of a loss in the event of a default.
Further, delinquencies, foreclosures and losses generally increase during an
economic slowdown or recession. Because UPAM targets borrowers who generally
are unable to obtain mortgage financing from traditional lenders, the actual
rates of delinquency, foreclosure and loss on such loans could be higher under
adverse economic conditions than those experienced in the mortgage finance
industry in general. Any sustained period of increased delinquencies,
foreclosures or losses could materially and adversely affect the Company's
financial condition, results of operations and business prospects.
DEPENDENCE ON INDEPENDENT MORTGAGE BROKERS
UPAM depends primarily on independent mortgage brokers for the origination
and purchase of its wholesale mortgage loans, which constitute the largest
portion of its total loan production. These independent mortgage brokers deal
with multiple lenders for each prospective borrower. UPAM competes with these
lenders for the independent brokers' business on price, service, loan fees,
costs and other factors. UPAM's competitors also seek to establish
relationships with such brokers who are not obligated by contract or otherwise
to do business with it. The Company's financial condition, results of
operations and business prospects could be adversely affected by changes in
the volume and profitability of UPAM's wholesale loans resulting from, among
other things, competition with other lenders and purchasers of such loans.
ELIMINATION OF LENDER PAYMENTS TO BROKERS
Class-action lawsuits have been filed against a number of mortgage lenders
alleging that such lenders have violated the federal Real Estate Settlement
Procedures Act of 1974 ("RESPA") and engaged in unfair practices by making
certain payments to independent mortgage brokers. These lawsuits generally
have been filed on behalf of a purported nationwide class of borrowers and
allege that payments made by a lender to a broker in addition to payments made
by the borrower to a broker are prohibited by RESPA and, therefore, illegal.
If these cases are resolved against the lenders, it may cause an industry-wide
change in the way independent mortgage brokers are compensated. UPAM's broker
compensation arrangements permit such payments. Future regulatory
interpretations or judicial decisions may require UPAM to change its broker
compensation programs or subject it to material monetary judgments or other
penalties. Any such changes or penalties may have a material adverse effect on
the Company's financial condition, results of operations and business
prospects.
ENVIRONMENTAL LIABILITIES
The Company may acquire real property securing mortgage loans that are in
default, and there is a risk that hazardous substances or waste, contaminants
or pollutants could be discovered on such properties after the Company
acquires them. The Company may be required to remove such substances from the
affected properties at its expense, and the cost of such removal may
substantially exceed the value of the affected properties or the loans secured
by such properties. Furthermore, the Company may not have adequate remedies
against the prior owners or other responsible parties to recover its costs.
Finally, the Company may find it difficult or impossible to sell the affected
properties either prior to or following any such removal.
GOVERNMENT REGULATION
The subprime mortgage industry is highly regulated. UPAM is subject to
extensive and complex rules and regulations of, and examinations by, various
federal, state and local government authorities. These rules and regulations
impose obligations and restrictions on UPAM's loan originations, credit
activities and secured transactions. In addition, these rules may limit the
interest rates, finance charges and other fees UPAM may assess, mandate
extensive disclosure to its customers, prohibit discrimination and impose
multiple qualification and licensing obligations on UPAM. Certain of UPAM's
loan origination activities may be subject to the laws and regulations of the
states in which those activities are conducted. UPAM's lending activities are
also subject to various federal laws, including the Truth in Lending Act
("TILA"), the Homeownership and Equity Protection Act of 1994 ("High Cost
Mortgage Act"), the Equal Credit Opportunity Act ("ECOA"), the Fair
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Credit Reporting Act ("FCRA"), RESPA and the Home Mortgage Disclosure Act
("HMDA"). Failure to comply with any of these laws may result in, among other
things, demands for indemnification or mortgage loan repurchases, certain
rights of rescission for mortgage loans, class action lawsuits, administrative
enforcement actions and civil and criminal liability.
The laws, rules and regulations applicable to the Company's mortgage finance
business are subject to change. In addition, various laws, rules and
regulations currently are proposed, which, if adopted, could affect UPAM.
There can be no assurance that these proposed laws, rules and regulations, or
other such laws, rules or regulations, will not be adopted in the future. Such
adoption could make compliance more difficult or expensive, restrict UPAM's
ability to originate, broker, purchase or sell loans, further limit or
restrict the amount of commissions, interest and other charges earned on loans
originated, brokered, purchased or sold by UPAM, or otherwise materially and
adversely affect the Company's financial condition, results of operations and
business prospects. See "Business--Supervision and Regulation--Regulation of
Mortgage Finance Operation."
UPAM's loans currently are originated and funded by the Bank. Under current
federal statutes and regulations, the Bank generally is not subject to state
law limits on its lending operations, other than certain California limits on
interest charges. It is contemplated that the Company's mortgage lending
operations in the future will be conducted by United PanAm Mortgage Corp. At
such time, the Company's mortgage lending operations will become subject to
state law limits in each state in which it originates mortgage loans.
EFFECT OF ELIMINATION OF MORTGAGE INTEREST DEDUCTION
Government officials, including members of Congress, have from time to time
suggested the elimination of the mortgage interest deduction for federal
income tax purposes. Because many of UPAM's loans are made to borrowers for
the purpose of consolidating consumer debt or financing other consumer needs,
the competitive advantages of tax deductible interest, when compared with
alternative sources of consumer financing, could be eliminated or seriously
impaired by such government action. Accordingly, the reduction or elimination
of these tax benefits could have a material adverse effect on the demand for
loans of the kind offered by UPAM.
RISKS ASSOCIATED WITH INSURANCE PREMIUM FINANCE
DEPENDENCE ON INDEPENDENT INSURANCE AGENTS
IPF depends primarily on independent insurance agents for the origination of
insurance premium finance contracts. These independent insurance agents deal
with multiple lenders for each prospective borrower. IPF competes with these
lenders for the independent agents' business on price, service, loan fees,
costs and other factors. IPF's competitors also seek to establish
relationships with such agents, who are not obligated by contract or otherwise
to do business with IPF. For the nine months ended September 30, 1997, two
insurance agents accounted for approximately 19.2% and 12.3%, respectively, of
the aggregate number of insurance premium finance contracts entered into by
IPF. The loss of a substantial portion of the business of either of these
agents would have a material adverse effect on the Company's financial
condition, results of operations and business prospects. In addition, the
Company's financial condition, results of operations and business prospects
could be adversely affected by changes in the volume and profitability of IPF
resulting from, among other things, competition from other lenders for
business from independent insurance agents.
RISK OF CONTRACT LOSSES
Each insurance premium finance contract is designed to ensure that at any
point during the term of the underlying insurance policy, the unearned premium
under the policy exceeds the unpaid principal under the contract. However, in
the event of a default, the unearned premium may not provide IPF full
reimbursement of interest, fees and other charges. In addition, the insurance
company may default and fail to remit the unearned premium, and a delay in
processing a claim for the return of the unearned premium may cause IPF to
incur a
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loss. Moreover, any delay in IPF's cancellation of a policy would result in
declining collateral protection and an increase in IPF's risk of loss.
Accordingly, IPF may suffer a loss on an insurance premium finance contract as
a result of a default.
GOVERNMENT REGULATION
IPF is subject to California regulation. This regulatory structure requires
certain disclosures, notices and collection procedures with respect to loans
made to finance insurance premiums. Such state regulations also require that
certain disclosures be delivered by the insurance agent or broker or other
person arranging for such credit. IPF's activities also are subject to certain
federal statutes, including TILA. Any failure of the Company or BPN to comply
with any of the laws and regulations to which they are subject, or any change
in the regulatory structure or the applicable statutes, regulations or
interpretations of such laws and regulations, could have a material adverse
effect on the Company's and BPN's respective financial condition, results of
operations and business prospects. See "Business--Supervision and Regulation--
Regulation of Insurance Premium Finance Companies."
RELIANCE ON BPN
IPF is dependent upon the continued services of BPN and its key employees.
The loss by IPF of the services of BPN or of the services of any such
employee, or the failure of BPN to attract and retain other qualified
personnel, could have a material adverse effect on the Company's financial
condition, results of operations and business prospects. See "Business--
Insurance Premium Finance--Relationship with BPN."
RISKS ASSOCIATED WITH AUTOMOBILE FINANCE
RISK OF DECLINING VALUE OF COLLATERAL
The value of the collateral securing UACC's auto contracts is subject to
various risks, including uninsured damage, change in location or decline in
value caused by use or age. Any material decline in the value of the
collateral could result in a loss to UACC in the event of a default on the
auto contract.
DEPENDENCE ON DEALER RELATIONSHIPS
The ability of UACC to expand into new geographic markets and to maintain or
increase its volume of auto contracts is dependent upon maintaining and
expanding the network of automobile dealers from which it purchases contracts.
UACC's loss of any of its branch managers could materially and adversely
affect its relationships with dealers doing business with that branch and,
thereby, result in fewer opportunities to purchase contracts. Increased
competition, including competition from captive finance affiliates of
automobile manufacturers, could have a material adverse effect on UACC's
ability to maintain or expand its dealer network. See "Business--Automobile
Finance--Subprime Automobile Finance Industry," "--Sales and Marketing" and
"Business--Competition."
GOVERNMENT REGULATION AND LITIGATION
UACC is subject to numerous federal and state consumer protection laws and
regulations which are subject to change. An adverse change in or
interpretation of existing laws or regulations, the promulgation of any new
laws or regulations, or the failure to comply with any of such laws and
regulations could have a material adverse effect on the Company's financial
condition, results of operations and business prospects. See "Business--
Supervision and Regulation--Regulation of Subprime Automobile Lending."
Given the consumer-oriented nature of the subprime automobile finance
industry, industry participants from time to time are named as defendants in
litigation involving alleged violations of federal and state consumer
protection or other similar laws and regulations. A judgment against the
Company in connection with any such litigation could have a material adverse
effect on the Company's financial condition, results of operations and
19
<PAGE>
business prospects. In addition, the determination that an automobile dealer
failed to comply with applicable laws or that any auto contracts purchased by
UACC involved violations of applicable law could have a material adverse
effect on the Company's financial condition, results of operations and
business prospects. See "Business--Supervision and Regulation--Regulation of
Subprime Automobile Lending."
RISKS ASSOCIATED WITH THE BANK
FINANCIAL INSTITUTION REGULATION
Both the Company, as a savings and loan holding company, and the Bank, as a
federal savings bank, are subject to significant regulation by the federal
government. Statutes and regulations now affecting the Company or the Bank may
be changed at any time, and the interpretation of these statutes and
regulations by federal regulatory authorities also is subject to change.
Changes in federal statutes and regulations affecting federal savings banks
and their holding companies could, among other matters, materially alter the
powers of and opportunities available to the Bank and the Company. There can
be no assurance that future changes in such statutes and regulations or in
their interpretation will not adversely affect the Company's financial
condition, results of operations and business prospects. As a savings and loan
holding company, the Company is subject to supervision and examination from
time to time by the Office of Thrift Supervision ("OTS"). As a federal savings
bank, the Bank is subject to supervision and examination from time to time by
the OTS, its primary regulator, and by the Federal Deposit Insurance
Corporation ("FDIC"), as administrator of the Savings Association Insurance
Fund ("SAIF"), of which the Bank is a member. Any failure by the Company or
the Bank to comply with any of the laws and regulations to which it is
subject, or any change in the regulatory structure or the applicable statutes,
regulations or interpretations of such laws and regulations, by the OTS, the
FDIC or the Congress, could have a material adverse effect on the Company or
the Bank, and on the Company's financial condition, results of operations and
business prospects. See "Business--Supervision and Regulation--Holding Company
Regulation" and "--Federal Savings Bank Regulation."
RISKS ASSOCIATED WITH THE COMPANY AND THE OFFERING
CONTROL BY EXISTING STOCKHOLDERS
Upon completion of the Offering, Pan American Financial, L.P. ("PAFLP") will
own an aggregate of approximately % of the outstanding shares of Common Stock
(approximately % assuming the exercise of the Underwriters' over-allotment
option in full). Accordingly, PAFLP will have the ability to approve any
matter submitted to a vote of the stockholders (including mergers,
consolidations and sales of assets) and to elect all members of the Board of
Directors. See "Principal Stockholders" and "Management."
ANTI-TAKEOVER PROVISIONS
The Company's Amended and Restated Certificate of Incorporation (the
"Certificate of Incorporation") and Bylaws (the "Bylaws") include provisions
that could delay, defer or prevent a takeover attempt that may be in the best
interests of stockholders. These provisions include the ability of the Board
of Directors to issue up to 2,000,000 shares of Preferred Stock without any
further stockholder approval and requirements that (i) stockholders give
advance notice with respect to nomination of candidates for election as
directors and certain proposals they may wish to present for a stockholder
vote, (ii) stockholders act only at annual or special meetings and (iii)
special meetings of stockholders may only be called by the Company's Board of
Directors, Chairman of the Board, President or Chief Executive Officer, or at
the written request of holders of not less than 25% of the Company's voting
shares. In addition, the Bylaws and certain provisions of the Certificate of
Incorporation, including provisions denying cumulative voting, prohibiting
stockholder action by written consent, and setting forth the procedures for
calling special meetings, can only be amended by the affirmative vote of the
holders of 75% or more of the voting shares. The issuance of Preferred Stock
in certain circumstances may have the effect of delaying, deferring or
preventing a change in control of the Company, may discourage bids for the
Common Stock at a premium over the current market price of the Common Stock
and may adversely affect the market price, and the voting and other rights of
the holders, of Common Stock. In addition, under certain conditions,
20
<PAGE>
Section 203 of the Delaware General Corporation Law (the "DGCL") would
prohibit the Company from engaging in a "business combination" with an
"interested stockholder" (in general, a stockholder owning 15% or more of the
Company's outstanding voting stock) for a period of three years after becoming
an interested stockholder, unless the business combination is approved in a
prescribed manner. See "Description of Capital Stock."
ABSENCE OF PUBLIC MARKET
There currently is no trading market for the Common Stock. Although the
Company has applied for quotation of the Common Stock on the Nasdaq National
Market ("Nasdaq"), there can be no assurance that an active public trading
market for the Common Stock will develop after the Offering or that, if
developed, will be sustained. The initial public offering price of the Common
Stock offered hereby will be determined by negotiations among the Company and
representatives of the Underwriters and may not be indicative of the price at
which the Common Stock will trade after the Offering. See "Underwriting."
Accordingly, there can be no assurance that the market price for the Common
Stock will not fall below the initial public offering price.
POSSIBLE VOLATILITY OF STOCK PRICE
The market price of the Common Stock may experience fluctuations that are
unrelated to the operating performance of the Company. In particular, the
price of the Common Stock may be affected by general market price movements as
well as developments specifically related to the consumer finance industry and
the financial services sector, including interest rate movements, quarterly
variations or changes in financial estimates by securities analysts and a
significant reduction in the price of the stock of another participant in the
consumer finance industry. In addition, the Company's quarterly operating
income depends significantly upon the successful completion of sales by UPAM
of its loans, and the Company's inability to complete these transactions in a
particular quarter may have a material adverse effect on the Company's results
of operations for that quarter and, accordingly, could materially and
adversely affect the price of the Common Stock.
SHARES ELIGIBLE FOR FUTURE SALE
Upon completion of the Offering, the Company will have outstanding shares
of Common Stock. The shares of Common Stock offered hereby ( shares if
the Underwriters' over-allotment option is exercised in full) will be
immediately eligible for sale in the public market without restriction
beginning on the date of this Prospectus. Future sales of substantial amounts
of Common Stock after the Offering, or the perception that such sales could
occur, could have a material adverse effect on the market price of the Common
Stock. No prediction can be made as to the effect, if any, that future sales
of shares, or the availability of shares for further sale, will have on the
market price of the Common Stock. Additionally, 2,287,500 shares of Common
Stock are reserved for issuance under the Stock Incentive Plan of which
1,580,000 were subject to options outstanding as of November 7, 1997 and
140,000 shares are subject to options to be granted concurrently with the
completion of the Offering. The Company intends to file a registration
statement under the Securities Act of 1933, as amended (the "Securities Act"),
to register such shares of Common Stock reserved for issuance under the Stock
Incentive Plan, thus permitting the resales of such shares by non-affiliates
in the public market without restriction under the Securities Act.
The remaining 10,950,000 shares of Common Stock held by existing
stockholders are "restricted securities," as that term is defined in Rule 144
promulgated under the Securities Act, and are eligible for sale subject to the
holding period, volume and other limitations imposed thereby. See "Description
of Capital Stock--Shares Eligible for Future Sale."
The Company, certain existing stockholders of the Company and the executive
officers and directors of the Company have agreed with the Underwriters that,
subject to certain exceptions, for a period of 180 days following the
commencement of the Offering, they will not sell, contract to sell or
otherwise dispose of any shares of Common Stock or rights to acquire such
shares (other than pursuant to employee plans) without the prior written
consent of NationsBanc Montgomery Securities, Inc. on behalf of the
Underwriters. See "Underwriting."
21
<PAGE>
SUBSTANTIAL AND IMMEDIATE DILUTION
The initial public offering price will be substantially higher than the net
tangible book value per share of the Common Stock. Investors purchasing shares
of Common Stock in the Offering will be subject to immediate dilution of $
per share in net tangible book value assuming an initial public offering price
of $ per share (the mid-point of the filing range set forth on the cover of
this Prospectus). See "Dilution."
ABSENCE OF DIVIDENDS
The Company has never paid a cash dividend on the Common Stock. The Company
currently intends to retain any future earnings to provide funds for the
operation and expansion of its businesses and does not anticipate paying cash
dividends on the Common Stock in the foreseeable future. The payment of
dividends is within the discretion of the Company's Board of Directors and
will depend upon, among other things, the Company's earnings, financial
condition, capital requirements, level of indebtedness, contractual
restrictions on the payment of dividends and general business conditions. See
"Dividend Policy." Federal regulations restrict the Bank's ability to declare
or pay any dividends to the Company. See "Business--Supervision and
Regulation--Federal Savings Bank Regulation--Limitation on Capital
Distributions." In addition, certain interim capital assistance loan
agreements among the Bank, PAFI and the RTC prohibit the Bank from declaring
or paying any dividends, except under limited circumstances, until all of the
obligations of the Bank and PAFI to the RTC have been discharged. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations--Liquidity and Capital Resources--RTC Notes Payable."
USE OF PROCEEDS
The net proceeds to be received by the Company from the sale of the
shares of Common Stock offered hereby (after deducting the estimated
underwriting discount and Offering expenses) are estimated to be $ million
($ million if the Underwriters' over-allotment option is exercised in
full), assuming an initial public offering price of $ per share (the mid-
point of the filing range set forth on the cover of this Prospectus).
The Company intends to use $2.0 million of the net proceeds of the Offering
to repay the Company's indebtedness to its existing stockholders, which
indebtedness was incurred subsequent to July 1, 1997 to finance the
establishment and operations of United PanAm Mortgage Corp. Such indebtedness
bears interest at 8% per year (payable semiannually) and is payable on June
30, 1999. See "Management--Certain Transactions." The remaining net proceeds
of the Offering will be used for general corporate purposes, including
financing the growth of the Company's existing businesses, with particular
emphasis on the expansion of UPAM and the development or acquisition of other
specialty finance businesses. See "Business--Business Strategy." In the event
the Offering is deemed to constitute the permanent financing of PAFI for
purposes of the RTC loan agreements, the Company will use $10.9 million of the
net proceeds to repay the RTC Notes Payable. See "Management's Discussion and
Analysis of Financial Condition and Results of Operations--Liquidity and
Capital Resources--RTC Notes Payable."
DIVIDEND POLICY
The Company has never paid a cash dividend on the Common Stock. The Company
currently intends to retain any future earnings to provide funds for the
operation and expansion of its businesses and does not anticipate paying cash
dividends on the Common Stock in the foreseeable future. The payment of
dividends is within the discretion of the Company's Board of Directors and
will depend upon, among other things, the Company's earnings, financial
condition, capital requirements, level of indebtedness, contractual
restrictions on the payment of dividends and general business conditions.
Federal regulations restrict the Bank's ability to declare or pay any
dividends to the Company. See "Business--Supervision and Regulation--Federal
Savings Bank Regulation--Limitation on Capital Distributions." In addition,
certain interim capital assistance loan agreements among the Bank, PAFI and
the RTC prohibit the Bank from declaring or paying any dividends, except under
limited circumstances, until all of the obligations of the Bank and PAFI to
the RTC have been discharged. See "Risk Factors--Risks Associated With the
Company and the Offering--Absence of Dividends" and "Management's Discussion
and Analysis of Financial Condition and Results of Operations--Liquidity and
Capital Resources--RTC Notes Payable."
22
<PAGE>
DILUTION
At September 30, 1997, the net tangible book value of the Company was
approximately $9.9 million, or $0.92 per share of Common Stock. Net tangible
book value per share represents the amount of the Company's total tangible
assets less total liabilities divided by the number of shares of Common Stock
outstanding. Net tangible book value dilution represents the difference
between the amount per share paid by purchasers in the Offering and the net
tangible book value per share after the Offering. Without taking into account
any changes in net tangible book value after September 30, 1997, other than to
give effect to the sale by the Company of the shares of Common Stock
offered hereby, assuming an initial public offering price of $ per share
(the mid-point of the filing range set forth on the cover of this Prospectus)
and after deducting the estimated underwriting discount and Offering expenses,
the net tangible book value of the Company at September 30, 1997 would have
been approximately $ million, or $ per share. This represents an
immediate increase in net tangible book value of $ per share to the
existing stockholders and an immediate net tangible book value dilution of
$ per share to purchasers in the Offering, as illustrated by the following
table.
<TABLE>
<S> <C> <C>
Assumed initial public offering price............................... $
Net tangible book value per share at September 30, 1997............ $0.92
Increase in net tangible book value per share attributable to new
investors.........................................................
-----
Net tangible book value per share after the Offering................
----
Dilution to new investors........................................... $
====
</TABLE>
The following table summarizes as of September 30, 1997 the differences
between the number of shares of Common Stock purchased from the Company, the
total cash consideration paid and the average price per share paid by the
existing stockholders and to be paid by the investors purchasing shares of
Common Stock in the Offering assuming the sale of shares by the
Company at an assumed initial public offering price of $ per share (the
mid-point of the filing range set forth on the cover of this Prospectus) and
before deducting the estimated underwriting discount and Offering expenses.
<TABLE>
<CAPTION>
SHARES PURCHASED TOTAL CONSIDERATION AVERAGE
------------------ ------------------- PRICE
NUMBER PERCENT AMOUNT PERCENT PER SHARE
---------- ------- ----------- ------- ---------
<S> <C> <C> <C> <C> <C>
Existing stockholders..... 10,668,750 % $10,355,000 % $0.97
New investors............. % %
---------- ----- ----------- -----
Total................. 100.0% $ 100.0%
========== ===== =========== =====
</TABLE>
23
<PAGE>
CAPITALIZATION
The following table sets forth the consolidated capitalization and certain
ratios of the Company and the Bank's regulatory capital ratios at September
30, 1997, and as adjusted to give effect to the sale of Common Stock offered
hereby.
<TABLE>
<CAPTION>
AS OF SEPTEMBER 30, 1997
----------------------------
AS
ACTUAL ADJUSTED
------------- -------------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Long-term borrowings
Stockholder notes payable due 1999.............. $ 1,940 $
RTC notes payable due 1999...................... 10,930
------------- -----------
Total long-term borrowings........................ 12,870
------------- -----------
Stockholders' equity
Common Stock ($0.01 par value).................. 107
Additional paid-in capital...................... 5,130
Retained earnings............................... 5,118 5,118
------------- -----------
Total stockholders' equity........................ 10,355
------------- -----------
Total capitalization.............................. $ 23,225 $
============= ===========
Ratio of equity to assets......................... 3.66% %
Regulatory capital ratios of the Bank(1)
Leverage........................................ 7.06% 7.06%
Tier 1 risk-based............................... 11.93% 11.93%
Total risk-based................................ 13.20% 13.20%
</TABLE>
- --------
(1) For regulatory capital purposes, the Bank includes the $10.9 million of
RTC Notes Payable as equity capital. As adjusted numbers assume no capital
contribution of net Offering proceeds to the Bank.
24
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
The following table presents selected consolidated financial and other data
of the Company at the dates and for the periods indicated. Financial
information at September 30, 1996 and 1997 and for the nine months then ended
is derived from unaudited financial data, but in the opinion of management
reflects all adjustments (consisting only of normal recurring adjustments)
which are necessary to present fairly the results for such interim periods.
Interim results at and for the nine months ended September 30, 1997 are not
necessary indicative of the results that may be expected for the year ending
December 31, 1997. The selected consolidated financial and other data should
be read in conjunction with, and is qualified in its entirety by reference to,
the information in the consolidated financial statements and related notes set
forth elsewhere herein.
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
APRIL 29, 1994 AT OR FOR THE AT OR FOR THE
(INCEPTION) YEAR ENDED NINE MONTHS
THROUGH DECEMBER 31, ENDED SEPTEMBER 30,
DECEMBER 31, ------------------ --------------------
1994 1995 1996 1996 1997
-------------- -------- -------- --------- ---------
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS
DATA
Interest income......... $ 6,882 $ 13,533 $ 16,561 $ 12,116 $ 18,314
Interest expense........ 3,573 7,727 7,853 5,752 8,193
-------- -------- -------- --------- ---------
Net interest income... 3,309 5,806 8,708 6,364 10,121
Provision for loan
losses................. 50 120 194 98 445
-------- -------- -------- --------- ---------
Net interest income
after provision for
loan losses.......... 3,259 5,686 8,514 6,266 9,676
-------- -------- -------- --------- ---------
Non-interest income
Gain on sale of
loans................ 3 90 2,333 854 15,260
Other non-interest
income............... 95 228 443 314 523
-------- -------- -------- --------- ---------
Total non-interest
income............. 98 318 2,776 1,168 15,783
-------- -------- -------- --------- ---------
Non-interest expense
Compensation and
benefits............. 1,564 2,750 5,248 3,365 12,195
SAIF special
assessment........... -- -- 820 -- --
Other expense......... 1,579 2,412 3,581 2,441 7,090
-------- -------- -------- --------- ---------
Total non-interest
expense............ 3,143 5,162 9,649 5,806 19,285
-------- -------- -------- --------- ---------
Income before income
taxes.................. 214 842 1,641 1,628 6,174
Income taxes............ 98 384 691 698 2,580
-------- -------- -------- --------- ---------
Net income.............. $ 116 $ 458 $ 950 $ 930 $ 3,594
======== ======== ======== ========= =========
Net income per common
share (pro forma)(1)... $ 0.01 $ 0.04 $ 0.09 $ 0.09 $ 0.32
======== ======== ======== ========= =========
Weighted average common
shares outstanding
(pro forma)(1)......... 10,886 10,886 10,886 10,886 11,344
======== ======== ======== ========= =========
BALANCE SHEET DATA
Total assets............ $180,024 $159,581 $187,598 $ 173,983 $ 283,262
Loans................... 53,176 131,794 134,821 140,882 152,500
Loans held for sale..... -- -- 20,766 9,605 70,241
Allowance for loan
losses................. (378) (5,250) (5,356) (5,313) (6,203)
Deposits................ 163,114 141,924 159,061 147,979 210,783
Notes payable........... 10,930 10,930 10,930 10,930 12,870
FHLB advances........... -- -- 4,000 4,000 35,000
Stockholders' equity.... 5,270 5,811 6,761 6,740 10,355
</TABLE>
25
<PAGE>
<TABLE>
<CAPTION>
APRIL 29, 1994 AT OR FOR THE AT OR FOR THE
(INCEPTION) YEAR ENDED NINE MONTHS
THROUGH DECEMBER 31, ENDED SEPTEMBER 30,
DECEMBER 31, ---------------- ---------------------
1994 1995 1996 1996 1997
-------------- ------- ------- --------- ----------
<S> <C> <C> <C> <C> <C>
OPERATING DATA
Return on average
assets(2)............ 0.11% 0.27% 0.56% 0.75% 2.09%
Return on average
stockholders'
equity(2)............ 3.44% 8.51% 16.10% 21.38% 62.85%
Net interest margin... 3.24% 3.61% 5.44% 5.41% 6.36%
Stockholders' equity
to assets............ 2.93% 3.64% 3.60% 3.87% 3.66%
Tangible capital ratio
of Bank.............. 8.50% 9.89% 8.85% 9.55% 7.06%
Core capital ratio of
Bank................. 8.50% 9.89% 8.85% 9.55% 7.06%
Risk-based capital
ratio of Bank........ 27.53% 17.19% 16.36% 16.82% 13.20%
ASSET QUALITY DATA
Nonaccrual loans,
net(3)............... $1,439 $ 5,240 $ 5,835 $ 5,221 $ 4,668
Real estate owned..... -- 298 988 714 637
Total non-performing
assets............... 1,439 5,538 6,823 5,935 5,305
Non-performing assets
to total assets...... 0.80% 3.47% 3.64% 3.41% 1.87%
Allowance for credit
losses to net loans.. 0.71% 3.98% 3.97% 3.77% 4.07%
General allowance for
credit losses to non-
performing loans(4).. 26.27% 82.80% 74.90% 82.34% 110.70%
SUBPRIME MORTGAGE
FINANCE DATA
Loan origination
activities(5)
Wholesale
originations........ -- -- $58,456 $ 34,818 $ 198,854
Retail originations.. -- -- 13,055 1,899 138,025
------ ------- ------- --------- ----------
Total loan
originations....... -- -- 71,511 36,717 336,879
Percent of loans
secured by first
mortgages........... -- -- 95% 94% 97%
Weighted average
initial loan-to-
value ratio......... -- -- 72% 72% 75%
Originations by
product type
Adjustable-rate
mortgages.......... -- -- 85% 78% 87%
Fixed-rate
mortgages.......... -- -- 15% 22% 13%
Weighted average
interest rate
Adjustable-rate
mortgages.......... -- -- 9.55% 9.74% 9.42%
Fixed-rate
mortgages.......... -- -- 10.76% 10.64% 10.76%
Average balance per
loan................ -- -- $ 100 $ 100 $ 112
Loans sold through whole
loan transactions(6)... -- -- $50,142 $ 21,557 $ 273,080
Number of sales
offices................ -- -- 5 3 11
INSURANCE PREMIUM
FINANCE DATA
Loans originated........ -- $20,398 $99,012 $ 73,449 $ 117,119
Number of loans
originated............. -- 15,258 77,816 63,533 99,558
Average net yield on
loans originated....... -- 15.77% 13.62% 13.73% 14.04%
Average loan size at
origination............ -- $ 1.34 $ 1.27 $ 1.16 $ 1.18
Net charge-offs to
average loans(2)(7).... -- -- 0.38% 0.38% 0.27%
AUTOMOBILE FINANCE DATA
Gross contracts
purchased.............. -- -- $12,133 $ 6,724 $ 29,814
Number of contracts
purchased.............. -- -- 1,184 669 2,859
Average APR on contracts
purchased.............. -- -- 21.00% 21.00% 21.10%
Average discount on
contracts purchased.... -- -- 10.00% 10.00% 9.80%
Number of sales
offices................ -- -- 4 2 6
Gross amount financed
per contract........... -- -- $ 10.27 $ 10.05 $ 10.43
Net charge-offs to
average contracts(8) .. -- -- 1.50% 0.20% 4.96%
</TABLE>
26
<PAGE>
- --------
(1) Net income per common share is based on the weighted average shares of
Common Stock and Common Stock equivalents outstanding during the period
adjusted for a 1,875-for-1 stock split effective in November 1997 and
includes all options issued below the estimated initial public offering
price within one year prior to the filing of the Registration Statement
for the initial public offering calculated using the treasury stock
method.
(2) Information for the nine months ended September 30, 1996 and 1997 and for
the period from April 29, 1994 (Inception) to December 31, 1994 is
annualized for comparability with year end information.
(3) Nonaccrual loans are net of specific loss allowances.
(4) General allowances represent provisions for losses not specifically
identified in the loan portfolio.
(5) Does not include conforming loans purchased from the RTC in the aggregate
principal amount of $75.9 million and $57.2 million in the year ended
December 31, 1995 and from April 29, 1994 (Inception) through December 31,
1994, respectively, and conforming loan originations of $4.5 million in
the year ended December 31, 1995.
(6) Does not include $3.5 million in conforming loan sales in the year ended
December 31, 1995.
(7) See "Business--Insurance Premium Finance--Servicing and Collection."
(8) See "Business--Automobile Finance--Servicing and Collection."
The following table presents summary consolidated financial and other data
of the Company for the quarters indicated.
<TABLE>
<CAPTION>
FOR THE QUARTER ENDED
-----------------------------------------------------------
SEPTEMBER 30, DECEMBER 31, MARCH 31, JUNE 30, SEPTEMBER 30,
1996 1996 1997 1997 1997
------------- ------------ --------- -------- -------------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS
DATA
Net interest income.... $ 2,317 $ 2,344 $ 2,766 $ 3,511 $ 3,844
Provision for loan
losses................ 98 96 94 285 66
------- ------- ------- -------- --------
Net interest income
after provision for
loan losses........... 2,219 2,248 2,672 3,226 3,778
------- ------- ------- -------- --------
Non-interest income
Gain on sale of
loans................ 729 1,479 2,380 4,697 8,183
Other non-interest
income............... 123 129 143 179 201
------- ------- ------- -------- --------
Total non-interest
income.............. 852 1,608 2,523 4,876 8,384
------- ------- ------- -------- --------
Non-interest expense... 2,280 3,843 4,800 6,496 7,989
------- ------- ------- -------- --------
Income before income
taxes................. 791 13 395 1,606 4,173
Income taxes........... 329 (7) 162 666 1,752
------- ------- ------- -------- --------
Net income............. $ 462 $ 20 $ 233 $ 940 $ 2,421
======= ======= ======= ======== ========
Net income per common
share
(pro forma)(1)........ $ 0.04 $ -- $ 0.02 $ 0.08 $ 0.22
======= ======= ======= ======== ========
Weighted average common
shares outstanding
(pro forma)(1)........ 10,886 10,886 11,316 11,344 11,344
======= ======= ======= ======== ========
OTHER DATA
Mortgage loan
originations.......... $16,646 $34,796 $67,337 $108,481 $161,061
Insurance premium
finance loan
originations.......... $23,888 $25,563 $43,304 $ 41,951 $ 31,864
Automobile installment
contracts purchased... $ 4,080 $ 5,409 $ 7,713 $ 9,588 $ 12,513
</TABLE>
- --------
(1) Net income per common share is based on the weighted average shares of
Common Stock and Common Stock equivalents outstanding during the period
adjusted for a 1,875-for-1 stock split effective in November 1997 and
includes all options issued below the estimated initial public offering
price within one year prior to the filing of the Registration Statement
for the initial public offering calculated using the treasury stock
method.
27
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OFFINANCIAL CONDITION AND RESULTS OF
OPERATIONS
This Prospectus contains forward-looking statements including statements
regarding the Company's strategies, plans, objectives, expectations and
intentions, which are subject to a variety of risks and uncertainties. The
Company's actual results could differ materially from those anticipated in
these forward- looking statements as a result of certain factors, including
those set forth under "Risk Factors" and elsewhere in this Prospectus. The
cautionary statements made in this Prospectus should be read as being
applicable to all related forward-looking statements wherever they appear.
GENERAL
The Company is a diversified specialty finance company engaged primarily in
originating and acquiring for investment or sale residential mortgage loans,
personal automobile insurance premium finance contracts and retail automobile
installment sales contracts. The Company targets customers who generally
cannot obtain financing from traditional lenders. These customers usually pay
higher loan origination fees and interest rates than those charged by
traditional lenders to gain access to consumer financing. The Company believes
that management's experience in originating, assessing, pricing and managing
credit risk enables the Company to earn attractive risk-adjusted returns.
Finance companies generate income from a combination of (i) "spread" or "net
interest" income (i.e., the difference between the yield on loans, net of loan
losses, and the cost of funding) and (ii) "non-interest" income (i.e., the
fees paid for various services and gain on the sale of loans). Income is used
to cover operating expenses incurred (i.e., compensation and benefits,
occupancy and other expenses) in generating that income. Each of the Company's
businesses, as described below, reflects a combination of spread and non-
interest income.
MORTGAGE FINANCE
From its inception in January 1996 to July 1997, the Company's residential
mortgage finance business was conducted solely through the Bank. As a
federally chartered savings bank, the Bank's residential mortgage finance
business is generally exempt from state licensing requirements. In January
1997, the Company organized United PanAm Mortgage Corp. Pending receipt of its
requisite state licenses, this subsidiary, as agent of the Bank, markets loans
made by the Bank under the Company's mortgage finance program pursuant to an
operating agreement between the subsidiary and the Bank. After obtaining all
required licensing, the mortgage operations will be operated entirely by
United PanAm Mortgage Corp. The Company has funded its mortgage finance
business to date primarily through the Bank's deposits, FHLB advances and the
sale of substantially all of its mortgage loan originations to mortgage
companies and investors through whole loan packages offered for bid several
times per month. In October 1997, the Bank obtained a $100 million master
repurchase agreement to supplement the Bank's existing financing sources and
fund the anticipated growth of its mortgage lending business. The Company
expects to complete its first securitization of mortgage loans in December
1997 and, thereafter, to sell or securitize mortgage loans on a periodic
basis.
The Company has sold substantially all of its mortgage loan originations to
date on a servicing released basis. Therefore, its mortgage lending income has
been generated almost entirely from gain on sale of loans, with only a small
spread component resulting from loans held prior to sale. Income generated
from this mortgage finance business covers operating costs including
compensation, occupancy, loan origination and administrative expenses.
INSURANCE PREMIUM FINANCE
In May 1995, the Bank entered into a joint venture with BPN. Under this
joint venture, which commenced operations in September 1995, the Bank
underwrites and finances automobile insurance premiums in California and BPN
markets the financing program and services the loans for the Bank. The Company
has an option to
28
<PAGE>
purchase BPN exercisable commencing on April 29, 1999 at an agreed price. For
a description of the fees paid by the Bank to BPN and the allocation of
interest, fees, losses and recoveries experienced on the loan portfolio and
the purchase option, see "Business--Insurance Premium Finance--Relationship
with BPN."
As a result of BPN performing substantially all marketing and servicing
activities, the Company's role is primarily that of an underwriter and funder
of loans. Therefore, IPF's income is generated primarily on a spread basis,
supplemented by non-interest income generated from late payment and returned
check fees. The Bank uses this income to cover the costs of underwriting and
loan administration, including compensation, occupancy and data processing
expenses.
AUTOMOBILE FINANCE
In 1996, the Bank commenced its automobile finance business through its
subsidiary, United Auto Credit Corporation. Unlike UPAM and IPF, UACC provides
all marketing, origination, underwriting and servicing activities for its
loans. Therefore, income is generated from a combination of spread and non-
interest income and is used to cover all operating costs, including
compensation, occupancy and systems expense.
THE BANK
The Company has funded its operations to date primarily through the Bank's
deposits, FHLB advances and whole loan sales. As of September 30, 1997, the
Bank was a five-branch federal savings bank with $210.8 million in deposits.
The loans generated by the Company's mortgage, insurance premium and
automobile finance businesses currently are funded and held by the Bank. In
addition, the Bank holds a portfolio of primarily traditional residential
mortgage loans acquired from the RTC in 1994 and 1995 at a discount from book
value, which loans aggregated $87.2 million in principal amount (before
unearned discounts and premiums) at September 30, 1997.
The Bank generates spread income not only from loans originated or purchased
by each of the Company's principal businesses, but also from (i) loans
purchased from the RTC, (ii) its securities portfolio and (iii) consumer loans
originated by its branches. This income is supplemented by non-interest income
from its branch banking activities (e.g., deposit service charges, safe
deposit box fees), and is used to cover operating costs and other expenses.
29
<PAGE>
AVERAGE BALANCE SHEETS
The following tables set forth information relating to the Company for the
nine months ended September 30, 1996 and 1997 and for the years ended December
31, 1995 and 1996 and for the period from April 29, 1994 (Inception) to
December 31, 1994. The yields and costs are derived by dividing income or
expense by the average balance of assets or liabilities, respectively, for the
periods shown. The yields and costs include fees which are considered
adjustments to yields.
<TABLE>
<CAPTION>
NINE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, 1996 SEPTEMBER 30, 1997
--------------------------- ---------------------------
AVERAGE AVERAGE
AVERAGE YIELD/ AVERAGE YIELD/
BALANCE(1) INTEREST COST BALANCE(1) INTEREST COST
---------- -------- ------- ---------- -------- -------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
ASSETS
Interest earning assets
Investment
securities........... $ 10,731 $ 531 6.62% $ 9,772 $ 447 6.12%
Mortgage loans,
net(2)............... 116,890 8,368 9.55% 143,715 10,378 9.63%
IPF loans, net(3)..... 27,920 2,931 13.99% 44,591 4,735 14.16%
Automobile installment
contracts, net(4).... 1,386 286 27.59% 14,113 2,754 26.09%
-------- ------ -------- -------
Total interest
earning assets..... 156,927 12,116 10.29% 212,191 18,314 11.51%
------ ----- ------- -----
Non-interest earning as-
sets(3)................ 8,119 17,485
-------- --------
Total assets(4)..... $165,046 $229,676
======== ========
Liabilities and Equity
Interest bearing liabil-
ities
Customer deposits..... 143,756 5,330 4.96% 183,134 6,710 4.89%
Notes payable......... 10,930 388 4.75% 11,124 482 5.79%
FHLB advances......... 754 34 6.03% 20,334 1,001 6.38%
-------- ------ -------- -------
Total interest
bearing
liabilities........ 155,440 5,752 4.95% 214,592 8,193 5.10%
------ ----- ------- -----
Non-interest bearing li-
abilities.............. 3,805 7,459
-------- --------
Total liabilities... 159,245 222,051
Equity.................. 5,801 7,625
-------- --------
Total liabilities
and equity......... $165,046 $229,676
======== ========
Net interest income be-
fore provision for loan
losses................. $6,364 $10,121
====== =======
Net interest rate
spread(5).............. 5.34% 6.41%
Net interest margin(6).. 5.41% 6.36%
Ratio of interest earn-
ing assets to interest
bearing liabilities.... 100.9% 98.8%
</TABLE>
- --------
(1) Average balances are measured on a month-end basis.
(2) Net of deferred loan origination fees, unamortized discounts, premiums and
allowance for estimated loan losses; includes loans held for sale and non-
performing loans.
(3) Net of allowances for estimated losses; includes non-performing loans.
(4) Net of unearned finance charges, allowances for estimated losses; includes
non-performing loans.
(5) Net interest rate spread represents the difference between the yield on
interest earning assets and the cost of interest bearing liabilities.
(6) Net interest margin represents net interest income divided by average
interest earning assets.
30
<PAGE>
<TABLE>
<CAPTION>
APRIL 29, 1994
(INCEPTION)
THROUGH YEAR ENDED DECEMBER 31,
DECEMBER 31, -------------------------------------------------------
1994 1995 1996
------------------------------ --------------------------- ---------------------------
AVERAGE AVERAGE AVERAGE
AVERAGE YIELD/ AVERAGE YIELD/ AVERAGE YIELD/
BALANCE(1) INTEREST(2) COST BALANCE(1) INTEREST COST BALANCE(1) INTEREST COSTS
---------- ----------- ------- ---------- -------- ------- ---------- -------- -------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
ASSETS
Interest earning assets
Investment Securities.. $ 97,501 $3,753 5.71% $ 52,363 $3,205 6.12% $ 11,050 $ 706 6.39%
Mortgage loans,
net(3)................ 55,661 3,129 8.43% 105,833 10,028 9.48% 117,877 11,150 9.46%
IPF loans, net(4)...... -- -- -- 2,591 300 11.58% 28,795 4,026 13.98%
Automobile installment
contracts, net(5)..... -- -- -- -- -- -- 2,488 679 27.29%
-------- ------ -------- ------ -------- ------
Total interest earning
assets................ 153,162 6,882 6.74% 160,787 13,533 8.42% 160,210 16,561 10.34%
------ ------ ------
Non-interest earning
assets(5).............. 2,260 6,106 8,124
-------- -------- --------
Total assets........... $155,422 $166,893 $168,334
======== ======== ========
LIABILITIES AND EQUITY
Interest bearing
liabilities
Customer deposits...... 140,265 3,385 3.58% 148,582 7,240 4.87% 146,160 7,225 4.94%
Notes payable.......... 8,984 188 3.10% 10,930 487 4.46% 10,930 556 5.09%
FHLB advances.......... -- -- -- -- -- -- 1,170 72 6.15%
-------- ------ -------- ------ ----- -------- ------
Total interest bearing
liabilities........... 149,249 3,573 3.55% 159,512 7,727 4.85% 158,260 7,853 4.96%
------ ----- ------ ----- ------ -----
Non-interest bearing
liabilities............ 1,120 1,998 4,173
-------- -------- --------
Total liabilities...... 150,369 161,510 162,433
Equity.................. 5,053 5,383 5,901
-------- -------- --------
Total liabilities and
equity................ $155,422 $166,893 $168,334
======== ======== ========
Net interest income
before provision for
loan losses............ $3,309 $5,806 $8,708
====== ====== ======
Net interest rate
spread(6).............. 3.19% 3.57% 5.38%
Net interest margin(7).. 3.24% 3.61% 5.44%
Ratio of interest
earning assets to
interest bearing
liabilities............ 102.6% 101.0% 101.2%
</TABLE>
- --------
(1) Average balances are measured on a month-end basis.
(2) Interest income and interest expense for the period from April 29, 1994
(Inception) through December 31, 1994 were annualized for comparability
with the years ended December 31, 1995 and 1996.
(3) Net of deferred loan origination fees, unamortized discounts, premiums and
allowance for estimated loan losses; includes loans held for sale and non-
performing loans.
(4) Net of allowance for estimated loans; includes non-performing loans.
(5) Net of unearned finance charges, allowance for estimated losses; includes
non-performing loans.
(6) Net interest rate spread represents the difference between the yield on
interest earning assets and the cost of interest bearing liabilities.
(7) Net interest margin represents net interest income divided by average
interest earning assets.
31
<PAGE>
RATE AND VOLUME ANALYSIS
The following table presents the extent to which changes in interest rates
and changes in the volume of interest earning assets and interest bearing
liabilities have affected the Company's interest income and interest expense
during the periods indicated. Information is provided in each category with
respect to: (i) changes attributable to changes in volume (changes in volume
multiplied by prior rate); (ii) changes attributable to changes in rate
(changes in rate multiplied by prior volume); and (iii) the net change. The
changes attributable to the combined impact of volume and rate have been
allocated proportionately to the changes due to volume and the changes due to
rate.
<TABLE>
<CAPTION>
APRIL 29, 1994
(INCEPTION) TO YEAR ENDED NINE MONTHS ENDED
DECEMBER 31, 1994 DECEMBER 31, 1995 SEPTEMBER 30, 1996
COMPARED TO COMPARED TO COMPARED TO
YEAR ENDED YEAR ENDED NINE MONTHS ENDED
DECEMBER 31, 1995 DECEMBER 31, 1996 SEPTEMBER 30, 1997
----------------------- ---------------------- --------------------
INCREASE
INCREASE (DECREASE) INCREASE (DECREASE) (DECREASE)
DUE TO DUE TO DUE TO
----------------------- ---------------------- --------------------
VOLUME RATE NET VOLUME RATE NET VOLUME RATE NET
------- ----- ------- ------- ---- ------- ------ ---- ------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Interest earning assets
Investment
securities............ $(2,797) $ 433 $(2,364) $(2,639) $140 $(2,499) $ (46) $(38) $ (84)
Mortgage loans,
net(1)................ 4,690 645 5,335 1,138 (16) 1,122 1,936 74 2,010
IPF loans, net......... 300 -- 300 3,652 74 3,726 1,769 35 1,804
Automobile installment
contracts, net........ -- -- -- 679 -- 679 2,483 (15) 2,468
------- ----- ------- ------- ---- ------- ------ ---- ------
Total interest
earning assets...... 2,193 1,078 3,271 2,830 198 3,028 6,142 56 6,198
Interest bearing
liabilities
Customer deposits...... 313 1,904 2,217 (133) 118 (15) 1,442 (62) 1,380
Notes payable.......... 69 139 208 -- 69 69 7 87 94
FHLB advances.......... -- -- -- 72 -- 72 963 4 967
------- ----- ------- ------- ---- ------- ------ ---- ------
Total interest
bearing
liabilities......... 382 2,043 2,425 (61) 187 126 2,412 29 2,441
------- ----- ------- ------- ---- ------- ------ ---- ------
Change in net interest
income................. $ 1,811 $(965) $ 846 $ 2,891 $ 11 $ 2,902 $3,730 $ 27 $3,757
======= ===== ======= ======= ==== ======= ====== ==== ======
</TABLE>
- --------
(1) Includes interest on loans held for sale.
(2) Interest income and interest expense for April 29, 1994 (Inception)
through December 31, 1994 were annualized for comparability with the year
ended December 31, 1995 amounts.
COMPARISON OF OPERATING RESULTS FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1996
AND SEPTEMBER 30, 1997
GENERAL
Net income increased from $930,000 for the nine months ended September 30,
1996 to $3.6 million for the nine months ended September 30, 1997. This
increase was due primarily to the expansion of the Company's mortgage,
insurance premium and auto finance businesses, all of which showed improved
operating results in 1997. Also contributing to the favorable operating
results was an increase of $14.4 million in gain on sales of loans from the
Company's mortgage finance operations offset by an increase in non-interest
expense of $13.5 million which also resulted primarily from the expansion of
mortgage finance and other lending operations.
As a result of the expansion of the Company's lending operations, mortgage
loan originations increased from $36.7 million for the nine months ended
September 30, 1996 to $336.9 million for the nine months ended September 30,
1997, while insurance premium financing originations increased from $41.7
million to $117.1 million, respectively, and auto contracts purchased
increased from $6.7 million to $29.8 million, respectively. Sales of mortgage
loans were $21.6 million for the nine months ended September 30, 1996 and
$273.0 million for the comparable period in 1997.
32
<PAGE>
INTEREST INCOME
Interest income increased from $12.1 million for the nine months ended
September 30, 1996 to $18.3 million for the nine months ended September 30,
1997 due primarily to a $55.3 million increase in average earning assets and a
1.22% increase in the average yield on earning assets. The largest components
of growth in average earning assets were mortgage loans, insurance premium
finance loans and auto contracts, which increased $26.8 million, $16.7 million
and $12.7 million, respectively. The increase in the average yield on earning
assets was attributable to an increase in the origination or purchase of
higher yielding loans during 1997 principally related to the expansion and
growth of the mortgage, insurance premium and automobile finance businesses.
The increase in mortgage loan receivables was a result of an increase in loans
held for sale, which increased from $9.6 million at September 30, 1996 to
$70.2 million at September 30, 1997. Generally, these loans are originated for
sale in the secondary mortgage market. The growth in IPF loans was primarily a
result of new loan originations associated with changes in California's
automobile insurance laws effective January 1, 1997, while the increase in
auto contracts principally resulted from the opening of new branch offices and
the purchasing of additional dealer contracts in these new markets.
INTEREST EXPENSE
Interest expense increased from $5.8 million for the nine months ended
September 30, 1996 to $8.2 million for the nine months ended September 30,
1997, due to a $59.1 million increase in average interest bearing liabilities
and a 0.15% increase in the weighted average interest rate on interest bearing
liabilities. The largest component of growth in interest bearing liabilities
was deposits with the Bank, which increased from an average balance of $143.8
million for the nine months ended September 30, 1996 to $183.1 million for the
nine months ended September 30, 1997. The average yield on deposits decreased
from 4.96% for the nine months ended September 30, 1996 to 4.89% for the nine
months ended September 30, 1997.
The increase in deposits resulted from the use of retail and wholesale CDs
to finance the Company's lending operations, and the decrease in the average
yield on the Bank's deposits reflects the repricing of accounts to lower
rates.
The second largest component of growth in interest bearing liabilities was
FHLB advances to the Bank, which increased from an average balance of $754,000
for the nine months ended September 30, 1996 to $20.3 million for the
comparable period in 1997. This increase reflects the use of short-term
borrowings to support the growth of its lending businesses.
PROVISION FOR LOAN LOSSES
Provision for loan losses increased from $98,000 for the nine months ended
September 30, 1996 to $445,000 for the nine months ended September 30, 1997.
The increase in the provision reflects management's decision to increase
general valuation allowances as a result of the increase in loans made by the
Company. The total allowance for loan losses was $5.3 million at September 30,
1996 compared to $6.2 million at September 30, 1997. The increase is
attributable to the additional provision for losses recorded during the nine
months ended September 30, 1997 and $1.3 million in acquisition discounts
related to the Company's purchase of auto contracts. The Company allocates the
estimated amount of discounts attributable to credit risk to the allowance for
loan losses. Loan charge-offs were $227,000 in the nine months ended September
30, 1996 compared to $912,000 in the nine months ended September 30, 1997.
A provision for loan losses is charged to operations based on the Company's
regular evaluation of its loan portfolio and the adequacy of its allowance for
loan losses. While management believes it has adequately provided for losses
and does not expect any material loss on its loans in excess of allowances
already recorded, no assurance can be given that economic or real estate
market conditions or other circumstances will not result in increased losses
in the loan portfolio.
33
<PAGE>
NON-INTEREST INCOME
Non-interest income increased $14.6 million, from $1.2 million for the nine
months ended September 30, 1996 to $15.8 million for the nine months ended
September 30, 1997. This increase resulted from gain on sale of mortgage loans
and is due primarily to a substantial increase in the volume of loans sold by
UPAM. During the nine months ended September 30, 1996, the Company sold $21.6
million in mortgage loans compared to $273.1 million during the comparable
period in 1997. Net gains on sales of loans, as a percentage of loans sold,
were 3.96% for the nine months ended September 30, 1996 compared to 5.59% for
the nine months ended September 30, 1997. All loans sold during the nine
months ended September 30, 1996 and 1997 were sold as whole loans with
servicing released to the investor. The Company expects to complete its first
securitization of mortgage loans in December 1997 and, thereafter, to sell or
securitize mortgage loans on a periodic basis.
Other components of non-interest income include fees and charges for Bank
services and miscellaneous other income. The total of all of these items
increased $209,000, from $314,000 for the nine months ended September 30, 1996
to $523,000 for the nine months ended September 30, 1997.
NON-INTEREST EXPENSE
Non-interest expense increased $13.5 million, from $5.8 million for the nine
months ended September 30, 1996 to $19.3 million for the nine months ended
September 30, 1997. This increase primarily reflects an increase in salaries,
loan commissions, employee benefits and other personnel costs of $8.8 million
associated with the expansion of the Company's mortgage and automobile finance
operations. In addition, occupancy expense increased $1.3 million, reflecting
an increase in the number of mortgage and automobile lending offices.
Marketing expense was $932,000 for the nine months ended September 30, 1997,
compared to $100,000 for the nine months ended September 30, 1996. This
increase is attributable to the Company's retail mortgage lending operations
which use extensive direct mail and telemarketing campaigns to target
prospective borrowers. Also, as a result of growth in the Company's mortgage
finance and automobile lending operations, other operating expense, including
stationery and supplies, data processing, insurance, telephone and postage,
increased $2.5 million during the nine months ended September 30, 1997
compared to the same period in 1996.
The Company significantly expanded its mortgage and automobile finance
operations, resulting in an increase from 34 employees in three offices and 20
employees in three offices, respectively, as of September 30, 1996 to 260
employees in six offices and 54 employees in 11 offices, respectively, as of
September 30, 1997.
INCOME TAXES
Income taxes increased $1.9 million, from $698,000 for the nine months ended
September 30, 1996 to $2.6 million for the nine months ended September 30,
1997. This increase occurred as a result of a $4.5 million increase in income
before income taxes between the two periods offset by a decrease in the
effective tax rate from 42.9% for 1996 to 41.8% for 1997.
COMPARISON OF FINANCIAL CONDITION AT SEPTEMBER 30, 1996 AND SEPTEMBER 30, 1997
Total assets increased $109.3 million, from $174.0 million at September 30,
1996 to $283.3 million at September 30, 1997. This increase occurred primarily
as a result of a $72.2 million increase in loans receivable, from $150.5
million at September 30, 1996 to $222.7 million as of September 30, 1997. The
increase in loans was comprised of a $60.6 million increase in mortgage loans
held for sale, a $19.0 million increase (net of unearned finance charges) in
auto contracts and a $16.0 million increase in insurance premium finance
loans, offset by a $36.4 million decrease in loans purchased from the RTC as a
result of scheduled principal amortizations and prepayments.
Cash and cash equivalents increased $31.5 million, from $14.3 million at
September 30, 1996 to $45.8 million at September 30, 1997, as a result of
increased liquidity from the Company's sale of mortgage loans.
34
<PAGE>
Premises and equipment increased from $662,000 at September 30, 1996 to $2.3
million at September 30, 1997 as a result of purchases of furniture and
equipment for the Company's new lending branch offices and the overall growth
in lending operations.
Deposit accounts increased $62.8 million, from $148.0 million at September
30, 1996 to $210.8 million at September 30, 1997, due primarily to an increase
in CDs of $53.6 million, from $124.1 million at September 30, 1996 to $177.7
million at September 30, 1997. Included in deposits at September 30, 1997 are
$7.5 million in brokered CDs. There were no brokered CDs outstanding at
September 30, 1996.
Other interest bearing liabilities include the RTC notes payable which
remained unchanged at $10.9 million between period ends, FHLB advances which
increased from $4.0 million as of September 30, 1996 at a weighted average
interest rate of 5.58% to $35.0 million at September 30, 1997 at a weighted
average interest rate of 6.43% and notes payable from stockholders which
increased $1.9 million between period ends.
Net deferred tax assets were $2.1 million at September 30, 1997 due
principally to temporary differences in the recognition of gain on sale of
loans for federal and state income tax reporting and financial statement
reporting purposes. For income tax purposes, loans held for sale are marked-
to-market.
Stockholders' equity increased from $6.7 million at September 30, 1996 to
$10.4 million at September 30, 1997, solely as a result of the Company's net
income.
COMPARISON OF OPERATING RESULTS FOR THE YEARS ENDED DECEMBER 31, 1995 AND
DECEMBER 31, 1996
GENERAL
Net income increased from $458,000 for the year ended December 31, 1995 to
$950,000 for the year ended December 31, 1996. This increase was due primarily
to the expansion of the Company's insurance premium and mortgage finance
businesses which commenced in the later part of 1995 and early 1996,
respectively. Partially offsetting this increase in net income was an increase
in operating costs incurred by UPAM as well as those incurred as a result of
the commencement in early 1996 of UACC's operations.
INTEREST INCOME
Interest income increased from $13.5 million for the year ended December 31,
1995 to $16.6 million for the year ended December 31, 1996 due primarily to a
1.9% increase in the average yield on earning assets. While average earning
assets decreased $577,000, the components of this balance changed
significantly with the average balance of insurance premium finance loans
increasing from $2.6 million for the year ended December 31, 1995 to $28.8
million for the comparable period in 1996, and mortgage loans increasing from
$105.8 million to $117.9 million, respectively. These increases in average
earning assets were offset by a decline in average investments from $52.4
million for the year ended December 31, 1995 to $11.1 million for the year
ended December 31, 1996. The changes in average earning assets resulted from
the Company's strategy of reinvesting in higher yielding loans, such as
subprime mortgages and insurance premium finance loans, rather than investment
securities and traditional mortgage loans which dominated the Company's
balance sheet in the early years of its operations.
INTEREST EXPENSE
Interest expense increased from $7.7 million for the year ended December 31,
1995 to $7.9 million for the year ended December 31, 1996 due primarily to a
$952,000 decrease in average interest bearing liabilities, offset by a 0.11%
increase in the weighted average interest rate on interest bearing
liabilities. The largest component of change in interest bearing liabilities
was deposits, which decreased from an average balance of $148.6 million for
the year ended December 31, 1995 to $146.2 million for the year ended December
31, 1996. The average
35
<PAGE>
cost of deposits increased from 4.87% for the year ended December 31, 1995 to
4.94% for the year ended December 31, 1996.
Other interest bearing liabilities include the RTC Notes Payable, which
remained unchanged at $10.9 million at both December 31, 1995 and 1996, and
FHLB advances which increased to $4.0 million at December 31, 1996 with a
weighted average interest rate of 5.70%. The Bank had no FHLB advances at
December 31, 1995.
PROVISION FOR LOAN LOSSES
Provision for loan losses increased from $120,000 for the year ended
December 31, 1995 to $194,000 for the year ended December 31, 1996. This
increase was due primarily to the growth in 1996 of the Company's insurance
premium finance business. The total allowance for loan losses was $5.3 million
at December 31, 1995 compared to $5.4 million at December 31, 1996. The
increase is attributable to the additional provision for losses recorded
during the year ended December 31, 1996 and $356,000 in acquisition discounts
related to the Company's purchase of auto contracts. The Company allocated the
estimated amount of discounts attributable to credit risk to the allowance for
loan losses. Loan charge-offs were $108,000 in the year ended December 31,
1995 compared to $444,000 in the year ended December 31, 1996.
A provision for loan losses is charged to operations based on the Company's
regular evaluation of its loan portfolio and the adequacy of its allowance for
loan losses. While management believes it has adequately provided for losses
and does not expect any material loss on its loans in excess of allowances
already recorded, no assurance can be given that economic or real estate
market conditions or other circumstances will not result in increased losses
in the loan portfolio.
NON-INTEREST INCOME
Non-interest income increased $2.5 million, from $318,000 for the year ended
December 31, 1995 to $2.8 million for the year ended December 31, 1996. This
increase resulted from gain on sale of loans and is due primarily to a
substantial increase in the volume of mortgage loans sold by the Company.
During the year ended December 31, 1995, the Company sold $3.5 million in
mortgage loans compared to $50.1 million during the comparable period in 1996.
Net gains on sales of loans, as a percentage of loans sold, were 2.57% for the
year ended December 31, 1995 compared to 4.65% for the year ended December 31,
1996. All loans sold during the year ended December 31, 1995 and 1996 were
sold as whole loans with servicing released to the investor.
Other components of non-interest income include fees and charges for Bank
services and miscellaneous other income. The total of all of these items
increased $215,000 from $228,000 for the year ended December 31, 1995 to
$443,000 for the year ended December 31, 1996.
NON-INTEREST EXPENSE
Non-interest expense increased $4.4 million, from $5.2 million for the year
ended December 31, 1995 to $9.6 million for the year ended December 31, 1996.
This increase primarily reflects an increase in salaries, loan commissions,
employee benefits and other personnel costs of $2.5 million associated with
the Company's mortgage and automobile finance operations which commenced in
early 1996. In addition, occupancy expense increased $402,000 also reflecting
an increase in the number of mortgage and automobile finance offices. As a
result of growth in mortgage and automobile finance operations, other
operating expenses, including stationery and supplies, data processing,
insurance, telephone and postage increased $800,000 during the year ended
December 31, 1996 compared to the same period in 1995.
As stated above, the Company commenced its subprime mortgage finance and
automobile finance businesses in early 1996, and by December 31, 1996 these
operations grew to 64 employees in five offices and 28 employees in four
offices, respectively.
36
<PAGE>
Also included in 1996 non-interest expense is a one-time special assessment
in the amount of $820,000 to recapitalize the SAIF. This assessment of 0.657%
of the Bank's assessment base as of March 31, 1995 was enacted through federal
legislation and paid by SAIF insured institutions. As a result of this
recapitalization, the Bank's future deposit insurance assessments will
decrease significantly.
INCOME TAXES
Income taxes increased $307,000 from $384,000 for the year ended December
31, 1995 to $691,000 for the year ended December 31, 1996. This increase
occurred as a result of a $799,000 increase in income before income taxes
between the two years offset by a decrease in the effective tax rate from
45.6% in 1995 to 42.1% in 1996.
COMPARISON OF FINANCIAL CONDITION AT DECEMBER 31, 1995 AND DECEMBER 31, 1996
Total assets increased $27.9 million, from $159.6 million as of December 31,
1995 to $187.6 million as of December 31, 1996. This increase occurred
primarily as a result of a $23.8 million increase in loans, from $131.8
million for the year ended December 31, 1995 to $155.6 million for the year
ended December 31, 1996. The increase in loans was comprised of a $20.8
million increase in mortgage loans held for sale, a $7.6 million increase (net
of unearned finance charges) in auto contracts and a $15.1 million increase in
insurance premium finance loans, offset by a $21.8 million decrease in loans
purchased from the RTC, resulting from scheduled principal amortization and
prepayments.
Cash and cash equivalents increased $2.5 million, from $23.6 million as of
December 31, 1995 to $26.1 million as of December 31, 1996, as a result of
increased liquidity from the Company's sale of mortgage loans.
Deposit accounts increased $17.2 million, from $141.9 million as of December
31, 1995 to $159.1 million as of December 31, 1996 due primarily to an
increase in CDs of $15.6 million, from $115.8 million as of December 31, 1995
to $131.4 million as of December 31, 1996. The Company uses CDs, in part, to
finance the growth of its lending operations.
Other interest-bearing liabilities include the RTC Notes Payable which
remained unchanged at $10.9 million at December 31, 1995 and 1996, and FHLB
advances which increased to $4.0 million at December 31, 1996 with a weighted
average interest rate of 5.70%. There were no FHLB advances at December 31,
1995.
Stockholders' equity increased $950,000, from $5.8 million as of December
31, 1995 to $6.8 million as of December 31, 1996, solely as a result of the
Company's net income for the year.
COMPARISON OF OPERATING RESULTS FOR THE PERIOD FROM APRIL 29, 1994 (INCEPTION)
THROUGH DECEMBER 31, 1994 AND THE YEAR ENDED DECEMBER 31, 1995
GENERAL
Net income increased from $116,000 for the period from April 29, 1994
(Inception) to December 31, 1994 to $458,000 for the year ended December 31,
1995. This increase was due primarily to (i) completion of the Bank's
purchases of loans from the RTC thereby converting assets from lower yielding
investment securities into higher yielding loans, and (ii) the inclusion of
twelve months of operations in 1995 as opposed to eight months in 1994. The
Bank acquired certain assets and assumed certain liabilities from the RTC on
April 29, 1994.
INTEREST INCOME
Interest income increased from $6.9 million for the period from April 29,
1994 (Inception) to December 31, 1994 to $13.5 million for the year ended
December 31, 1995 due primarily to (i) the inclusion of twelve months of
operations in 1995 as opposed to eight months in 1994, and (ii) a $7.6 million
increase in average earning
37
<PAGE>
assets and a 1.68% increase in the average yield on earning assets. The
largest component of growth in average earning assets was mortgage loans,
which increased $50.2 million. Loans totaling $133.1 million were purchased
from the RTC from April 1994 through December 1995, and these higher yielding
loans resulted in a significant increase in interest income.
INTEREST EXPENSE
Interest expense increased from $3.6 million for the period from April 29,
1994 (Inception) to December 31, 1994 to $7.7 million for the year ended
December 31, 1995 due primarily to (i) the inclusion of twelve months of
operations in 1995 as opposed to eight months in 1994, (ii) a $10.0 million
increase in average interest bearing liabilities and (iii) a 1.30% increase in
the weighted average interest rate on interest bearing liabilities. The
largest component of growth in interest bearing liabilities was deposits,
which increased from an average balance of $140.3 million for the period from
April 29, 1994 (Inception) to December 31, 1994 to $148.6 million for the year
ended December 31, 1995. This growth resulted from the Bank's purchase of
deposits from the RTC offset by the sale of deposits by the Bank in the same
period and deposit outflows. The average cost of deposits increased from 3.58%
for the period from April 29, 1994 (Inception) to December 31, 1994 to 4.87%
for the year ended December 31, 1995 primarily as a result of deposits
repricing to higher interest rate accounts.
Other interest-bearing liabilities include the RTC Notes Payable, the
average balance of which increased $1.9 million between years as a result of
an additional loan provided to the Bank as part of its purchase of deposits
from the RTC.
PROVISION FOR LOAN LOSSES
Provision for loan losses increased from $50,000 for the period from April
29, 1994 (Inception) to $120,000 for the year ended December 31, 1995. The
total allowance for loan losses was $378,000 at December 31, 1994 compared to
$5.3 million at December 31, 1995. This increase was attributable to the
additional provision for losses recorded during the year ended December 31,
1995 and $4.9 million in acquisition discounts related to the Company's
purchase of loans from the RTC. The Company allocated the estimated amount of
discounts attributable to credit risk to the allowance for loan losses. Loan
charge-offs were $108,000 in the year ended December 31, 1995. There were no
charge-offs in the period from April 29, 1994 (Inception) to December 31,
1994.
NON-INTEREST INCOME
Non-interest income increased $220,000, from $98,000 for the period from
April 29, 1994 (Inception) through December 31, 1994 to $318,000 for the year
ended December 31, 1995. This increase was due primarily to (i) the inclusion
of twelve months of operations in 1995 as opposed to eight months in 1994, and
(ii) an increase in gain on sale of loans from $3,000 for the period from
April 29, 1994 (Inception) through December 31, 1994 to $90,000 for the year
ended December 31, 1995.
Other components of non-interest income include fees and charges for Bank
services and miscellaneous other income. The total of all of these items
increased $133,000 from $95,000 for the period from April 29, 1994 (Inception)
through December 31, 1994 to $228,000 for the year ended December 31, 1995.
NON-INTEREST EXPENSE
Non-interest expense increased $2.1 million, from $3.1 million for the
period from April 29, 1994 (Inception) through December 31, 1994 to $5.2
million for the year ended December 31, 1995. This increase was due primarily
to (i) the inclusion of twelve months of operations in 1995 as opposed to
eight months in 1994, and (ii) increases in compensation and benefits
occurring from increased staffing in the Bank.
38
<PAGE>
INCOME TAXES
Income taxes increased $286,000 from $98,000 for the period from April 29,
1994 (Inception) through December 31, 1994 to $384,000 for the year ended
December 31, 1995. This increase occurred as a result of a $628,000 increase
in income before income taxes between the two years, offset by a decrease in
the average tax rate from 45.8% in 1994 to 45.6% in 1995.
COMPARISON OF FINANCIAL CONDITION AT DECEMBER 31, 1994 AND DECEMBER 31, 1995
Total assets decreased $20.5 million, from $180.0 million at December 31,
1994 to $159.6 million at December 31, 1995. This decrease occurred primarily
as a result of a $95.8 million decrease in short-term investments offset by a
$79.0 million increase in loans. The increase in loans was comprised primarily
of a $75.9 million increase in mortgage loans purchased from the RTC under the
Minority Preference Resolution Program in 1994 and 1995.
Cash and cash equivalents decreased $96.0 million, from $119.6 million at
December 31, 1994 to $23.6 million at December 31, 1995, resulting from the
purchase of loans from the RTC in 1995.
Deposits decreased $21.2 million, from $163.1 million at December 31, 1994
to $141.9 million at December 31, 1995 due primarily to outflows in the Bank's
deposits resulting from the acquisition by the Bank of certain assets and
liabilities from the RTC and the resultant lowering of deposit rates to
reflect market conditions and reduce excess liquidity held by the Bank.
Other interest-bearing liabilities include the RTC Notes Payable, which
remained unchanged at $10.9 million between December 31, 1994 and 1995.
Stockholders' equity increased $500,000, from $5.3 million at December 31,
1994 to $5.8 million at December 31, 1995, solely as a result of the Company's
net income for the year.
MANAGEMENT OF INTEREST RATE RISK
The principal objective of the Company's interest rate risk management
activities is to evaluate the interest rate risk inherent in the Company's
business activities, determine the level of appropriate risk given the
Company's operating environment, capital and liquidity requirements and
performance objectives and manage the risk consistent with guidelines approved
by the Board of Directors. Through such management, the Company seeks to
reduce the exposure of its operations to changes in interest rates. The Board
of Directors reviews on a quarterly basis the asset/liability position of the
Company, including simulation of the effect on capital of various interest
rate scenarios.
The Company's profits depend, in part, on the difference, or "spread,"
between the effective rate of interest received on the loans it originates and
the interest rates paid on deposits and other financing facilities which can
be adversely affected by movements in interest rates. In addition, between the
time the Company originates loans and investors' sales commitments are
received, the Company may be exposed to interest rate risk to the extent that
interest rates move upward or downward during the time the loans are held for
sale. The Company mitigates these risks somewhat by purchasing or originating
ARMs that reprice frequently in an increasing or declining interest rate
environment. Also, the Company sells substantially all of its loans held for
sale on a regular basis, thereby reducing significantly the amount of time
these loans are held by the Company.
The Bank's interest rate sensitivity is monitored by the Board of Directors
and management through the use of a model which estimates the change in the
Bank's net portfolio value ("NPV") over a range of interest rate scenarios.
NPV is the present value of expected cash flows from assets, liabilities and
off-balance sheet instruments, and NPV Ratio is defined as the NPV in that
scenario divided by the market value of assets in the same scenario. The
Company reviews a market value model prepared quarterly by the OTS (the "OTS
NPV model"), based on the Bank's quarterly Thrift Financial Reports filed with
the OTS. The OTS NPV model
39
<PAGE>
measures the Bank's interest rate risk by approximating the Bank's NPV under
various scenarios which range from a 400 basis point increase to a 400 basis
point decrease in market interest rates. The interest rate risk policy of the
Company provides that the maximum permissible change at a 400 basis point
increase or decrease in market interest rates is a 30% change in NPV. The OTS
has incorporated an interest rate risk component into its regulatory capital
rule for thrifts. Under the rule, an institution whose sensitivity measure, as
defined by the OTS, in the event of a 200 basis point increase or decrease in
interest rates exceeds 20% would be required to deduct an interest rate risk
component in calculating its total capital for purpose of the risk-based
capital requirement.
At June 30, 1997, the most recent date for which the relevant OTS NPV model
is available, the Bank's sensitivity measure resulting from (i) a 200 basis
point decrease in interest rates was six basis points and would result in a
$11,000 increase in the NPV of the Bank and (ii) a 200 basis point increase in
interest rates was 51 basis points and would result in a $1.7 million decrease
in the NPV of the Bank. At June 30, 1997, the Bank's sensitivity measure was
below the threshold at which the Bank could be required to hold additional
risk-based capital under OTS regulations.
Although the NPV measurement provides an indication of the Bank's interest
rate risk exposure at a particular point in time, such measurement is not
intended to and does not provide a precise forecast of the effect of changes
in market interest rates on the Bank's net interest income and will differ
from actual results. Management monitors the results of this modeling, which
are presented to the Board of Directors on a quarterly basis.
The following table shows the NPV and projected change in the NPV of the
Bank at June 30, 1997 assuming an instantaneous and sustained change in market
interest rates of 100, 200, 300 and 400 basis points ("bp"). This table is
based on data prepared by the OTS. The Company makes no representation as to
the accuracy of this data.
INTEREST RATE SENSITIVITY OF NET PORTFOLIO VALUE ("NPV")
<TABLE>
<CAPTION>
NPV AS % OF PORTFOLIO
NET PORTFOLIO VALUE VALUE OF ASSETS
--------------------------- ------------------------
$ AMOUNT $ CHANGE % CHANGE NPV RATIO % CHANGE
CHANGE IN RATES -------- -------- -------- ----------- -----------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
+400 bp.................... $28,596 $(7,519) -21% 11.37% -253 bp
+300 bp.................... $31,928 $(4,187) -12% 12.53% -137 bp
+200 bp.................... $34,451 $(1,664) -5% 13.39% -51 bp
+100 bp.................... $35,883 $ (232) -1% 13.85% -5 bp
0 bp....................... $36,115 -- -- 13.90% --
- -100 bp.................... $35,956 $ (159) -- 13.81% -9 bp
- -200 bp.................... $36,126 $ 11 -- 13.84% -6 bp
- -300 bp.................... $36,900 $ 785 +2% 14.07% +17 bp
- -400 bp.................... $38,167 $ 2,052 +6% 14.46% +56 bp
</TABLE>
LIQUIDITY AND CAPITAL RESOURCES
GENERAL
The Company's primary sources of funds are deposits with the Bank, FHLB
advances, principal and interest payments on loans, cash proceeds from the
sale of loans and, to a lesser extent, interest payments on securities and
proceeds from the maturation of securities. While maturities and scheduled
amortization of loans are a predictable source of funds, deposit flows and
loan prepayments are greatly influenced by general interest rates, economic
conditions and competition. However, the Company has continued to maintain the
required minimum levels of liquid assets as defined by OTS regulations. This
requirement, which may be varied at the direction of the OTS depending upon
economic conditions and deposit flows, is based upon a percentage of deposits
and
40
<PAGE>
short-term borrowings. The required ratio is currently 5%, and the Company has
always met or exceeded this requirement. Management, through its Asset and
Liability Committee, which meets monthly or more frequently if necessary,
monitors rates and terms of competing sources of funds to use the most cost-
effective source of funds wherever possible.
Sales of loans have been a primary source of funds for the Company. During
the nine months ended September 30, 1996 and 1997, cash flows from sales of
loans were $22.2 million and $298.5 million, respectively, and, during the
year ended December 31, 1996, loans sales produced $52.2 million in cash
flows.
Another source of funds consists of deposits obtained through the Bank's
five retail branches in California. The Bank offers checking accounts, various
money market accounts, regular passbook accounts, fixed interest rate
certificates with varying maturities and retirement accounts. Deposit account
terms vary by interest rate, minimum balance requirement and the duration of
the account. Interest rates paid, maturity terms, service fees and withdrawal
penalties are established by the Bank periodically based on liquidity and
financing requirements, rates paid by competitors, growth goals and federal
regulations. At September 30, 1997, such retail deposits were $174.3 million
or 82.7% of total deposits.
The Bank uses wholesale and broker-originated deposits to supplement its
retail deposits and, at September 30, 1997, wholesale deposits were $29.0
million or 13.7% of total deposits while broker-originated deposits were $7.5
million or 3.6% of total deposits. The Bank solicits wholesale deposits by
posting its interest rates on a national on-line service which advertises the
Bank's wholesale products to investors. Generally, most of the wholesale
deposit account holders are institutional investors, commercial businesses or
public sector entities. The weighted average maturity of wholesale and broker-
originated deposits at September 30, 1997 was five months.
The Company believes that wholesale and broker-originated deposits provide a
supplemental short-term source of funding which can be more flexible than
retail sources of funds for matching asset maturities, especially the
Company's loans held for sale. While the Company believes its primary source
of deposits will continue to be originated from the Bank's retail branches,
wholesale and broker-originated deposits will be used to provide additional
sources of funds to finance lending growth.
Although the Bank has a significant amount of deposits maturing in less than
one year, the Company believes that the Bank's current pricing strategy will
enable it to retain a significant portion of these accounts at maturity and
that it will continue to have access to sufficient amounts of CDs which,
together with other funding sources, will provide the necessary level of
liquidity to finance its lending businesses. However, as a result of these
shorter-term deposits, the rates on these accounts may be more sensitive to
movements in market interest rates which may result in a higher cost of funds.
The following table sets forth the average balances and rates paid on each
category of deposits for the years ended December 31, 1995 and 1996 and for
the nine months ended September 30, 1996 and 1997.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, NINE MONTHS ENDED SEPTEMBER 30,
--------------------------------- ---------------------------------
1995 1996 1996 1997
---------------- ---------------- ---------------- ----------------
AVERAGE AVERAGE AVERAGE AVERAGE AVERAGE AVERAGE AVERAGE AVERAGE
BALANCE RATE BALANCE RATE BALANCE RATE BALANCE RATE
-------- ------- -------- ------- -------- ------- -------- -------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Passbook accounts....... $ 16,612 2.12% $ 14,665 2.39% $ 14,248 2.77% $ 19,972 3.30%
Checking accounts....... 12,091 1.48% 10,060 1.33% 9,927 1.33% 9,966 1.32%
Certificates of deposit
Under $100,000......... 112,342 5.67% 117,063 5.55% 115,698 5.58% 131,494 5.52%
$100,000 and over...... 7,537 6.36% 4,372 5.88% 3,883 5.88% 21,702 5.90%
-------- -------- -------- --------
Total................. $148,582 4.87% $146,160 4.94% $143,756 4.96% $183,134 4.89%
======== ======== ======== ========
</TABLE>
41
<PAGE>
The following table sets forth the time remaining until maturity for all CDs
at December 31, 1995 and 1996 and September 30, 1997.
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31, SEPTEMBER 30,
1995 1996 1997
------------ ------------ -------------
(IN THOUSANDS)
<S> <C> <C> <C>
Maturity within one year................ $ 76,879 $103,369 $139,415
Maturity within two years............... 36,316 26,819 37,831
Maturity within three years............. 1,681 1,177 500
Maturity within four years.............. 957 -- --
-------- -------- --------
Total certificates of deposit........... $115,833 $131,365 $177,746
======== ======== ========
</TABLE>
At September 30, 1997, the Bank exceeded all of its regulatory capital
requirements (and was deemed to be "well capitalized") with (i) tangible
capital of $19.7 million, or 7.06% of total adjusted assets, which is above
the required level of $4.2 million, or 1.50%; (ii) core capital of $19.7
million, or 7.06% of total adjusted assets, which is above the required level
of $8.4 million, or 3.00%; and (iii) risk-based capital of $21.8 million, or
13.20% of risk-weighted assets, which is above the required level of $13.2
million, or 8.00%.
The Company has other sources of liquidity, including FHLB advances and
securities maturing within one year. Through the Bank, the Company obtains
advances from the FHLB, collateralized by its portfolio of mortgage loans
purchased from the RTC and the Bank's FHLB stock. The FHLB functions as a
central reserve bank providing credit for thrifts and certain other member
financial institutions. Advances are made pursuant to several programs, each
of which has its own interest rate and range of maturities. Limitations on the
amount of advances are based generally on a fixed percentage of net worth or
on the FHLB's assessment of an institution's credit-worthiness. The Bank's
available borrowing capacity under this credit facility was approximately $45
million at September 30, 1997.
Other borrowings of the Company consist of the RTC Notes Payable which
mature in 1999, and notes payable from stockholders which mature in 1999. See
"--Liquidity and Capital Resources--RTC Notes Payable" for a discussion of the
Company's RTC Notes Payable and "Management--Certain Transactions" for
discussion of the notes payable from stockholders.
The following table sets forth certain information regarding the Company's
short-term borrowed funds (consisting solely of FHLB advances) at or for the
periods ended on the dates indicated.
<TABLE>
<CAPTION>
AT OR FOR AT OR FOR
YEARS ENDED NINE MONTHS
DECEMBER 31, ENDED
------------- SEPTEMBER 30,
1995 1996 1997
----- ------ -------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
FHLB advances
Maximum month-end balance.................... $ -- $4,000 $35,000
Balance at end of period..................... -- 4,000 35,000
Average balance for period................... -- 1,170 20,334
Weighted average interest rate on
Balance at end of period..................... -- % 5.70% 6.43%
Average balance for period................... -- % 6.15% 6.38%
</TABLE>
The Company had no material contractual obligations or commitments for
capital expenditures at September 30, 1997. However, the Company is in the
process of expanding its mortgage and auto finance operations, which will
entail lease commitments and expenditures for leasehold improvements and
furniture, fixtures and equipment. At September 30, 1997, the Company had
outstanding commitments to originate loans of $116.0 million, compared to
$19.1 million at December 31, 1996. The Company anticipates that it will have
sufficient funds available to meet its current loan origination commitments.
42
<PAGE>
MASTER REPURCHASE AGREEMENT
In October 1997, the Bank entered into a $100 million master repurchase
agreement under which it may sell and repurchase at a set price mortgage loans
pending the sale or securitization of such loans. The arrangement provides for
an advance rate approximating 100% of the outstanding principal balance of
qualifying mortgage loans and a rate of interest equal to LIBOR plus 0.70%.
Qualifying mortgage loans consist of first and second mortgage loans with an
LTV that does not exceed 90%, subject to certain restrictions. This agreement
may be terminated at any time at the option of either party.
RTC NOTES PAYABLE
In connection with its acquisition of certain assets from the RTC, the Bank
obtained loans from the RTC in the aggregate amount of $10.9 million under the
RTC's Minority Capital Assistance Program provided for in Section 21A(u) of
the Federal Home Loan Bank Act, as amended (the "FHLBA"). The FHLBA gives the
RTC authority to provide interim capital assistance to minority-owned
institutions, defined in the FHLBA as more than fifty percent (50%) owned or
controlled by one or more minorities. The Bank, PAFI and the RTC entered into
an Interim Capital Assistance Agreement on April 28, 1994 with respect to a
loan of $6,930,000 and a second Interim Capital Assistance Agreement on
September 28, 1997 with respect to a loan of $4,000,000 (together, the "RTC
Agreements"). The RTC Agreements provide for repayment of the entire principal
amount, plus any accrued, previously unpaid interest thereon, in a single lump
sum installment on April 28, 1999 and September 8, 1999, respectively. The RTC
Notes Payable may be prepaid at the option of the Bank and must be prepaid in
the event that PAFI obtains all or any material portion of its permanent
financing prior to maturity of the RTC Notes Payable. The RTC is entitled to
declare the entire unpaid principal amount of the RTC Notes Payable, plus all
interest accrued and unpaid thereon, immediately due and payable upon the
occurrence of certain events of default.
The rate at which interest accrues on the RTC Notes Payable is based on the
RTC's "Cost of Funds," defined in the RTC Agreements as the end of the
calendar quarter Monday auction yield price for 13 week United States Treasury
Bills plus 12.5 basis points, and adjusts annually, in the case of the $6.9
million loan due April 1999, and quarterly, in the case of the $4 million loan
due September 1999. Interest accrues on any amount of principal or interest
not paid when due at the rate of the RTC's Cost of Funds (5.375% at September
30, 1997) plus 300 basis points, beginning on the date such unpaid amount
became due.
Until all of the obligations of PAFI and the Bank have been discharged, the
Bank has agreed, pursuant to the RTC Agreements, among other things, not to:
(i) declare or pay any dividends, except under certain limited circumstances,
and not to issue any capital stock or any options or other rights in respect
thereto, or repurchase, redeem, retire or otherwise acquire for value any of
its capital stock; (ii) make any loan or advance to PAFI or any other
affiliate, except to United PanAm Mortgage Corp. and United Auto Credit
Corporation, as long as such transactions do not require the Bank to
repurchase any loans which would result in a loss to the Bank; or (iii) sell
or otherwise dispose of all or substantially all of its assets, enter into any
merger or consolidation or enter into any agreement providing for a change of
control of the Bank, unless such transaction is conditioned upon the prior
repayment in full of all amounts due under the RTC Agreements.
In connection with the RTC Agreements, PAFI and the RTC have entered into
Stock Pledge Agreements pursuant to which PAFI has pledged to the RTC all of
the issued and outstanding shares of the capital stock of the Bank as security
for the repayment of the RTC Notes Payable.
LENDING ACTIVITIES
Summary of Loan Portfolio. At September 30, 1997, the Company's loan
portfolio constituted $222.7 million or 78.6% of the Company's total assets,
of which $152.5 million or 68.5% were held for investment and $70.2 million or
31.5% were held for sale. Loans held for investment are reported at cost, net
of unamortized discounts or premiums and allowance for losses. Loans held for
sale are reported at the lower of cost or market value.
43
<PAGE>
The following table sets forth the composition of the Company's loan
portfolio at the dates indicated.
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31, SEPTEMBER 30,
1995 1996 1997
------------ ------------ -------------
(IN THOUSANDS)
<S> <C> <C> <C>
MORTGAGE LOANS
Mortgage loans (purchased primarily
from RTC)............................ $124,483 $102,733 $ 87,157
-------- -------- --------
Subprime mortgage loans
Held for sale....................... -- 20,766 70,241
Held for investment................. -- 1,294 3,840
-------- -------- --------
Total subprime mortgage loans....... -- 22,060 74,081
-------- -------- --------
Total mortgage loans................ 124,483 124,793 161,238
-------- -------- --------
CONSUMER LOANS
Automobile installment contracts...... -- 10,830 32,037
Insurance premium financing........... 16,975 32,058 47,287
Other consumer loans.................. 31 230 327
-------- -------- --------
Total consumer loans................ 17,006 43,118 79,651
-------- -------- --------
Total loans......................... 141,489 167,911 240,889
Unearned discounts and premiums....... (4,445) (3,697) (3,135)
Unearned finance charges.............. -- (3,271) (8,810)
Allowance for loan losses............. (5,250) (5,356) (6,203)
-------- -------- --------
Total loans, net.................... $131,794 $155,587 $222,741
======== ======== ========
</TABLE>
Loan Maturities. The following table sets forth the dollar amount of loans
maturing in the Company's loan portfolio at September 30, 1997 based on
scheduled contractual amortization. Loan balances are reflected before
unearned discounts and premiums, unearned finance charges and allowance for
losses.
<TABLE>
<CAPTION>
AT SEPTEMBER 30, 1997
----------------------------------------------------------------------------
MORE THAN MORE THAN MORE THAN MORE THAN
ONE YEAR 1 YEAR TO 3 3 YEARS TO 5 YEARS TO 10 YEARS TO MORE THAN
OR LESS YEARS 5 YEARS 10 YEARS 20 YEARS 20 YEARS TOTAL LOANS
-------- ----------- ---------- ---------- ----------- --------- -----------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
Mortgage loans held for
investment............. $ 116 $ 328 $ 2,208 $7,411 $22,903 $ 58,031 $ 90,997
Mortgage loans held for
sale................... -- -- -- -- 3,697 66,544 70,241
Consumer loans.......... 47,511 15,833 16,307 -- -- -- 79,651
------- ------- ------- ------ ------- -------- --------
Total................. $47,627 $16,161 $18,515 $7,411 $26,600 $124,575 $240,889
======= ======= ======= ====== ======= ======== ========
</TABLE>
The following table sets forth, at September 30, 1997, the dollar amount of
loans receivable that were contractually due after one year and indicates
whether such loans have fixed or adjustable interest rates.
<TABLE>
<CAPTION>
DUE AFTER SEPTEMBER 30, 1998
------------------------------
FIXED ADJUSTABLE TOTAL
-------- ---------------------
(IN THOUSANDS)
<S> <C> <C> <C>
Mortgage loans held for investment........... $ 16,884 $ 74,001 $ 90,885
Mortgage loans held for sale................. 11,326 58,915 70,241
Consumer loans............................... 31,813 326 32,139
-------- --------- ---------
Total...................................... $ 60,023 $ 133,242 $ 193,265
======== ========= =========
</TABLE>
44
<PAGE>
CLASSIFIED ASSETS AND ALLOWANCE FOR LOAN LOSSES
The Company maintains an asset review and classification process for
purposes of assessing loan portfolio quality and the adequacy of its loan loss
allowances. The Company's Asset Review Committee reviews for classification
all problem and potential problem assets and reports the results of its review
to the Board of Directors quarterly. The Company has incorporated the OTS
internal asset classifications as a part of its credit monitoring systems and
in order of increasing weakness, these designations are "substandard,"
"doubtful" and "loss." Substandard assets have one or more defined weaknesses
and are characterized by the distinct possibility that some loss will be
sustained if the deficiencies are not corrected. Doubtful assets have the
weaknesses of substandard assets with the additional characteristic that the
weaknesses make collection or liquidation in full, on the basis of currently
existing facts, condition and values, questionable and there is a high
possibility of loss. Loss assets are considered uncollectible and of such
little value that continuance as an asset is not warranted. Assets which do
have weaknesses but do not currently have sufficient risk to warrant
classification in one of the categories described above are designated as
"special mention."
At September, 30, 1997, the Company had $3.7 million in assets classified as
special mention, $5.2 million of assets classified as substandard, $127,000 in
assets classified as doubtful and no assets classified as loss.
The following table sets forth the remaining balances of all loans in the
Bank's combined loan portfolio (before specific reserves for losses) that were
more than 30 days delinquent at December 31, 1995 and 1996 and September 30,
1997.
<TABLE>
<CAPTION>
LOAN DECEMBER 31, % OF TOTAL DECEMBER 31, % OF TOTAL SEPTEMBER 30, % OF TOTAL
DELINQUENCIES 1995 LOANS 1996 LOANS 1997 LOANS
- ------------- ------------ ---------- ------------ ---------- ------------- ----------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
30 to 59 days........... $1,753 1.3% $ 1866 1.3% $ 938 0.5%
60 to 89 days........... 842 0.6% 109 0.1% 332 0.2%
90+ days................ 5,594 4.1% 5,438 3.7% 4,196 2.5%
------ --- ------ --- ------ ---
Total................... $8,189 6.0% $7,413 5.1% $5,466 3.2%
====== === ====== === ====== ===
</TABLE>
Nonaccrual and Past Due Loans. The Company's general policy is to
discontinue accrual of interest on a mortgage loan when it is delinquent 90
days or more, and on a non-mortgage loan when it is delinquent for 120 days or
more. When a loan is reclassified from accrual to nonaccrual status, all
previously accrued interest is reversed. Interest income on nonaccrual loans
is subsequently recognized only to the extent that cash payments are received
or the borrower's ability to make periodic interest and principal payments is
in accordance with the loan terms, at which time the loan is returned to
accrual status. Accounts which are deemed fully or partially uncollectible by
management are generally fully reserved or charged off for the amount that
exceeds the estimated fair value (net of selling costs) of the underlying
collateral. The following table sets forth the aggregate amount of non-
performing loans (net of unearned discounts and premiums, unearned finance
charges and specific allowances) at December 31, 1995 and 1996 and September
30, 1997. The Company does not generally modify, extend or rewrite loans and
at September 30, 1997 had no troubled debt restructured loans.
45
<PAGE>
<TABLE>
<CAPTION>
DECEMBER 31, SEPTEMBER 30,
-------------- -------------
1995 1996 1997
------ ------ -------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Non-performing loans
Single-family residential.................. $5,086 $5,044 $3,523
Multi-family residential................... 154 81 81
Consumer and other loans................... -- 710 1,064
------ ------ ------
Total.................................... $5,240 $5,835 $4,668
====== ====== ======
Non-performing loans as a percentage of
Total loans held for investment............ 3.85% 4.19% 2.96%
Total assets............................... 3.28% 3.11% 1.65%
General allowance for loan losses as a
percentage of
Total loans held for investment............ 3.19% 3.14% 3.28%
Non-performing loans....................... 82.80% 74.90% 110.70%
</TABLE>
For the years ended December 31, 1995 and 1996 and for the nine months ended
September 30, 1997, the amount of interest income that would have been
recognized on nonaccrual loans if such loans had continued to perform in
accordance with their contractual terms was $296,000, $370,0000 and $248,000,
respectively.
Real Estate Owned. Real estate acquired through foreclosure or by deed in
lieu of foreclosure ("REO") is recorded at the lower of cost or fair value at
the time of foreclosure. Subsequently, an allowance for estimated losses is
established when the recorded value exceeds fair value less estimated selling
costs. Holding and maintenance costs related to real estate owned are recorded
as expenses in the period incurred.
At December 31, 1995 and 1996 and September 30, 1997, real estate owned was
$988,000, $298,000 and $637,000, respectively, and consisted entirely of one
to four family residential properties. For the nine months ended September 30,
1997, real estate owned expenses were $36,000 and gains of $56,000 were
reported on the sale of real estate owned.
46
<PAGE>
Allowance for Loan Losses. The following is a summary of the changes in the
consolidated allowance for loan losses of the Company for each of the years
ended December 31, 1995 and 1996 and the nine months ended September 30, 1997.
<TABLE>
<CAPTION>
AT OR FOR THE
YEARS ENDED AT OR FOR THE NINE
DECEMBER 31, MONTHS ENDED
-------------- SEPTEMBER 30,
1995 1996 1997
------ ------ ------------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
ALLOWANCE FOR LOAN LOSSES
Balance at beginning of period.............. $ 378 $5,250 $ 5,356
Provision for loan losses................. 120 194 445
Charge-offs
Mortgage loans held for investment...... (108) (285) (319)
Mortgage loans held for sale............ -- -- --
Consumer loans.......................... -- (433) (1,372)
------ ------ -------
(108) (718) (1,691)
Recoveries
Mortgage loans held for investment...... -- -- 77
Mortgage loans held for sale............ -- -- --
Consumer loans.......................... -- 274 702
------ ------ -------
-- 274 779
------ ------ -------
Net charge-offs........................... (108) (444) (912)
Acquisition discounts allocated to loss
allowance................................ 4,860 356 1,314
------ ------ -------
Balance at end of period.................... $5,250 $5,356 $ 6,203
====== ====== =======
Allowance as a percent of net principal
balance
Mortgage loans held for investment........ 4.23% 4.35% 4.28%
Consumer loans............................ 1.00% 2.66% 2.97%
Charge-offs to average loans.............. 0.10% 0.30% 0.45%
Ending allowance to period end loans,
net...................................... 3.98% 3.97% 4.07%
</TABLE>
<TABLE>
<CAPTION>
AT OR FOR THE
YEARS ENDED
DECEMBER 31,
-----------------------------------------------
AT OR FOR THE
NINE MONTHS ENDED
1995 1996 SEPTEMBER 30, 1997
----------------------- ----------------------- -----------------------
PERCENT OF LOANS PERCENT OF LOANS PERCENT OF LOANS
IN EACH CATEGORY IN EACH CATEGORY IN EACH CATEGORY
AMOUNT TO TOTAL LOANS AMOUNT TO TOTAL LOANS AMOUNT TO TOTAL LOANS
------ ---------------- ------ ---------------- ------ ----------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
Distribution of end of
period allowance by
loan type
Mortgage loans held
for investment....... $5,080 87.9% $4,295 70.7% $3,672 53.3%
Consumer loans........ 170 12.1% 1,061 29.3% 2,105 46.7%
Unallocated........... -- -- -- -- 426 --
------ ----- ------ ----- ------ -----
$5,250 100.0% $5,356 100.0% $6,203 100.0%
====== ===== ====== ===== ====== =====
</TABLE>
The Company's policy is to maintain an allowance for loan losses to absorb
future losses which may be realized on its loan portfolio. These allowances
include specific reserves for identifiable impairments of individual loans and
general valuation allowances for estimates of probable losses not specifically
identified.
47
<PAGE>
The determination of the adequacy of the allowance for loan losses is based
on a variety of factors, including an assessment of the credit risk inherent
in the portfolio, prior loss experience, the levels and trends of non-
performing loans, the concentration of credit, current and prospective
economic conditions and other factors.
The Company's management uses its best judgment in providing for possible
loan losses and establishing allowances for loan losses. However, the
allowance is an estimate which is inherently uncertain and depends on the
outcome of future events. In addition, regulatory agencies, as an integral
part of their examinations process, periodically review the Bank's allowance
for loan losses. Such agencies may require the Bank to increase the allowance
based upon their judgment of the information available to them at the time of
their examination.
CASH EQUIVALENTS AND SECURITIES PORTFOLIO
The Company's cash equivalents and securities portfolios are used primarily
for liquidity purposes and secondarily for investment income. Cash equivalents
and securities, which generally have maturities of less than 90 days, satisfy
regulatory requirements for liquidity.
The following is a summary of the Company's cash equivalents and securities
portfolios as of December 31, 1995 and 1996 and September 30, 1997.
<TABLE>
<CAPTION>
AS OF
DECEMBER 31, AS OF
---------------- SEPTEMBER 30,
1995 1996 1997
------- ------- -------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Balance at end of period
Fed funds..................................... $ 8,500 $ -- $ --
Overnight deposits............................ 1,507 21,000 22,000
U.S. agency securities........................ -- -- 2,002
Commercial paper.............................. 2,986 -- --
FHLB certificates of deposit.................. 9,000 -- --
------- ------- ---------
Total......................................... $21,993 $21,000 $ 24,002
======= ======= =========
Weighted average yield at end of period
Fed funds..................................... 5.29% -- --
Overnight deposits............................ 5.67% 5.02% 5.50%
U.S. agency securities........................ -- -- 6.15%
Commercial paper.............................. 5.63% -- --
FHLB certificates of deposit.................. 5.61% -- --
Weighted average maturity at end of period
Fed funds..................................... 1 day -- --
Overnight deposits............................ 1 day 1 day 1 day
U.S. agency securities........................ -- -- 25 months
Commercial paper.............................. 26 days -- --
FHLB certificates of deposit.................. 3 days -- --
</TABLE>
IMPACT OF INFLATION AND CHANGING PRICES
The financial statements and notes thereto presented herein have been
prepared in accordance with Generally Accepted Accounting Principles ("GAAP"),
which require the measurement of financial position and operating results in
terms of historical dollar amounts without considering the changes in the
relative purchasing power of money over time due to inflation. The impact of
inflation is reflected in the increased cost of the Company's operations.
Unlike industrial companies, nearly all of the assets and liabilities of the
Company are monetary in nature. As a result, interest rates have a greater
impact on the Company's performance than do the effects of general levels of
inflation. Interest rates do not necessarily move in the same direction or to
the same extent as the price of goods and services.
48
<PAGE>
ACCOUNTING CONSIDERATIONS
In June 1996, the FASB issued FASB No. 125, "Accounting for Transfers and
Servicing of Financial Assets and Extinguishment of Liabilities" ("FASB 125"),
which addresses the accounting for all types of securitization transactions,
securities lending and repurchase agreements, collateralized borrowing
arrangements and other transactions involving the transfer of financial
assets. FASB 125 distinguishes transfers of financial assets that are sales
from transfers that are secured borrowings. FASB 125 is generally effective
for transactions that occur after December 31, 1996, and it is to be applied
prospectively. FASB 125 requires the Company to allocate its basis in mortgage
loans between the portion of the mortgage loans sold through mortgage-backed
securities and the portion retained (the "residual interest") based on the
relative fair values of those portions on the date of sale. FASB 125 requires
the Company to account for residual interests as "held-for-trading" securities
which are to be recorded at fair value in accordance with SFAS No. 115. The
Company adopted FASB 125 on January 1, 1997, and there has been no material
impact on the Company's financial position or results of operations.
In February 1997, the FASB issued FASB No. 128, "Earnings Per Share" ("FASB
128"). FASB 128 supersedes APB Opinion No. 15, "Earnings Per Share" ("APB No.
15"), and specifies the computation, presentation and disclosure requirements
for earnings per share for entities with publicly held common stock or
potential common stock. FASB 128 was issued to simplify the computation of
earnings per share and to make the U.S. standard more compatible with the
earnings per share standards of other countries and that of the International
Accounting Standards Committee. It replaces the presentation of primary
earnings per share with a presentation of basic earnings per share and fully
diluted earnings per share with diluted earnings per share.
Basic earnings per share, unlike primary earnings per share, excludes
dilution and is computed by dividing income available to common stockholders
by the weighted-average number of common shares outstanding for the period.
Diluted earnings per share reflects the potential dilution that could occur if
securities or other contracts to issue common stock were exercised or
converted into common stock or resulted in the issuance of common stock.
Diluted earnings per share is computed similarly to fully diluted earnings per
share under APB No. 15.
FASB 128 is effective for financial statements for both interim and annual
periods ending after December 15, 1997. Earlier application is not permitted.
After adoption, all prior-period earnings per share data presented must be
restated to conform with FASB 128. The Company has determined that the effect
of applying FASB 128 will be to increase earnings per share as compared to the
primary earnings per share calculation under the existing method due to
options outstanding.
FASB No. 129, "Disclosure on Information about Capital Structure," is
effective for financial statements for periods ending after December 15, 1997.
It is not expected that FASB No. 129 will require significant revision of
prior disclosures since FASB No. 129 lists required disclosures that had been
included in a number of previously existing separate statements and opinions.
In June 1997, the FASB issued SFAS No. 130, "Reporting Comprehensive Income"
("SFAS 130"), which establishes standards for reporting and displaying
comprehensive income and its components in the consolidated financial
statements. SFAS 130 does not, however, require a specific format for
presenting such information, but requires the Company to display an amount
representing total comprehensive income for the period in that financial
statement. The Company is in the process of determining its preferred format.
SFAS 130 is effective for fiscal years beginning after December 15, 1997.
In June 1997, the FASB issued SFAS No. 131, "Disclosures about Segments of
an Enterprise and Related Information" ("SFAS 131"), which establishes
standards for the way that public business enterprises are to report
information about operating segments in annual financial statements and
requires those enterprises to report selected information about operating
segments in interim financial reports issued to shareholders. SFAS 131 is
effective for financial statements for periods beginning after December 31,
1997.
49
<PAGE>
BUSINESS
GENERAL
The Company is a diversified specialty finance company engaged primarily in
originating and acquiring for investment or sale residential mortgage loans,
personal automobile insurance premium finance contracts and retail automobile
installment sales contracts. The Company targets customers who generally
cannot obtain financing from traditional lenders. These customers usually pay
higher loan origination fees and interest rates than those charged by
traditional lenders to gain access to consumer financing. The Company believes
that management's experience in originating, assessing, pricing and managing
credit risk enables the Company to earn attractive risk-adjusted returns. The
Company has funded its operations to date principally through retail deposits
and FHLB advances at the Bank and whole loan sales, and expects to complete
its first securitization of mortgage loans in December 1997. The Company's
strategy is to undertake controlled geographic expansion of its existing
businesses, with particular emphasis in the near term on the national
expansion of its mortgage finance operations, and to evaluate possible entry
into additional specialty finance businesses which provide the opportunity for
attractive risk-adjusted returns.
The Company commenced operations in 1994, as a Hispanic-controlled financial
institution, by purchasing from the RTC certain assets and assuming certain
liabilities of the Bank's predecessor. The Company believes that the Bank
currently is the largest Hispanic-controlled savings association in
California. The Company has used the Bank as a base for expansion into its
current specialty finance businesses. In 1995, the Company commenced its
insurance premium finance business through a joint venture with BPN, which the
Company believes to be the second largest provider of financing for consumer
automobile insurance premiums in California. In 1996, the Company commenced
its current mortgage and automobile finance businesses.
BUSINESS STRATEGY
GROWTH STRATEGY
The Company intends to capitalize on its competitive strengths by expanding
its core businesses and entering other specialty finance businesses which
provide the opportunity for attractive risk-adjusted returns. The Company's
growth strategy includes the following key elements.
. Geographic Expansion of Existing Businesses. The Company intends to
expand its residential mortgage and automobile finance businesses into
new geographic areas, principally by opening offices staffed by
experienced local marketing and management personnel. The Company
believes that an emphasis on management with local experience, coupled
with comprehensive underwriting standards and financial controls, will
permit growth in loan originations without compromising loan
performance. The Company also may expand its insurance premium finance
business as opportunities arise outside of California. See "Risk
Factors--General--Management of Growth."
. Entry into New Specialty Finance Businesses. The Company continually
evaluates expansion into other specialty finance businesses which
provide the opportunity for attractive risk-adjusted returns in markets
(i) which it believes are underserved by traditional lenders or are
undergoing change, (ii) which are highly fragmented with no participant
having significant market share, or (iii) in which it can attract the
required management experience to assess, price and manage the credit
risk and, thereby, generate attractive risk-adjusted returns. The
Company may enter such new businesses on a de novo basis or through
acquisitions. See "Risk Factors--General--Management of Growth."
OPERATING STRATEGY
The Company's operating strategy includes the following key elements.
. Centralized Risk Management Controls. For each of its businesses, the
Company has implemented comprehensive risk management policies and
portfolio parameters which are designed to identify the types and amount
of risk that can prudently be taken in each business. The Company
continually monitors the performance of each of its businesses against
these policies and parameters.
50
<PAGE>
. Decentralized Management. The management of each of the Company's
businesses is responsible for its day-to-day operations, subject to
centralized risk management controls and individualized, goal oriented
incentive compensation programs that support the achievement of credit
quality, growth and profitability objectives. The Company believes that
the delegation of responsibility to the management of each business has
enabled the Company to attract, promote and retain experienced managers,
to provide high levels of customer service and to respond promptly to
changes in market conditions.
. Diversified Funding Sources. The Company has funded its lending to date
primarily through the Bank's deposits, as well as FHLB advances and
whole loan sales. The Company believes that bank deposits are a stable
and cost-effective funding source which provide it with a competitive
advantage. To further diversify its funding sources, in October 1997 the
Company obtained a $100 million master repurchase facility to finance
the anticipated growth in its mortgage lending operations. See
"Management's Discussion and Analysis of Financial Condition and Results
of Operations--Liquidity and Capital Resources--Master Repurchase
Agreement." The Company expects to complete its first securitization of
mortgage loans in December 1997 and, thereafter, to sell or securitize
mortgage loans on a periodic basis. The Company will, in the future,
consider the sale or securitization of other financial assets. See "Risk
Factors--General--Securitizations" and "Management's Discussion and
Analysis of Financial Condition and Results of Operations--General--
Mortgage Finance."
MORTGAGE FINANCE
BUSINESS OVERVIEW
UPAM's loan production generally consists of subprime residential mortgage
loans which are made to borrowers whose borrowing needs may not be met by
traditional financial institutions due to credit history or other factors.
UPAM's customers use the proceeds of the mortgage loans primarily to finance
the purchase of a home, debt consolidation, home improvements, education and
other consumer needs, and may benefit from consolidating existing consumer
debt through mortgage loans with lower monthly payments.
UPAM generally targets borrowers who have substantial equity in the property
securing the loan, but may have (i) impaired or limited credit profiles, (ii)
higher debt-to-income ratios than traditional mortgage lenders allow or (iii)
difficulty verifying their income due to employment or other circumstances.
These borrowers are generally willing to pay higher loan origination fees and
interest rates than those charged by traditional lenders. The Company believes
that the amount of equity present in the real estate securing UPAM's loans,
together with the fact that approximately 86% of UPAM's loans are secured by
borrowers' primary residences and approximately 97% are secured by first
mortgages, mitigates certain risks inherent in subprime lending. The average
LTV ratio on loans originated by UPAM during the nine months ended September
30, 1997 was approximately 75%.
UPAM's strategy emphasizes a more balanced retail and wholesale origination
approach than many of its competitors. The retail division originates loans
through the direct solicitation of borrowers by mail and telemarketing and
accounted for $138.0 million, or 41%, of UPAM's total loan production during
the nine months ended September 30, 1997. The wholesale division originates
loans through independent loan brokers and accounted for $199.0 million, or
59%, of UPAM's total loan production during the same period.
UPAM currently sells substantially all of its loan originations, servicing
released, to other mortgage companies and investors through whole loan
packages offered for bid several times per month. During the nine months ended
September 30, 1997, UPAM sold $273.1 million of loans through whole loan sales
at a weighted average sales price equal to 105.9% of the original principal
balance of the loans sold. UPAM expects to complete its first securitization
of mortgage loans in December 1997 and, thereafter, to sell or securitize its
loans on a periodic basis. No assurances can be given that UPAM will
securitize its mortgage loans in the future or that any such securitizations
will prove to be profitable if commenced. See "Risk Factors--General--
Securitizations."
51
<PAGE>
SUBPRIME MORTGAGE INDUSTRY
The residential mortgage market can be separated into two major segments:
"prime" and "subprime." Prime borrowers comprise greater than 80% of the
market and have credit quality and documentation that satisfy the requirements
of the Government National Mortgage Association ("GNMA"), FNMA or FHLMC.
Historically, the subprime mortgage loan market has been a highly fragmented
niche market dominated by local brokers with direct ties to investors who
owned and serviced this relatively higher margin, riskier product. Although
there recently have been numerous new entrants into the subprime mortgage loan
business, the Company believes that the subprime mortgage market is still
highly fragmented.
BUSINESS STRATEGY
UPAM's strategic objective is to develop a national subprime residential
mortgage business. In order to achieve this objective, UPAM intends to (i)
continue to originate subprime mortgage loans through a balanced retail and
wholesale network, (ii) develop the capability to securitize these loans and
(iii) over time develop an in-house collection capability to complement third-
party sub-servicing. UPAM currently sells substantially all of its loan
originations with servicing released to mortgage companies and investors
through whole loan packages offered for bid several times per month. The
Company expects to complete its first securitization of mortgage loans in
December 1997 and, thereafter, to sell or securitize mortgage loans on a
periodic basis.
The Company believes that the subprime residential mortgage market is highly
fragmented and that success in this market depends primarily on the ability to
provide superior customer service and competitive pricing. UPAM seeks to (i)
locate experienced loan officers in geographic proximity to large population
centers, (ii) issue conditional loan approvals promptly, generally within 24
hours after receipt of an application, (iii) avoid imposing unnecessarily
restrictive conditions on loan approvals, (iv) fund loans on a timely basis
(generally within 15 to 20 days following conditional approval) and in
accordance with approved terms, and (v) competitively price loans according to
market conditions.
52
<PAGE>
OPERATING SUMMARY
The following table presents a summary of UPAM's key operating and
statistical results on a quarterly basis for the year ended December 31, 1996
and the nine months ended September 30, 1997.
<TABLE>
<CAPTION>
FOR THE QUARTER ENDED
--------------------------------------------------------------------------------
MARCH 31, JUNE 30, SEPTEMBER 30, DECEMBER 31, MARCH 31, JUNE 30, SEPTEMBER 30,
1996 1996 1996 1996 1997 1997 1997
--------- -------- ------------- ------------ --------- -------- -------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
LOAN ORIGINATION
STATISTICS
Loans originated........ $4,901 $15,168 $16,646 $34,796 $67,337 $108,481 $161,061
Number of loans
originated............. 51 144 171 345 606 933 1,466
Average principal
balance per loan....... $ 96 $ 105 $ 97 $ 101 $ 111 $ 116 $ 110
Weighted average
interest rate
Fixed-rate loans....... 10.21% 10.46% 11.61% 11.11% 10.60% 10.83% 10.78%
Adjustable-rate loans.. 9.46% 10.00% 9.6% 9.38% 9.27% 9.38% 9.51%
Weighted average loan-
to-value ratio......... 70% 72% 72% 72% 73% 74% 76%
First mortgage loans.... 91% 94% 96% 96% 97% 97% 97%
Fixed-rate loans........ 42% 29% 10% 8% 11% 10% 16%
Owner occupied.......... 92% 93% 92% 86% 86% 88% 85%
Retail origination...... 7% 1% 8% 32% 35% 41% 44%
California.............. 21% 16% 36% 46% 53% 58% 50%
BORROWER QUALITY
STATISTICS(1)
AA or A-................ 55% 67% 69% 67% 73% 71% 71%
B or C.................. 40% 28% 28% 31% 23% 25% 25%
C- or D................. 5% 5% 3% 2% 4% 4% 4%
LOAN SALES STATISTICS
Loans sold ($).......... $1,097 $ 4,226 $16,234 $28,585 $40,254 $ 92,463 $140,363
Average sales price
(% of principal
balance)............... -- 105.69% 105.32% 106.13% 106.15% 105.60% 105.73%
OPERATING STATISTICS
States loans originated
in..................... 4 7 7 7 10 14 19
Retail loan offices..... -- -- 2 3 6 6 6
Retail loan officers.... -- -- 7 17 41 59 79
Wholesale loan centers.. 1 1 1 2 2 4 5
Wholesale account
executives............. 3 3 5 10 33 34 38
</TABLE>
- --------
(1)See "Business--Mortgage Finance--Loan Production by Borrower Risk
Classification."
LOAN ORIGINATION
Retail Division. UPAM's retail origination growth strategy emphasizes
geographic expansion and focused consumer marketing efforts through both
direct mail and telemarketing. Although retail loan originations entail
significantly higher operating costs than wholesale originations, the benefits
of retail origination result from (i) greater fee retention to compensate for
these costs and (ii) direct relationships with borrowers which create a more
sustainable loan origination franchise and increased control over the lending
process. During the nine months ended September 30, 1997, the retail division
originated $138 million in loans, or 41%, of UPAM's total loan production. As
of September 30, 1997, the retail division employed 79 loan officers, located
in six retail locations. Three of these offices are located in California, and
one each in Arizona, Colorado and Washington. UPAM intends to continue its
retail geographic expansion by opening four additional retail locations during
the remainder of 1997 in Albuquerque, Las Vegas, Portland and San Diego, and
increasing the total number of its loan officers to approximately 100 by the
end of 1997.
The retail division has implemented an expansion plan designed to control
the significant operating expenses associated with establishing new branch
office locations. Under this plan, UPAM has housed several marketing
53
<PAGE>
groups responsible for specific geographic areas in one centrally located
retail office, thereby reducing overhead while retaining locally-focused
marketing efforts. As an example, only one greater Los Angeles retail office
exists (in Orange), but it houses five distinct marketing groups responsible
for the Pasadena, Orange, Long Beach, West Los Angeles and Riverside areas.
UPAM targets markets for expansion based on demographics and its ability to
recruit experienced sales office managers and other qualified personnel in
particular markets. Retail marketing activities include direct mail, followed
by outbound telemarketing calls from the local retail office. Telemarketing
activities are aimed at identifying potential borrowers with subprime credit
characteristics.
The following table sets forth selected information relating to UPAM's
retail loan originations during the periods shown.
<TABLE>
<CAPTION>
FOR THE QUARTER ENDED
------------------------------------------------------------
SEPTEMBER 30, DECEMBER 31, MARCH 31, JUNE 30, SEPTEMBER 30,
1996 1996 1997 1997 1997
------------- ------------ --------- -------- -------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Loans originated........ $1,391 $11,158 $23,616 $44,151 $70,258
Number of loans
originated............. 19 102 222 372 604
Average principal
balance per loan....... $ 73 $ 109 $ 106 $ 118 $ 116
Weighted average loan-
to-value ratio......... 63% 72% 74% 75% 77%
First mortgage loans.... 97% 98% 98% 98% 98%
Property securing loan
Owner occupied........ 74% 72% 77% 83% 86%
Non-owner occupied.... 26% 28% 23% 17% 14%
Weighted average
interest rate
Fixed-rate loans...... 10.11% 10.50% 10.28% 10.47% 10.48%
Adjustable-rate
loans................ 8.65% 8.73% 8.95% 8.99% 9.03%
</TABLE>
Wholesale Division. UPAM's wholesale origination growth strategy emphasizes
(i) geographic expansion, (ii) expanding relationships with existing brokers
through quality service, (iii) concentrating marketing efforts on a smaller
number of high-volume brokers and (iv) developing correspondent relationships.
The benefits of wholesale origination result from brokers conducting their own
marketing and employing their own personnel to complete loan applications,
allowing UPAM to quickly increase its loan origination volume through
increased leverage of fixed costs. The wholesale division funded $199.0
million in loans, or 59% of UPAM's total loan production, during the nine
months ended September 30, 1997. At September 30, 1997, the wholesale division
had five loan centers located in Washington, Utah, California, Florida and
Ohio, and employed 38 account executives. These loan centers maintain
relationships with brokers that provide loans to UPAM. During the nine months
ended September 30, 1997, UPAM originated loans through approximately 450
independent mortgage brokers, with the top 20 brokers generating 38% of those
loans and the largest broker accounting for 8.0%.
54
<PAGE>
The following table sets forth selected information relating to wholesale
loan originations during the periods shown.
<TABLE>
<CAPTION>
FOR THE QUARTER ENDED
------------------------------------------------------------
SEPTEMBER 30, DECEMBER 31, MARCH 31, JUNE 30, SEPTEMBER 30,
1996 1996 1997 1997 1997
------------- ------------ --------- -------- -------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Loans originated........ $15,255 $23,637 $43,721 $64,330 $90,803
Number of loans
originated............. 152 243 384 561 862
Average principal
balance per loan....... $ 100 $ 97 $ 113 $ 114 $ 105
Weighted average loan-
to-value ratio......... 73% 72% 73% 74% 75%
First mortgage loans.... 96% 95% 96% 97% 96%
Property securing loan
Owner occupied....... 93% 93% 91% 92% 85%
Non-owner occupied... 7% 7% 9% 8% 15%
Weighted average
interest rate
Fixed-rate loans..... 11.93% 11.49% 10.83% 11.22% 10.99%
Adjustable-rate
loans................ 9.67% 9.69% 9.44% 9.63% 9.89%
</TABLE>
PRODUCTS AND PRICING
UPAM offers both fixed-rate loans and ARMs, as well as loans with an
interest rate that is initially fixed for a period of time and subsequently
converts to an adjustable-rate. Most of the ARMs originated by UPAM are
offered at a lower initial interest rate and are subject to lifetime interest
rate caps. At each interest rate adjustment date, UPAM adjusts the rate,
subject to certain limitations on the amount of any single adjustment, until
the rate charged equals the lower of the fully indexed rate or the lifetime
interest rate cap. There can be no assurance, however, that the interest rate
on these loans will reach the fully indexed rate if interest rates rise
rapidly, to the level of the cap, the loans are pre-paid or in cases of
foreclosure. UPAM's borrowers are classified under one of six subprime risk
classifications, and loan products are available at different interest rates
and with different origination points and fees depending on the particular
borrower's risk classification. UPAM's maximum loan amount is generally
$400,000 with an LTV of 90%, $500,000 with an LTV of 85% and $750,000 with an
LTV of 75%. Loans over $750,000 are made on a case-by-case basis. Loans
originated by UPAM during the nine months ending September 30, 1997 had an
average loan amount of approximately $112,000 and an average LTV of
approximately 75%. Unless prohibited by law or otherwise waived by UPAM upon
the payment by the borrower of higher origination fees and a higher interest
rate, UPAM generally imposes a prepayment penalty on the borrower. As of
September 30, 1997, approximately 90% of UPAM's loans included a prepayment
penalty.
UNDERWRITING STANDARDS
UPAM originates loans in accordance with underwriting criteria that
generally do not satisfy traditional underwriting standards, such as those
utilized by GNMA, FNMA or FHLMC, and therefore may result in rates of
delinquencies and foreclosures that are higher, and may be substantially
higher, than those rates experienced by loans underwritten in a more
traditional manner. UPAM's underwriting guidelines are intended to evaluate
the applicant's credit history and capacity to repay the loan, the value of
the proposed collateral and the adequacy of such collateral for the loan. UPAM
determines the loan terms, including interest rate and maximum LTV based upon
the underwriting guidelines.
Underwriters are required to have had either substantial subprime
underwriting experience or substantial experience with UPAM in other aspects
of the Company's subprime mortgage finance business before becoming part of
UPAM's underwriting department. Underwriters are not given approval authority
until their work has been reviewed by the Chief Credit Officer for a period of
time and deemed satisfactory. No branch-based underwriter has an approval
limit greater than $250,000. Two branch-based underwriters must approve loans
55
<PAGE>
over $250,000, with all loans over $400,000 requiring approval of the Chief
Credit Officer or a designated corporate-based underwriter. Exceptions from
these established guidelines are also subject to approvals, often at the
corporate level. This approval process is reviewed periodically by the Board
of Directors. The Chief Credit Officer periodically re-evaluates the authority
levels of all underwriting personnel.
UPAM's underwriting guidelines require a credit report on each applicant
from a credit reporting company. UPAM's underwriters review the applicant's
credit history based on the information contained in the application and
reports available from credit reporting bureaus in order to determine if the
applicant's credit history meets UPAM's underwriting guidelines. A number of
factors determine a loan applicant's creditworthiness, including debt ratios,
payment history and the combined LTV for all existing mortgages on a property.
Based on this review, the underwriter assigns a preliminary rating to the
application.
Assessment of the applicant's ability to pay is one of the principal
elements differentiating UPAM's underwriting process from methods employed by
traditional lenders that may rely heavily on automated credit scoring tools.
UPAM's underwriters review the applicant's credit profile to evaluate whether
an impaired credit history is a result of previous adverse circumstances or a
continuing inability or unwillingness to meet credit obligations in a timely
manner.
All mortgaged properties are appraised by qualified independent appraisers
prior to funding of the loan. All appraisals are required to conform to the
Uniform Standards of Professional Appraisal Practice. Review appraisals are
required on substantially all wholesale loans (consistent with industry
standards since the appraiser involved on a wholesale origination would
generally not be on a list of approved appraisers maintained by UPAM) and
retail loans where the appraisal was prepared by an appraiser who has not been
approved by UPAM.
UPAM has implemented a loan quality control process designed to ensure
compliance with its policies and procedures. Prior to funding a loan, UPAM
performs a pre-funding quality control audit which consists of verifying a
loan applicant's credit and employment. UPAM also ensures that the
documentation is complete once the loan is originated in order to facilitate
its subsequent sale.
The underwriting guidelines set forth in the following table, and the letter
grades applied to each sub- prime borrower category, reflect solely the
Company's internal standards, and may not be comparable to those used by other
subprime mortgage lenders. UPAM continually evaluates its underwriting
guidelines and periodically modifies the underwriting guidelines as required.
56
<PAGE>
<TABLE>
<CAPTION>
CREDIT CRITERIA MATRIX (LTV'S UP TO 85%)
--------------------------------------------------------------
AA A- B
-------------------- -------------------- --------------------
<S> <C> <C> <C>
MORTGAGE Maximum one 30-day Maximum two 30-day Maximum four 30-day
RATING late payment and no late payments and no late payments and
LAST 12 MONTHS 60-day late payments 60-day late payments one 60-day late
within last 12 within last 12 payment within last
months. Rolling 30- months. Rolling 30- 12 months if LTV is
day lates NOT day lates okay. Not 80% or less; no 60-
allowed. Not more more than 29 days day late payments if
than 29 days delinquent at LTV over 80%.
delinquent at closing. Rolling 30-day lates
closing. okay. Not more than
59 days delinquent
at closing.
<CAPTION>
EXCELLENT GOOD SATISFACTORY
CONSUMER CREDIT -------------------- -------------------- --------------------
24-MONTH HISTORY 12-MONTH HISTORY 12-MONTH HISTORY
-------------------- -------------------- --------------------
<S> <C> <C> <C>
All open and/or active - Excellent credit - Good credit prior - Reasonably good
accounts in the review prior 24 months. 12 months. credit last 2
period, are considered -Isolated incidences Isolated months. Isolated
when calculating the of minor incidences of incidences of
ratio of derogatory ac- delinquencies minor credit
counts to total ac- greater than 30 delinquencies delinquencies
counts. days will be greater than 60 greater than 90
considered. days will be days will be
-Sufficient number considered. considered.
of accounts paid -Sufficient number -Demonstrate
as agreed to of accounts paid ability/
offset isolated as agreed to willingness to pay
incidences of offset isolated majority of
delinquencies incidences of accounts as
greater than 30 delinquencies agreed.
days. greater than 60 -Evidence of
-Evidence of days. significant
significant -Evidence of delinquencies
delinquencies significant greater than 90
greater than 30 delinquencies days or 90 days
days not allowed. greater than 60 overdue are not
-< 25% of credit days not allowed. allowed.
report items -< 35% of credit -Minimum 3
derogatory in last report items accounts open for
24 months. derogatory in last 6 months. If no
-Minimum of 3 12 months. minimum consumer
accounts open for -Minimum of 3 credit,
6 months. accounts open for satisfactory "B"
6 months. mortgage rating or
VOR last 12 months
required.
-< 50% of credit
report items
derogatory in last
12 months.
BANKRUPTCY 3 years since 2 years since 1 year since
FORECLOSURE discharge/dismissal. discharge--Chapter discharge--Chapter
Re-established 7. 7.
excellent ("A") 2 years since filing 1 year since filing
credit since Chapter 13. Chapter 13.
discharge/dismissal. Must be discharged Must be discharged
Minimum of 3 prior to loan prior to loan
accounts open at application. application.
least 6 months. No Re-established good Re-established good
delinquency credit ("A") credit since ("B") credit since
report items since discharge/dismissal. discharge/dismissal;
discharge/dismissal. Minimum of 3 or 18 months, if no
accounts open at re-established
least 6 months. No credit since
delinquent credit discharge/dismissal.
items since
discharge/dismissal.
No foreclosures last No foreclosures last No foreclosures last
3 years. 2 years. 2 years.
COLLECTION No collections, Generally, there Generally, there
CHARGE-OFF charge-offs allowed should be no should be no
in last 24 months. collections or collections or
charge-offs in the charge-offs in the
last 12 months. last 12 months.
TAX LIENS No liens, judgments No liens, judgments No liens, judgments
JUDGMENTS last 24 months last 12 months last 12 months
</TABLE>
57
<PAGE>
<TABLE>
<CAPTION>
CREDIT CRITERIA MATRIX (LTV'S UP TO 85%)
-------------------------------------------------------------
C C- D
------------------- ------------------- -------------------
<S> <C> <C> <C>
MORTGAGE Maximum six 30-day, Unlimited number of Greater than one
RATING two 60-day and one 30-day and 60-day 120-day late
LAST 12 MONTHS 90-day late late payments and payment within last
payments within one 90-day or 120- 12 months. Current
last 12 months. day late payment NOD allowed.
Rolling 30-day within last 12
lates okay. Not months. Current NOD
more than 89 days allowed. Not more
delinquent at than 119 days
closing. delinquent at
closing.
<CAPTION>
FAIR POOR POOR
CONSUMER CREDIT ------------------- ------------------- -------------------
12-MONTH HISTORY 24-MONTH HISTORY 12-MONTH HISTORY
------------------- ------------------- -------------------
<S> <C> <C> <C>
All open and/or active - Moderate to - Majority of - Majority of
accounts in the review significant credit report credit report
period, are considered credit items items derogatory
when calculating the derogatories in -Percentage of in last 12
ratio of derogatory ac- the past. derogatory credit months.
counts to total ac- -Currently items are not a -Percentage of
counts. delinquent factor. derogatory credit
accounts. items are not a
-< 100% of credit factor.
report items
derogatory in
last 12 months.
This category
applies to
Borrowers who do
not have at least
3 accounts open
for a minimum of
6 months.
BANKRUPTCY 1 year since Bankruptcy filed Current bankruptcy
FORECLOSURE bankruptcy filing within last 12 or recent Chapter 7
date with some re- months. Must be dismissal or
established credit. discharged prior to discharge.
Must be discharged loan application. Current bankruptcy
prior to loan must be paid
application. through loan.
No foreclosures in Foreclosures cured N/A
last 12 months. in last 12 months.
COLLECTION Collections, Collections, Collections,
CHARGE-OFF charge-offs last 12 charge-offs last 12 charge-offs last 12
months allowed. months allowed. months allowed.
Unpaid collections Unpaid collections Unpaid collections
in last 12 months in last 12 months in last 12 months
must be paid must be paid must be paid
through closing, or through closing, or through closing, or
a monthly payment a monthly payment a monthly payment
calculated and calculated and calculated and
included in the included in the included in the
borrower's DTI. borrower's DTI. borrower's DTI.
Unpaid charge-offs Unpaid charge-offs Unpaid charge-offs
may remain, no may remain, no may remain, no
monthly payment monthly payment monthly payment
calculation calculation calculation
required. required. required.
TAX LIENS Liens, judgments Liens, judgments Liens, judgments
JUDGMENTS last 12 months last 12 months last 12 months
</TABLE>
58
<PAGE>
LOAN PRODUCTION BY BORROWER RISK CLASSIFICATION
The following table sets forth information concerning UPAM's loan production
by subprime borrower risk classification for the periods shown. The letter
grades applied to each subprime borrower category reflect solely the Company's
internal standards, and may not be comparable to those used by other subprime
mortgage lenders.
<TABLE>
<CAPTION>
FOR THE QUARTER ENDED
-----------------------------------------------------------
SEPTEMBER 30, DECEMBER 31, MARCH 31, JUNE 30, SEPTEMBER 30,
1996 1996 1997 1997 1997
------------- ------------ --------- -------- -------------
<S> <C> <C> <C> <C> <C>
AA Risk Grade
Percent of total
originations......... 15% 14% 20% 27% 32%
Weighted average loan-
to-value ratio....... 74% 74% 75% 75% 75%
Weighted average
interest rate........ 8.91% 9.65% 8.88% 9.06% 9.22%
A- Risk Grade
Percent of total
originations......... 54% 53% 53% 44% 39%
Weighted average loan-
to-value ratio....... 71% 71% 74% 76% 76%
Weighted average
interest rate........ 9.48% 9.19% 9.28% 9.15% 9.55%
B Risk Grade
Percent of total
originations......... 24% 26% 21% 21% 21%
Weighted average loan-
to-value ratio....... 75% 73% 72% 75% 78%
Weighted average
interest rate........ 10.43% 9.69% 9.56% 9.77% 10.17%
C Risk Grade
Percent of total
originations......... 4% 5% 2% 4% 4%
Weighted average loan-
to-value ratio....... 66% 69% 70% 69% 70%
Weighted average
interest rate........ 11.53% 10.94% 10.81% 10.33% 10.61%
C- Risk Grade
Percent of total
originations......... 1% 2% 1% 2% 2%
Weighted average loan-
to-value ratio....... 55% 66% 68% 64% 69%
Weighted average
interest rate........ 12.23% 11.54% 11.58% 11.17% 10.89%
D Risk Grade
Percent of total
originations......... 2% -- 3% 2% 2%
Weighted average loan-
to-value ratio....... 54% 53% 64% 59% 64%
Weighted average
interest rate........ 13.25% 13.25% 12.61% 11.95% 12.88%
</TABLE>
LOAN PRODUCTION BY GEOGRAPHIC DISTRIBUTION
The following table sets forth the percentage of UPAM's loans (based upon
dollar amounts) originated by state for the periods shown.
<TABLE>
<CAPTION>
FOR THE QUARTER ENDED
-----------------------------------------------------------
SEPTEMBER 30, DECEMBER 31, MARCH 31, JUNE 30, SEPTEMBER 30,
1996 1996 1997 1997 1997
------------- ------------ --------- -------- -------------
<S> <C> <C> <C> <C> <C>
California.............. 36% 46% 53% 58% 50%
Washington.............. 31% 27% 19% 12% 17%
Utah.................... 22% 23% 13% 11% 5%
Colorado................ 6% 1% 6% 5% 6%
Arizona................. -- -- 5% 5% 6%
Florida................. -- -- -- -- 5%
Oregon.................. 2% 1% 1% 5% 2%
Ohio.................... -- -- -- -- 2%
All others combined..... 3% 2% 3% 4% 7%
--- --- --- --- ---
Total................. 100% 100% 100% 100% 100%
=== === === === ===
</TABLE>
59
<PAGE>
LOAN SALES AND SECURITIZATIONS
Whole Loan Sales. During the nine months ended September 30, 1997, UPAM sold
$273.1 million of mortgage loans through whole loan sales at a weighted
average sales price equal to 105.9% of the original principal balance of the
loans sold.
Whole loan sales are made on a non-recourse basis pursuant to a purchase
agreement containing customary representations and warranties by UPAM
regarding the underwriting criteria applied by UPAM in the origination
process. In the event of a breach of such representations and warranties, UPAM
may be required to repurchase or substitute loans. In addition, UPAM sometimes
commits to repurchase or substitute a loan if a payment default occurs within
the first month following the date the loan is funded, unless other
arrangements are made between UPAM and the purchaser. UPAM also is required in
some cases to repurchase or substitute a loan if the loan documentation is
alleged to contain fraudulent misrepresentations made by the borrower. UPAM's
repurchase history to date has been minimal.
UPAM seeks to maximize its premium on whole loan sales revenue by closely
monitoring institutional purchasers' requirements and focusing on originating
the types of loans that meet those requirements and for which institutional
purchasers tend to pay higher premiums. During the nine months ended September
30, 1997, UPAM sold loans to 13 institutional purchasers, three of which
purchased approximately 76% of the loans sold by UPAM in this period.
Securitizations. The Company expects to complete its first securitization of
mortgage loans in December 1997 and, thereafter, to sell or securitize loans
on a periodic basis. Whether, when and how significantly the Company enters
the securitization market will depend upon economic and secondary market
conditions and available financial resources. See "Risk Factors--General--
Securitizations."
LOAN SERVICING AND DELINQUENCIES
UPAM currently sells substantially all of its loans on a servicing released
basis. All loans held for sale, and those loans that cannot be sold, are
serviced and held by the Bank. The Bank subcontracts with a third-party sub-
servicer to conduct its servicing operations, and monitors the sub-servicer's
activities to ensure that they comply with its guidelines. As the Company
begins the securitization of UPAM's mortgage loans, it expects to continue to
use a third party sub-servicer to perform payment processing, account
maintenance, tax and insurance escrow accounting and other primary servicing
activities, but may develop expanded in-house capabilities for delinquency,
foreclosure and REO activities management.
UPAM began receiving applications for mortgage loans under its regular
lending programs in January 1996 and to date has sold substantially all of its
loans on a whole loan, servicing released basis. Accordingly, UPAM does not
have representative historical delinquency, bankruptcy, foreclosure or default
experience that may be referred to for purposes of estimating future
delinquency, loss and prepayment data with respect to its loans.
INSURANCE PREMIUM FINANCE
BUSINESS OVERVIEW
In May 1995, the Company entered a joint venture with BPN under the name
"ClassicPlan." Under this joint venture, which commenced operations in
September 1995, (i) the Bank underwrites and finances automobile insurance
premiums in California and (ii) BPN markets this financing primarily to
independent insurance agents that sell automobile insurance in California and,
thereafter, services such loans for the Bank. IPF targets drivers who are
classified by insurance companies as non-standard or high risk for a variety
of reasons, including age, driving record, a lapse in insurance coverage or
ownership of high value or high performance automobiles. Insurance companies
that underwrite insurance for such drivers, including those participating in
the assigned risk programs established by California law, generally either do
not offer financing of insurance premiums or do not offer terms as flexible as
those offered by IPF.
60
<PAGE>
Customers are directed to BPN through a non-exclusive network of insurance
brokers and agents who sell automobile insurance and offer financing through
programs like those offered by IPF. On a typical twelve-month insurance
policy, the borrower makes a cash down payment of 15% to 20% of the premium
(plus certain fees) and the balance is financed under a contract that contains
a payment period of shorter duration than the policy term. In the event that
the insured defaults on the loan, the Bank has the right to obtain directly
from the insurance company the unearned insurance premium held by the
insurance company, which can then be applied to the outstanding loan balance
(premiums are earned by the insurance company over the life of the insurance
policy). Each contract is designed to ensure that, at any point during the
term of the underlying policy, the unearned premium under the insurance policy
exceeds the unpaid principal amount due under the contract. Under the terms of
the contract, the insured grants IPF a power of attorney to cancel the policy
in the event the insured defaults under the contract. Upon cancellation, the
insurance company is required by California law to remit the unearned premium
to IPF which, in turn, offsets this amount against any amounts due from the
insured. IPF does not sell or have the risk of underwriting the underlying
insurance policy. IPF seeks to minimize its credit risk by (i) perfecting a
security interest in the unearned premium, (ii) avoiding concentrations of
policies with insurance companies that are below certain industry ratings and
(iii) doing business to date only in California which maintains an insurance
guaranty fund which protect consumers and insurance premium finance companies
against losses from failed insurance companies.
In addition to insurance premiums, IPF will also finance broker fees (i.e.,
fees paid by the insured to the agent). If a policy cancels, the agent repays
any unearned broker fee financed by IPF. Broker fee financing represents
approximately 2% of total loans outstanding. At September 30, 1997,
approximately 75% of all broker fee financing was to a single insurance
agency. When IPF agrees to finance an agent's broker fees, a credit limit is
established for the agent. Generally, agents are required to deposit with the
Bank an amount equal to 25% of its credit limit to mitigate IPF's losses on
broker fees financed. To date, the Bank has not charged-off a broker fee
balance.
The Company's portfolio of insurance premium finance contracts has grown
from 66,247 contracts in the aggregate gross amount of $31.3 million at
September 30, 1996 to 123,371 contracts in the aggregate gross amount of $47.3
million at September 30, 1997, primarily as a result of the adoption in
California of mandatory automobile insurance. These contracts were originated
solely in California by over 450 agents and were secured by policies
underwritten by over 200 insurance companies.
RELATIONSHIP WITH BPN
BPN is headquartered in Chino, California, and markets the Company's
insurance premium finance program under the trade name "ClassicPlan." The
Company believes that IPF it is the second largest provider of financing of
automobile insurance premiums for consumers in California. On a very limited
basis, IPF also finances insurance premiums for businesses purchasing
property, casualty and liability insurance. At September 30, 1997, BPN had
three stockholders and 47 employees.
BPN solicits insurance agents and brokers to submit their clients' financing
requests to the Bank. BPN is responsible for monitoring the agents'
performance, and providing customer service, data processing and collection
services to IPF. The Bank pays fees to BPN for these services. The amount of
these fees is based on the earnings of the loan portfolio, and includes (i)
50% of the interest earned on portfolio loans after the Bank subtracts a
specified floating portfolio interest rate and (ii) 50% of late fees and
returned check fees charged by the Bank. Additionally, BPN and the Bank share
equally (i) certain collection and legal expenses which may occur from time-
to-time, (ii) all net loan losses experienced on the insurance premium loan
portfolio and (iii) all net losses up to $375,000 experienced on the broker
fees loan portfolio. BPN bears losses over $375,000 experienced on the broker
fees loan portfolio.
The stockholders of BPN have entered into certain guaranty agreements in
favor of the Bank whereby they agree to pay any sums owed to the Bank and not
paid by BPN. The total potential liability of the guarantors to the Bank is
limited to $1,250,000. Under these guaranties, all debts of BPN to the
guarantors are subordinated to the full payment of all obligations of BPN to
the Bank.
61
<PAGE>
The Company has entered into an option agreement with BPN and its
stockholders whereby the Company may purchase all of the issued and
outstanding shares of BPN (the "Share Option") and all additional shares of
any BPN affiliate which may be organized outside of California (the "Affiliate
Share Option"). The option period expires March 31, 2005. The Company has
agreed not to exercise the Share Option prior to April 29, 1999 unless BPN or
its stockholders have breached their outstanding agreements with the Company.
Until the date occurring 90 days after delivery to the Company of a notice
stating that BPN has had $30,000,000 or more in loans outstanding for the six
months preceding delivery of such notice, which notice cannot be delivered
prior to October 29, 1999, the Company may exercise the Share Option for
$3,250,000 and must pay a $750,000 noncompete payment to certain stockholders
and key employees of BPN (the "Noncompete Payment"). If the Share Option is
exercised any time thereafter, the Noncompete Payment will be made and the
option exercise price shall be the greater of (a) $3,250,000 or (b) four times
BPN's pre-tax earnings for the twelve complete consecutive calendar months
immediately preceding the date of exercise less the $750,000 Noncompete
Payment. The Affiliate Share Option may not be exercised independently of the
Share Option. The exercise price of the Affiliate Share Option will equal the
sum of four times BPN Affiliate's pre-tax earnings for the twelve month period
prior to exercise.
AUTOMOBILE INSURANCE PREMIUM FINANCE INDUSTRY
Insurance Finance. The private passenger automobile insurance industry in
the United States is estimated by A.M. Best Company ("A.M. Best"), a provider
of independent ratings on the financial strength and claims payment ability of
insurance companies, to have been a $109 billion market in annual premium
volume during 1996, with nonstandard automobile insurance comprising $23
billion of this market. Although reliable data concerning the size and
composition of the personal lines premium finance market is not available, the
Company believes that the industry is highly fragmented with no independent
insurance premium finance company accounting for a significant share of the
market.
The Company believes that the insurance premium finance industry is
attractive for the following reasons: (i) the nonstandard automobile insurance
premium market has grown rapidly in recent years, growing 56.7% over the past
five years; (ii) the insurance premium finance industry is consolidating
nationwide as both producers and insurance companies reduce the number of
their relationships with insurance premium finance companies; and (iii)
additional states may follow California in legislating mandatory insurance
coverage for all motorists. The Company believes that the insurance premium
finance industry in California is somewhat more concentrated than elsewhere in
the nation, with several long-established competitors.
California Insurance Laws. Under current law, automobiles in the state of
California cannot be registered without providing proof of automobile
insurance or posting required bonds with the Department of Motor Vehicles.
In California, as in most states, insurance companies fall into one of two
categories, admitted or non- admitted. All insurance companies licensed to do
business in California are required to be members of the California Insurance
Guarantee Association ("CIGA"), and are classified as "admitted" companies.
CIGA was established to protect insurance policyholders in the event the
company that issued a policy fails financially, and to establish confidence in
the insurance industry. Should an insurance company fail, CIGA is empowered to
raise money by levying member companies. CIGA pays off claims against
insurance companies, which protects both the customer and the premium
financiers should an admitted insurance company fail. In such event, CIGA will
refund any unearned premiums. This provides protection to companies, such as
IPF, that provide insurance premium financing. As a result, IPF's policy is to
limit financing of insurance policies issued by non-admitted carriers to less
than 5% of its total portfolio. At September 30, 1997, policies issued by non-
admitted carriers comprised 1.07% of IPF's total portfolio.
Because insurance companies will not voluntarily insure drivers whom they
consider to be excessively high risk, California has a program called the
California Automobile Assigned Risk Program ("CAARP"), to which all admitted
companies writing private passenger automobile insurance policies must belong.
This 43-year-old
62
<PAGE>
program is an insurance plan for high-risk, accident-prone drivers who are
unable to purchase insurance coverage from regular insurance carriers. CAARP
policies are distributed to the admitted companies in proportion to their
share of California's private passenger automobile insurance market. The
companies participating in CAARP do not have any discretion in choosing the
customers they insure under the program. The customers are arbitrarily
assigned to them by CAARP. Although CAARP offers financing of its policy
premiums, its terms are not as competitive as the insurance premium finance
companies and, therefore, many CAARP policies are financed by others. At
September 30, 1997, approximately 32.8% of the insurance policies financed by
IPF were issued under CAARP.
BUSINESS STRATEGY
IPF's business strategy is to profitably increase the volume of contracts
originated and maintained in its portfolio by expanding its relationships with
insurance brokers and agents and insurance companies in California and,
potentially, in other states. IPF intends to implement this strategy by:
. Strengthening its relationships with insurance brokers and agents by
offering a variety of high-quality support services (e.g., computer
hardware and software and customer reports) designed to enable them to
better serve their customers;
. Investing additional resources to ensure IPF's ability to continue to
provide technologically advanced and efficient contract origination and
servicing systems and support services;
. Expanding its other insurance lines of business (e.g., commercial,
property, casualty and liability insurance); and
. Expanding the Company's operations into new states either through the
joint venture with BPN or the acquisition of existing insurance premium
finance businesses in those states.
OPERATING SUMMARY
The following table presents a summary of IPF's key operating and
statistical results for the year ended December 31, 1996 and the nine months
ended September 30, 1997.
<TABLE>
<CAPTION>
AT OR FOR THE
AT OR FOR THE NINE
YEAR ENDED MONTHS ENDED
DECEMBER 31, 1996 SEPTEMBER 30, 1997
----------------- ------------------
(DOLLARS IN THOUSANDS,
EXCEPT PORTFOLIO AVERAGES)
<S> <C> <C>
OPERATING DATA
Loan originations........................ $99,012 $117,119
Loans outstanding at period end.......... $32,058 $ 47,287
Average gross yield(1)................... 19.18% 19.84%
Average net yield(1)..................... 13.62% 14.04%
Allowance for loan losses................ $ 504 $ 605
LOAN QUALITY DATA
Allowance for loan losses (% of loans
outstanding)............................ 1.57% 1.28%
Net charge-offs (% of average loans
outstanding)(2)......................... 0.39% 0.27%
Delinquencies (% of loans
outstanding)(3)......................... 1.18% 1.76%
PORTFOLIO DATA
Average monthly loan originations (number
of loans)............................... 6,986 11,061
Average loan size at origination......... $ 1,180 $ 1,176
Commercial insurance policies (% of loans
outstanding)............................ 1.6% 1.5%
CAARP policies (% of loans outstanding).. 19.8% 32.8%
Cancellation rate (% of premiums
financed)............................... 45.0% 44.0%
</TABLE>
- --------
(1) Gross yield represents total rates and fees paid by the borrower. Net
yield represents the yield to the Bank after interest and fee sharing with
BPN.
(2) Includes only the Bank's 50% share of charge-offs. Information for the
nine months ended September 30, 1997 is annualized for comparability with
year end information.
(3) This statistic measures delinquencies on canceled policy balances. Since
IPF seeks recovery of unearned premiums from the insurance companies,
which can take up to 90 days, loans are not considered delinquent until
more than 90 days past due.
63
<PAGE>
PRODUCTS AND PRICING
IPF charges 18% to 20% annualized interest (depending on the amount
financed) and a $40 processing fee per contract, which the Company believes is
competitive in IPF's industry. In addition, contracts provide for the payment
by the insured of a delinquency charge and, if the default results in
cancellation of any insurance policy listed in the contract, for the payment
of a cancellation charge. Certain of these finance charges and fees are shared
with BPN. See "--Relationship with BPN." The insured makes a minimum 15% down
payment on an annual policy and pays the remainder in a maximum of ten monthly
payments.
IPF designs its programs so that the unearned premium is equal to or greater
than the remaining principal amount due on the contract by requiring a down-
payment and having a contract term shorter than the underlying policy term.
SALES AND MARKETING
IPF currently markets its insurance premium finance program through a
network of over 450 agents, primarily located in Los Angeles, Orange and San
Bernardino counties. Relationships with agents are established by BPN's
marketing representatives. The Company believes that IPF has been able to
attract and maintain its relationship with agents by offering a higher level
of service than its competitors. IPF focuses on providing each agent with up-
to-date information on its customers' accounts, which allows the agent to
service customers' needs and minimize the number of policies that are
canceled. Many of IPF's largest agents have computer terminals provided by BPN
in their offices which allow on-line access to customer information. Agents
for IPF receive their producer fees ($20, equal to 50% of the aforementioned
$40 processing fee per contract) in 30 days, as opposed to some of IPF's
competitors, who hold back 50% of the fee as collateral against early
cancellations. IPF does not require return of this $20 producer fee for early
policy cancellation unless the policy pays off in the first 30 days.
To minimize its exposure to reliance on a limited number of agents, the
Company has instituted portfolio guidelines generally limiting the dollar
amount of contracts originated by any agent to 15% of IPF's total portfolio.
The Company performs a quarterly analysis of all agents based on information
provided by BPN. At September 30, 1997, IPF had one agent that exceeded the
15% portfolio parameter, accounting for 19.2% of IPF's total portfolio.
UNDERWRITING STANDARDS
IPF is a secured lender, and upon default, relies on its security interest
in the unearned premium held by the insurance company. IPF can, however,
suffer a loss on an insurance premium finance contract for four reasons: (i)
loss of all or a portion of the unearned premium due to its failure to cancel
the contract on a timely basis; (ii) an insolvency of the insurance company
holding the unearned premium not otherwise covered by CIGA; (iii) inadequacy
of the unearned premium to cover charges in excess of unpaid principal amount;
and (iv) cost of collection and administration, including the time value of
money, exceeding the unpaid principal and other charges due under the
contract. For the nine months ended September 30, 1997, IPF canceled for
nonpayment contracts representing approximately 44% of all premiums financed.
Careful administration of contracts is critical to protecting IPF against
loss.
Credit applications are taken at the insurance agent's office. Given the
secondary source of repayment on unearned premiums due from the insurance
company on a canceled policy, and in most cases, access to CIGA, IPF does not
carry out a credit investigation of a borrower on loans under $25,000. At
September 30, 1997, IPF had no insurance premium finance loans with an
original principal amount over $25,000.
SERVICING AND COLLECTION
The Company believes that an efficient and accurate servicing and collection
system is the most important management tool that an insurance premium
financing company can use to protect itself from losses as a result
64
<PAGE>
of an insured's default on a contract. The insurance premium finance industry
is acutely time sensitive because insurance premiums are earned each day that
an insurance policy remains in effect, thus reducing, on a daily basis, the
collateral support provided by the unearned premium.
BPN's current computer system is an Advisor 216x, manufactured by Computer
Design Systems, Inc. of Minneapolis. The system uses a UNIX operating system
and is based on RISC architecture. Although this system satisfies IPF's
current requirements for (i) application processing, (ii) payment processing
and collections and (iii) monitoring and reporting, and has significant
capacity remaining, BPN is developing a new generation of Oracle-based
management information system software which will provide complete online,
real- time information processing services. In addition, the system will
provide direct electronic processing of many processing functions that
currently are paper intensive.
Billing Process. A customer's monthly payments are recorded in BPN's
computer system on the date of receipt. BPN's computer system is designed to
provide protection against principal loss by automatically canceling a policy
no later than 18 days after the customer's latest payment due date. If a
payment is not received on its due date, BPN's computer system automatically
prints a notice of intent to cancel and assesses a late fee which is mailed to
the insured and his or her insurance agent stating that payment must be
received within 18 days after the due date or IPF will cancel the insurance
policy. If payment is received within the 18 day period, BPN's computer system
returns the account to normal status.
Collections Process. If IPF does not receive payment within the statutory
period set forth in the notice of intent to cancel, BPN's computer system will
automatically generate a cancellation notice on the next business day,
instructing the insurance company to cancel the insured's insurance policy and
refund any unearned premium directly to IPF for processing.
Although California law requires the insurance company to refund unearned
premiums within 30 days of the cancellation date, most insurance companies pay
on more extended terms. After cancellation, IPF charges certain allowable fees
and continues to earn interest. Although the gross return premium may not
fully cover the fees and accrued interest owed to IPF by the insured,
principal generally is fully covered. Policies which are canceled in the first
two months generally have a greater risk of loss of fees.
IPF charges against income a general provision for possible losses on
finance receivables in such amounts as management deems appropriate. Case-by-
case direct write-offs, net of recoveries on finance receivables, are charged
to IPF's allowance for possible losses. This allowance amount is reviewed
periodically in light of economic conditions, the status of the outstanding
contracts and other factors.
Insurance Company Failure. One of the principal risks involved in financing
insurance premiums is the possible insolvency of an insurance company. Another
risk is that an insurance company's financial circumstances cause it to delay
its refunds of unearned premiums. Either event can adversely affect the yield
to an insurance premium finance company on a contract. Despite the protection
afforded by CIGA, IPF also reviews the ratings assigned to the insurance
companies by A.M. Best or their financial statements. To minimize its exposure
to risks resulting from the insolvency of an insurance company, IPF limits the
number of policies financed that are issued by insurance companies rated "B"
or lower by A.M. Best.
AUTOMOBILE FINANCE
BUSINESS OVERVIEW
The Company entered the subprime automobile finance business in February
1996 through the establishment of United Auto Credit Corporation, a California
corporation ("UACC"), as a subsidiary of the Bank. UACC purchases auto
contracts primarily from dealers in used automobiles, approximately 75% of
which are
65
<PAGE>
independent dealers and 25% of which are franchisees of automobile
manufacturers. The borrowers on contracts purchased by UACC are classified as
subprime because they typically have limited credit histories or credit
histories that preclude them from obtaining loans through traditional sources.
UACC maintains seven branch offices located in California and one each in
Arizona and Utah. At September 30, 1997, UACC's portfolio contained 3,619 auto
contracts in the aggregate gross amount of $32.0 million, excluding unearned
finance charges of $8.8 million.
SUBPRIME AUTOMOBILE FINANCE INDUSTRY
Automobile financing is one of the largest consumer finance markets in the
United States. In general, the automobile finance industry can be divided into
two principal segments: a prime credit market and a subprime credit market.
Traditional automobile finance companies, such as commercial banks, savings
institutions, thrift and loan companies, credit unions and captive finance
companies of automobile manufacturers, generally lend to the most
creditworthy, or so-called prime, borrowers. The subprime automobile credit
market, in which UACC operates, provides financing to borrowers who generally
cannot obtain financing from traditional lenders.
Historically, traditional lenders have not serviced the subprime market or
have done so only through programs that were not consistently available.
Recently, however, independent companies specializing in subprime automobile
financing and subsidiaries of larger financial services companies have entered
this segment of the automobile finance market, but it remains highly
fragmented, with no company having a significant share of the market.
BUSINESS STRATEGY
UACC's business strategy includes controlled growth at the branch level,
with limited volume goals and the gradual addition of new branches. Each
branch is targeted to generate between $650,000 and $750,000 in gross
contracts per month within four months of opening. The Company believes that
UACC's strategy of (i) controlled growth, (ii) disciplined underwriting, (iii)
strong corporate internal audit procedures and (iv) focused servicing and
collection efforts at the branch level, will result in sustainable
profitability and lower levels of delinquency and loss than those experienced
by many of its competitors, whose rapid growth has resulted in portfolio
quality problems.
The Company believes that the subprime automobile finance market is
inconsistently or poorly serviced by the consumer finance industry. As a
result, UACC's strategy is to differentiate itself by providing dealers with
consistent, same day decisions and rapid funding of approved contracts. The
Company believes that UACC is also more flexible than some of its competitors
in financing older, higher mileage vehicles and maintenance warranties. During
the nine months ended September 30, 1997, UACC approved 13.7% and funded 12.2%
of the applications for auto contracts it received.
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<PAGE>
OPERATING SUMMARY
The following table presents a summary of UACC's key operating and
statistical results for the year ended December 31, 1996 and the nine months
ended September 30, 1997.
<TABLE>
<CAPTION>
AT OR FOR THE
AT OR FOR THE YEAR ENDED NINE MONTHS ENDED
DECEMBER 31, 1996 SEPTEMBER 30, 1997
------------------------- ----------------------
(DOLLARS IN THOUSANDS, EXCEPT PORTFOLIO DATA)
<S> <C> <C>
OPERATING DATA
Gross contracts
purchased................ $ 12,133 $ 29,814
Gross contracts
outstanding.............. $ 10,830 $ 32,037
Unearned finance charges.. $ 3,271 $ 8,810
Net contracts
outstanding.............. $ 7,559 $ 23,227
Average purchase
discount................. 10.0% 9.8%
APR to customers.......... 21.0% 21.1%
Allowance for loan
losses................... $ 557 $ 1,500
LOAN QUALITY DATA
Allowance for loan losses
(% of net contracts)..... 7.37% 6.46%
Delinquencies (% of net
contracts)
31-60 days............... 0.38% 0.66%
61-90 days............... 0.34% 0.11%
90+ days................. -- 0.30%
Net charge-offs (% of
average net
contracts)(3)............ 1.50% 4.96%
Repossessions (net) (% of
average net contracts)...... 3.53% 0.92%
PORTFOLIO DATA
Used vehicles............. 98.3% 98.9%
Vehicle age at time of
contract (years)......... 6.4 6.5
Original contract term
(months)................. 37.0 38.2
Gross amount financed to
WSBB(1).................. 119% 116%
Net amount financed to
WSBB(2).................. 109% 104%
Net amount financed per
contract................. $ 7,397 $ 7,478
Down payment.............. 22% 20%
Monthly payment........... $ 269 $ 269
OTHER DATA
Number of offices......... 4 9
Percent of contracts
funded to applications
received................. 15.9% 12.2%
</TABLE>
- --------
(1) WSBB represents Kelly Wholesale Blue Book for used vehicles.
(2) Net amount financed equals the gross amount financed less unearned
finance charges or discounts.
(3) Information for the nine months ended September 30, 1997 is annualized for
comparability to year end information.
PRODUCTS AND PRICING
UACC targets transactions which involve (i) a used automobile with an
average age of five to eight years, (ii) an average original contract term of
38 to 42 months and (iii) an average liquidation period of 24 to 28 months.
The financial profile of the target transaction includes (i) an amount
financed (before taxes, license, warranty and discount) equal to 95% to 100%
of invoice for new vehicles or current WSBB for used vehicles (after tax,
license, warranty and discount, the amount financed is targeted at 105% to
110%), (ii) a contract rate and discount which yields 28.5%, (iii) an amount
financed of $7,000 to $10,000, with a down payment of 15% to 20%, and (iv) a
monthly payment from $225 to $325.
67
<PAGE>
The target profile of a UACC borrower includes (i) time on the job of three
to five years, (ii) time at current residence of three to five years, (iii) a
ratio of total debt to total income of 33% to 37% and (iv) a ratio of total
monthly automobile payments to total monthly income of 12% to 15%.
The application for an auto contract is taken by the dealer. UACC purchases
the auto contract from the dealer at a discount which increases the effective
yield on such contract. For the quarter ended September 30, 1997, the Company
allocated 70% of the discount to the allowance for loan losses, representing
7% of the gross contract amount. Management periodically reviews the portion
of the discount allocated to the allowance for loan losses in light of the
Company's operations.
SALES AND MARKETING
UACC markets its financing program to both independent used automobile
dealers and franchised automobile dealers. UACC's marketing approach
emphasizes scheduled calling programs, marketing materials and consistent
follow-up. The Company uses facsimile software programs to send marketing
materials to established dealers and potential dealers on a twice weekly basis
in each branch market. UACC's experienced local staff seeks to establish
strong relationships with dealers in their vicinity.
UACC solicits business from dealers through its branch managers who meet
with dealers and provide information about UACC's programs, train dealer
personnel in UACC's program requirements and assist dealers in identifying
consumers who qualify for UACC's programs. In order to both promote asset
growth and achieve required levels of credit quality, UACC compensates its
branch managers on a salary with a bonus (up to 20% of base salary per year)
that requires the achievement of delinquency, charge-off, volume and return on
average assets targets established for the branch, as well as satisfactory
audit results.
As of September 30, 1997, UACC directly marketed its programs to dealers
through its nine branch offices in California, Utah and Arizona.
<TABLE>
<CAPTION>
GROSS NUMBER OF CONTRACTS
CONTRACTS PURCHASED
OUTSTANDING OVER THE NINE MONTHS
AT SEPTEMBER 30, ENDED SEPTEMBER 30,
BRANCH LOCATION DATE ESTABLISHED 1997 1997
- --------------- ---------------- ---------------- --------------------
(IN THOUSANDS)
<S> <C> <C> <C>
Irvine, CA............... March 1996 $ 9,841 678
San Diego, CA............ June 1996 6,436 543
Riverside, CA............ September 1996 5,918 630
San Jose, CA............. November 1996 3,920 376
Los Angeles, CA.......... March 1997 3,035 317
San Fernando, CA......... May 1997 1,938 208
Upland, CA............... July 1997 615 67
Salt Lake City, UT....... August 1997 268 31
Phoenix, AZ.............. September 1997 66 9
------- -----
$32,037 2,859
======= =====
</TABLE>
When a UACC branch decides to begin doing business with a dealer, a dealer
profile and investigation worksheet are completed. UACC and the dealer enter
into an agreement that provides UACC with recourse to the dealer in cases of
dealer fraud or a breach of the dealer's representations and warranties. When
UACC holds auto contracts aggregating $50,000 or more from a dealer, UACC
obtains a Dun and Bradstreet Analysis Report for such dealer. Branch
management periodically monitors each dealer's overall performance and
inventory to ensure a satisfactory quality level, and regional managers
regularly conduct audits of the dealer's performance.
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<PAGE>
The following table sets forth certain data for auto contracts purchased by
UACC for the periods indicated.
<TABLE>
<CAPTION>
FOR THE QUARTER ENDED
--------------------------------------------------------------------
JUNE 30, SEPTEMBER 30, DECEMBER 31, MARCH 31, JUNE 30, SEPTEMBER 30,
1996 1996 1996 1997 1997 1997
-------- ------------- ------------ --------- -------- -------------
(DOLLARS IN THOUSANDS, EXCEPT PER CONTRACT AMOUNTS)
<S> <C> <C> <C> <C> <C> <C>
Gross amount of
contracts.............. $2,644 $4,080 $5,409 $7,713 $9,588 $12,513
Average original term of
contracts (months)..... 36.9 36.9 37.0 36.1 38.0 38.2
</TABLE>
At September 30, 1997, 99.0% of UACC's auto contracts were written by
California branch locations. In the quarter ended September 30, 1997, UACC
expanded into Salt Lake City and Phoenix, and UACC intends to open an office
in Portland by the end of 1997. In addition to diversifying its geographic
concentrations, UACC intends to maintain a broad dealer base to avoid
dependence on a limited number of dealers. At September 30, 1997, no dealer
accounted for more than 2.8% of UACC's portfolio and the ten dealers from
which UACC purchased the most contracts accounted for approximately 20.7% of
the portfolio in the aggregate.
UNDERWRITING STANDARDS AND PURCHASE OF CONTRACTS
Underwriting Standards and Purchase Criteria. Dealers submit credit
applications directly to UACC's branches. UACC uses credit bureau reports in
conjunction with information on the credit application to make a final credit
decision or a decision to request additional information. Only credit bureau
reports that have been obtained by UACC are acceptable.
UACC's credit policy places specific accountability for credit decisions
directly within the branches. The branch manager or assistant branch manager
reviews all credit applications. In general, no branch manager will have
credit approval authority for contracts greater than $15,000. Any transaction
that exceeds a branch manager's approval limit must be approved by UACC's
Regional Manager, Operations Manager or President.
Verification. Upon approving or conditioning any application, all required
stipulations are presented to the dealer and must be satisfied before funding.
All dealers are required to provide UACC with written evidence of insurance
in force on a vehicle being financed when submitting the contract for
purchase. Prior to funding a contract, the branch must verify by telephone
with the insurance agent the customer's insurance coverage with UACC as loss
payee. If UACC receives notice of insurance cancellation or non-renewal, the
branch will notify the customer of his or her contractual obligation to
maintain insurance coverage at all times on the vehicle. However, UACC will
not "force place" insurance on an account if insurance lapses and,
accordingly, UACC bears the risk of an uninsured loss in these circumstances.
Post-Funding Quality Reviews. UACC's Regional Manager and Operations Manager
complete quality control reviews of the newly originated auto contracts. These
reviews focus on compliance with underwriting standards, the quality of the
credit decision and the completeness of auto contract documentation.
Additionally, UACC's Regional Manager and Operations Manager complete regular
branch audits that focus on compliance with UACC's policies and procedures and
the overall quality of branch operations and credit decisions.
SERVICING AND COLLECTION
UACC services at the branch level all of the auto contracts it purchases.
Billing Process. UACC sends each borrower a coupon book. All payments are
directed to the customer's respective UACC branch. UACC also accepts payments
delivered to the branch by a customer in person.
69
<PAGE>
Collection Process. UACC's collection policy calls for the following
sequence of actions to be taken with regard to all problem loans: (i) call the
borrower at one day past due; (ii) immediate follow-up on all broken promises
to pay; (iii) branch management review of all accounts at ten days past due;
and (iv) Regional Manager or Operations Manager review of all accounts at 45
days past due.
UACC will consider extensions or modifications in working a collection
problem. All extensions and modifications require the prior approval of the
branch manager, and are monitored by the Operations Manager.
Repossessions. It is UACC's policy to repossess the financed vehicle only
when (i) payments are substantially in default, (ii) the customer demonstrates
an intention not to pay or (iii) the customer fails to comply with material
provisions of the contract. All repossessions require the prior approval of
the branch manager. In certain cases, the customer is able to pay the balance
due or bring the account current, thereby redeeming the vehicle.
When a vehicle is repossessed and sold at an automobile auction or through a
private sale, the sale proceeds are subtracted from the net outstanding
balance of the loan with any remaining amount recorded as a loss. UACC
generally pursues all customer deficiencies.
Allowance for Loan Losses. UACC's policy is to place on non-accrual status
accounts delinquent in excess of 90 days on a contractual basis, and to
reverse all previously accrued but unpaid interest on such accounts. Accounts
that have had their collateral repossessed are placed on non-accrual by the
end of the month in which they are repossessed regardless of delinquency
status. Accounts are not returned to accrual status until they are brought
current.
UACC's policy is to charge-off accounts delinquent in excess of 120 days.
The remaining balance of accounts where the collateral has been repossessed
and sold is charged-off by the end of the month in which the collateral is
sold and the proceeds collected.
Loss reserves based on expected losses over the life of the contract are
established when each contract is purchased from the dealer. The reserve is
deducted from the discount that is taken on each transaction. Loss reserve
analyses are performed regularly to determine the adequacy of current reserve
levels.
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<PAGE>
The following table reflects UACC's losses (i.e., net charge-offs as a
percent of original net contract balances) for each contract pool (defined as
the total dollar amount of net contracts purchased in a given quarter)
purchased since UACC's inception.
<TABLE>
<CAPTION>
QUARTER OF PURCHASE
--------------------------------------------------------------------------------------
1996 1997
------------------------------------------- ------------------------------------------
NUMBER OF
MONTHS SECOND QUARTER THIRD QUARTER FOURTH QUARTER FIRST QUARTER SECOND QUARTER THIRD QUARTER
OUTSTANDING -------------- ------------- -------------- ------------- -------------- -------------
<S> <C> <C> <C> <C> <C> <C>
1....................... 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
2....................... 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
3....................... 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
4....................... 0.0% 0.0% 0.1% 0.1% 0.2%
5....................... 0.0% 0.2% 0.1% 0.3% 0.2%
6....................... 0.1% 0.5% 0.3% 0.6% 0.5%
7....................... 0.6% 1.6% 0.8% 0.9%
8....................... 1.0% 2.1% 1.0% 1.3%
9....................... 1.7% 3.1% 1.4% 1.9%
10...................... 1.9% 3.7% 2.2%
11...................... 3.8% 3.9% 3.2%
12...................... 4.5% 4.9% 3.4%
13...................... 5.3% 5.6%
14...................... 6.8% 6.2%
15...................... 7.4% 7.0%
16...................... 7.4%
17...................... 7.7%
18...................... 7.8%
Original Pool ($000).... $2,030 $2,855 $3,792 $5,505 $6,794 $8,781
====== ====== ====== ====== ====== ======
Remaining Pool ($000)... $ 982 $1,573 $2,434 $4,264 $5,758 $8,145
====== ====== ====== ====== ====== ======
(%).................... 48% 55% 64% 77% 85% 93%
====== ====== ====== ====== ====== ======
</TABLE>
UACC purchased its first auto contracts in March 1996 and, accordingly, a
maximum of 18 months loss history is available at September 30, 1997.
THE BANK
BUSINESS OVERVIEW
The Bank is a federally chartered stock savings bank formed in 1994 to
purchase from the RTC certain assets and to assume certain liabilities of the
Bank's predecessor, Pan American Federal Savings Bank. The Bank has been the
principal funding source to date for the Company's residential mortgage,
insurance premium and automobile finance businesses primarily through its
deposits, FHLB advances and whole loan sales. In addition, the Bank holds a
portfolio of primarily traditional residential mortgage loans acquired at a
discount from the RTC in 1994 and 1995, which loans aggregated $87.2 million
(before unearned discounts and premiums) at September 30, 1997. The Bank has
focused its marketing efforts on building a middle income customer base,
including efforts targeted at local Hispanic communities. The Bank has
bilingual employees in each of its branches, and key members of the Company's
and the Bank's Board of Directors and management are of Hispanic heritage and
are active in communities served by the Bank. In addition to operating its
retail banking business at four branches located in Northern California and
one in Southern California, the Bank provides, subject to appropriate cost
sharing arrangements, compliance, risk management, executive, financial,
facilities
71
<PAGE>
and human resources management to other business units of the Company. The
business of the Bank is subject to substantial governmental supervision and
regulatory requirements. See "Business--Supervision and Regulation--Federal
Savings Bank Regulation."
COMPETITION
Each of the Company's businesses is highly competitive. Competition in the
Company's markets can take many forms, including convenience in obtaining a
loan, customer service, marketing and distribution channels, amount and terms
of the loan, loan origination fees and interest rates. Many of the Company's
competitors are substantially larger and have considerably greater financial,
technical and marketing resources than the Company. The Company's competitors
in subprime mortgage finance include other consumer finance companies,
mortgage banking companies, commercial banks, credit unions, savings
associations and insurance companies. The Company competes in the insurance
premium finance business with other specialty finance companies, independent
insurance agents who offer premium finance services, captive premium finance
affiliates of insurance companies and direct bill plans established by
insurance companies. The Company competes in the subprime automobile finance
industry with commercial banks, the captive finance affiliates of automobile
manufacturers, savings associations and companies specializing in subprime
automobile finance, many of which have established relationships with
automobile dealerships and may offer dealerships or their customers other
forms of financing, including dealer floor plan financing and lending, which
are not offered by the Company. In attracting deposits, the Bank competes
primarily with other savings institutions, commercial banks, brokerage firms,
mutual funds, credit unions and other types of investment companies.
The profitability of the Company's lending activities and the low barriers
to entry could attract additional competitors. Certain large, national finance
companies and mortgage originators have announced their intention to adapt
their mortgage loan origination programs and allocate resources to the
origination of subprime loans. The Company and its competitors may also face
increasing competition from government-sponsored entities, such as FNMA and
FHLMC. FHLMC currently purchases what it terms "Alternative-A" mortgage loans
and has announced its intention to purchase what it terms "A-" mortgage loans
by the end of 1997. In addition, FHLMC has expressed its intention to purchase
so-called "B" and "C" mortgage loans in the future. FHLMC also has purchased
securities backed by subprime mortgage loans and has re-securitized them for
resale. Additional competition may lower the rates the Company can charge
borrowers, reduce the volume of the Company's loan originations and increase
demand for the Company's key employees with the potential that such employees
will leave the Company for its competitors.
Fluctuations in interest rates and general and localized economic conditions
also may affect the competition the Company faces. Competitors with lower
costs of capital have a competitive advantage over the Company. During periods
of declining interest rates, competitors may solicit the Company's customers
to refinance their loans. In addition, during periods of economic slowdown or
recession, the Company's borrowers may face financial difficulties and be more
receptive to offers of the Company's competitors to refinance their loans.
As the Company seeks to expand into new geographic markets, it will face
additional competition from lenders already established in these markets.
There can be no assurance that the Company will be able to compete
successfully with these lenders.
SUPERVISION AND REGULATION
Set forth below is a brief description of various laws and regulations
affecting the operations of the Company and its subsidiaries. The description
of laws and regulations contained herein does not purport to be complete and
is qualified in its entirety by reference to applicable laws and regulations.
Any change in applicable laws, regulations or regulatory policies may have a
material effect on the business, operations, and prospects of the Company.
72
<PAGE>
HOLDING COMPANY REGULATION
The Company is a savings and loan holding company within the meaning of the
Home Owners' Loan Act, as amended ("HOLA"). For purposes of this discussion,
the description of holding company regulation also applies to Pan American
Financial, Inc., a direct subsidiary of the Company and the parent of the
Bank. The Company has registered with the OTS and is subject to OTS
regulation, examination, supervision, and reporting requirements. In addition,
the OTS has enforcement authority over the Company and its non-savings
institution subsidiaries. Among other things, this authority permits the OTS
to restrict or prohibit activities that are determined to be a serious risk to
the Bank. In addition, the Bank must notify the OTS at least 30 days before
making any distribution to the Company and the OTS has the authority to
preclude a savings association from paying a dividend under certain
circumstances. See "--Federal Savings Bank Regulations--Limitations on Capital
Distributions."
HOLA prohibits a savings and loan holding company, directly or indirectly
through one or more subsidiaries, from (i) acquiring another savings
institution or holding company thereof, without prior written approval of the
OTS, (ii) acquiring or retaining, with certain exceptions, more than 5% of the
voting shares of a nonsubsidiary savings institution, a nonsubsidiary holding
company, or a nonsubsidiary company engaged in activities other than those
permitted by HOLA, or (iii) acquiring or retaining control of a savings
institution that is not federally insured. In evaluating applications by
holding companies to acquire savings institutions, the OTS must consider the
financial and managerial resources and future prospects of the Company and
institution involved, the effect of the acquisition on the risk to the
insurance funds, the convenience and needs of the community, and competitive
factors.
As a holding company that controls only one savings association, the Company
generally is not restricted under existing laws as to the types of business
activities in which it may engage, provided that the Bank continues to be a
"qualified thrift lender" under HOLA ("QTL"). Upon any nonsupervisory
acquisition by the Company of another savings association or savings bank that
meets the QTL test and is deemed to be a savings institution by OTS, the
Company would become a multiple savings and loan holding company (if the
acquired institution is held as a separate subsidiary) and would be subject to
extensive limitations on the types of business activities in which it could
engage. HOLA generally limits the activities of a multiple savings and loan
holding company and its uninsured institution subsidiaries primarily to
activities permissible for bank holding companies under Section 4(c)(8) of the
Bank Holding Company Act of 1956, as amended (the "BHC Act"), subject to the
prior approval of the OTS, and activities authorized by OTS regulation.
Legislation has been proposed that would impose limits on the non-banking
activities of companies that acquire savings associations. It is anticipated
that the Company's holding company status would be "grandfathered" under such
legislation, but there can be no assurance that the Company would be exempt
from such limits. Furthermore, any available grandfathering might not continue
to be available to the Company as a result of a possible merger of the federal
banking agencies. Several proposals have been introduced in Congress over the
past several years. If the OTS and Office of the Comptroller of the Currency
were merged, as one proposal would require, the federal thrift charter would
be eliminated. If adopted, such a proposal would require that the Bank become
a national bank and would subject it to regulation as such. One effect of such
a requirement would be that the Bank could not engage in activities not
permitted for national banks unless such activities were grandfathered. In
addition, the ability to branch interstate would become subject to the
restrictions of the Riegle-Neal Interstate Banking and Branching Efficiency
Act of 1994 ("Riegle Act"). Accordingly, any out-of-state branches of the Bank
in existence upon the effectiveness of such a proposal that are not
permissible under the Riegle Act and, if not grandfathered, could be required
to be divested. There are also some benefits to such a charter conversion. For
example, the Bank would not, under regulations currently applicable to
national banks, be subject to the QTL test described below.
Federal law generally provides that no company may acquire control of a
federally insured savings institution without obtaining the approval of the
OTS. Such acquisitions of control may be disapproved if it is determined,
among other things, that the acquisition would substantially lessen
competition or the financial and managerial resources and further prospects of
the acquiror and savings institution involved or that the acquisition would be
detrimental to the institution or present enhanced insurance risk to the SAIF
or Bank Insurance Fund ("BIF").
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REGULATION OF MORTGAGE FINANCE OPERATION
The consumer financing industry is a highly regulated industry. UPAM's
business is subject to extensive and complex rules and regulations of, and
examinations by, various federal, state and local government authorities.
These rules and regulations impose obligations and restrictions on UPAM's loan
origination, credit activities and secured transactions. In addition, these
rules limit the interest rates, finance charges and other fees UPAM may
assess, mandate extensive disclosure to UPAM's customers, prohibit
discrimination and impose multiple qualification and licensing obligations on
UPAM. Failure to comply with these requirements may result in, among other
things, demands for indemnification or mortgage loan repurchases, certain
rights of rescission for mortgage loans, class action lawsuits, administrative
enforcement actions and civil and criminal liability. Management of UPAM
believes that UPAM is in compliance with these rules and regulations in all
material respects.
UPAM's loan origination activities are subject to the laws and regulations
in each of the states in which those activities are conducted. For example,
state usury laws limit the interest rates UPAM can charge on its loans. UPAM
presently is in the process of applying for licenses in California and other
states in which such licenses are required to conduct UPAM's activities. Until
such licenses are obtained, all such activities are being conducted by the
Bank or, to the extent permitted by such licensing laws, by UPAM as agent of
the Bank. UPAM's lending activities are also subject to various federal laws,
including those described below.
UPAM is subject to certain disclosure requirements under TILA and the
Federal Reserve Board's Regulation Z promulgated thereunder. TILA is designed
to provide consumers with uniform, understandable information with respect to
the terms and conditions of loan and credit transactions. TILA also guarantees
consumers a three-day right to cancel certain credit transactions, including
loans of the type originated by UPAM. Such three-day right to rescind may
remain unexpired for up to three years if the lender fails to provide the
requisite disclosures to the consumer.
UPAM is also subject to the High Cost Mortgage Act, which makes certain
amendments to TILA. The High Cost Mortgage Act generally applies to consumer
credit transactions secured by the consumer's principal residence, other than
residential mortgage transactions, reverse mortgage transactions or
transactions under an open end credit plan, in which the loan has either (i)
total points and fees upon origination in excess of the greater of eight
percent of the loan amount or $400 or (ii) an annual percentage rate of more
than ten percentage points higher than United States Treasury securities of
comparable maturity ("Covered Loans"). The High Cost Mortgage Act imposes
additional disclosure requirements on lenders originating Covered Loans. In
addition, it prohibits lenders from, among other things, originating Covered
Loans that are underwritten solely on the basis of the borrower's home equity
without regard to the borrower's ability to repay the loan and including
prepayment fee clauses in Covered Loans to borrowers with a debt-to-income
ratio in excess of 50% or Covered Loans used to refinance existing loans
originated by the same lender. The High Cost Mortgage Act also restricts,
among other things, certain balloon payments and negative amortization
features. UPAM commenced originating Covered Loans during 1996.
UPAM is also required to comply with ECOA and the Federal Reserve Board's
Regulation B promulgated thereunder, FCRA, RESPA and HMDA. Regulation B
restricts creditors from requesting certain types of information from loan
applicants. FCRA requires lenders, among other things, to supply an applicant
with certain disclosures concerning settlement fees and charges and mortgage
servicing transfer practices. It also prohibits the payment or receipt of
kickbacks or referral fees in connection with the performance of settlement
services. In addition, beginning with loans originated in 1994, UPAM must file
an annual report with the Department of Housing and Urban Development pursuant
to HMDA, which requires the collection and reporting of statistical data
concerning loan transactions.
In the course of its business, UPAM may acquire properties securing loans
that are in default. There is a risk that hazardous or toxic waste could be
found on such properties. In such event, UPAM could be held responsible for
the cost of cleaning up or removing such waste, and such cost could exceed the
value of the underlying properties.
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Because UPAM's business is highly regulated, the laws, rules and regulations
applicable to UPAM are subject to regular modification. There are currently
proposed various laws, rules and regulations which, if adopted, could
materially affect UPAM's business. There can be no assurance that these
proposed laws, rules and regulations, or other such laws, rules or
regulations, will not be adopted in the future which could make compliance
much more difficult or expensive, restrict UPAM's ability to originate, broker
or sell loans, further limit or restrict the amount of commissions, interest
and other charges earned on loans originated, brokered or sold by UPAM, or
otherwise adversely affect the business or prospects of UPAM.
REGULATION OF INSURANCE PREMIUM FINANCE COMPANIES
The auto insurance premium finance industry is subject to state regulation.
The regulatory structure of each state places certain restrictions on the
terms of loans made to finance insurance premiums. These restrictions, among
other things, generally provide that the lender must provide certain
cancellation notices to the insured and the insurer in order to exercise an
assigned right to cancel an automobile insurance policy in the event of a
default under an insurance premium finance agreement and to obtain in
connection therewith a return from the insurer of any unearned premiums that
have been assigned by the insured to the lender. Such state laws also require
that certain disclosures be delivered by the insurance agent or broker
arranging for such credit to the insured regarding the amount of compensation
to be received by such agent or broker from the lender.
REGULATION OF SUBPRIME AUTOMOBILE LENDING
UACC's automobile lending activities are subject to various federal and
state consumer protection laws, including TILA, ECOA, FCRA, the Federal Fair
Debt Collection Practices Act, the Federal Trade Commission Act, the Federal
Reserve Board's Regulations B and Z, and state motor vehicle retail
installment sales acts, retail installment sales acts and other similar laws
regulate the origination and collection of consumer receivables and impact
UACC's business. These laws, among other things, (i) require UACC to obtain
and maintain certain licenses and qualification; (ii) limit the finance
charges, fees and other charges on the contracts purchased; (iii) require UACC
to provide specified disclosures to consumers; (iv) limit the terms of the
contracts; (v) regulate the credit application and evaluation process; (vi)
regulate certain servicing and collection practices; and (vii) regulate the
repossession and sale of collateral. These laws impose specific statutory
liabilities upon creditors who fail to comply with their provisions and may
give rise to defense to payment of the consumer's obligation. In addition,
certain of the laws make the assignee of a consumer installment contract
liable for the violations of the assignor. See "--Regulation of Mortgage
Finance Operation."
Each dealer agreement contains representations and warranties by the dealer
that, as of the date of assignment, the dealer has compiled with all
applicable laws and regulations with respect to each contract. The dealer is
obligated to indemnify UACC for any breach of any of the representations and
warranties and to repurchase any non-conforming contracts. UACC generally
verifies dealer compliance with usury laws, but does not audit a dealer's full
compliance with applicable laws. There can be no assurance that UACC will
detect all dealer violations or that individual dealers will have the
financial ability and resources either to repurchase contracts or indemnify
UACC against losses. Accordingly, failure by dealers to comply with applicable
laws, or with their representations and warranties unless the dealer
agreement, could have a material adverse effect on UACC.
UACC believes it is currently in compliance in all material respects with
applicable laws, but there can be no assurance that UACC will be able to
maintain such compliance. The failure to comply with such laws, or a
determination by a court that UACC's interpretation of any such law was
erroneous, could have a material adverse effect upon UACC. Furthermore, the
adoption of additional laws, changes in the interpretation and enforcement of
current laws or the expansion of UACC's business into jurisdictions that have
adopted more stringent regulatory requirements than those in which UACC
currently conducts business, could have a material adverse effect upon UACC.
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If a borrower defaults on a contract, UACC, as the servicer of the contract,
is entitled to exercise the remedies of a secured party under the Uniform
Commercial Code (the "UCC"), which typically includes the right to
repossession by self-help unless such means would constitute a breach of
peace. The UCC and other state laws regulate repossession and sales of
collateral by requiring reasonable notice to the borrower of the date, time
and place of any public sale of collateral, the date after which any private
sale of the collateral may be held and the borrower's right to redeem the
financed vehicle prior to any such sale, and by providing that any such sale
must be conducted in a commercially reasonable manner. Financed vehicles
repossessed generally are resold by UACC through unaffiliated wholesale
automobile networks or auctions which are attended principally by used
automobile dealers.
FEDERAL SAVINGS BANK REGULATION
Business Activities. The activities of savings associations are governed by
HOLA and, in certain respects, the Federal Deposit Insurance Act, as amended
("FDI Act"). HOLA and the FDI Act were amended by the Financial Institutions
Reform, Recovery and Enforcement Act of 1989, as amended ("FIRREA"), and the
Federal Deposit Insurance Corporation Act of 1991 ("FDICIA"). FIRREA was
enacted to resolve issues relating to problem institutions, including thrifts,
establish a new thrift insurance fund, reorganize the regulatory structure
applicable to savings associations and impose bank-like standards on savings
associations. FDICIA, among other things, requires that federal banking
agencies intervene promptly when a depository institution experiences
financial difficulties, mandates the establishment of a risk-based deposit
insurance assessment system, and requires imposition of numerous additional
safety and soundness operational standards and restrictions. Both FIRREA and
FDICIA contain provisions affecting numerous aspects of the operations and
regulations of federally insured savings associations and empower the OTS and
the FDIC, among other agencies, to promulgate regulations implementing their
provisions.
Provisions of the federal banking statutes, as amended by FIRREA and FDICIA,
among other matters (i) restrict the use of brokered deposits by savings
associations that are not well capitalized, (ii) prohibit the acquisition of
any corporate debt security that is not rated in one of the four highest
rating categories, (iii) subject to OTS waiver, restrict the aggregate amount
of loans secured by non-residential real estate property to 400% of total
capital, (iv) permit savings and loan holding companies to acquire up to 5% of
the voting shares of non- subsidiary savings associations or savings and loan
holding companies without prior approval, (v) permit bank holding companies to
acquire healthy savings associations, (vi) require the federal banking
agencies to establish by regulation standards for extensions of credit secured
by real estate, and (vii) restrict transactions between a savings association
and its affiliates.
Loans to One Borrower. Under HOLA, savings associations are generally
subject to the national bank limits on loans to one borrower. Generally, a
savings institution may not make a loan or extend credit to a single or
related group of borrowers in excess of 15% of the institution's unimpaired
capital and surplus. An additional amount may be lent, equal to 10% of
unimpaired capital and surplus, if such loan is fully secured by readily
marketable collateral, which is defined to include certain securities and
bullion, but generally does not include real estate.
QTL Test. Savings associations that do not meet a QTL test are subject to
certain restrictions. Any savings institution is a QTL if (i) it qualifies as
a domestic building and loan association under Section 7701(a)(19) of the
Internal Revenue Code (which generally requires that at least 60% of the
institution's assets constitute loans secured by residential real estate or
deposits, educational loans, cash or certain governmental obligations) or (ii)
at least 65% of its "portfolio assets" (total assets less (a) specified liquid
assets up to 20% of total assets, (b) intangibles, including goodwill, and (c)
the value of property used to conduct business) consist of certain "qualified
thrift investments" (primarily residential mortgages and related investments,
including certain mortgage-backed and related securities) on a monthly basis
in nine out of every 12 months.
A savings association that fails the QTL test for four or more months out of
the prior 12-month period must either convert to a bank charter or operate
under certain restrictions. If the savings association does not convert
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to a national bank charter, generally it will be prohibited from: (i) making
any new investment or engaging in any new activity not permissible for a
national bank; (ii) paying dividends not permissible under national bank
statutes and regulations; (iii) obtaining any new advances from any FHLB; and
(iv) establishing any new branch office in a location not permissible for a
national bank with its head office located in the association's home state.
Any bank chartered as a result of failure of the QTL test must pay exit and
entrance fees as a consequence of leaving the SAIF and entering the BIF as
further described below. In addition, beginning three years after the
association fails the QTL test, the association will be prohibited from
engaging in any activity or retaining any investment not permissible for a
national bank and will have to repay any outstanding advances from the FHLB as
promptly as possible consistent with safety and soundness. One year from the
date the association fails the QTL test, any holding company that controls the
association must register as and be deemed to be a bank holding company,
subject to the restrictions and limitations of the BHC Act, and to the
regulations of the Federal Reserve. The Company believes that the Bank met the
QTL test at September 30, 1997.
Limitation on Capital Distributions. OTS regulations impose limitations upon
all capital distributions by savings associations, such as cash dividends,
payments to repurchase or otherwise acquire its shares, payments to
shareholders of another institution in a cash-out merger and other
distributions charged against capital. The rule establishes three tiers of
associations that are based primarily on an institution's capital level. An
institution that has capital which is equal to or exceeds all capital
requirements before and after a proposed capital distribution ("Tier I
Institution") and has not been advised by the OTS that it is in need of more
than normal supervision, could, after prior notice but without the approval of
the OTS, make capital distributions during a calendar year equal to the
greater of (i) 100% of its net income to date during the calendar year plus
the amount that would reduce by one-half its "surplus capital ratio" (the
excess capital over its risk based capital requirements) at the beginning of
the calendar year or (ii) 75% of its net income for the previous four
quarters. Any additional capital distributions would require prior regulatory
approval. If the Bank's capital falls below its capital requirements or the
OTS notifies it that it is in need of more than normal supervision, the Bank's
ability to make capital distributions could be restricted. In addition, the
OTS could prohibit a proposed capital distribution by any institution, that
would otherwise be permitted by the regulation, if the OTS determines that
such distribution would constitute an unsafe or unsound practice. At September
30, 1997, the Bank was a Tier I Institution. See "Risk Factors--Risks
Associated With the Company and the Offering--Absence of Dividends" and
"Dividend Policy."
Liquidity. The Bank must maintain an average daily balance of liquid assets
and short-term liquid assets equal to a monthly average of not less than
specified percentages of its net withdrawable deposit accounts plus short-term
borrowings. This liquidity requirement may be changed from time to time by the
OTS. Monetary penalties may be imposed for failure to meet these liquidity
requirements. The Bank has never failed to meet its liquidity requirements.
Classification of Assets. Savings institutions are required to classify
their assets on a regular basis, establish appropriate allowances for losses
and report the results of such classification quarterly to the OTS. A savings
institution is also required to set aside adequate valuation allowances and
establish liabilities for off-balance sheet items, such as letters of credit,
when a loss becomes probable and estimable. The OTS has the authority to
review the institution's classification of its assets and to determine whether
additional assets must be classified or the institution's valuation allowances
must be increased.
Community Reinvestment. Under the Community Reinvestment Act (the "CRA"), as
implemented by OTS regulations, a savings institution has a continuing and
affirmative obligation consistent with its safe and sound operation to help
meet the credit needs of its entire community, including low- and moderate-
income neighborhoods. The CRA does not establish specific lending requirements
or programs for financial associations nor does it limit an institution's
discretion to develop the types of products and services that it believes are
best- suited to its particular community. The CRA requires the OTS, in
connection with its examination of a savings institution, to assess the
institution's record of meeting the credit needs of its community and to take
such record
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into account in evaluating certain applications by such institution. The CRA
also requires all associations to publicly disclose their CRA rating. The Bank
received a CRA rating of "satisfactory" in its most recent examination.
Insurance of Accounts and Regulation by the FDIC. The Bank is a member of
the SAIF, which is administered by the FDIC. Savings deposits are insured up
to $100,000 by the FDIC per insured member (as defined by law and regulation).
Such insurance is backed by the full faith and credit of the United States. As
insurer, the FDIC imposes deposit insurance assessments and is authorized to
conduct examinations of, and to require reporting by, FDIC-insured
institutions. It also may prohibit any FDIC-insured institution from engaging
in any activity the FDIC determines by regulation or order to pose a serious
risk to the FDIC. The FDIC also may initiate enforcement actions against
savings associations and may terminate the deposit insurance if it determines
that the institution has engaged or is engaging in unsafe or unsound
practices, or is in an unsafe or unsound condition.
FDICIA required the FDIC to implement a risk-based deposit insurance
assessment system. Pursuant to this requirement, the FDIC has adopted a risk-
based assessment system under which all SAIF-insured depository associations
are placed into one of nine categories and assessed insurance assessments
based upon their level of capital and supervisory evaluation. Under this
system, associations classified as well capitalized and considered healthy pay
the lowest assessment while associations that are less than adequately
capitalized and considered of substantial supervisory concern pay the highest
assessment. In addition, under FDICIA, the FDIC may impose special assessments
on SAIF members to repay amounts borrowed from the United States Treasury or
for any other reason deemed necessary by the FDIC. The FDIC may increase
assessment rates, on a semiannual basis, if it determines that the reserve
ratio of the SAIF will be less than the designated reserve ratio of 1.25% of
SAIF insured deposits. In setting these increased assessments, the FDIC must
seek to restore the reserve ratio to that designated reserve level, or such
higher reserve ratio as established by the FDIC. Presently, well capitalized
institutions, such as the Bank, are not required to pay these special
assessments.
By contrast, financial institutions that are members of the BIF, which had
higher reserves and previously did not have an obligation to pay interest on
debt to the Financial Corporation ("FICO"), had certain competitive
advantages. The disparity in deposit insurance assessments between SAIF and
BIF members was exacerbated by the statutory requirement that both the SAIF
and the BIF funds be recapitalized to a 1.25% reserved deposits ratio and that
a portion of most thrifts' deposit insurance assessments be used to service
bonds issued by FICO.
To address this rate disparity, on September 30, 1996, the President signed
legislation intended to enable the SAIF to reach the designated reserve ratio.
The legislation provided for a one-time special assessment of 0.657% to be
imposed upon all SAIF deposits as of March 31, 1995. Based on the Bank's SAIF
deposits as of March 31, 1995, the cost of the one-time special assessment was
approximately $820,000 (pre-tax). This amount was accrued in December 1996 and
paid in June 1997.
The legislation also provides for BIF members to service a growing portion
of the FICO bond payments. Until January 1, 2000, annual assessments of .013%
of BIF deposits and .0648% of SAIF deposits will service the annual payments
due on the FICO bonds. Accordingly, the Bank's assessment rate on the FICO
bonds is .0648% of the deposits. This legislation provides for subsequent full
pro rata sharing of FICO bond payments by BIF and SAIF institutions.
Accordingly, the effect of this legislation has been to lessen the competitive
advantage of BIF members over SAIF members because of the disparity in deposit
insurance assessments and FICO payments. The legislation called for a merger
of the SAIF and BIF as of January 1, 1999, but only if the thrift charter has
been eliminated.
The financing corporations created by FIRREA and the Competitive Equality
Banking Act of 1987 are also empowered to assess premiums on savings
associations to help fund the liquidation or sale of troubled associations.
Such premiums cannot, however, exceed the amount of SAIF assessments and are
paid in lieu thereof.
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Transactions With Related Parties. The Bank's authority to engage in
transactions with related parties or "affiliates" (i.e., any company that
controls or is under common control with an institution with certain
exceptions) is limited by Sections 23A and 23B of the Federal Reserve Act
("FRA") and Section 11 of HOLA. Section 23A limits the aggregate amount of
covered transactions with any individual affiliate to 10% of the capital and
surplus of the savings institution and also limits the aggregate amount of
transactions with all affiliates to 20% of the savings institution's capital
and surplus. Certain transactions with affiliates are required to be secured
by collateral in an amount and of a type described in Section 23A and the
purchase of low-quality assets from affiliates is generally prohibited.
Section 23B generally requires that certain transactions with affiliates,
including loans and asset purchases, must be on terms and under circumstances,
including credit standards, that are substantially the same or at least as
favorable to the institution as those prevailing at the time for comparable
transactions with non-affiliated companies. Notwithstanding Sections 23A and
23B, Section 11 of HOLA prohibits savings institutions from lending to any
affiliate that is engaged in activities that are not permissible for bank
holding companies under Section 4(c) of the BHC Act. Further, no savings
institution may purchase the securities of any affiliate other than a
subsidiary.
Enforcement. Under the FDI Act, the OTS has primary enforcement
responsibility over savings associations such as the Bank and has the
authority to bring enforcement action against all "institution-related
parties," including shareholders, attorneys, appraisers, and accountants who
knowingly or recklessly participate in wrongful action that caused or is
likely to cause more than a minimal financial loss to, or a significant
adverse effect on, an insured depository institution. Civil penalties cover a
wide range of violations and actions and range up to $25,000 per day unless a
finding of reckless disregard is made, in which case fines of up to $1 million
per day are permitted. Criminal penalties for most financial institution
crimes include fines of up to $1 million and imprisonment for up to 30 years.
In addition, regulators have substantial discretion to take enforcement action
against an institution that fails to comply with its regulatory requirements,
particularly with respect to the capital requirements. Possible enforcement
action ranges from the imposition of a capital plan and capital directive to
receivership, conservatorship or the termination of deposit insurance. Under
the FDI Act, the FDIC has the authority to recommend to the Director of the
OTS that enforcement action be taken with respect to a particular savings
institution. If action is not taken by the Director, the FDIC has authority to
take such action under certain circumstances. The Bank is not presently
subject to any of the foregoing enforcement actions.
Standards for Safety and Soundness. FDICIA requires each federal banking
agency to prescribe for all insured depository institutions and, to some
extent, their holding companies standards relating to internal controls,
information systems and audit systems, loan documentation, credit
underwriting, interest rate risk exposure, asset growth, and compensation,
fees and benefits, and such other operational and managerial standards as the
agency deems appropriate. In addition, federal banking regulatory agencies are
required to prescribe by regulation: (i) maximum classified assets to capital
ratios; (ii) minimum earnings sufficient to absorb losses without impairing
capital; (iii) to the extent feasible, a minimum ratio of market value to book
value for publicly traded shares of depository institutions or the depository
institution holding companies; (iv) standards for extensions of credit secured
by real estate or made for the purpose of financing the construction of
improvements on real estate; and (v) such other standards relating to asset
quality, earnings, and valuation as the agency deems appropriate. Finally,
each federal banking agency is required to prescribe standards for employment
contracts and other compensation arrangements of executive officers,
employees, directors, and principal shareholders of insured depository
associations that would prohibit compensation, benefits and arrangements that
are excessive or that could lead to a material financial loss for the
institution. If an insured depository institution or its holding company fails
to meet any of the standards described above, it must submit to the
appropriate federal banking agency a plan specifying the steps that will be
taken to cure the deficiency. If an institution fails to submit an acceptable
plan or fails to implement the plan, the appropriate federal banking agency
will require the institution or holding company to correct the deficiency and,
until corrected, may impose restrictions on the institution or the holding
company, including any of the restrictions applicable under the prompt
corrective action provisions of FDICIA. See "--Prompt Corrective Action."
Capital Requirements. FDICIA added a provision establishing "capital
categories" in order to facilitate prompt corrective action by federal banking
regulators. The purpose of this amendment is to impose more
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scrutiny and restrictions on institutions, and to prohibit savings
institutions from making capital distributions or paying certain management
fees that would leave the institution undercapitalized. FDICIA established
five capital categories for this purpose:
. An institution will be deemed to be well-capitalized if it (i) has a
total risk-based capital ratio of 10% or more, (ii) has a Tier 1 risk-
based capital ratio of 6% or more, (iii) has a leverage ratio of 5% or
more and (iv) is not subject to any regulatory order or directive
regarding capital.
. An institution will be deemed to be adequately capitalized if it (i) has
a total risk-based capital ratio of at least 8%, (ii) has a Tier I risk-
based capital ratio of at least 4%, and (iii) subject to certain
exceptions, has a leverage ratio of at least 4%.
. An institution will be deemed to be undercapitalized if it (i) has a
total risk-based capital ratio of less than 8%, (ii) has a Tier I risk-
based capital ratio that is less than 4%, or (iii) subject to certain
exceptions, has a leverage ratio of less than 4%.
. An institution will be deemed to be significantly undercapitalized if it
(i) has a total risk-based capital ratio of less than 6%, (ii) has a
Tier I risk-based capital ratio of less than 3%, or (iii) has a leverage
ratio of less than 3%.
. An institution will be deemed to be critically undercapitalized if it
has a ratio of tangible equity to total assets of less than 2%.
Rechartering Legislation. Legislation enacted in 1996 provides that the BIF
and SAIF will merge on January 1, 1999, if there are no savings associations,
as defined, in existence on that date. Pursuant to that legislation, the
Department of Treasury in May 1997 recommended in a report to Congress that
the separate charters for thrifts and banks be abolished. Various proposals to
eliminate the federal thrift charter, create a uniform financial institutions
charter, conform holding company regulation and abolish the OTS have been
introduced in Congress. The House Committee on Banking and Financial Services
(the "Banking Committee") has considered and reported H.R. 10, the Financial
Services Competition Act of 1997, including Title III, the "Thrift Charter
Transition Act of 1997" ("Title III"). If enacted, Title III will require
federal savings associations to convert to national banks or some type of
state charter within two years of enactment or they would automatically become
national banks. On the earlier of January 1, 2000, or two years after the date
of enactment, the BIF and SAIF will merge. Two years after enactment, HOLA
will be repealed and the OTS will be abolished. Within nine months of
enactment, the Secretary of the Treasury will adopt a plan for the combination
of the OTS and the Office of the Comptroller of the Currency into a single
agency. Converted federal thrifts generally will be permitted to continue to
engage in any activity, including the holding of any asset, lawfully conducted
on the date prior to enactment. A federal savings association converted to a
national bank may retain all branches established or proposed in a pending
application as of enactment and establish new branches in any state in which
it has a branch. Otherwise, it may establish new branches only under national
bank rules. In addition, beginning two years after enactment, national banks
will be authorized to exercise all powers formerly authorized for federal
savings associations.
Under Title III, holding companies for converted savings associations
generally will become subject to the same regulation as holding companies that
control commercial banks, with a grandfather provision for former unitary
savings and loan holding companies. Such grandfathered companies will be
permitted to maintain and establish affiliations with any type of company and
to acquire additional depository institutions, as long as any acquired
depository institution is merged into its converted savings association and
such institution continues to comply with both the qualified thrift lender
test and certain asset and investment limitations to which it was subject as a
federal savings association. Such a converted holding company would be subject
to the same capital requirements, if any, applicable under OTS regulation if
it were a savings and loan holding company on June 19, 1997, and for three
years would be subject to substantially similar regulation, reporting and
examination as implemented by the OTS as of January 1, 1997.
Title III provides for the continuation of adjustable rate mortgage indices
used by converted savings associations, including cost-of-funds indices, if
calculation of the index could not be made by the terms of the governing
instrument as a result of changes made by Title III. Title III also makes
significant changes in the
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<PAGE>
operation of the FHLB system, including the types of stock that may be issued
by FHLBs to members and borrowers and FHLB capitalization, management,
investments and lending. Effective January 1, 1999, federal savings
associations will be permitted to be voluntary members and stockholders of a
FHLB.
The Company is unable to predict whether Title III or any other such
legislation will be enacted, what the provisions of any such final legislation
may be, or the extent to which the legislation would restrict, disrupt or
otherwise have a material effect on the Company's operations.
Under House rules, the House Commerce Committee (the "Commerce Committee")
was also given jurisdiction over H.R. 10 and, on October 30, 1997, reported
its version of that Bill. As noted below, the Commerce Committee largely
retained the Banking Committee language, but renumbered Title III as Title IV
and made certain material changes to the thrift rechartering legislation
("Title IV"). Title IV provides grandfather treatment only to a company that
was a savings and loan holding company as of September 16, 1997, or had an
application to become such a holding company on file as of that date. Second,
a grandfathered company will lose its grandfather treatment if it acquires
control of another insured bank. Third, Title IV restricts affiliate
transactions between a grandfathered bank and its nonfinancial affiliates. In
addition, the Commerce Committee deleted the entire FHLB subtitle from H.R.
10.
H.R. 10 is now pending in the House Rules Committee (the "Rules Committee").
A Republican leadership working group has been delegated responsibility to
review the Banking and Commerce Committees' respective versions and to propose
a single bill for consideration by the Rules Committee.
Prompt Corrective Action. FDICIA establishes a system of prompt corrective
action to resolve the problem of undercapitalized associations. Under that
system, banking regulators must take certain supervisory actions against
undercapitalized associations, the severity of which depends upon the
institution's level of capitalization. Generally, subject to a narrow
exception, FDICIA requires the appropriate federal banking regulator to
appoint a receiver or conservator for an institution that is critically
undercapitalized. FDICIA authorizes banking regulators to specify the ratio of
tangible capital to assets at which an institution becomes critically
undercapitalized and requires that ratio to be no less than 2% of assets.
A savings association may be reclassified to an even lower category than is
indicated by its current capital position if the OTS determines the
institution to be otherwise in an unsafe or unsound condition or to be engaged
in an unsafe or unsound practice. This could include a failure by the
institution to correct deficiencies following receipt of a less-than-
satisfactory rating on its most recent examination report. Among other things,
undercapitalized institutions are subject to growth limitations and are
required to submit capital restoration plans. If an institution fails to
submit an acceptable plan or fails in any material respect to implement an
approved plan, it is treated as significantly undercapitalized.
Pan American Bank's Capital Ratios. The following table indicates the Bank's
regulatory capital ratios at September 30, 1997.
<TABLE>
<CAPTION>
AS OF SEPTEMBER 30, 1997
-------------------------------------
RISK-
CORE CAPITAL BASED
TANGIBLE CAPITAL (LEVERAGE) CAPITAL
---------------- ------------ -------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Stockholder's equity/GAAP capital... $20,274 $20,274 $20,274
Reductions to capital
Goodwill and other intangibles.... (489) (489) (489)
Disallowed portion of deferred
taxes............................ (83) (83) (83)
Additions to capital
General valuation allowances...... -- -- 2,100
------- ------- -------
Regulatory capital as reported to
the OTS............................ 19,702 19,702 21,802
Minimum capital requirements as
reported to the OTS................ 4,184 8,369 13,217
------- ------- -------
Regulatory capital-excess........... $15,518 $11,333 $ 8,585
======= ======= =======
Capital ratios...................... 7.06% 7.06% 13.20%
Well-capitalized requirement........ 3.00% 5.00% 10.00%
</TABLE>
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<PAGE>
Federal Home Loan Bank System. The Bank is a member of the FHLB system,
which consists of twelve regional FHLBs. The FHLB system provides a central
credit facility primarily for member associations and administers the home
financing credit function of savings associations. FHLB advances must be
secured by specified types of collateral and may only be obtained for the
purpose of providing funds for residential housing finance. The FHLB funds its
operations primarily from proceeds derived from the sale of consolidated
obligations of the FHLB system. The Bank, as a member of the FHLB system, must
acquire and hold shares of capital stock in its regional FHLB in an amount at
least equal to the greater of 1% of the aggregate principal amount of its
unpaid residential mortgage loans and similar obligations at the beginning of
each year, or 1/20 of its advances (borrowings) from the FHLB. The Bank was in
compliance with this requirement, having an investment in FHLB stock at
September 30, 1997 of $1.8 million.
The FHLBs must provide funds to service the FICO bonds and contribute funds
for affordable housing programs. These requirements have affected adversely
the level of FHLB dividends paid and could continue to do so. Such
requirements could also result in the FHLB imposing a higher rate of interest
on advances to their members and could have an adverse effect on the value of
FHLB stock in the future, with a corresponding reduction in the Bank's
capital. For the years ended December 31, 1995 and 1996, and for the nine
months ended September 30, 1997, dividends from the FHLB to the Bank amounted
to $38,000, $72,000, and $74,000, respectively. If dividends were reduced, the
Bank's income would likely also be reduced.
Federal Reserve System. Federal Reserve regulations require savings
associations to maintain non-interest earning reserves against their
transaction accounts (primarily regular checking and NOW accounts). The Bank
is in compliance with these regulations. The balances maintained to meet the
reserve requirements imposed by the Federal Reserve may be used to satisfy
liquidity requirements imposed by the OTS. Because required reserves must be
maintained in the form of vault cash, a non-interest-bearing account at a
Federal Reserve Bank or a pass-through account as defined by the Federal
Reserve, the effect of this reserve requirement is to reduce the Bank's
interest-earning assets. FHLB system members are also authorized to borrow
from the Federal Reserve, but applicable regulations require associations to
exhaust all FHLB sources before borrowing from a Federal Reserve Bank.
LEGAL PROCEEDINGS
The Company is from time to time involved in litigation incidental to the
conduct of its business. The Company currently is not a party to any material
pending litigation.
PROPERTIES
The Company's principal executive offices occupy approximately 8,881 square
feet of office space located at 1300 South El Camino Real, San Mateo,
California 94402. As of September 30, 1997, the Company maintained five
branches for its banking business, fourteen branches for its mortgage finance
business, nine branches for its automobile finance business and one branch for
its insurance premium finance business. The size of the branches typically
range from 250 square feet to 19,081 square feet. All of the Company's leased
properties are leased for terms expiring on dates ranging from the date hereof
to March 2006, many with options to extend the lease term. The Company
believes that no single lease is material to its operations, its facilities
are adequate for the foreseeable future and alternative sites presently are
available at market rates.
EMPLOYEES
At September 30, 1997, the Company had 376 full-time equivalent employees.
The Company believes its relations with its employees are satisfactory.
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<PAGE>
MANAGEMENT
DIRECTORS AND EXECUTIVE OFFICERS
The following table sets forth information regarding the directors and
executive officers of the Company.
<TABLE>
<CAPTION>
NAME AGE POSITION
---- --- --------
<S> <C> <C>
Guillermo Bron(1)....... 46 Chairman of the Board and a director of the Company
and the Bank
Lawrence J. Grill....... 61 President, Chief Executive Officer, Secretary and a
director of the Company and the Bank
John T. French.......... 66 Director of the Company and Chairman of the Board,
President and Chief Executive Officer of United
PanAm Mortgage Corp.
Ray C. Thousand......... 40 President and Chief Executive Officer of United Auto
Credit Corporation
Carol M. Bucci.......... 40 Senior Vice President, Treasurer and Chief Financial Officer
Stephen W. Haley........ 44 Senior Vice President--Compliance and Risk
Management
Edmund M.
Kaufman(1)(2).......... 67 Director of the Company and the Bank
Luis Maizel(2).......... 47 Director of the Company
Daniel L.
Villanueva(1)(2)....... 38 Director of the Company and the Bank
</TABLE>
- --------
(1)Member of the Compensation Committee.
(2)Member of the Audit Committee.
Guillermo Bron has served as Chairman of the Board and a director of the
Company and the Bank since April 1994. Mr. Bron is President of BVG West
Corp., the sole general partner of Pan American Financial, L.P. Mr. Bron
founded the Company and organized an Hispanic investor group that acquired
certain assets and assumed certain liabilities of the Bank's predecessor from
the RTC in April 1994. Since July 1994, Mr. Bron has been an officer, director
and principal stockholder of the corporate general partner of Bastion
Partners, L.P., a private equity investment fund. Previously, Mr. Bron was
President of Bastion Capital Corporation and a Managing Director of Corporate
Finance and Mergers and Acquisitions at Drexel Burnham Lambert. Mr. Bron is a
director of Telemundo Group, Inc.
Lawrence J. Grill has served as the President, Chief Executive Officer,
Secretary and a director of the Company and the Bank since April 1994. From
1984 through 1994, Mr. Grill was President of Lawrence J. Grill & Associates,
a consulting firm specializing in business strategy and operations improvement
for financial institutions, and in connection therewith served as a director,
officer and consultant to various thrifts and banks. Previously, Mr. Grill
held senior executive positions with Kaufman and Broad, Wickes Companies and
AM International and practiced corporate law in California and Illinois. Mr.
Grill is a CPA in Illinois and is licensed to practice law in California and
Illinois.
John T. French has served as a director of the Bank since October 1996 and
as a director of the Company and Chairman of the Board, President and Chief
Executive Officer of United PanAm Mortgage Corp. since October 1997. From 1985
through March 1995, he served as Chief Executive Officer of Plaza Home
Mortgage, and also founded and was Chairman of Option One Mortgage
Corporation. From 1977 through 1985, Mr. French served as President of the
General Loan Brokerage division of Western Real Estate Financial, a general
loan brokerage company and an affiliate of American Mortgage Bankers. Mr.
French has over 38 years of experience in the mortgage industry.
Ray C. Thousand has served as President, Chief Executive Officer and a
director of United Auto Credit Corporation since February 1996. Previously,
Mr. Thousand held executive positions in consumer and commercial lending with
Norwest Financial (from 1979 to 1985), Bank of America/Security Pacific Credit
(from
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<PAGE>
1985 to 1993), TransAmerica Business Credit (1994) and Fidelity Funding
Financial Group (from 1994 to 1995) with emphasis on lending to consumer
finance companies engaged in indirect automobile lending.
Carol M. Bucci has served as Senior Vice President and the Controller of the
Bank since December 1995 and as Senior Vice President and the Chief Financial
Officer of the Company since October 1997. From February 1995 to December
1995, she served as Vice President and Controller of Home Federal Savings and
Loan in San Francisco, California. She served as Vice President and Chief
Financial Officer of American Liberty Mortgage Corp. from April 1992 through
December 1994, as First Vice President and Assistant Controller of First
Nationwide Bank from January 1990 to April 1992 and as Executive Vice
President and Chief Financial Officer of Cal American Savings and Loan from
May 1987 to April 1989. Ms. Bucci is a CPA in California.
Stephen W. Haley has served as Senior Vice President--Compliance and Risk
Management of the Bank and the Company since August 1997. From November 1996
to August 1997, he was a management consultant with Coopers & Lybrand LLP.
From April 1991 to November 1996, Mr. Haley was a self-employed management
consultant and from July 1981 to April 1991, he was a management consultant
with KPMG Peat Marwick LLP's financial services group, where he was a partner
for the last four years.
Edmund M. Kaufman has served as a director of the Bank since August 1996 and
of the Company since October 1997. Mr. Kaufman is a partner in the Los Angeles
law firm of Irell & Manella, where he has specialized for 37 years in
financial, industrial and technical business law. Mr. Kaufman also serves as a
director of the Los Angeles Music Center Opera Company and of Structural
Research and Analysis, a software corporation.
Luis Maizel has served as a director of the Company since October 1997.
Since 1984, Mr. Maizel has been President of LM Capital Management and LM
Advisors Inc., pension funds management and financial consulting firms of
which he is the principal stockholder. From 1980 to 1984, he was President of
Industrias Kuick, S.A. and Blount Agroindustras, S.A., manufacturers of
agribusiness equipment.
Daniel L. Villanueva has served as a director of the Bank since August 1994
and of the Company since October 1997. Mr. Villanueva is President of the Los
Angeles Galaxy Soccer Team and was a co-founder of Moya, Villanueva &
Associates, a marketing and public relations firm which is now part of
Manning, Selvage & Lee, where he worked from 1986 until 1996.
All directors are elected annually and serve until the next annual meeting
of stockholders or until their successors have been elected and qualified.
Officers serve at the discretion of the Board of Directors. None of the
directors or executive officers were selected pursuant to any arrangement or
understanding, other than with the directors and executive officers of the
Company acting within their capacity as such.
COMMITTEES OF THE BOARD
The Board of Directors has an Audit Committee and a Compensation Committee,
each of which consists of two or more independent directors who serve at the
pleasure of the Board of Directors.
The Audit Committee is chaired by Mr. Maizel, and its members are Messrs.
Kaufman, Maizel and Villanueva. The primary purposes of the Audit Committee
are (i) to review the scope of the audit and all non- audit services performed
by the Company's independent certified public accountants and the fees
incurred by the Company in connection therewith, (ii) to review the results of
such audit, including the independent accountants' opinion and letter of
comment to management and management's response thereto, (iii) to review with
the Company's independent accountants, the Company's internal accounting
principles, policies and practices and financial reporting, (iv) to make
recommendations regarding the selection of the Company's independent
accountants and (v) to review the Company's quarterly financial statements
prior to public issuance.
The Compensation Committee is chaired by Mr. Kaufman, and its members are
Messrs. Kaufman, Bron and Villanueva. The primary purposes of the Compensation
Committee are (i) to review and recommend
84
<PAGE>
to the Board of Directors the salaries, bonuses and perquisites of the
Company's executive officers, (ii) to determine the individuals to whom, and
the terms upon which, awards under the Company's Stock Incentive Plan,
management incentive plans and 401(k) plan are granted, (iii) to make periodic
reports to the Board of Directors as to the status of such plans and (iv) to
review and recommend to the Board of Directors additional compensation plans.
DIRECTOR COMPENSATION
The Company pays each director who is not employed by the Company $500 for
each meeting of the Board of Directors attended and $300 for each meeting of a
committee of the Board of Directors attended (other than a telephonic
meeting). In addition, each Committee Chairman receives a $500 quarterly fee.
The Company reimburses directors for all reasonable and documented expenses
incurred as a director. Directors who are also employees of the Company,
including Messrs. Bron, Grill and French, are not compensated for their
services as directors. The Board of Directors may change such compensation in
the future.
EXECUTIVE COMPENSATION
Summary Compensation Table. The following table sets forth the compensation
paid or accrued by the Company for services rendered in all capacities during
the fiscal year ended December 31, 1996 to the President and Chief Executive
Officer and the Company's four other most highly compensated executive
officers during 1996 (the "Named Executives").
<TABLE>
<CAPTION>
LONG-TERM COMPENSATION
-------------------------------
ANNUAL COMPENSATION AWARDS PAYOUTS
------------------------------ ----------------------- -------
SECURITIES
OTHER ANNUAL UNDERLYING ALL OTHER
BONUS COMPENSATION RESTRICTED OPTIONS/ LTIP COMPENSATION
NAME AND PRINCIPAL POSITION SALARY ($) ($) ($)(1) STOCK AWARDS SARS(2) PAYOUTS ($)
- --------------------------- ---------- ------ ------------ ------------ ---------- ------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Lawrence J. Grill....... 150,000 30,000 2,844 -- -- -- --
President and Chief
Executive Officer
Guillermo Bron.......... 100,000 -- -- -- -- -- --
Chairman of the Board
John T. French.......... 15,082 -- -- -- 131,250 -- --
Chairman of the Board,
President and Chief
Executive Officer of
United PanAm Mortgage
Corp.(3)
Ray C. Thousand......... 134,879 -- 2,355 -- -- -- --
President and Chief
Executive Officer of
United Auto Credit
Corporation
Carol M. Bucci.......... 85,000 5,000 -- -- 56,250 -- --
Senior Vice President,
Treasurer and Chief
Financial Officer
</TABLE>
- --------
(1) Consists primarily of an automobile allowance.
(2) Consists of shares issuable pursuant to options granted under the
Company's Stock Incentive Plan.
(3) Mr. French was a consultant to United PanAm Mortgage Corp. and the Bank,
and in that capacity was acting President and Chief Executive Officer of
United PanAm Mortgage Corp. from March 11, 1997 until October 1, 1997 when
he became the Chairman of the Board, President and Chief Executive Officer
of United PanAm Mortgage Corp.
85
<PAGE>
Stock Option Grants. The following table sets forth certain information
concerning the grant of stock options during fiscal 1996 to the Named
Executives pursuant to the Stock Incentive Plan.
OPTION GRANTS IN FISCAL YEAR 1996
<TABLE>
<CAPTION>
INDIVIDUAL GRANTS
------------------------------------------------
SHARES OF POTENTIAL REALIZABLE VALUE
COMMON PERCENT OF AT ASSUMED ANNUAL RATES
STOCK TOTAL OPTIONS OF STOCK PRICE APPRECIATION
UNDERLYING GRANTED TO FOR OPTION TERM(1)
OPTIONS EMPLOYEES IN EXERCISE EXPIRATION ----------------------------
NAME GRANTED FISCAL YEAR PRICE DATE 5% 10%
---- ---------- ------------- -------- -------------- ------------- --------------
<S> <C> <C> <C> <C> <C> <C>
John T. French(2)....... 131,250 53.9% $0.80 April 30, 2006 $ 62,606 $ 156,975
Carol M. Bucci(3)....... 56,250 23.1% $0.80 April 30, 2006 $ 28,013 $ 70,819
</TABLE>
- --------
(1) The Potential Realizable Value is the product of (a) the difference
between (i) the product of the market price per share at the date of grant
and the sum of (A) 1 plus (B) the assumed rate of appreciation of the
Common Stock compounded annually over the term of the option and (ii) the
per share exercise price of the option and (b) the number of shares of
Common Stock underlying the option at December 31, 1996. These amounts
represent certain assumed rates of appreciation only. Actual gains, if
any, on stock option exercises are dependent on a variety of factors,
including market conditions and the price performance of the Common Stock.
There can be no assurance that the rate of appreciation presented in this
table can be achieved.
(2) The options vest in four equal annual installments commencing on October
1, 1996.
(3) The options vest in four equal annual installments, with the first
installment vesting on June 1, 1996 and the three remaining installments
on March 1, 1997, 1998 and 1999.
Option Exercises and Holdings. The following table sets forth certain
information with respect to the Named Executives concerning the exercise of
options during fiscal 1996 and unexercised options held by the Named
Executives as of December 31, 1996.
AGGREGATE OPTION EXERCISES IN FISCAL YEAR 1996
AND FISCAL YEAR-END OPTION VALUES
<TABLE>
<CAPTION>
NUMBER OF SHARES OF
COMMON STOCK VALUE OF UNEXERCISED
UNDERLYING UNEXERCISED IN-THE-MONEY OPTIONS
OPTIONS AT YEAR-END AT YEAR-END(1)
SHARES ACQUIRED VALUE ------------------------- -------------------------
NAME ON EXERCISE REALIZED EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
---- --------------- -------- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Lawrence J. Grill....... -- -- 187,500 187,500 -- --
John T. French.......... -- -- 32,813 98,437 -- --
Carol M. Bucci.......... -- -- 14,063 42,187 -- --
</TABLE>
- --------
(1) The value of unexercised "in-the-money" options is the difference between
the market price of the Common Stock on December 31, 1996 and the exercise
price of the option, multiplied by the number of shares subject to the
option.
Management Incentive Plans. Key management employees of the Bank and its
subsidiaries and divisions who are not covered under separate employment
agreements are eligible to participate in a management incentive plan. Under
this plan, a bonus pool is established for the payment of bonuses. These
bonuses are established based on the achievement of corporate, divisional and
personal goals. A minimum level of pre-tax profits must be achieved for the
payment of any bonus under this plan. Bonuses earned during the calendar year
are paid out subsequent to the certified audit of the fiscal year during which
the bonus was earned. The Company intends to establish similar plans for each
of its businesses.
86
<PAGE>
Employment Agreements. The Company has entered into employment agreements
with Messrs. Bron, Grill, French and Thousand. All other executive officers
are employed on an "at will" basis.
The Company has entered into an employment agreement with Guillermo Bron
under which Mr. Bron has been employed as the Chairman of the Board of the
Company and the Bank for the term commencing on October 1, 1997 and ending on
December 31, 2000, unless extended by the Company to December 31, 2001. Under
this agreement, Mr. Bron is entitled to (i) an annual base salary of $150,000,
(ii) an annual cash bonus of up to 100% of his base salary, in an amount
determined by the Board of Directors, (iii) $500,000 of term life insurance
above the amount normally provided to employees under the Company's group term
life insurance, (iv) a monthly car allowance of $500 and (v) the premium cost
under the Company's plan for family medical, dental, vision, long-term
disability and accidental death and dismemberment insurance. In addition, Mr.
Bron has been granted a ten-year option to purchase 60,000 shares of Common
Stock at an exercise price of equal to 110% of the initial Offering price,
which options vest 25% per year. In the event the Company terminates his
employment without cause, or Mr. Bron terminates his employment as the result
of a reduction in authority, Mr. Bron shall be entitled to receive (i) a lump
sum payment equal to his base salary from the date of termination to the next
to occur of December 31, 1999, 2000 or 2001, but in no event less than six
months' salary, (ii) a lump sum payment equal to the bonus received by him in
the prior year prorated for that portion of the current year for which Mr.
Bron was employed by the Company and (iii) any additional benefits accrued
through the date of termination. In the event the Company terminates Mr.
Bron's employment with cause, the Company is obligated to pay the compensation
required by the agreement only through the date of termination.
The Company has entered into a salary continuation agreement with Mr. Bron
pursuant to which Mr. Bron is entitled to receive an annual benefit of up to
$100,000 payable over a period of 180 months upon either (i) the termination
of his employment by the Company for any reason other than termination for
cause after attaining 65 years of age or (ii) his death if he is actively
employed by the Company at such time. Upon the termination of his employment
for any of the following reasons, Mr. Bron is entitled to receive reduced
annual benefits before 2003 which increase to $100,000 if such termination
occurs in or after 2003: (i) the termination of his employment by the Company
without cause or for any reason after the occurrence of a change of control of
the Company, (ii) the termination of his employment due to disability or (iii)
the voluntary termination of his employment prior to attaining 65 years of
age. The Company may purchase insurance on the life of Mr. Bron to fund
payments to Mr. Bron under this agreement. Any such insurance policy will be
an asset of the Company in which Mr. Bron will have no rights. The Company is
not required to make any payments under this agreement if Mr. Bron is
terminated for cause.
The Company has entered into an employment agreement with Lawrence J. Grill
under which Mr. Grill has been employed as the President, Chief Executive
Officer and Secretary of the Company and the Bank for the term commencing on
October 1, 1997 and ending on December 31, 2000, unless extended by the
Company to December 31, 2001. Under this agreement, Mr. Grill is entitled to
(i) an annual base salary of $190,000, (ii) an annual cash bonus of up to 50%
of his base salary based upon the satisfaction of performance goals relating
to pre-tax net income, return on stockholders' equity and such other factors
as may be established by the Board of Directors, (iii) $500,000 of term life
insurance above the amount normally provided to employees under the Company's
group term life insurance, (iv) a monthly car allowance of $500 and (v) the
premium cost under the Company's plan for family medical, dental, vision,
long-term disability and accidental death and dismemberment insurance. In
addition, Mr. Grill has been granted a ten-year option to purchase 60,000
shares of Common Stock at an exercise price equal to the initial Offering
price, which options vest 25% per year. In the event the Company terminates
his employment without cause, or Mr. Grill terminates his employment as the
result of a reduction in authority, Mr. Grill shall be entitled to receive (i)
a lump sum payment equal to his base salary from the date of termination to
the next to occur of December 31, 1999, 2000 or 2001, but in no event less
than six months' salary, (ii) a lump sum payment equal to the bonus received
by him in the prior year prorated for that portion of the current year for
which Mr. Grill was employed by the Company, (iii) any additional benefits
accrued through the date of termination and (iv) continuation of group
medical, disability and life insurance coverage for up to the balance of the
stated term. In the event the Company terminates Mr. Grill's employment with
cause, the Company is obligated to pay the compensation required by the
agreement only through the date of termination.
87
<PAGE>
The Company has entered into a salary continuation agreement with Mr. Grill
pursuant to which Mr. Grill is entitled to receive an annual benefit of up to
$100,000 payable over a period of 180 months upon either (i) the termination
of his employment by the Company for any reason other than termination for
cause after attaining 67 years of age or (ii) his death if he is actively
employed by the Company at such time. Upon the termination of his employment
for any of the following reasons, Mr. Grill is entitled to receive reduced
annual benefits before 2003 which increase to $100,000 if such termination
occurs in or after 2003: (i) the termination of his employment by the Company
without cause or for any reason after the occurrence of a change of control of
the Company, (ii) the termination of his employment due to disability or (iii)
the voluntary termination of his employment prior to attaining 67 years of
age. The Company may purchase insurance on the life of Mr. Grill to fund
payments to Mr. Grill under this agreement. Any such insurance policy will be
an asset of the Company in which Mr. Grill will have no rights. The Company is
not required to make any payments under this agreement if Mr. Grill is
terminated for cause.
United PanAm Mortgage Corp. has entered into an employment agreement with
John T. French under which Mr. French has been employed as Chairman of the
Board, President and Chief Executive Officer for the term commencing on
October 1, 1997 and ending on September 30, 1999. Under this agreement, Mr.
French is entitled to (i) a monthly base salary of $16,667, (ii) an annual
cash bonus in an amount determined by the Board of Directors, but in no event
less than $100,000 if Mr. French reasonably performs his obligations under the
agreement, (iii) participate in all benefits made generally available by the
company to its executives and (iv) the assumption by the company of an office
lease in an amount not to exceed $1,500 per month for a term expiring on
October 31, 1998. In addition, Mr. French has been granted a ten-year option
to purchase 60,000 shares of Common Stock at an exercise price of $10.50 per
share, which options vest 25% on the date of the agreement and 25% on each
anniversary thereof. Notwithstanding the option period described above, the
options will fully vest on September 30, 1999 if Mr. French is an employee of
the company on that date and the company and Mr. French neither renew this
agreement nor enter into a new employment agreement. In the event the company
terminates his employment without cause, or Mr. French terminates his
employment for specified causes, Mr. French shall make himself available to
perform such consulting services as the company deems reasonable and, in
consideration thereof, shall be entitled to receive a monthly consulting fee
of $10,000, all for the period from the date of termination to the later of
the first anniversary of such termination or September 30, 1999, unless such
consulting term is extended by the company for one additional year. In the
event the company terminates Mr. French's employment with cause, the company
is obligated to pay only the base salary through the date of termination.
The Company has entered into an employment agreement with Ray C. Thousand
under which Mr. Thousand has been employed as the President and Chief
Executive Officer of United Auto Credit Corporation for the three years
commencing on December 7, 1995. Under this agreement, Mr. Thousand is entitled
to (i) an annual base salary of $135,000, (ii) an annual cash bonus of up to
100% of his base salary based upon the satisfaction of specified performance
goals relating to loan volume, pre-tax profit, delinquencies and charge-offs
and (iii) a monthly automobile allowance of $200. In addition, Mr. Thousand
has been granted an option to purchase up to a 7.5% ownership interest in
United Auto Credit Corporation at an exercise price equal to the book value of
such interest (subject to certain adjustments), which option vests 20% per
year based upon the satisfaction of specified performance goals and is
exercisable only upon an initial public offering or the sale of United Auto
Credit Corporation. The performance goal was satisfied for 1996. Although the
Company anticipates that the goal will not be satisfied for 1997 and,
accordingly, no portion of the option will vest for 1997, the unearned portion
may be earned in the subsequent five years. In the event the Company
terminates his employment before the end of the stated term without cause, Mr.
Thousand shall be entitled to receive the base salary until the earlier to
occur of the end of the stated term or the first anniversary of the date of
termination, all compensation required by the agreement accrued to the date of
termination and a prorated bonus. In the event the Company terminates Mr.
Thousand's employment before the end of the stated term as a result of the
failure of United Auto Credit Corporation to achieve specified performance
goals, he shall be entitled to receive 15% of the remaining salary that would
have been paid under the agreement. In the event the Company terminates Mr.
Thousand's employment before the end of the stated term with cause, the
Company is obligated to pay the compensation required by the agreement only
through the date of termination, and any accrued but unpaid bonus is
forfeited.
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COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
All decisions involving executive officer compensation are made by the
Company's Compensation Committee, consisting of Messrs. Bron, Kaufman and
Villanueva.
STOCK INCENTIVE PLAN
General. In 1994, the Company adopted a stock option plan and in 1997,
amended and restated such plan as the United PanAm Financial Corp. 1997 Stock
Incentive Plan. Pursuant to the Stock Incentive Plan, officers, directors,
employees and independent contractors of the Company are eligible to receive
shares of Common Stock or other securities or benefits with a value derived
from the value of the Common Stock.
The purpose of the Stock Incentive Plan is to enable the Company to attract,
retain and motivate officers, directors, employees and consultants by
providing for or increasing their proprietary interests in the Company and, in
the case of non-employee directors, to attract such directors and further
align their interests with those of the Company's stockholders by providing
for or increasing their proprietary interests in the Company.
The maximum number of shares of Common Stock that may be issued pursuant to
awards granted under the Stock Incentive Plan currently is 2,287,500 (subject
to adjustment to prevent dilution).
Administration. The Stock Incentive Plan is administered by a committee of
two or more directors appointed by the Board of Directors of the Company (the
"Committee"). The Committee has full and final authority to select the
recipients of awards and to grant such awards. Subject to the provisions of
the Stock Incentive Plan, the Committee has a wide degree of flexibility in
determining the terms and conditions of awards and the number of shares to be
issued pursuant thereto, including conditioning the receipt or vesting of
awards upon the achievement by the Company of specified performance criteria.
The expenses of administering the Stock Incentive Plan are borne by the
Company.
Terms of Awards. The Stock Incentive Plan authorizes the Committee to enter
into any type of arrangement with an eligible recipient that, by its terms,
involves or might involve the issuance of Common Stock or any other security
or benefit with a value derived from the value of Common Stock. Awards are not
restricted to any specified form or structure and may include, without
limitation, sales or bonuses of stock, restricted stock, stock options, reload
stock options, stock purchase warrants, other rights to acquire stock,
securities convertible into or redeemable for stock, stock appreciation
rights, phantom stock, dividend equivalents, performance units or performance
shares. An award may consist of one such security or benefit or two or more of
them in tandem or in the alternative.
An award granted under the Stock Incentive Plan may include a provision
accelerating the receipt of benefits upon the occurrence of specified events,
such as a change of control of the Company or a dissolution, liquidation,
merger, reclassification, sale of substantially all of the property and assets
of the Company or other significant corporate transactions. The Committee may
grant options that either are intended to be "incentive stock options" as
defined under Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code"), or are not intended to be incentive stock options ("non-
qualified stock options"). Awards to consultants and non-employee directors
may only be non-qualified stock options.
An award may permit the recipient to pay all or part of the purchase price
of the shares or other property issuable pursuant thereto by (i) delivering
previously owned shares of capital stock of the Company or other property,
(ii) reducing the amount of shares or other property otherwise issuable
pursuant to the award or (iii) delivering a promissory note, the terms and
conditions of which will be determined by the Committee. If an option permits
the recipient to pay for the shares issuable pursuant thereto with previously
owned shares, the recipient would be able to exercise the option in successive
transactions, starting with a relatively small number of shares and, by a
series of exercises using shares acquired from each such transaction to pay
the purchase price of the shares acquired in the following transaction, to
exercise an option for a large number of shares with no more investment than
the original share or shares delivered. The exercise price is payable in cash
by consultants and non-employee directors, although the Committee at its
discretion may permit such payment by
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<PAGE>
delivery of shares of Common Stock, or by delivery of broker instructions
authorizing a loan secured by the shares acquired upon exercise or payment of
proceeds from the sale of such shares.
Subject to limitations imposed by law, the Board of Directors may amend or
terminate the Stock Incentive Plan at any time and in any manner. However, no
such amendment or termination may deprive the recipient of an award previously
granted under the Stock Incentive Plan of any rights thereunder without his
consent.
Pursuant to Section 16(b) of the Exchange Act, directors, certain officers
and ten percent stockholders of the Company are generally liable to the
Company for repayment of any "short-swing" profits realized from any non-
exempt purchase and sale of Common Stock occurring within a six-month period.
Rule 16b-3, promulgated under the Exchange Act, provides an exemption from
Section 16(b) liability for certain transactions by an officer or director
pursuant to an employee benefit plan that complies with such Rule.
Specifically, the grant of an option under an employee benefit plan that
complies with Rule 16b-3 will not be deemed a purchase of a security for
purposes of Section 16(b). The Stock Incentive Plan is designed to comply with
Rule 16b-3.
Awards may not be granted under the Stock Incentive Plan after the tenth
anniversary of the adoption of the Stock Incentive Plan. Although any award
that was duly granted on or prior to such date may thereafter be exercised or
settled in accordance with its terms, no shares of Common Stock may be issued
pursuant to any award after the twentieth anniversary of the adoption of the
Stock Incentive Plan.
The business criteria on which performance goals are based under the Stock
Incentive Plan will be determined on a case-by-case basis, except that with
respect to stock options and stock appreciation rights compensation is based
on increases in value of the Common Stock after the date of grant or award.
Similarly, the maximum amount of compensation that could be paid to any
participant or the formula used to calculate the amount of compensation to be
paid to the participant if a performance goal is obtained will be determined
on a case-by-case basis, except that in the case of stock options maximum
possible compensation will be calculated as the difference between the
exercise price of the option and the fair market value of the Common Stock on
the date of option exercise, times the maximum number of shares for which
grants may be made to any participant (200,000 shares per year under the Stock
Incentive Plan).
Recent Awards. Since 1994, options have been granted to (i) Lawrence J.
Grill, the President and Chief Executive Officer of the Company, to purchase
up to 375,000 shares of Common Stock at an exercise price of $0.80 per share,
(ii) Carol M. Bucci, Senior Vice President, Treasurer and Chief Financial
Officer of the Company, to purchase up to 56,250 shares of Common Stock at an
exercise price of $0.80 per share and up to an additional 40,000 shares at
$10.50 per share, (iii) Stephen W. Haley, the Senior Vice President-Compliance
and Risk Management of the Company, to purchase up to 60,000 shares of Common
Stock at an exercise price of $10.50 per share, (iv) Daniel L. Villanueva, a
director of the Company, to purchase up to 18,750 shares of Common Stock at an
exercise price of $0.80 per share, (v) Edmund M. Kaufman, a director of the
Company, to purchase up to 18,750 shares of Common Stock at an exercise price
of $0.80 per share, (vi) John T. French, a director of the Company and the
Chairman of the Board, President and Chief Executive Officer of United PanAm
Mortgage Corp., to purchase up to 131,250 shares of Common Stock at an
exercise price of $0.80 per share and up to an additional 60,000 shares at an
exercise price of $10.50 per share, and (vii) 21 current or former employees
or consultants of the Company to purchase up to an aggregate of 1,101,250
shares at an average exercise price of $4.77 per share. Such options vest in
installments before October 15, 2001 and expire on or before October 15, 2007.
Concurrently with the sale of the shares of Common Stock offered hereby,
options will be granted to (i) Guillermo Bron, the Chairman of the Board of
the Company, to purchase up to 60,000 shares of Common Stock at an exercise
price equal to 110% of the initial Offering price, (ii) Mr. Grill to purchase
up to 60,000 shares of Common Stock at an exercise price equal to the initial
offering price and (iii) Mr. Maizel to purchase up to 20,000 shares of Common
Stock at an exercise price equal to the initial offering price. These options
will become exercisable in four equal annual installments commencing on the
first anniversary of the date of grant and will expire on the tenth
anniversary of the date of grant.
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The Company intends to register under the Securities Act the shares of
Common Stock issuable pursuant to the Stock Option Plans. See "Description of
Capital Stock--Shares Eligible For Future Sale."
PROFIT SHARING PLAN
The Bank maintains the Pan American Bank 401(k) Profit Sharing Plan (the
"401(k) Plan"), initially effective as of April 1, 1995, for the benefit of
all eligible employees of the Company. The purpose of the 401(k) Plan is to
provide participating employees a vehicle for deferring a part of their pre-
tax salary to provide security for their retirement.
All employees of the Company who have completed six months of service are
eligible to participate in the 401(k) Plan on the first day of the month
following completion of the service requirement. The 401(k) Plan provides for
two types of contributions: employee elective deferrals and employer profit
sharing contributions. Participating employees can contribute, by way of
payroll deductions, up to the lesser of 15% of their pre-tax salary or the
annual dollar limit of $9,500 for 1997 as an elective deferral, subject to
certain legal limits. In addition, the 401(k) Plan permits participating
employees to make rollover contributions. The 401(k) Plan does not permit
participants to make voluntary after-tax contributions.
The 401(k) Plan provides for discretionary profit sharing contributions.
Each plan year (which is the calendar year), the Board of Directors of the
Bank will determine whether or not to make a contribution to the 401(k) Plan
and, if so, in what amount. If the Bank determines to make a contribution to
the 401(k) Plan, the amounts contributed by each affiliated employer will be
allocated to the accounts of participating employees who are employed on the
last day of the plan year on a pro rata basis. The Bank has not elected to
make a discretionary profit sharing contribution for any of the plan years
that the 401(k) Plan has been in existence. Effective January 1, 1998, the
Company may commence matching contributions to the 401(k) Plan.
Participating employees have the right to invest all contributions allocated
to their accounts under one or more of the six investment options offered. A
participating employee is always 100% vested in elective deferrals.
Participating employees become vested in their employer contributions 20%
after the completion of one year of service and 20% for each year thereafter,
with 100% vesting after the completion of five or more years of service.
Upon a participating employee's retirement, death, total and permanent
disability, attainment of age 59 1/2 or other termination of employment with
the Company, he is entitled to receive a distribution of vested benefits. The
participating employee will receive these benefits in the form of a lump sum.
While a participating employee is still in the employ of the Company, he may
withdraw benefits only from his elective deferral account and only upon a
showing of financial hardship. A participating employee may also borrow
against his vested benefits, but those benefits must be repaid.
Current tax law limits deductible contributions to 15% of the total amount
of salary paid during the plan year to participating employees. The 401(k)
Plan is designed to qualify under Section 401(k) of the Code and, therefore,
contributions by the Company and the participating employees are deductible by
the Company and not includible in the income of participating employees for
federal income tax purposes.
The Internal Revenue Service has determined that the 401(k) Plan is a
qualified plan within the meaning of Section 401(a) and 401(k) of the Code as
of September 20, 1996.
The Bank, through its Board of Directors, appoints one or more
administrators to administer the 401(k) Plan. Pursuant to the terms of the
401(k) Plan, the plan administrator will operate the 401(k) Plan so as not to
discriminate in favor or participating employees who are officers,
stockholders or highly compensated employees of the Company. All trust assets
are held in trust by the trustee for the exclusive benefit of the
participating employees and their beneficiaries under the 401(k) Plan.
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The account balances of the Named Executives under the 401(k) Plan,
consisting solely of such officers' electing deferrals as of September 30,
1997, are as follows.
<TABLE>
<CAPTION>
NAME ACCOUNT BALANCE
---- ---------------
<S> <C>
Lawrence J. Grill............................................ $36,477.41
Guillermo Bron............................................... $10,187.70
John T. French............................................... $ 9,594.49
Ray C. Thousand.............................................. -0-
Carol M. Bucci............................................... $16,193.73
</TABLE>
CERTAIN TRANSACTIONS
Subsequent to July 1, 1997, the stockholders of the Company loaned the
Company an aggregate of $2.0 million, each substantially in proportion to the
number of shares of Common Stock held by him. The amount borrowed was used to
finance the establishment and initial operations of United PanAm Mortgage
Corp. These loans are unsecured, bear interest at an annual rate of 8% payable
in semiannual installments and are due and payable on June 30, 1999. The
Company intends to use a portion of the net proceeds of the Offering to repay
this indebtedness. See "Use of Proceeds."
On October 15,1997, the Company loaned $225,000 to Lawrence J. Grill to
finance his exercise of an option to purchase 281,250 shares of Common Stock.
This loan is secured by the shares purchased, bears interest at an annual rate
of 5.81% payable annually and is due and payable on the earlier of October 15,
2000 or the termination of Mr. Grill's employment by the Company.
United Auto Credit Corporation has granted to certain of its key employees
the right to purchase up to a 13.5% ownership interest in that company, and
may, in the future, grant options to purchase an additional 1.5%. These
options are exercisable only upon an initial public offering or the sale of
United Auto Credit Corporation, at an exercise price equal to the book value
of such interest (subject to certain adjustments). These options vest based
upon the satisfaction of specified performance goals generally related to the
pre-tax profit of United Auto Credit Corporation.
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PRINCIPAL STOCKHOLDERS
The following table sets forth certain information regarding the shares of
Common Stock beneficially owned as of November 7, 1997, and as adjusted to
reflect the sale of the shares offered hereby, by (i) each person known to the
Company to be the beneficial owner of more than five percent of the
outstanding Common Stock, (ii) each director and Named Executive and (iii) all
directors and executive officers as a group.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY OWNED SHARES BENEFICIALLY OWNED
PRIOR TO OFFERING(2) AFTER OFFERING(2)(3)
----------------------------- -----------------------------
NUMBER OF PERCENT OF NUMBER OF PERCENT OF
NAME AND ADDRESS(1) SHARES CLASS(4) SHARES CLASS(4)
------------------- --------------- ------------- --------------- -------------
<S> <C> <C> <C> <C>
Pan American Financial,
L.P.(5)
1999 Avenue of the
Stars, Suite 2960
Los Angeles, California
90067.................. 8,681,250 79.3% 8,681,250
BVG West Corp.(6)....... 1,368,750 12.5% 1,368,750
1999 Avenue of the
Stars, Suite 2960
Los Angeles, California
90067
Lawrence J. Grill(7).... 521,250 4.8% 521,250
Guillermo Bron(8)....... -- -- --
John T. French(9)....... 95,625 * 95,625
Ray C. Thousand......... -- -- --
Carol M. Bucci(10)...... 28,125 * 28,125
Stephen W. Haley(11).... 15,000 * 15,000
Edmund M. Kaufman(12)... 9,375 * 9,375
Daniel L. 15,000 * 15,000
Villanueva(13).........
Luis Maizel(14)......... -- -- --
All directors and
executive officers as a
group (nine
persons)(15)........... 671,250 6.1% 671,250
</TABLE>
- --------
* Less than one percent.
(1) The business address of each director and executive officer of the Company
is 1300 South El Camino Real, San Mateo, California 94402.
(2) Each person has sole voting and investment power over the shares of Common
Stock shown as beneficially owned, subject to community property laws
where applicable.
(3) Assumes no exercise of the Underwriters' over-allotment option.
(4) Shares of Common Stock which the person (or group) has the right to
acquire within 60 days after November 7, 1997 are deemed to be outstanding
in calculating the percentage ownership of the person (or group), but are
not deemed to be outstanding as to any other person or group.
(5) PAFLP is a Delaware limited partnership, the sole general partner of which
is BVG West Corp. BVG West Corp. is wholly owned by Mr. Bron. Mr. Bron and
members of his family hold 60% of the Class A Limited Partnership Units
and 52.2% of the Class B Limited Partnership Units of PAFLP. Mr. Bron and
BVG West Corp. each disclaims beneficial ownership of the shares of Common
Stock held by PAFLP.
(6) BVG West Corp. is the sole general partner of PAFLP and is wholly owned by
Mr. Bron. Mr. Bron disclaims beneficial ownership of the shares of Common
Stock held by BVG West Corp.
(7) Excludes (i) 93,750 shares issuable upon the exercise of stock options
granted pursuant to the Stock Incentive Plan, which options are not
exercisable within 60 days after November 7, 1997, (ii) 37,500 shares held
by Mr. Grill's adult children and 1,875 shares held by Mr. Grill's father-
in-law, as to which shares he disclaims beneficial ownership, and (iii)
60,000 shares issuable upon the exercise of stock options to be granted
pursuant to the Stock Incentive Plan concurrently with the completion of
the Offering. See "Management--Stock Incentive Plan." Mr. Grill holds
10.1% of the Class B Limited Partnership Units of PAFLP. Mr. Grill
disclaims beneficial ownership of the shares of Common Stock held by
PAFLP.
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<PAGE>
(8) Excludes (i) 1,368,750 shares held by BVG West Corp., a corporation owned
by Mr. Bron, (ii) 8,681,250 shares held by PAFLP the sole general partner
of which is BVG West Corp., and (iii) 60,000 shares issuable upon the
exercise of stock options to be granted pursuant to the Stock Incentive
Plan concurrently with the completion of the Offering. See "Management--
Stock Incentive Plan."
(9) Consists of shares issuable upon the exercise of stock options granted
pursuant to the Stock Incentive Plan. Excludes 152,813 shares issuable upon
the exercise of stock options granted pursuant to the Stock Incentive Plan,
which options are not exercisable within 60 days of November 7, 1997. See
"Management--Stock Incentive Plan." Mr. French holds 12.3% of the Class B
Limited Partnership Units of PAFLP. Mr. French disclaims beneficial
ownership of the shares of Common Stock held by PAFLP.
(10) Consists of shares issuable upon the exercise of stock options granted
pursuant to the Stock Incentive Plan. Excludes 68,125 shares issuable
upon the exercise of stock options granted pursuant to the Stock
Incentive Plan, which options are not exercisable within 60 days after
November 7, 1997. See "Management--Stock Incentive Plan."
(11) Consists of shares issuable upon the exercise of stock options granted
pursuant to the Stock Incentive Plan. Excludes 45,000 shares issuable
upon the exercise of stock options granted pursuant to the Stock
Incentive Plan, which options are not exercisable within 60 days after
November 7, 1997. See "Management--Stock Incentive Plan."
(12) Consists of shares issuable upon the exercise of stock options granted
pursuant to the Stock Incentive Plan. Excludes 9,375 shares issuable upon
the exercise of stock options granted pursuant to the Stock Incentive
Plan, which options are not exercisable within 60 days after November 7,
1997. See "Management--Stock Incentive Plan." Mr. Kaufman holds 1.8% of
the Class B Limited Partnership Units of PAFLP. Mr. Kaufman disclaims
beneficial ownership of the shares of Common Stock held by PAFLP.
(13) Consists of shares issuable upon the exercise of stock options granted
pursuant to the Stock Incentive Plan. Excludes (i) 4,688 shares issuable
upon the exercise of stock options granted pursuant to the Stock
Incentive Plan, which options are not exercisable within 60 days after
November 7, 1997 and (ii) 150,000 shares and warrants to purchase an
additional 75,000 shares held by Villanueva Management Inc., an
investment company owned by Daniel D. Villanueva. See "Management--Stock
Incentive Plan." Daniel L. Villanueva holds 2.7% of the Class B Limited
Partnership Units by PAFLP. Mr. Villanueva disclaims beneficial ownership
of the shares of Common Stock held by Villanueva Management Inc. or
PAFLP.
(14) Excludes 20,000 shares issuable upon the exercise of stock options to be
granted pursuant to the Stock Incentive Plan concurrently with the
completion of the Offering. See "Management--Stock Option Plan."
(15) Includes 225,000 shares issuable upon the exercise of stock options
granted pursuant to the Stock Incentive Plan. Excludes (i) 336,250 shares
issuable upon the exercise of stock options granted pursuant to the Stock
Incentive Plan, which options are not exercisable within 60 days after
November 7, 1997 and (ii) 140,000 shares issuable upon the exercise of
stock options to be granted pursuant to the Stock Incentive Plan
concurrently with the completion of the Offering. See "Management--Stock
Incentive Plan."
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<PAGE>
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 20,000,000 shares of
Common Stock, $0.01 par value, and 2,000,000 shares of Preferred Stock, $0.01
par value. At November 7, 1997, there were 10,950,000 shares of Common Stock
outstanding, held of record by nine persons.
COMMON STOCK
Holders of Common Stock are entitled to one vote per share in all matters to
be voted on by the stockholders. Subject to preferences that may be applicable
to any Preferred Stock outstanding at the time, holders of Common Stock are
entitled to receive ratably such dividends, if any, as may be declared from
time to time by the Board of Directors out of funds legally available
therefor. See "Dividend Policy." In the event of a liquidation, dissolution or
winding up of the Company, holders of Common Stock are entitled to share
ratably in all assets remaining after payment of the Company's liabilities and
the liquidation preference, if any, of any outstanding shares of Preferred
Stock. Holders of Common Stock have no preemptive rights and no rights to
convert their Common Stock into any other securities, and there are no
redemption provisions with respect to such shares. All of the outstanding
shares of Common Stock are fully paid and non-assessable. The rights,
preferences and privileges of holders of Common Stock are subject to, and may
be adversely affected by, the rights of the holders of shares of any series of
Preferred Stock which the Company may designate and issue in the future.
PREFERRED STOCK
The Board of Directors has the authority, without any further vote or action
by the stockholders, to issue up to 2,000,000 shares of Preferred Stock from
time to time in one or more series, to establish the number of shares to be
included in each such series, to fix the designations, preferences,
limitations and relative, participating, optional or other special rights and
qualifications or restrictions of the shares of each series, and to determine
the voting powers, if any of, such shares. The issuance of Preferred Stock
could adversely affect, among other things, the rights of existing
stockholders or could delay or prevent a change in control of the Company
without further action by the stockholders. The issuance of Preferred Stock
could decrease the amount of earnings and assets available for distribution to
holders of Common Stock. In addition, any such issuance could have the effect
of delaying, deferring or preventing a change in control of the Company and
could make the removal of the present management of the Company more
difficult. The Company has no current plans to issue any Preferred Stock.
DELAWARE ANTI-TAKEOVER LAW AND CERTAIN CHARTER PROVISIONS
Certain provisions of Delaware law and the Company's Certificate of
Incorporation could make more difficult the acquisition of the Company by
means of a tender offer, a proxy contest or otherwise and the removal of
incumbent officers and directors. These provisions are expected to discourage
certain types of coercive takeover practices and inadequate takeover bids and
to encourage persons seeking to acquire control of the Company to first
negotiate with the Company. The Company believes that the benefits of
increased protection of the Company's potential ability to negotiate with the
proponent of an unfriendly or unsolicited proposal to acquire or restructure
the Company outweigh the disadvantages of discouraging such proposals because,
among other things, negotiation of such proposals could result in an
improvement of their terms.
The Company will be subject to the provisions of Section 203 of the DGCL. In
general, this section prohibits a publicly-held Delaware corporation from
engaging in a "business combination" with an "interested stockholder" for a
period of three years after the date that the person became an interested
stockholder unless (with certain exceptions) the business combination or the
transaction in which the person became an interested stockholder is approved
in a prescribed manner. Generally, a "business combination" includes a merger,
asset or stock sale, or other transaction resulting in a financial benefit to
the stockholder. Generally, an "interested stockholder" is a person who,
together with affiliates and associates, owns (or within three years prior,
did own) 15% or more of the corporation's voting stock. This provision may
have the effect of delaying, deferring or preventing a change in control of
the Company without further action by the stockholders.
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<PAGE>
The Company's Certificate of Incorporation provides that stockholder action
can be taken only at an annual or special meeting of stockholders and may not
be taken by written consent. The Certificate of Incorporation provides that
special meetings of stockholders can be called only by the Company's Board of
Directors, Chairman of the Board, President or Chief Executive Officer, or at
the written request of holders of not less than 25% of the voting shares. The
Bylaws set forth an advance notice procedure with regard to the nomination,
other than by or at the direction of the Board of Directors, of candidates for
election as directors and with regard to business to be brought before an
annual meeting of stockholders of the Company. The Company's Certificate of
Incorporation provides that the Board of Directors is authorized to amend the
Bylaws only by the affirmative vote of 60% or more of the entire Board of
Directors, and the Company's stockholders may amend the Bylaws only upon the
affirmative vote of the holders of 75% or more of the voting shares. In
addition, the Company's Certificate of Incorporation provides that certain
articles of the Certificate of Incorporation may be amended only upon the
affirmative vote of the holders of 75% or more of the voting shares, including
articles containing provisions dealing with, among other things: (i) the
aforementioned voting requirements for amending the Bylaws; (ii) the
directors' indemnification contained in the Certificate of Incorporation; and
(iii) denial of cumulative voting and stockholder action by written consent
and the procedures for calling special meetings.
TRANSFER AGENT AND REGISTRAR
The Company has appointed U.S. Stock Transfer Corporation, Glendale,
California as the transfer agent and registrar for the Common Stock.
SHARES ELIGIBLE FOR FUTURE SALE
Prior to the Offering, there has been no market for the Common Stock. Future
sales of substantial amounts of the Common Stock in the public market could
adversely affect prevailing market prices.
Upon completion of the Offering, there will be shares of Common Stock
outstanding. Of these shares, the shares sold in the Offering will be
freely tradable without restriction or further registration under the
Securities Act, except for any such shares held by an "affiliate" of the
Company. The remaining 10,950,000 shares (the "Restricted Shares"), and any
shares purchased in the Offering by an "affiliate" of the Company, may not be
sold without registration under the Securities Act or pursuant to an
applicable exemption therefrom.
In general, under Rule 144 promulgated under the Securities Act, as
currently in effect, a person (or persons whose shares are aggregated) who has
beneficially owned Restricted Shares for at least one year (including the
holding period of any prior owner other than an "affiliate" of the Company),
or who is an "affiliate" of the Company, is entitled to sell within any three-
month period a number of such Restricted Shares or, in the case of an
"affiliate," a number of such Restricted Shares and shares purchased in the
public market, that does not exceed the greater of (i) 1% of the then
outstanding shares of the Common Stock (approximately shares immediately
after the Offering) or (ii) the average weekly trading volume of the Common
Stock in the public market during the four calendar weeks immediately
preceding such sale. Sales under Rule 144 are also subject to certain
requirements as to the manner of sale, notice and availability of current
public information regarding the Company. A person who has not been an
"affiliate" of the Company at any time during the 90 days preceding a sale,
and who has beneficially owned Restricted Shares for at least two years, is
entitled to sell such shares under Rule 144 without regard to the volume
limitations, manner of sale provisions or notice requirements. As of November
7, 1997, 10,950,000 of the Restricted Shares may be deemed to have been held
for more than one year.
Subject to certain limitations on the aggregate offering price of a
transaction and other conditions, Rule 701 under the Securities Act ("Rule
701") may be relied upon with respect to the resale of securities originally
purchased from the Company by its employees, directors, officers, consultants
or advisers prior to the closing of the Offering, pursuant to written
compensatory benefit plans or written contracts relating to the compensation
of such persons. In addition, the Commission has indicated that Rule 701 will
apply to stock options granted by the
96
<PAGE>
Company under its employee benefit plans before the Offering, along with the
shares of Common Stock acquired upon exercise of such options. Securities
issued in reliance on Rule 701 are deemed to be restricted securities and,
beginning 90 days after the date of this Prospectus (unless subject to the
lock-up agreements described below), may be sold by persons other than
affiliates of the Company subject only to the manner-of-sale provisions of
Rule 144 and by affiliates of the Company under Rule 144 without compliance
with its minimum holding period requirement.
All of the Company's officers and directors and certain of its other
stockholders have agreed that they will not, without the prior written consent
of NationsBanc Montgomery Securities, Inc. (which consent may be withheld in
its sole discretion) and subject to certain limited exceptions, directly or
indirectly, sell, offer, contract or grant any option to sell, make any short
sale, pledge, transfer, establish an open "put equivalent position" within the
meaning of Rule 16a-1(h) under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), or otherwise dispose of any shares of Common Stock,
options or warrants to acquire Common Stock, or securities exchangeable or
exercisable for or convertible into Common Stock currently owned either of
record or beneficially by them or announce the intention to do any of the
foregoing, for a period commencing on the date of this Prospectus and
continuing to a date 180 days after such date. NationsBanc Montgomery
Securities, Inc. may, in its sole discretion and at any time without notice,
release all or any portion of the securities subject to these lock-up
agreements. In addition, the Company has agreed that, for a period of 180 days
after the date of this Prospectus, it will not, without the consent of
NationsBanc Montgomery Securities, Inc., issue, offer, sell or grant options
to purchase or otherwise dispose of any equity securities or securities
convertible into or exchangeable for equity securities except for (i) the
issuance of shares of Common Stock offered hereby and (ii) the grant of
options to purchase shares of Common Stock pursuant to the Stock Incentive
Plan and shares of Common Stock issued pursuant to the exercise of such
options, provided that such options shall not vest, or the Company shall
obtain the written consent of the grantee not to transfer such shares, until
the end of such 180-day period. See "Underwriting."
The Company has granted options to purchase up to 1,580,000 shares of Common
Stock pursuant to the Stock Incentive Plan. Concurrently with the sale of the
shares offered hereby, the Company will grant options to purchase an
additional 140,000 shares of Common Stock pursuant to the Stock Incentive
Plan. An additional 567,500 shares currently are reserved for issuance under
the Stock Incentive Plan. The Company intends to register the sale of such
shares under the Securities Act. See "Management--Stock Incentive Plan."
Accordingly, as awards under the Stock Incentive Plan vest, shares issued
pursuant thereto will be freely tradable, except such shares as may be
acquired by an "affiliate" of the Company.
97
<PAGE>
UNDERWRITING
The Underwriters named below represented by NationsBanc Montgomery
Securities, Inc. and Piper Jaffray Inc. (the "Representatives") have severally
agreed, subject to the terms and conditions set forth in the Underwriting
Agreement, to purchase from the Company the number of shares of Common Stock
indicated below opposite their respective names at the initial public offering
price less the underwriting discount set forth on the cover page of this
Prospectus:
<TABLE>
<CAPTION>
UNDERWRITER NUMBER OF SHARES
----------- ----------------
<S> <C>
NationsBanc Montgomery Securities, Inc.........................
Piper Jaffray Inc..............................................
----
Total........................................................
====
</TABLE>
The Underwriting Agreement provides that the obligations of the Underwriters
are subject to certain conditions precedent and that the Underwriters are
committed to purchase all of such shares if any are purchased.
The Representatives have advised the Company that the Underwriters propose
initially to offer the shares of Common Stock to the public on the terms set
forth on the cover page of this Prospectus. The Underwriters may allow to
selected dealers a concession of not more that $ per share, and the
Underwriters may allow, and such dealers may reallow, a concession of not more
than $ per share to certain other dealers. After the Offering, the offering
price and other selling terms may be changed by the Representatives. The
shares of Common Stock are offered subject to receipt and acceptance by the
Underwriters and to certain other conditions, including the right to reject
orders in whole or in part.
The Company has granted an option to the Underwriters, exercisable during
the 30-day period after the date of this Prospectus, to purchase up to a
maximum of additional shares of Common Stock to cover over-allotments, if
any, at the offering price less the underwriting discount set forth on the
cover page of this Prospectus. To the extent the Underwriters exercise this
option, each of the Underwriters will be committed, subject to certain
conditions, to purchase such additional shares in approximately the same
proportion as set forth in the above table. The Underwriters may purchase such
shares only to cover over-allotments made in connection with the Offering.
The Underwriting Agreement provides that the Company and certain of its
stockholders will indemnify the Underwriters against certain liabilities,
including liabilities under the Securities Act, or will contribute to payments
that the Underwriters may be required to make in respect thereof.
All of the Company's officers and directors and certain of its other
stockholders have agreed that they will not, without the prior written consent
of NationsBanc Montgomery Securities, Inc. (which consent may be withheld in
its sole discretion) and subject to certain limited exceptions, directly or
indirectly, sell, offer, contract or grant any option to sell, make any short
sale, pledge, transfer, establish an open "put equivalent position" within the
meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of any
shares of Common Stock, options or warrants to acquire Common Stock, or
securities exchangeable or exercisable for or convertible into Common Stock
currently owned either of record or beneficially by them or announce the
intention to do any of the foregoing, for a period commencing on the date of
this Prospectus and continuing to a date 180 days after such date. NationsBanc
Montgomery Securities, Inc. may, in its sole discretion and at any time
without notice, release all or any portion of the securities subject to these
lock-up agreements. In addition, the Company has agreed that, for a period of
180 days after the date of this Prospectus, it will not, without the consent
of
98
<PAGE>
NationsBanc Montgomery Securities, Inc., issue, offer, sell or grant options
to purchase or otherwise dispose of any equity securities or securities
convertible into or exchangeable for equity securities except for (i) the
issuance of shares of Common Stock offered hereby and (ii) the grant of
options to purchase shares of Common Stock pursuant to the Stock Incentive
Plan and shares of Common Stock issued pursuant to the exercise of such
options, provided that such options shall not vest, or the Company shall
obtain the written consent of the grantee not to transfer such shares, until
the end of such 180-day period. See "Management--Stock Incentive Plan" and
"Description of Capital Stock--Shares Eligible for Future Sale."
Prior to the Offering, there has been no public market for the Common Stock.
Consequently, the initial public offering price will be determined by
negotiations among the Company and the Representatives. Among the factors to
be considered in such negotiations are the history of, and prospects for, the
Company and the industry in which it competes, an assessment of the Company's
management, its past and present operations and financial performance, the
prospects for further earnings of the Company, the present state of the
Company's development, the general condition of the securities markets at the
time of the Offering, the market prices of and demand for the publicly traded
common stock of comparable companies in recent periods and other factors
deemed relevant.
The Representatives have advised the Company that, pursuant to Regulation M
under the Securities Act, certain persons participating in the Offering may
engage in transactions, including stabilizing bids, syndicate covering
transactions or the imposition of penalty bids, which may have the effect of
stabilizing or maintaining the market price of the Common Stock at a level
above that which might otherwise prevail in the open market. A "stabilizing
bid" is a bid for or the purchase of the Common Stock on behalf of the
Underwriters for the purpose of fixing or maintaining the price of the Common
Stock. A "syndicate covering transaction" is the bid for or the purchase of
the Common Stock on behalf of the Underwriters to reduce a short position
incurred by the Underwriters in connection with the Offering. A "penalty bid"
is an arrangement permitting the Representatives to reclaim the selling
concession otherwise accruing to an Underwriter or syndicate member in
connection with the Offering if the Common Stock originally sold by such
Underwriter or syndicate member is purchased by a Representative in a
syndicate covering transaction and has, therefore, not been effectively placed
by such Underwriter or syndicate member. The Representatives have advised the
Company that such transactions may be effected on Nasdaq or otherwise and, if
commenced, may be discontinued at any time.
The Representatives have informed the Company that the Underwriters do not
expect to make sales to accounts over which they exercise discretionary
authority in excess of 5% of the number of shares of Common Stock offered
hereby.
LEGAL MATTERS
Certain matters relating to the offering are being passed upon for the
Company by Manatt, Phelps & Phillips, LLP, Los Angeles, California. Certain
legal matters will be passed upon for the Underwriters by Gibson, Dunn &
Crutcher LLP, San Francisco, California.
EXPERTS
The consolidated financial statements of the Company as of December 31, 1995
and December 31, 1996, for the years then ended and for the period from April
29, 1994 (inception) to December 31, 1994 have been included herein and in the
registration statement in reliance upon the report of KPMG Peat Marwick LLP,
independent certified public accountants appearing elsewhere herein, and upon
the authority of said firm as experts in accounting and auditing.
99
<PAGE>
ADDITIONAL INFORMATION
The Company has filed a Registration Statement under the Securities Act with
the Commission with respect to the Common Stock offered hereby. This
Prospectus, which constitutes part of the Registration Statement, omits
certain of the information contained in the Registration Statement and the
exhibits thereto on file with the Commission pursuant to the Securities Act
and the rules and regulations of the Commission. Statements contained in this
Prospectus, such as the contents of any contract or other document referred
to, are not necessarily complete and in each instance reference is made to the
copy of such contract or other document filed as an exhibit to the
Registration Statement, each such statement being qualified in all respects by
such reference. Upon completion of the Offering, the Company will be subject
to the information reporting requirements of the Exchange Act and, in
accordance therewith, will file reports and other information with the
Commission. A copy of the Registration Statement, including the exhibits
thereto, may be inspected without charge at the Commission's principal office
at 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549, and at the
Commission's regional offices at Northwestern Atrium Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661-2511 and 7 World Trade Center, New
York, New York 10048. Copies of such materials may be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549 upon the payment of certain fees prescribed by the Commission. The
Commission also maintains a World Wide Web site that contains reports, proxy
and information statements and other information regarding registrants, such
as the Company, that file electronically with the Commission. The address of
the site is http://www.sec.gov.
100
<PAGE>
UNITED PANAM FINANCIAL CORP.
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<S> <C>
Independent Auditors' Report.............................................. F-2
Consolidated Statements of Financial Condition
as of September 30, 1997 (unaudited) and
December 31, 1996 and 1995............................................... F-3
Consolidated Statements of Operations for the
nine months ended September 30, 1997 and 1996
(unaudited) and for the years ended December 31,
1996 and 1995 and for the period from April 29,
1994 (Inception) through December 31, 1994............................... F-4
Consolidated Statements of Stockholders' Equity for
the nine months ended September 30, 1997
(unaudited) and for the years ended December 31,
1996 and 1995 and for the period from April 29, 1994
(Inception) through December 31, 1994.................................... F-5
Consolidated Statements of Cash Flows
for the nine months ended September 30, 1997
and 1996 (unaudited) and for the years ended
December 31, 1996 and 1995 and for the period from
April 29, 1994 (Inception) through December 31, 1994..................... F-6
Consolidated Statements of Cash Flows, Continued
for the nine months ended September 30, 1997
and 1996 (unaudited) and for the years ended
December 31, 1996 and 1995 and for the period from
April 29, 1994 (Inception) through December 31, 1994..................... F-7
Notes to Consolidated Financial Statements................................ F-8
</TABLE>
F-1
<PAGE>
INDEPENDENT AUDITORS' REPORT
The Board of Directors
United PanAm Financial Corp.:
We have audited the accompanying consolidated statements of financial
condition of United PanAm Financial Corp. and subsidiaries (the Company) as of
December 31, 1996 and 1995, and the related consolidated statements of
operations, stockholders' equity, and cash flows for the years ended December
31, 1996 and 1995 and the period from April 29, 1994 (inception), through
December 31, 1994. These consolidated financial statements are the
responsibility of the Company's management. Our responsibility is to express
an opinion on these financial statements based on our audits.
We conducted our audits 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 audits provide a reasonable basis
for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of United
PanAm Financial Corp. and subsidiaries as of December 31, 1996 and 1995, and
the results of their operations and their cash flows for the years ended
December 31, 1996 and 1995, and for the period from April 29, 1994
(inception), through December 31, 1994 in conformity with generally accepted
accounting principles.
/s/ KPMG PEAT MARWICK LLP
San Francisco, California
August 22, 1997
F-2
<PAGE>
UNITED PANAM FINANCIAL CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF FINANCIAL CONDITION
(INFORMATION AS OF SEPTEMBER 30, 1997 IS UNAUDITED)
<TABLE>
<CAPTION>
DECEMBER 31,
SEPTEMBER 30, -----------------
1997 1996 1995
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA) ------------- -------- --------
(UNAUDITED)
ASSETS
<S> <C> <C> <C>
Cash and due from banks........................ $ 23,791 $ 5,063 $ 1,580
Short term investments......................... 22,000 21,000 21,993
-------- -------- --------
Cash and cash equivalents...................... 45,791 26,063 23,573
Securities available for sale, at fair value... 2,002 -- --
Loans, net..................................... 152,500 134,821 131,794
Loans, held for sale........................... 70,241 20,766 --
Federal Home Loan Bank stock, at cost.......... 1,769 1,288 766
Accrued interest receivable.................... 927 845 1,169
Real estate owned, net......................... 637 988 298
Premises and equipment, net.................... 2,282 822 208
Deferred tax assets............................ 2,105 247 --
Intangible assets.............................. 489 584 716
Other assets................................... 4,519 1,174 1,057
-------- -------- --------
Total assets................................. $283,262 $187,598 $159,581
======== ======== ========
<CAPTION>
LIABILITIES AND STOCKHOLDERS' EQUITY
<S> <C> <C> <C>
Deposits....................................... $210,783 $159,061 $141,924
Notes Payable.................................. 12,870 10,930 10,930
Federal Home Loan Bank advances................ 35,000 4,000 --
Deferred tax liabilities....................... -- -- 173
Accrued expenses and other liabilities......... 14,254 6,846 743
-------- -------- --------
Total liabilities............................ 272,907 180,837 153,770
-------- -------- --------
Commitments and contingencies.................. -- -- --
Common stock (par value $0.01 per share):
Authorized, 20,000,000 shares.................
Issued and outstanding, 10,668,750 shares at
September 30, 1997, December 31, 1996 and
1995......................................... 107 107 107
Additional paid-in capital..................... 5,130 5,130 5,130
Retained earnings.............................. 5,118 1,524 574
-------- -------- --------
Total stockholders' equity................... 10,355 6,761 5,811
-------- -------- --------
Total liabilities and stockholders' equity... $283,262 $187,598 $159,581
======== ======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
F-3
<PAGE>
UNITED PANAM FINANCIAL CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(INFORMATION FOR THE NINE MONTHS ENDED
SEPTEMBER 30, 1997 AND 1996 IS UNAUDITED)
<TABLE>
<CAPTION>
NINE MONTHS YEARS APRIL 29, 1994
ENDED ENDED (INCEPTION)
SEPTEMBER 30, DECEMBER 31, THROUGH
--------------- -------------- DECEMBER 31,
(DOLLARS IN THOUSANDS. EXCEPT 1997 1996 1996 1995 1994
PER SHARE DATA) ------- ------- ------- ------ --------------
(UNAUDITED)
INTEREST INCOME:
<S> <C> <C> <C> <C> <C>
Loans....................... $17,329 $11,008 $15,159 $9,207 $1,868
Accretion of discount on
loans purchased............ 538 576 696 873 127
RTC interest................ -- -- -- 248 1,134
Short term investments and
securities available
for sale................... 447 532 706 3,205 3,753
------- ------- ------- ------ ------
Total interest income....... 18,314 12,116 16,561 13,533 6,882
------- ------- ------- ------ ------
INTEREST EXPENSE:
Deposits.................... 6,710 5,330 7,225 7,240 3,385
Federal Home Loan Bank
advances................... 1,001 34 72 -- --
Notes payable............... 482 388 556 487 188
------- ------- ------- ------ ------
Total interest expense...... 8,193 5,752 7,853 7,727 3,573
------- ------- ------- ------ ------
Net interest income....... 10,121 6,364 8,708 5,806 3,309
Provision for loan losses... 445 98 194 120 50
------- ------- ------- ------ ------
Net interest income after
provision for loan
losses................... 9,676 6,266 8,514 5,686 3,259
------- ------- ------- ------ ------
NON-INTEREST INCOME:
Gain on sale of loans, net.. 15,260 854 2,333 90 3
Loan related charges and
fees....................... 360 201 116 48 11
Service charges and fees.... 123 93 272 121 51
Other income................ 40 20 55 59 33
------- ------- ------- ------ ------
Total non-interest income... 15,783 1,168 2,776 318 98
------- ------- ------- ------ ------
NON-INTEREST EXPENSE:
Compensation and benefits... 12,195 3,365 5,248 2,750 1,564
Occupancy expense........... 1,847 529 809 407 371
SAIF special assessment..... -- -- 820 -- --
Marketing................... 932 100 171 78 103
Telephone................... 599 107 185 71 --
Professional fees........... 554 246 339 224 190
Travel and entertainment.... 535 89 170 88 --
Stationary and supplies..... 448 123 217 115 78
Postage and delivery........ 348 90 167 51 --
Data processing............. 354 281 364 284 214
Deposit insurance premiums.. 278 275 371 395 218
Loan servicing expense...... 212 122 168 84 --
Insurance premiums.......... 160 72 93 102 100
Amortization of intangible
assets..................... 95 98 132 169 --
Other expenses.............. 728 309 395 344 305
------- ------- ------- ------ ------
Total non-interest
expenses................... 19,285 5,806 9,649 5,162 3,143
------- ------- ------- ------ ------
Income before income
taxes...................... 6,174 1,628 1,641 842 214
Income taxes................ 2,580 698 691 384 98
------- ------- ------- ------ ------
Net income.................. $ 3,594 $ 930 $ 950 $ 458 $ 116
======= ======= ======= ====== ======
Earnings per share (pro
forma) (unaudited)......... $ .32 $ .09
======= =======
</TABLE>
See accompanying notes to consolidated financial statements
F-4
<PAGE>
UNITED PANAM FINANCIAL CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
(INFORMATION AS OF SEPTEMBER 30, 1997 AND THE NINE
MONTHS ENDED SEPTEMBER 30, 1997 IS UNAUDITED)
<TABLE>
<CAPTION>
ADDITIONAL TOTAL
NUMBER COMMON PAID-IN RETAINED STOCKHOLDERS'
OF SHARES STOCK CAPITAL EARNINGS EQUITY
(DOLLARS IN THOUSANDS) ---------- ------ ---------- -------- -------------
<S> <C> <C> <C> <C> <C>
Balance, April 29, 1994,
Inception................ -- $ -- $ -- $ -- $ --
Issuance of common stock.. 10,668,750 107 5,130 -- 5,237
Net income................ -- -- -- 116 116
---------- ---- ------ ------ -------
Balance, December 31,
1994..................... 10,668,750 107 5,130 116 5,353
Net income................ -- -- -- 458 458
---------- ---- ------ ------ -------
Balance, December 31,
1995..................... 10,668,750 107 5,130 574 5,811
Net income................ -- -- -- 950 950
---------- ---- ------ ------ -------
Balance, December 31,
1996..................... 10,668,750 107 5,130 1,524 6,761
Net income (unaudited).... -- -- -- 3,594 3,594
---------- ---- ------ ------ -------
Balance, September 30,
1997 (unaudited)......... 10,668,750 $107 $5,130 $5,118 $10,355
========== ==== ====== ====== =======
</TABLE>
See accompanying notes to consolidated financial statements.
F-5
<PAGE>
UNITED PANAM FINANCIAL CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(INFORMATION AS OF SEPTEMBER 30, 1997 AND THE NINE MONTHS
ENDED SEPTEMBER 30, 1997 AND 1996 IS UNAUDITED)
<TABLE>
<CAPTION>
NINE MONTHS YEARS APRIL 29, 1994
ENDED ENDED (INCEPTION)
SEPTEMBER 30, DECEMBER 31, THROUGH
-------------------- -------------------- DECEMBER 31,
(DOLLARS IN THOUSANDS, 1997 1996 1996 1995 1994
EXCEPT PER SHARE DATA) --------- --------- --------- --------- --------------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Cash flows from
operating activities:
Net income.............. $ 3,594 $ 930 $ 950 $ 458 $ 116
Adjustments to reconcile
net income to net cash
(used in) provided by
operating activities:
Gain on sale of loans.. (15,261) (854) (2,333) (90) (3)
Origination of mortgage
loans held for sale... (339,014) (37,603) (71,796) -- --
Sales of mortgage loans
held for sale......... 298,454 22,159 52,224 -- --
Provision for loan
losses................ 445 98 194 120 50
Accretion of discount
on loans.............. (538) (576) (696) (873) (127)
Depreciation and
amortization.......... 504 184 270 142 5
FHLB stock dividend.... (74) (51) (74) (37) (19)
Deferred loan fees,
net................... 801 419 (52) -- --
Decrease (increase) in
accrued interest
receivable............ (82) 177 324 669 (1,838)
Decrease (increase) in
other assets.......... (3,345) 207 (117) 3,181 (5,046)
Deferred income taxes.. (1,858) (164) (420) 93 80
Increase in accrued
expenses and other
liabilities........... 7,408 3,537 6,127 114 690
--------- --------- --------- --------- ---------
Net cash (used in)
provided by operating
activities............ (48,966) (11,537) (15,399) 3,777 (6,092)
--------- --------- --------- --------- ---------
Cash flows from
investing activities:
Proceeds from
maturities of
investment
securities............ -- -- -- -- 9,857
Originations, net of
repayments, of
mortgage loans........ 16,859 15,434 19,538 10,728 4,651
Purchase of mortgage
loans................. -- -- -- (75,878) (57,176)
Sales of mortgage
loans................. -- -- -- 3,470 --
Originations, net of
repayments, of non-
mortgage loans........ (30,346) (18,715) (22,485) (16,771) (235)
Purchase of securities
available for sale.... (2,002) (3,999) -- -- (9,857)
Purchase of premises
and equipment......... (1,869) (557) (776) (212) (51)
Purchase of FHLB
stock................. (407) (451) (448) -- (729)
Proceeds from sale of
real estate owned..... 1,797 528 923 -- --
--------- --------- --------- --------- ---------
Net cash used in
investing activities.. (15,968) (7,760) (3,248) (78,663) (53,540)
--------- --------- --------- --------- ---------
Cash flows from
financing activities:
Purchase of deposits... -- -- -- -- 179,904
Sale of deposits....... -- -- -- -- (16,031)
Net increase (decrease)
in deposits........... 51,722 6,055 17,137 (21,190) (759)
Proceeds from ICA
note.................. -- -- -- -- 10,930
Issuance of common
stock and additional
capital
contribution.......... -- -- -- -- 5,237
Proceeds from notes
payable from
shareholders.......... 1,940 -- -- -- --
Proceeds, net of
repayments, from FHLB
advances.............. 31,000 4,000 4,000 -- --
--------- --------- --------- --------- ---------
Net cash provided by
(used in) financing
activities............ 84,662 10,055 21,137 (21,190) 179,281
--------- --------- --------- --------- ---------
Net increase (decrease)
in cash and cash
equivalents............ 19,728 (9,242) 2,490 (96,076) 119,649
Cash and cash
equivalents at
beginning of period.... 26,063 23,573 23,573 119,649 --
--------- --------- --------- --------- ---------
Cash and cash
equivalents at end of
period................. $ 45,791 $ 14,331 $ 26,063 $ 23,573 $ 119,649
========= ========= ========= ========= =========
</TABLE>
See accompanying notes to consolidated financial statements.
F-6
<PAGE>
UNITED PANAM FINANCIAL CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS, CONTINUED
(INFORMATION FOR THE NINE MONTHS ENDED
SEPTEMBER 30, 1997 AND 1996 IS UNAUDITED)
<TABLE>
<CAPTION>
APRIL 29, 1994
NINE MONTHS ENDED YEARS ENDED (INCEPTION)
SEPTEMBER 30, DECEMBER 31, THROUGH
(Dollars in thousands) ----------------- ------------- DECEMBER 31
1997 1996 1996 1995 1994
-------- -------- ------ ------ --------------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Supplemental disclosures of cash
flow information:
Cash paid for:
Interest...................... $ 8,055 $ 5,763 $7,856 $7,720 $3,569
======== ======== ====== ====== ======
Taxes......................... $ 1,500 $ 745 $1,512 $ 763 $ 10
======== ======== ====== ====== ======
Supplemental schedule of non-
cash investing and financing
activities:
Acquisition of real estate
owned through
foreclosure of related
mortgage loans............... $ 1,446 $ 944 $1,613 $ 298 $ --
======== ======== ====== ====== ======
</TABLE>
See accompanying notes to consolidated financial statements.
F-7
<PAGE>
UNITED PANAM FINANCIAL CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1997 AND 1996 (UNAUDITED)
AND THE YEARS ENDED DECEMBER 31, 1996, 1995 AND FOR THE PERIOD FROM
APRIL 29, 1994 (INCEPTION) THROUGH DECEMBER 31, 1994
1. BUSINESS
ORGANIZATION
United PanAm Financial Corp. (the "Company"), was organized as a holding
company for Pan American Financial, Inc. ("PAFI") and Pan American Bank, FSB
(the "Bank") to purchase certain assets and assume certain liabilities (the
"Purchase Agreement") of Pan American Federal Savings Bank from the Resolution
Trust Corporation (the "RTC") on April 29, 1994. The Company, PAFI and the
Bank are considered by the RTC to be minority owned. The Company is owned
substantially by Pan American Financial, LP. PAFI is a wholly-owned subsidiary
of the Company and the Bank is a wholly-owned subsidiary of PAFI.
These financial statements have been prepared in conformity with generally
accepted accounting principles. In preparing these financial statements,
management is required to make estimates and assumptions that affect the
reported amounts of assets and liabilities as of the date of the financial
statements and the reported amount of revenues and expenses during the
reporting periods. Actual results could differ from those estimates.
In 1997, the Company changed its fiscal year end from June 30 to December
31.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of United PanAm
Financial Corp., Pan American Financial, Inc., United PanAm Mortgage Corp. and
Pan American Bank, FSB. Substantially all of the Company's revenues are
derived from the operations of the Bank and United PanAm Mortgage Corp. and
they represent substantially all of the Company's consolidated assets and
liabilities as of September 30, 1997 and December 31, 1996 and 1995.
Significant inter-company accounts and transactions have been eliminated in
consolidation.
CASH AND CASH EQUIVALENTS
For financial statement purposes, cash and cash equivalents include cash on
hand, non-interest-bearing deposits, certificates of deposit, Federal funds
sold, commercial paper and highly liquid interest-bearing deposits with
maturities of three months or less.
In accordance with regulations, the Bank must maintain an amount equal to 5%
of the sum of total deposits and short-term borrowings in cash and U.S.
Government and other approved securities that are readily convertible to cash.
The Bank exceeded these requirements at September 30, 1997 and December 31,
1996 and 1995.
SECURITIES
Securities are classified in one of three categories: held to maturity,
trading, or available for sale. Investments classified as held to maturity are
carried at amortized cost because management has both the intent and ability
to hold these investments to maturity. Investments classified as trading are
carried at fair value with any gains and losses reflected in earnings. All
other investments are classified as available for sale and are carried at fair
value with any unrealized gains and losses included as a separate component of
stockholders' equity, net of applicable taxes.
F-8
<PAGE>
UNITED PANAM FINANCIAL CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
LOANS
The Company originates and purchases loans for investment as well as for
sale in the secondary market. At the date of acquisition, mortgage loans are
designated as either held for sale or held for investment, and accounted for
accordingly. Loans held for sale are reported at the lower of cost or market
value applied on an aggregate basis. Market values of loans held for sale are
based upon prices available in the secondary market for similar loans. Loans
which are held for investment are reported at cost, net of unamortized
discounts or premiums, unearned loan origination fees and allowances for
losses. Transfers of loans from the held for sale portfolio to the held for
investment portfolio are recorded at the lower of cost or market value on the
transfer date.
INTEREST INCOME
Interest income is accrued as it is earned. Loan origination fees and
certain direct loan origination costs are deferred and recognized in interest
income over the contractual lives of the related loans using the interest
method. When a loan is paid-off or sold, the unamortized balance of these
deferred fees and costs is recognized in income. The Company ceases to accrue
interest on loans that are delinquent 90 days or more, or earlier, if the
ultimate collectibility of the interest is in doubt. Interest income deemed
uncollectible is reversed. The Company ceases to amortize deferred fees on
non-performing loans. Income is subsequently recognized only to the extent
cash payments are received, until in management's judgment, the borrower's
ability to make periodic interest and principal payments is in accordance with
the loan terms, at which time the loan is returned to accrual status.
GAIN ON SALE OF LOANS
Gains or losses resulting from sales of mortgage loans are recognized at the
date of settlement and are based on the difference between the selling price
and the carrying value of the related loans sold. Non-refundable fees and
direct costs associated with the origination of mortgage loans are deferred
and recognized when the loans are sold. Loan sales have been completed on a
whole loan, nonrecourse basis with servicing rights released to the
purchasers.
ALLOWANCE FOR LOAN LOSSES
The Company charges current earnings with a provision for estimated losses
on loans. The provision consists of losses identified specifically with
certain problem loans and a general provision for losses not specifically
identified in the loan portfolio. Management's analysis takes into
consideration numerous factors, including an assessment of the credit risk
inherent in the portfolio, prior loss experience, the levels and trends of
non-performing loans, the concentration of credit, current and prospective
economic conditions and other factors. In addition, the allowance for loan
losses includes a portion of acquisition discounts from the Company's purchase
of automobile installment contracts. Additionally, regulatory authorities, as
an integral part of their examination process, review the Company's allowance
for estimated losses based on their judgment of information available to them
at the time of their examination and may require the recognition of additions
to the allowance.
PREMISES AND EQUIPMENT
Premises and equipment are carried at cost, less accumulated depreciation
and amortization. Depreciation and amortization are computed on the straight-
line method over the shorter of the estimated useful lives of the related
assets or terms of the leases. Furniture, equipment, computer hardware,
software and data processing equipment are currently depreciated over 3-5
years.
F-9
<PAGE>
UNITED PANAM FINANCIAL CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
PURCHASE ACCOUNTING
The Company applied business combinations purchase accounting principles to
its acquisition of assets and liabilities from the RTC. The purchase price was
allocated primarily to the assets acquired by the Company. The fair value was
determined based on management's best estimates in conformity with Accounting
Principles Board Opinion ("APB") No. 16 "Business Combinations".
Loan discount resulting from the valuation of the Company's loan portfolio
under purchase accounting requirements at the acquisition date is netted
against loans. The discount is being amortized over the contractual terms of
the related loans using the interest method.
INTANGIBLE ASSETS
Intangible assets consist of the difference between the estimated fair
values of the liabilities assumed over the amount paid to the RTC to acquire
the Company's Panorama City branch.
At September 30, 1997, December 31, 1996 and 1995, intangible assets
totaling $489,000, $584,000 and $716,000, respectively, are being amortized
over seven years, the estimated life of the acquired assets, using the
straight-line method.
REAL ESTATE OWNED
Real estate owned consists of properties acquired through foreclosure and is
recorded at the lower of cost or fair value at the time of foreclosure.
Subsequently, allowances for estimated losses are established when the
recorded value exceeds fair value less estimated costs to sell. As of
September 30, 1997, December 31, 1996 and 1995, there were no such allowances.
Real estate owned at September 30, 1997 and December 31, 1996 and 1995
consisted of one to four unit residential real estate.
INCOME TAXES
The Company uses the asset/liability method of accounting for income taxes.
Under the asset/liability method, deferred tax assets and liabilities are
recognized for the future consequences of differences between the financial
statement carrying amounts of existing assets and liabilities and their
respective tax bases (temporary differences). Deferred tax assets and
liabilities are measured using tax rates expected to apply to taxable income
in the years in which those temporary differences are recovered or settled.
The effect of deferred tax assets and liabilities from a change in tax rate is
recognized in income in the period of enactment. For income tax return
purposes, the Company files as part of a consolidated group. Income taxes are
allocated to the group members in accordance with an income tax allocation
agreement adopted by each party in the group.
RECENT ACCOUNTING PRONOUNCEMENTS
In June 1996, the Financial Accounting Standards Board ("FASB") issued SFAS
No. 125, "Accounting for Transfers and Servicing of Financial Assets and
Extinguishment of Liabilities" ("SFAS 125"). SFAS 125 provides accounting and
reporting standards for transfers and servicing of financial assets, and
distinguishes transfers of financial assets that are sales from transfers that
are secured borrowings. In December 1996, SFAS No. 127, "Deferral of the
Effective Date of Certain Provisions of FASB Statement No. 125" was issued as
an amendment to SFAS No. 125. Implementation of SFAS 125 and SFAS 127 has not
had a material effect on the Company's financial condition or results of
operations.
F-10
<PAGE>
UNITED PANAM FINANCIAL CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
3. SECURITIES AVAILABLE FOR SALE
Securities available for sale are as follows:
<TABLE>
<CAPTION>
SEPTEMBER 30, 1997 DECEMBER 31, 1996 DECEMBER 31, 1995
------------------ -------------------------------------
AMORTIZED FAIR AMORTIZED FAIR AMORTIZED FAIR
COST VALUE COST VALUE COST VALUE
(DOLLARS IN THOUSANDS) ----------- ------ ---------- ----------------- --------
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C>
U. S. Agency
securities.............. $2,002 $2,002 $ -- $ -- $ -- $ --
</TABLE>
The weighted average yield on U. S. agency securities was 6.15% at September
30, 1997. At September 30, 1997 there were no gross unrealized gains or
losses.
The following is a summary of the contractual terms to maturity of
securities at their fair value as of September 30, 1997 (unaudited):
<TABLE>
<CAPTION>
CONTRACTUAL MATURITY
---------------------------------------
AFTER ONE AFTER THREE
WITHIN THROUGH THROUGH
ONE YEAR THREE YEARS FOUR YEARS TOTAL
(DOLLARS IN THOUSANDS) -------- ----------- ----------- ------
<S> <C> <C> <C> <C>
U. S. Agency securities................ $-- $2,002 $-- $2,002
</TABLE>
4. LOANS
Loans are summarized as follows:
<TABLE>
<CAPTION>
DECEMBER 31,
SEPTEMBER 30, ------------------
1997 1996 1995
(DOLLARS IN THOUSANDS) ------------- -------- --------
(UNAUDITED)
<S> <C> <C> <C>
Mortgage loans:
Fixed rate.................................. $ 16,996 $ 19,505 $ 26,787
Adjustable rate............................. 74,001 84,522 97,696
-------- -------- --------
90,997 104,027 124,483
-------- -------- --------
Consumer loans:
Insurance premium financing................. 47,287 32,058 16,975
Automobile installment contracts............ 32,037 10,830 --
Other....................................... 327 230 31
-------- -------- --------
79,651 43,118 17,006
-------- -------- --------
Total loans................................ 170,648 147,145 141,489
Less:
Unearned discounts and premiums............. (3,135) (3,697) (4,445)
Unearned finance charges.................... (8,810) (3,271) --
Allowance for loan losses................... (6,203) (5,356) (5,250)
-------- -------- --------
Total loans, net........................... $152,500 $134,821 $131,794
======== ======== ========
Contractual weighted average interest rate... 12.51% 10.20% 9.19%
-------- -------- --------
</TABLE>
At September 30, 1997 and December 31, 1996, approximately 99% of the
Company's mortgage loans were collateralized by first deeds of trust on one-
to-four family residences. At September 30, 1997 and December 31, 1996,
approximately 82% and 81%, respectively, of the Company's loan portfolio
related to collateral or borrowers located in California. Adjustable rate
loans comprise approximately 83% and 81% of total real estate loans at
September 30, 1997 and December 31, 1996, respectively.
F-11
<PAGE>
UNITED PANAM FINANCIAL CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
The activity in the allowance for loan losses consists of the following:
<TABLE>
<CAPTION>
YEARS APRIL 29, 1994
NINE MONTHS ENDED ENDED (INCEPTION)
SEPTEMBER 30, DECEMBER 31, THROUGH
------------------ -------------- DECEMBER 31,
1997 1996 1996 1995 1994
(DOLLARS IN THOUSANDS) -------- -------- ------ ------ --------------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Balance at beginning of
period..................... $ 5,356 $ 5,250 $5,250 $ 378 $ --
Provision for loan losses.. 445 98 194 120 50
Purchase discounts
allocated to the allowance
for loan losses, net...... 1,314 192 356 4,860 328
Charge-offs................ (1,691) (427) (718) (108) --
Recoveries................. 779 200 274 -- --
-------- -------- ------ ------ ----
Net charge-offs........... (912) (227) (444) (108) --
-------- -------- ------ ------ ----
Balance at end of period... $ 6,203 $ 5,313 $5,356 $5,250 $378
======== ======== ====== ====== ====
</TABLE>
The discounts allocated to the allowance for loan losses in 1997 and 1996
are comprised primarily of acquisition discounts on the Company's purchase of
automobile installment contracts. The discounts allocated to the allowance for
loan losses in 1995 and 1994 primarily relate to the purchase of loan
portfolios from the RTC. The Company allocated the estimated amount of
discounts attributable to credit risk to the allowance for loan losses.
The following table sets forth information with respect to the Company's
non-performing assets:
<TABLE>
<CAPTION>
DECEMBER 31,
SEPTEMBER 30, --------------
1997 1996 1995
(DOLLARS IN THOUSANDS) ------------- ------ ------
(UNAUDITED)
<S> <C> <C> <C>
Nonaccrual loans................................ $4,668 $5,835 $5,240
Real estate owned, net.......................... 637 988 298
------ ------ ------
Totals........................................ $5,305 $6,823 $5,538
====== ====== ======
Percentage of non-performing assets to total
assets.......................................... 1.87% 3.64% 3.47%
====== ====== ======
</TABLE>
At September 30, 1997, the aggregate investment in loans considered to be
impaired was $5,336,000 of which $4,613,000 were on a nonaccrual basis. At
December 31, 1996 the aggregate investment in loans considered to be impaired
was $7,298,000 of which $6,196,000 were on a nonaccrual basis. At December 31,
1995, the Company had $6,745,000 in impaired loans of which $6,149,000 were on
a nonaccrual basis. An allowance for loan losses was provided for all impaired
loans at September 30, 1997 and December 31, 1996 and 1995; the related
allowances were $1,035,000, $984,000 and $913,000, respectively. For the years
ended December 31, 1996 and 1995, the Company recognized interest income on
impaired loans of $408,000 and $367,000, respectively. The average recorded
investment in impaired loans during the nine months ended September 30, 1997
and the years ended December 31, 1996 and 1995 was approximately $6,317,000,
$7,022,000 and $3,373,000, respectively.
F-12
<PAGE>
UNITED PANAM FINANCIAL CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
A loan is impaired when, based on current information and events, management
believes it will be unable to collect all amounts contractually due under the
applicable loan agreement. Loans are evaluated for impairment as part of the
Company's normal internal asset review process. When a loan is determined to
be impaired, a valuation allowance is established based upon the difference
between the Company's investment in the loan and the fair value of the
collateral securing the loan.
Under Federal regulations, the Company may not make real estate loans to one
borrower in an amount exceeding 15% of its unimpaired capital and surplus,
plus an additional 10% for loans secured by readily marketable collateral. At
September 30, 1997 and December 31, 1996, such limitation would have been
approximately $2.9 million and $2.5 million, respectively, or $4.9 million and
$4.1 million if secured by readily marketable collateral. There are no loans
in excess of these limitations.
5. FEDERAL HOME LOAN BANK STOCK
The Bank is a member of the Federal Home Loan Bank System ("FHLB") and as
such is required to maintain an investment in capital stock of the FHLB of San
Francisco. At September 30, 1997, December 31, 1996 and 1995, the Bank owned
17,690, 12,880 and 7,660 shares, respectively, of the FHLB's $100 par value
capital stock. The amount of stock required is adjusted annually based on a
determination made by the FHLB. The determination is based on the balance of
the Bank's outstanding residential loans and advances from the FHLB.
6. INTEREST RECEIVABLE
Interest receivable is as follows:
<TABLE>
<CAPTION>
DECEMBER
31,
SEPTEMBER 30, -----------
1997 1996 1995
(DOLLARS IN THOUSANDS) ------------- ---- ------
(UNAUDITED)
<S> <C> <C> <C>
Loans................................................. $854 $824 $1,109
Investment securities................................. 73 21 60
---- ---- ------
Total............................................... $927 $845 $1,169
==== ==== ======
</TABLE>
7. PREMISES AND EQUIPMENT
Premises and equipment are as follows:
<TABLE>
<CAPTION>
DECEMBER 31,
SEPTEMBER 30, --------------
1997 1996 1995
(DOLLARS IN THOUSANDS) ------------- ------ ------
(UNAUDITED)
<S> <C> <C> <C>
Furniture and equipment........................... $2,657 $ 867 $ 220
Leasehold improvements............................ 252 173 43
------ ------ -----
2,909 1,040 263
Less accumulated depreciation and amortization.... (627) (218) (55)
------ ------ -----
$2,282 $ 822 $ 208
====== ====== =====
</TABLE>
Depreciation and amortization expense was $410,000, $104,000, $163,000,
$50,000 and $5,000 for the nine months ended September 30, 1997 and 1996 and
for the years ended December 31, 1996, 1995, and for the period from April 29,
1994 (Inception) through December 31,1994, respectively.
F-13
<PAGE>
UNITED PANAM FINANCIAL CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
8. DEPOSITS
Deposits are summarized as follows:
<TABLE>
<CAPTION>
DECEMBER 31,
SEPTEMBER 30, -------------------------------------------
1997 1996 1995
--------------------- --------------------- ---------------------
WEIGHTED WEIGHTED WEIGHTED
AMOUNT AVERAGE RATE AMOUNT AVERAGE RATE AMOUNT AVERAGE RATE
(DOLLARS IN THOUSANDS) -------- ------------ -------- ------------ -------- ------------
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C>
Deposits with no stated
maturity:
Regular and money
market passbook....... $ 23,200 3.57% $ 17,054 2.84% $ 14,877 2.18%
NOW accounts........... 7,260 .83 7,757 .88 7,814 .88
Money market checking.. 2,577 2.67 2,885 2.49 3,400 2.42
-------- -------- --------
33,037 2.90 27,696 2.25 26,091 1.82
-------- -------- --------
Time deposits:
Less than one year..... 40,290 5.46 24,162 5.01 24,800 4.92
One year to two years.. 76,183 5.56 86,318 5.41 71,615 5.76
Two years to three
years................. 21,524 5.70 12,333 6.67 14,867 6.41
Three years and over... 1,442 6.56 1,101 6.70 976 6.69
Certificates $100,000
and over.............. 38,307 5.88 7,451 5.89 3,575 6.12
-------- -------- --------
177,746 5.63 131,365 5.49 115,833 5.68
-------- -------- --------
Total deposits........ $210,783 5.20% $159,061 4.68% $141,924 4.97%
======== ======== ========
</TABLE>
A summary of certificate accounts by remaining maturity is as follows:
<TABLE>
<CAPTION>
DECEMBER 31,
SEPTEMBER 30, -----------------
1997 1996 1995
(DOLLARS IN THOUSANDS) ------------- -------- --------
(UNAUDITED)
<S> <C> <C> <C>
Maturity within one year....................... $139,415 $103,369 $ 76,879
Maturity within two years...................... 37,831 26,819 36,316
Maturity within three years.................... 500 1,177 1,681
Maturity within four years..................... -- -- 957
-------- -------- --------
Total........................................ $177,746 $131,365 $115,833
======== ======== ========
</TABLE>
Broker-originated deposits totaled $7.5 million at September 30, 1997. There
were no broker-originated deposits at December 31, 1996 and 1995.
9. FEDERAL HOME LOAN BANK ADVANCES
The Company had short term FHLB advances of $35.0 million and $4.0 million
at September 30, 1997 and December 31, 1996, respectively. The advances
outstanding at September 30, 1997 and December 31, 1996 had a weighted average
interest rate of 6.43% and 5.70%, respectively, and were secured by the
Company's stock in the FHLB of San Francisco and by pledges of certain
mortgages with an aggregate balance of $88.0 million at December 31, 1996.
F-14
<PAGE>
UNITED PANAM FINANCIAL CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
10. NOTES PAYABLE
Notes payable consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
SEPTEMBER 30, ---------------
1997 1996 1995
(DOLLARS IN THOUSANDS) ------------- ------- -------
(UNAUDITED)
<S> <C> <C> <C>
RTC notes payable................................ $ 10,930 $10,930 $10,930
Notes payable from stockholders.................. 1,940 -- --
-------- ------- -------
$ 12,870 $10,930 $10,930
======== ======= =======
</TABLE>
The RTC notes payable were issued in connection with the Company's
acquisition of certain assets and assumption of certain liabilities from the
RTC. See note 14 for a description of the terms and conditions of these notes.
The notes payable from stockholders are unsecured loans bearing interest at
8% per year with interest payable semi-annually and principal maturing on June
30, 1999. The proceeds from the notes payable were contributed to United PanAm
Mortgage Corp., a wholly-owned subsidiary of United PanAm Financial Corp., for
working capital purposes. The notes payable may be prepaid at any time,
without penalty.
The maturities of notes payable at December 31, 1996 are as follows:
<TABLE>
<S> <C>
Due in 1 year or less........................................... $ --
Due in 1 to 3 years............................................. 12,870
--------
$ 12,870
========
</TABLE>
11. INCOME TAXES
The provision for income taxes is comprised of the following:
<TABLE>
<CAPTION>
NINE MONTHS APRIL 29, 1994
ENDED YEARS ENDED (INCEPTION)
SEPTEMBER 30, DECEMBER 31, THROUGH
-------------- -------------- DECEMBER 31,
1997 1996 1996 1995 1994
(DOLLARS IN THOUSANDS) ------- ----- ------ --------------------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Federal taxes:
Current........................... $ 3,323 $ 633 $ 807 $ 233 $24
Deferred.......................... (1,445) (120) (302) 55 50
------- ----- ------ ----- ---
1,878 513 505 288 74
------- ----- ------ ----- ---
State taxes:
Current........................... 1,115 229 304 58 (6)
Deferred.......................... (413) (44) (118) 38 30
------- ----- ------ ----- ---
702 185 186 96 24
------- ----- ------ ----- ---
Total........................... $ 2,580 $ 698 $ 691 $ 384 $98
======= ===== ====== ===== ===
</TABLE>
F-15
<PAGE>
UNITED PANAM FINANCIAL CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
The tax effects of significant items comprising the Company's net deferred
taxes are as follows:
<TABLE>
<CAPTION>
DECEMBER 31,
SEPTEMBER 30, -------------
1997 1996 1995
(DOLLARS IN THOUSANDS) ------------- ------ ------
(UNAUDITED)
<S> <C> <C> <C>
Deferred tax assets:
Franchise taxes.................................. $ 386 $ 76 $ 26
Loans marked to market for tax purposes.......... 1,894 415 --
Intangible assets................................ 88 67 38
Other............................................ 14 1 1
------ ----- ------
Total gross deferred tax assets................. 2,382 559 65
------ ----- ------
Deferred tax liabilities:
Loan loss allowances............................. (191) (238) (212)
FHLB stock dividends............................. (85) (54) (26)
Other............................................ (1) (20) --
------ ----- ------
Total gross deferred tax liabilities............ (277) (312) (238)
------ ----- ------
Net deferred tax assets (liabilities)............. $2,105 $ 247 $ (173)
====== ===== ======
</TABLE>
The Company believes a valuation allowance is not needed to reduce the net
deferred tax assets as it is more likely than not that the deferred tax assets
will be realized through recovery of taxes previously paid or future taxable
income.
The Company's effective income tax rate differs from the federal statutory
rate due to the following:
<TABLE>
<CAPTION>
NINE MONTHS YEARS APRIL 29, 1994
ENDED ENDED (INCEPTION)
SEPTEMBER 30, DECEMBER 31, THROUGH
-------------- -------------- DECEMBER 31,
1997 1996 1996 1995 1994
------ ------ ------ ------ --------------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Expected statutory rate........ 34.0% 34.0% 34.0% 34.0% 34.0%
State taxes, net of federal
benefits....................... 7.5 7.5 7.5 7.5 7.4
Other, net..................... .3 1.4 .6 4.1 4.4
------ ------ ------ ------ ----
Effective tax rate............. 41.8% 42.9% 42.1% 45.6% 45.8%
====== ====== ====== ====== ====
</TABLE>
The Company files its income tax returns using a fiscal year end of June 30.
Accordingly, the amounts reflected in this footnote are management's estimates
of income tax expenses and deferred income taxes at the dates presented.
12. REGULATORY CAPITAL REQUIREMENTS
The Financial Institutions Reform, Recovery and Enforcement Act of 1989
("FIRREA") established new capital standards for savings institutions,
requiring the Office of Thrift Supervision ("OTS") to promulgate regulations
to prescribe and maintain uniformly applicable capital standards for savings
institutions. Such regulations include three capital requirements: a tangible
capital requirement equal to 1.5% of adjusted total assets, a leverage limit
or core capital requirement equal to 3.0% of adjusted total assets, and a
risk-based capital
F-16
<PAGE>
UNITED PANAM FINANCIAL CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
requirement equal to 8.0% of risk-weighted assets. At December 31, the Bank
had the following regulatory capital requirements and capital position:
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31, DECEMBER 31,
1997 1996 1995
-------------------------- ------------------------- -------------------------
ACTUAL REQUIRED EXCESS ACTUAL REQUIRED EXCESS ACTUAL REQUIRED EXCESS
(DOLLARS IN THOUSANDS) ------- -------- ------- ------- -------- ------- ------- -------- -------
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Tangible capital........ $19,702 $ 4,184 $15,518 $16,499 $2,795 $13,704 $15,654 $2,374 $13,280
Tangible capital ratio.. 7.06% 1.50% 5.56% 8.85% 1.50% 7.35% 9.89% 1.50% 8.39%
Core capital............ $19,702 $ 8,369 $11,333 $16,499 $5,590 $10,909 $15,654 $4,747 $10,907
Core capital (leverage)
ratio.................. 7.06% 3.00% 4.06% 8.85% 3.00% 5.85% 9.89% 3.00% 6.89%
Risk-based capital...... $21,802 $13,217 $ 8,585 $17,893 $8,751 $ 9,142 $15,654 $7,286 $ 8,368
Percent of risk-weighted
assets................. 13.20% 8.00% 5.20% 16.36% 8.00% 8.36% 17.19% 8.00% 9.19%
</TABLE>
The FDIC Improvement Act of 1991 ("FDICIA") required each federal banking
agency to implement prompt corrective actions for institutions that it
regulates. In response to these requirements, the OTS adopted final rules,
effective December 19, 1992, based upon FDICIA's five capital tiers: well
capitalized, adequately capitalized, undercapitalized, significantly
undercapitalized, and critically undercapitalized.
The rules provide that a savings association is "well capitalized" if its
leverage ratio is 5% or greater, its Tier 1 risk-based capital ratio is 6% or
greater, its total risk-based capital ratio is 10% or greater, and the
institution is not subject to a capital directive.
As used herein, leverage ratio means the ratio of core capital to adjusted
total assets, Tier 1 risk-based capital ratio means the ratio of core capital
to risk-weighted assets, and total risk-based capital ratio means the ratio of
total capital to risk-weighted assets, in each case as calculated in
accordance with current OTS capital regulations. Under these new regulations,
the Bank is deemed to be "well capitalized".
The Bank had the following regulatory capital calculated in accordance with
FDICIA's capital standards for a "well capitalized" institution:
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31, DECEMBER 31,
1997 1996 1995
------------------------- ------------------------- -------------------------
ACTUAL REQUIRED EXCESS ACTUAL REQUIRED EXCESS ACTUAL REQUIRED EXCESS
(DOLLARS IN THOUSANDS) ------- -------- ------ ------- -------- ------ ------- -------- -------
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Leverage................ $19,702 $13,948 $5,754 $16,499 $ 9,316 $7,183 $15,654 $7,912 $ 7,742
Leverage ratio.......... 7.06% 5.00% 2.06% 8.85% 5.00% 3.85% 9.89% 5.00% 4.89%
Tier 1 risk-based....... $19,702 $ 9,913 $9,789 $16,499 $ 6,563 $9,936 $15,654 $5,465 $10,189
Tier 1 risk-based
ratio.................. 11.93% 6.00% 5.93% 15.08% 6.00% 9.08% 17.19% 6.00% 11.19%
Total risk-based........ $21,802 $16,521 $5,281 $17,893 $10,939 $6,954 $15,654 $9,108 $ 6,546
Total risk-based ratio.. 13.20% 10.00% 3.20% 16.36% 10.00% 6.36% 17.19% 10.00% 7.19%
</TABLE>
At periodic intervals, both the OTS and Federal Deposit Insurance
Corporation ("FDIC") routinely examine the Bank's financial statements as part
of their legally prescribed oversight of the savings and loan industry. Based
on these examinations, the regulators can direct that the Bank's financial
statements be adjusted in accordance with their findings.
On September 30, 1996, the Economic Growth and Regulatory Paperwork
Reduction Act ("Act") of 1996 was enacted. The Act included a Special
Assessment ("Special SAIF Assessment") related to the recapitalization of the
SAIF, which was levied based on a rate of 65.7 cents per $100 of SAIF-insured
domestic deposits held as of March 31, 1995. As a result of the Act, the
Company recorded a pre-tax charge of $820,000 in the year ended December 31,
1996.
F-17
<PAGE>
UNITED PANAM FINANCIAL CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
13. COMMITMENTS AND CONTINGENCIES
Certain branch and office locations are leased by the Company under
operating leases expiring at various dates through the year 2006. Rent expense
was $970,000, $310,000, $475,000, $227,000 and $170,000 for the nine months
ended September 30, 1997 and 1996 and the years ended December 31, 1996, 1995
and for the period from April 29, 1994 (Inception) through December 31, 1994,
respectively.
Future minimum rental payments as of December 31, 1996 under existing leases
are set forth as follows:
<TABLE>
<CAPTION>
(DOLLARS IN THOUSANDS)
YEAR ENDING DECEMBER 31:
<S> <C>
1997............................................................ $ 540
1998............................................................ 580
1999............................................................ 508
2000............................................................ 507
2001............................................................ 257
Thereafter...................................................... 487
------
Total......................................................... $2,879
======
</TABLE>
Under the RTC Minority Preference Resolution Program, the Company's Mission
Street branch is subject to a rent-free lease and purchase option. This lease
and purchase option is available to minority owned institutions for branches
located in a predominantly minority neighborhood. The term of the lease is
five years with an option to purchase the branch at a price equal to 95% of
the appraised value at the time of the purchase and can be exercised anytime
during the term of the lease. The lease was effective as of April 30, 1994.
In order to meet the borrowing needs of its customers, the Company is a
party to certain commitments to extend credit which have specified interest
rates and fixed expiration dates. These commitments, substantially all of
which are to fund mortgages on one-to-four family residences, are considered
off-balance sheet financial instruments. These instruments involve elements of
credit risk and interest rate risk in excess of amounts recognized in the
accompanying statements of financial condition. The Company's exposure to
credit loss from these commitments to extend credit, in the event of borrower
nonperformance, is represented by the contractual amount of these commitments.
Certain of the commitments are expected to expire without being drawn upon
and, accordingly, the total commitment amounts do not necessarily represent
future cash requirements.
At September 30, 1997 and December 31, 1996, the Company had outstanding
commitments to originate loans of approximately $116.0 million and $19.1
million, respectively. Commitments outstanding included $96.4 million and
$17.1 million of adjustable rate loans at September 30, 1997 and December 31,
1996 and $19.6 million and $2.0 million of fixed rate loans at September 30,
1997 and December 31, 1996. The fixed rate loan commitments have interest
rates ranging from 8.38% to 15.75% at September 30, 1997 and 8.88% to 14.90%
at December 31, 1996. At September 30, 1997 and December 31, 1996, the Company
had outstanding commitments to sell loans on a nonrecourse basis of $25.8
million and $1.3 million, respectively.
The Company has entered into loan sale agreements with investors in the
normal course of business which include standard representations and
warranties customary to the mortgage banking industry. Violations of these
representations and warranties may require the Company to repurchase loans
previously sold or to reimburse investors for losses incurred. In the opinion
of management, the potential exposure related to the Company's loan sale
agreements will not have a material effect on the financial condition and
results of operations of the Company.
F-18
<PAGE>
UNITED PANAM FINANCIAL CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
The Company is involved in various claims or legal actions arising in the
normal course of business. In the opinion of management, the ultimate
disposition of such matters will not have a material effect on the financial
condition and results of operations of the Company.
14. NOTES PAYABLE, RESTRICTION ON DIVIDEND PAYMENTS AND PLEDGE OF BANK STOCK.
In accordance with Federal Regulation 12 CFR 563.134, federal savings banks
which meet fully phased-in capital requirements may distribute dividends up to
100% of their net income to date plus the amount that would reduce by one-half
their surplus capital ratio at the beginning of the calendar year. The Bank
exceeds the fully phased-in capital requirements. In connection with the April
29, 1994 purchase of assets and assumption of certain liabilities from the
RTC, the Bank and the Company, entered into a five year Interim Capital
Assistance Loan Agreement ("ICA") with the RTC (the Bank is not a direct or
indirect obligor, or a guarantor, of the loan) for $6,930,000 at a fixed
interest rate of 3.69% for two years and 0.125% above the 13-week Treasury
Bill auction rate for the remaining three years, adjusted annually. On
September 9, 1994, the Bank acquired deposits from the RTC totaling
approximately $65,000,000 located in Panorama City in Southern California. In
connection with this acquisition, the RTC provided the Bank's Holding Company,
Pan American Financial, Inc., $4,000,000 in the form of an additional ICA loan
for a term of five years with interest at 0.125% above the 13 week Treasury
Bill auction rate, adjusted quarterly. The entire amount was invested by the
Company in the Bank and qualifies as regulatory capital for the Bank. In
addition, the OTS required $750,000 of additional capital from the
shareholders to be invested in the Bank in connection with the Panorama City
branch acquisition.
These Agreements, as amended, provide among other things, that the Bank may
not declare or pay any dividends until the loan is repaid by the Company.
Dividends may be paid to the Company if the funds are used exclusively for
payment of principal or interest on the obligation of PAFI to the RTC or the
Bank has provided the FDIC with 30 days prior written notice of its intent to
declare or pay such dividends and the Bank is in compliance with certain
conditions as required under the Agreements. The stock of the Bank was pledged
by PAFI to the RTC as collateral for the loan.
15. STOCK OPTIONS
In 1994, the Company adopted the United PanAm Financial Corp. 1994 Stock
Option Plan (the "Plan"). The Plan authorizes the granting of options equal to
1,312,5000 shares of common stock for issuance to executives, key employees,
officers, directors and independent contractors. Options granted under the
Plan are made at an exercise price of not less than the fair market value on
the date of grant. Any stock issued under the Plan is considered "Restricted
Stock" and subject to a shareholder's agreement which limits sales or
transfers of such stock. Options vest over a four year period commencing on
the grant date at a rate of 25% per year.All options granted prior to December
31, 1996 were issued at an exercise price of $0.80 per share, estimated fair
value at the date of grant, and have terms of five years.
F-19
<PAGE>
UNITED PANAM FINANCIAL CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Stock option activity is as follows:
<TABLE>
<CAPTION>
YEARS ENDED
DECEMBER 31,
-----------------
1996 1995
--------- -------
<S> <C> <C>
Balance at beginning of period......................... 900,000 900,000
Granted................................................ 243,750 --
Canceled or expired.................................... -- --
Exercised.............................................. -- --
--------- -------
Balance at end of period............................... 1,143,750 900,000
========= =======
Options exercisable.................................... 511,875 225,000
========= =======
Weighted average fair value per share of options
granted during the year............................... $0.23 --
========= =======
</TABLE>
The Company applies APB Opinion No. 25 in accounting for its plan and
accordingly, no compensation cost has been recognized for its stock option
plan in the consolidated financial statements. Had the Company determined
compensation cost based on the fair value at the grant date for its stock
options under Statement of Financial Accounting Standards No. 123, "Accounting
for Stock-Based Compensation," the Company's net earnings and earnings per
share would have been reduced to the pro-forma amounts indicated below for the
year ended December 31:
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31,
1996
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA) ------------
<S> <C>
Net income to common stockholders:
As reported................................................ $950
Pro forma.................................................. $918
Net income per common share:
As reported (pro forma)(unaudited)......................... $0.09
Pro forma (unaudited)...................................... $0.08
</TABLE>
The fair value of options granted under the Plan was estimated on the date
of grant using the Black-Scholes option-pricing model with the following
weighted average assumptions used: no dividend yield, no volatility, risk-free
interest rate of 7% and expected lives of 5 years.
The Company's auto finance subsidiary has granted options to certain of its
key employees to purchase up to 13.5% of that subsidiary. These options are
exercisable only upon an initial public offering or sale of such subsidiary.
These options vest based upon the satisfaction of specified performance goals.
16. FAIR VALUE OF FINANCIAL INSTRUMENTS
The estimated fair values of the Company's financial instruments are as
follows at the dates indicated:
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31, DECEMBER 31,
1997 1996 1995
------------------- ------------------- -------------------
CARRYING FAIR VALUE CARRYING FAIR VALUE CARRYING FAIR VALUE
VALUE ESTIMATE VALUE ESTIMATE VALUE ESTIMATE
(DOLLARS IN THOUSANDS) -------- ---------- -------- ---------- -------- ----------
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C>
Assets:
Cash and cash
equivalents........... $45,780 $45,780 $ 26,063 $ 26,063 $ 23,573 $ 23,573
Securities............. 2,002 2,002 -- -- -- --
Loans receivable, net.. 222,741 210,159 155,587 165,693 131,794 141,603
Federal Home Loan Bank
Stock................. 1,769 1,769 1,288 1,288 766 766
Accrued interest....... 927 927 845 845 845 845
Liabilities:
Deposits............... 210,783 210,689 $159,061 $159,506 $141,924 $142,745
Notes payable.......... 12,870 12,870 10,930 10,930 10,930 10,930
Federal Home Loan Bank
advances.............. 35,000 35,000 4,000 4,000 -- --
</TABLE>
F-20
<PAGE>
UNITED PANAM FINANCIAL CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
The following summary presents a description of the methodologies and
assumptions used to estimate the fair value of the Company's financial
instruments. Because no ready market exists for a significant portion of the
Company's financial instruments, fair value estimates are based on judgments
regarding future expected loss experience, current economic conditions, risk
characteristics of various financial instruments, and other factors. These
estimates are subjective in nature and involve uncertainties and matters of
significant judgment and, therefore, cannot be determined with precision. The
use of different assumptions and/or estimation methodologies may have a
material effect on the estimated fair value amounts.
Cash and cash equivalents: Cash and cash equivalents are valued at their
carrying amounts included in the consolidated statements of financial
condition, which are reasonable estimates of fair value due to the relatively
short period to maturity of the instruments.
Securities: Securities are valued at quoted market prices where available.
If quoted market prices are not available, fair values are based on quoted
market prices of comparable instruments.
Loans receivable, net: For real estate loans, fair values were estimated
using quoted prices for equivalent yielding loans as adjusted for interest
rates, margin differences and other factors. For non-mortgage loans, fair
values, were estimated at carrying amounts due to their short-term maturity
and portfolio interest rates that are equivalent to present market interest
rates.
Federal Home Loan Bank Stock: Since no secondary market exists for FHLB
stock and the stock is bought and sold at par by the FHLB, fair value of these
financial instruments approximates the carrying value.
Accrued interest: The carrying amounts of accrued interest approximate their
fair values.
Deposits: The fair values of demand deposits, passbook accounts, money
market accounts, and other deposits immediately withdrawable, by definition,
approximate carrying values for the respective financial instruments. For
fixed maturity deposits, the fair value was estimated by discounting expected
cash flows by the current offering rates of deposits with similar terms and
maturities.
Federal Home Loan Bank advances: The fair value of FHLB advances are valued
at their carrying amounts included in the consolidated statements of financial
condition, which are reasonable estimates of fair value due to the relatively
short period to maturity of the advances.
Notes payable: The fair value of notes payable is considered to approximate
carrying value as their note rates are consistent with present market rates.
Financial Instruments With Off-Balance Sheet Risk: No fair value is ascribed
to the Company's outstanding commitments to fund loans since commitment fees
are not significant and predominantly all such commitments are variable-rate
loan commitments. There were no significant unrealized gains and losses on
commitments to sell loans.
F-21
<PAGE>
UNITED PANAM FINANCIAL CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
17. HOLDING COMPANY FINANCIAL INFORMATION
Following are the financial statements of United PanAm Financial Corp.
(holding company only):
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31, DECEMBER 31,
1997 1996 1995
(DOLLARS IN THOUSANDS) ------------- ------------ ------------
(UNAUDITED)
<S> <C> <C> <C>
STATEMENTS OF FINANCIAL CONDITION
Cash.................................. $ 277 $ 32 $ 27
Other assets.......................... 40 29 36
Investment in subsidiary.............. 12,012 6,700 5,748
------- ------ ------
Total assets......................... $12,329 $6,761 $5,811
======= ====== ======
Notes payable......................... 1,940 -- --
Other liabilities..................... 34 -- --
------- ------ ------
Total liabilities.................... 1,974 -- --
Stockholders' equity.................. 10,355 6,761 5,811
------- ------ ------
Total liabilities and stockholders'
equity.............................. $12,329 $6,761 $5,811
======= ====== ======
</TABLE>
<TABLE>
<CAPTION>
YEARS
ENDED APRIL 29, 1994
DECEMBER (INCEPTION)
NINE MONTHS ENDED 31, THROUGH
SEPTEMBER 30, ---------- DECEMBER 31,
1997 1996 1995 1994
----------------- ---- ---- --------------
(UNAUDITED)
<S> <C> <C> <C> <C>
STATEMENTS OF OPERATIONS
Equity in income of subsidiary... $3,610 $952 $470 $111
Interest income.................. 9 1 1 55
------ ---- ---- ----
Total income................... 3,619 953 471 166
------ ---- ---- ----
Interest expense................. 34 -- -- --
Other expense.................... 2 4 22 47
------ ---- ---- ----
Total expense.................. 36 4 22 47
------ ---- ---- ----
Income before income taxes....... 3,583 949 449 119
Income tax benefit (expense)..... 11 1 9 (3)
------ ---- ---- ----
Net income..................... $3,594 $950 $458 $116
====== ==== ==== ====
STATEMENTS OF CASH FLOWS
Cash flows from operating
activities:
Net income...................... $3,594 $950 $458 $116
Equity in earnings of
subsidiary..................... (3,610) (952) (470) (111)
(Increase) decrease in other
assets......................... (11) 7 (35) 17
Increase in other liabilities... 34 -- -- 52
------ ---- ---- ----
Net cash provided by (used in)
operating activities.......... 7 5 (47) 74
------ ---- ---- ----
Cash flows from financing
activities:
Capital contributed to
subsidiary..................... (1,702) -- -- --
Increase in notes payable from
shareholders................... 1,940 -- -- --
------ ---- ---- ----
Net cash provided by financing
activities..................... 238 -- -- --
------ ---- ---- ----
Net increase (decrease) in cash
and cash equivalents........... 245 5 (47) 74
Cash and cash equivalents at
beginning of period............ 32 27 74 --
------ ---- ---- ----
Cash and cash equivalents at end
of period...................... $ 277 $ 32 $ 27 $ 74
====== ==== ==== ====
</TABLE>
F-22
<PAGE>
UNITED PANAM FINANCIAL CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
18. UNAUDITED PRO FORMA EARNINGS PER SHARE
Earnings per share is based on the weighted average number of combined
common shares and common stock equivalents outstanding. Common stock
equivalents consist of unexercised stock options. Pursuant to Securities and
Exchange Commission Staff Accounting Bulletin No. 83, common stock and common
stock equivalents issued below the estimated initial public offering price
during the twelve month period prior to the date of the initial filing of the
Company's Registration Statement have been included in the calculation of
earnings per share, using the treasury stock method, as if they were
outstanding for all periods presented.
Weighted average shares outstanding were 11,344,000 for the nine months
ended September 30, 1997 and 10,886,000 for the year ended December 31, 1996.
The number of shares used in all calculations has been adjusted to reflect a
1,875-for-1 stock split effected in November 1997. Historical earnings per
share is not presented because it is not indicative of the on-going entity.
19. SUBSEQUENT EVENTS (UNAUDITED)
In October 1997, the Company issued 605,000 stock options at an exercise
price of $10.50 per share based upon the estimated fair market value of the
Company at the time of grant. The options have various vesting schedules over
a four to five year period. In November 1997, the Company also effected a
1,875-for-1 stock split.
The Bank entered into a $100 million master repurchase agreement in October
1997 under which it may sell and repurchase, at a set price, mortgage loans
pending the sale or securitization of such loans. The facility provides for an
advance rate approximating 100% of the outstanding principal balance of
qualifying mortgage loans and an interest rate of LIBOR plus 0.70%.
F-23
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
No dealer, salesperson or any other person has been authorized to given any
information or to make any representations other than those contained in this
Prospectus in connection with the offer made in this Prospectus and, if given
or made, such information or representations must not be relied upon as having
been authorized by the Company or any of the Underwriters. This Prospectus
does not constitute an offer to sell or a solicitation of any offer to buy any
securities other than the shares of Common Stock to which it relates or an of-
fer to, or a solicitation of, any person in any jurisdiction where such an of-
fer or solicitation would be unlawful. Neither the delivery of this Prospectus
nor any sale made hereunder shall, under any circumstances, create any impli-
cation that the information contained herein is correct as of any time subse-
quent to the date hereof.
---------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Prospectus Summary....................................................... 3
Risk Factors............................................................. 12
Use of Proceeds.......................................................... 22
Dividend Policy.......................................................... 22
Dilution................................................................. 23
Capitalization........................................................... 24
Selected Consolidated Financial Data..................................... 25
Management's Discussion and Analysis of Financial Condition and Results
of Operations........................................................... 28
Business................................................................. 50
Management............................................................... 83
Principal Stockholders................................................... 93
Description of Capital Stock............................................. 95
Underwriting............................................................. 98
Legal Matters............................................................ 99
Experts.................................................................. 99
Additional Information................................................... 100
Index to Consolidated Financial Statements............................... F-1
</TABLE>
---------------
UNTIL , 1997 (25 DAYS AFTER THE DATE OF THIS PROSPECTUS), ALL DEALERS
EFFECTING TRANSACTIONS IN THE COMMON STOCK, WHETHER OR NOT PARTICIPATING IN
THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS. THIS IS IN ADDI-
TION TO THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS WHEN ACTING AS UN-
DERWRITERS AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR SUBSCRIPTIONS.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SHARES
UNITED PANAM FINANCIAL CORP.
[LOGO]
COMMON STOCK
---------------
PROSPECTUS
---------------
NationsBanc Montgomery Securities, Inc.
PIPER JAFFRAY INC.
, 1997
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses in connection with the Offering are as follows:
<TABLE>
<S> <C>
SEC registration fee............................................... $ 24,394
NASD filing fee.................................................... 8,550
Nasdaq National Market filing fee.................................. 58,641
Blue Sky filing fees and expenses.................................. 15,000
Printing and engraving expenses.................................... 150,000
Legal fees and expenses............................................ 275,000
Accounting fees and expenses....................................... 160,000
Registrar and transfer agent fees.................................. 15,000
Miscellaneous...................................................... 43,415
--------
Total............................................................ $750,000
========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Delaware law, the directors and officers of the Registrant are
entitled, under certain circumstances, to be indemnified by the Registrant
against all expenses and liabilities incurred or imposed upon them as a result
of suits brought against them in their capacities as directors and officers,
if they act in good faith and in a manner they reasonably believe to be in or
not opposed to the best interests of the Registrant, and, with respect to any
criminal action or proceeding, have no reasonable cause to believe their
conduct was unlawful, except that no indemnification shall be made against
expenses in respect of any claim, issue or matter as to which they have been
adjudged to be liable to the Registrant, unless and only to the extent that
the court in which such action or suit was brought has determined upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, they are fairly and reasonably entitled to be
indemnified for such expenses which such court shall deem proper. Any such
indemnification may be made by the Registrant only as authorized in each
specific case upon a determination by the stockholders or disinterested
directors that indemnification is proper because the indemnitee has met the
applicable statutory standard of conduct.
Article Thirteenth of the Registrant's Certificate of Incorporation, as
amended, provides that a director shall not be liable to the Registrant or its
stockholders for monetary damages for a breach of fiduciary duty as a
director, except for liability: (i) for any breach of the director's duty of
loyalty to the Registrant or its stockholders; (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation
of law; (iii) under the Delaware statutory provisions making directors
personally liable for unlawful dividends or unlawful stock repurchases or
redemptions; or (iv) for any transaction from which the director derived an
improper personal benefit.
The Company's Bylaws provide that the Company shall indemnify its directors
and officers to the fullest extent permitted by Delaware law. The Company has
also entered into indemnification agreements with its directors and officers,
a copy of which agreement is filed as Exhibit 10.46 hereto. The
indemnification agreements may require the Company, among other things, to
indemnify its directors and officers against certain liabilities that may
arise by reason of their status or service as directors or officers (other
than liabilities arising from willful misconduct of a culpable nature) and to
advance their expenses incurred as a result of any proceedings against them as
to which they could be indemnified.
The Registrant maintains a standard policy of officers' and directors'
liability insurance.
II-1
<PAGE>
The Underwriting Agreement, a copy of which is filed as Exhibit 1.1 hereto,
provides for the indemnification of directors, officers, employees, agents and
controlling persons of the Registrant by the Underwriters under certain
circumstances.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
Since November 1, 1994, the Registrant has issued and sold (without payment
of any selling commission to any person) the following securities, which were
not registered under the Securities Act of 1933, as amended (the "Securities
Act"), in reliance on Section 4(2) of the Securities Act as not involving a
public offering.
On October 18, 1994, the Registrant granted Lawrence J. Grill an option, as
partial consideration for his employment by the Registrant, to purchase
375,000 shares of Common Stock at $0.80 per share pursuant to the Stock
Incentive Plan. On October 15, 1997, Lawrence J. Grill exercised the option to
purchase 281,250 shares of Common Stock for an aggregate purchase price of
$225,000. The balance of the option will vest on May 1, 1998 and will expire
on October 18, 2004.
On June 1, 1996, the Registrant granted Ronald Duncanson an option, as
partial consideration for his services as a director of the Registrant, to
purchase 18,750 shares of Common Stock at $0.80 per share pursuant to the
Stock Incentive Plan. Fifty percent of the option vested on June 1, 1996 and
25% on May 1, 1997, and 25% will vest on May 1, 1998. The option expires on
April 30, 2006.
On June 1, 1996, the Registrant granted Daniel L. Villanueva an option, as
partial consideration for his services as a director of the Registrant, to
purchase 18,750 shares of Common Stock at $0.80 per share pursuant to the
Stock Incentive Plan. Fifty percent of the option vested on June 1, 1996 and
25% on May 1, 1997, and 25% will vest on May 1, 1998. The option expires on
April 30, 2006.
On June 1, 1996, the Registrant granted Carol M. Bucci an option, as partial
consideration for her services as an officer of the Registrant, to purchase
56,250 shares of Common Stock at $0.80 per share pursuant to the Stock
Incentive Plan. Twenty-five percent of the option vested on June 1, 1996 and
25% on March 1, 1997, and 25% will vest on March 1, 1998 and 25% on March 1,
1999. The option expires on April 30, 2006.
On August 1, 1996, the Registrant granted Edmund M. Kaufman an option, as
partial consideration for his services as a director of the Registrant, to
purchase 18,750 shares of Common Stock at $0.80 per share pursuant to the
Stock Incentive Plan. Twenty-five percent of the option vested on August 1,
1996 and 25% on October 16, 1997, and 25% will vest on October 16, 1998 and
25% on October 16, 1999. The option expires on April 30, 2006.
On September 26, 1996, the Registrant granted John T. French an option, as
partial consideration for his services as a consultant to the Registrant, to
purchase 131,250 shares of Common Stock at $0.80 per share pursuant to the
Stock Incentive Plan. Twenty-five percent of the option vested on September
26, 1996 and 25% on October 1, 1997, and 25% will vest on October 1, 1998 and
25% on October 1, 1999. The option expires on April 30, 2006.
On March 5, 1997, the Registrant granted Robert Wilson an option, in
connection with the termination of his employment by the Registrant, to
purchase 112,500 shares of Common Stock at $1.33 per share pursuant to the
Stock Incentive Plan. This option vested on the date of grant and will expire
on the third anniversary of the date of grant.
On October 15, 1997, the Registrant granted John T. French an option, as
partial consideration for his services as a director of the Registrant, to
purchase 60,000 shares of Common Stock at $10.50 per share. Twenty-five
percent of the option vested on the date of grant, and 25% will vest on the
first three anniversaries of the date of grant. The option expires on the
tenth anniversary of the date of grant.
Concurrently with the sale of the shares of Common Stock offered hereby, the
Registrant will grant Luis Maizel an option, as partial consideration for his
services as a director of the Registrant, to purchase 20,000 shares of Common
Stock at an exercise price equal to the initial offering price. This option
will become
II-2
<PAGE>
exercisable in four equal annual installments commencing on the first
anniversary of the date of grant and will expire on the tenth anniversary of
the date of grant.
Concurrently with the sale of the shares of Common Stock offered hereby, the
Registrant will grant Lawrence J. Grill an option, as partial consideration
for his services as a director of the Registrant, to purchase 60,000 shares of
Common Stock at an exercise price equal to the initial offering price. This
option will become exercisable in four equal annual installments commencing on
the first anniversary of the date of grant and will expire on the tenth
anniversary of the date of grant.
Concurrently with the sale of the shares of Common Stock offered hereby, the
Registrant will grant Guillermo Bron an option, as partial consideration for
his services as a director of the Registrant, to purchase 60,000 shares of
Common Stock at an exercise price equal to 110% of the initial offering price.
This option will become exercisable in four equal annual installments
commencing on the first anniversary of the date of grant and will expire on
the tenth anniversary of the date of grant.
On October 15, 1997, the Registrant granted Carol Bucci an option, as
partial consideration for her services as an officer of the Registrant, to
purchase 40,000 shares of Common Stock at $10.50 per share. This option will
become exercisable in four equal annual installments commencing on the first
anniversary of the date of grant and will expire on the tenth anniversary of
the date of grant.
On October 15, 1997, the Registrant granted Stephen W. Haley an option, as
partial consideration for his services as an officer of the Registrant, to
purchase 60,000 shares of Common Stock at $10.50 per share. Twenty-five
percent of the option vested on the date of grant, and 25% will vest on the
first three anniversaries of the date of grant. The option will expire on the
tenth anniversary of the date of the grant.
On October 15, 1997, the Registrant granted 17 current employees options, as
partial consideration for their employment with the Registrant, to purchase up
to an aggregate of 445,000 shares of Common Stock at $10.50 per share. These
options will become exercisable in installments before October 15, 2001 and
will expire on the tenth anniversary of the date of grant.
II-3
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
a. Exhibits.
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
1.1 Form of Underwriting Agreement.
3.1 Amended and Restated Certificate of Incorporation of the Registrant.
3.2 Bylaws of the Registrant.
4.1* Form of stock certificate.
5.1* Opinion of Manatt, Phelps & Phillips, LLP.
10.1 Insurance Premium Financing Management Agreement dated May 17, 1995,
between Pan American Bank, FSB and BPN Corporation.
10.2 First Amendment to Insurance Premium Financing Management Agreement
and Guaranties dated October , 1995, between Pan American Bank, FSB
and BPN Corporation.
10.3 Second Amendment to Insurance Premium Financing Management Agreement
and Guaranties dated February 28, 1996, among Pan American Bank, FSB,
BPN Corporation, Cornelius J. O'Shea, Peter Walski and Barbara Walski.
10.4 Guaranty dated May 17, 1995 by Peter Walski and Barbara Walski to Pan
American Bank, FSB.
10.5 Guaranty dated May 17, 1995 by Cornelius J. O'Shea to Pan American
Bank, FSB.
10.6 Stock Option Agreement dated May 17, 1995, among BPN Corporation, Pan
American Group, Inc., Peter A. Walski, Barbara R. Walski, Cornelius J.
O'Shea and The Walski Family Trust.
10.7 First Amendment to Stock Option Agreement dated October 1, 1997, among
BPN Corporation, Pan American Group, Inc., Peter A. Walski, Barbara R.
Walski, Cornelius J. O'Shea and The Walski Family Trust.
10.8 Interim Capital Assistance Agreement dated September 9, 1994, among
Pan American Financial, Inc., Pan American Bank, FSB and the
Resolution Trust Corporation.
10.9 Amendment No. 1 to Interim Capital Assistance Agreement dated May 1,
1997, among Pan American Financial, Inc., Pan American Bank, FSB and
the Federal Deposit Insurance Corporation.
10.10 Interim Capital Assistance Agreement dated April 29, 1994, among Pan
American Financial, Inc., Pan American Bank, FSB and the Resolution
Trust Corporation.
10.11 Letter agreement dated March 2, 1995, between Pan American Bank, FSB
and the Resolution Trust Corporation.
10.12 Promissory Note dated September 9, 1994 in the amount of $4 million by
Pan American Financial, Inc. to the Resolution Trust Corporation.
10.13 Stock Pledge Agreement dated September 9, 1994, between Pan American
Financial, Inc. and the Resolution Trust Corporation.
10.14* Limited Branch Purchase and Assumption Agreement dated September 9,
1994, between the Resolution Trust Corporation as receiver of Western
Federal Savings Bank and Pan American Bank, FSB.
10.15* Lead Acquiror Waiver and Reimbursement Agreement dated September 9,
1994, between Home Savings of America and Pan American Bank, FSB.
10.16* Indemnity Agreement September 9, 1994, between the Resolution Trust
Corporation and Pan American Bank, FSB.
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
10.17* Whole Purchase and Assumption Agreement dated April 29, 1994, between
the Resolution Trust Corporation and Pan American Bank, FSB.
10.18* Indemnity Agreement dated April 29, 1994, between the Resolution Trust
Corporation and Pan American Bank, FSB.
10.19 Promissory Note dated April 29, 1994 in the amount of $6,930,000 by
Pan American Financial, Inc. to the Resolution Trust Corporation.
10.20 Stock Pledge Agreement dated April 29, 1994, between Pan American
Financial, Inc. and the Resolution Trust Corporation.
10.21* Advances and Security Agreement dated January 29, 1996, between the
Federal Home Loan Bank of San Francisco and Pan American Bank, FSB.
10.22* Retail CD Brokerage Agreement dated April 30, 1996, between Pan
American Bank, FSB and Merrill Lynch, Pierce, Fenner & Smith,
Incorporated.
10.23* Fixed Rate Interest bearing--3 months and longer Retail Certificate of
Deposit of Pan American, FSB, Master Certificate No. 2 dated May 12,
1997.
10.24* Fixed Rate Interest bearing--3 months and longer Retail Certificate of
Deposit of Pan American Bank, FSB, Master Certificate No. 3 dated May
12, 1997.
10.25* License, Services, and Purchase Agreement dated December , 1996,
between Associated Software Consultants, Inc. and Pan American, FSB
and all addendums thereto.
10.26* Agreement for Remote Computing Services dated April 4, 1995, between
Pan American Bank, FSB and Fiserv Fresno, Inc.
10.27* Amendment to Computer Operating Agreement between Pan American Bank,
FSB and Fiserv Fresno, Inc.
10.28* Addendum No. 2 to Agreement for Remote Computing Services effective as
of April 1, 1996, between Pan American Bank, FSB and Fiserv Fresno,
Inc.
10.29* Item Processing Agreement dated January 27, 1993, between Systematics
Financial Services, Inc. and Pan American Savings Bank, FSB.
10.30* Support Services Agreement dated October 31, 1995, between Alan King
and Company, Inc. and Pan American Savings Bank, FSB.
10.31* Technical Support Services Agreement dated May 1, 1995, between Alan
King and Company, Inc. and Pan American Savings Bank, FSB.
10.32* License Agreement dated May 1, 1995, between Alan King and Company,
Inc. and Pan American Savings Bank, FSB.
10.33* Subservicing Agreement dated March 2, 1995, between Pan American Bank,
FSB and Dovenmuehle Mortgage, Inc.
10.34 Interim Operating Agreement dated July 1, 1997, between United PanAm
Mortgage Corp. and Pan American Bank, FSB.
10.35* Inter-Company Agreement dated May 1, 1994, between Pan American
Financial, Inc. and Pan American Bank, FSB.
10.36* Inter-Company Agreement dated August 1, 1994, between Pan American
Group, Inc. and Pan American Bank, FSB.
10.37 Employment Agreement dated May 7, 1996, between Pan American Bank, FSB
and Ray C. Thousand.
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
10.38* Employment Agreement dated May 1, 1994, between the Registrant and
Lawrence J. Grill.
10.39 Employment Agreement dated October 1, 1997, among the Registrant, Pan
American Bank, FSB and Lawrence J. Grill.
10.40 Employment Agreement dated October 1, 1997, between the Registrant and
Guillermo Bron.
10.41 Employment Agreement dated October 1, 1997, between United PanAm
Mortgage Corp. and John T. French.
10.42 Salary Continuation Agreement dated October 1, 1997, between Pan
American Bank, FSB and Lawrence J. Grill.
10.43 Salary Continuation Agreement dated October 1, 1997, between Pan
American Bank, FSB and Guillermo Bron.
10.44 Form of Indemnification Agreement between the Registrant and Ms. Bucci
and each of Messrs. Bron, French, Grill, Haley, Kaufman, Maizel,
Thousand and Villanueva.
10.45* Agreement and Mutual General Release dated March 5, 1997, between Pan
American Bank, FSB and Robert Wilson.
10.46* Pan American Group, Inc. 1994 Stock Option Plan, together with forms
of incentive stock option and non-qualified stock option agreements.
10.47 Pan American Group, Inc. 1997 Stock Incentive Plan, together with
forms of incentive stock option, non-qualified stock option and
restricted stock agreements.
10.48* Pan American Bank, FSB Management Incentive Plan.
10.49* Pan American Bank, FSB 401(k) Profit Sharing Plan, as amended.
10.50* Income Tax Allocation Agreement dated October 19, 1994, between Pan
American Bank, FSB, Pan American Financial, Inc. and the Registrant.
10.51* Lease Agreement dated September 26, 1994, between the Resolution Trust
Corporation and Old Stone Bank of California and Pan American Bank,
FSB.
10.52* First Amendment to Lease Agreement dated November 19, 1995, between
the Resolution Trust Corporation and Old Stone Bank of California and
Pan American Bank, FSB.
10.53* Office Lease dated March 4, 1997, between Spieker Properties, L.P. and
Pan American Bank, FSB.
10.54* Office Space Lease dated January 18, 1996, between The Irvine Company
and Pan American Bank, FSB.
10.55* First Amendment to Office Space Lease dated July 2, 1996, between The
Irvine Company and Pan American Bank, FSB.
10.56* Standard Office Lease dated April 25, 1997, between CAL Portfolio VI,
L.L.C. and Pan American Bank, FSB.
10.57* Office Lease Agreement dated February 28, 1997, between P.R.A.
Biltmore Investments, L.L.C. and Pan American Bank, FSB.
10.58* Office Lease dated December 9, 1996, between Bernal Corporate Park and
Pan American Bank, FSB.
10.59* Bernal Corporate Park Lease First Amendment to Lease dated December 9,
1996.
10.60* Shopping Center Sublease dated September 22, 1995, between Panorama
Towne Center, L.P. and Pan American Bank, FSB.
10.61 Promissory Note in the principal amount of $225,000 dated October 15,
1997 by Lawrence J. Grill to the Registrant.
10.62 Loan and Stock Pledge Agreement dated October 15, 1997, between
Lawrence J. Grill and the Registrant.
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
10.63 Promissory Note in the principal amount of $1,628,000 dated July 1,
1997 by the Registrant to Pan American Financial, L.P.
10.64 Promissory Note in the principal amount of $258,000 dated July 1, 1997
by the Registrant to BVG West Corp.
10.65 Promissory Note in the principal amount of $52,500 dated July 1, 1997
by the Registrant to Lawrence J. Grill.
10.66 Promissory Note in the principal amount of $33,000 dated July 1, 1997
by the Registrant to Robert Wilson.
10.67 Promissory Note in the principal amount of $28,500 dated July 1, 1997
by the Registrant to Villanueva Management, Inc.
10.68+ Master Repurchase Agreement Governing Purchases and Sales of Mortgage
Loans dated as of October 31, 1997, between Lehman Commercial Paper
Inc. and Pan American Bank, FSB.
10.69 Custodial Agreement dated November 6, 1997, among Lehman Commercial
Paper Inc., Pan American Bank, FSB and Bankers Trust Company of
California, N.A.
10.70 Loan Purchase and Sale Agreement dated April 1, 1997, among Aames
Capital Corporation, Aames Funding Corporation and Pan American Bank,
FSB.
10.71 Continuing Loan Purchase Agreement dated February 27, 1997, between
AMRESCO Residential Capital Markets, Inc. and Pan American Bank, FSB.
10.72 Mortgage Loan Purchase Agreement dated May 28, 1997, between Saxon
Mortgage, Inc. and Pan American Bank, FSB.
21.1 Subsidiaries.
23.1 Consent of KPMG Peat Marwick LLP.
23.2* Consent of Manatt, Phelps & Phillips, LLP (see Exhibit 5.1).
24.1 Power of Attorney (see Page II-8).
</TABLE>
- --------
* To be filed by amendment.
+ Confidential treatment requested.
b. Financial Statement Schedules.
The schedules are omitted because they are not applicable or the required
information is shown in the Registrant's financial statements or the related
notes thereto.
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by
the final adjudication of such issue.
The undersigned Registrant hereby undertakes:
(i) That for the purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this Registration Statement in reliance upon Rule 430A and
contained in the form of prospectus filed by the Registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to
be part of this Registration Statement as of the time it was declared
effective.
II-7
<PAGE>
(ii) That for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new Registration Statement relating
to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
The undersigned registrant hereby undertakes to provide to the underwriter
at the closing specified n the underwriting agreements certificates in such
denominations and registered in such names as required by the underwriter to
permit prompt delivery to each purchaser.
II-8
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF SAN MATEO, STATE OF
CALIFORNIA, ON NOVEMBER 12, 1997.
United Panam Financial Corp.
By /s/ Lawrence J. Grill
----------------------------------
LAWRENCE J. GRILL, PRESIDENT,
CHIEF EXECUTIVE OFFICER AND
SECRETARY
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Lawrence J. Grill and Carol Bucci, and either
of them, his attorneys-in-fact, with full power of substitution, for him in
any and all capacities, to sign any amendments to this Registration Statement,
or any related registration statement that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to
file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorneys-in-fact, or their substitutes, may do or
cause to be done by virtue thereof.
PURSUANT TO THE SECURITIES ACT OF 1933, THIS REGISTRATION STATEMENT HAS BEEN
SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Guillermo Bron Chairman of the November 12, 1997
- ------------------------------------- Board
GUILLERMO BRON
/s/ Lawrence J. Grill President, Chief November 12, 1997
- ------------------------------------- Executive Officer,
LAWRENCE J. GRILL Secretary and
Director (Principal
Executive Officer)
/s/ Carol Bucci Senior Vice November 12, 1997
- ------------------------------------- President,
CAROL BUCCI Chief Financial
Officer and
Treasurer
(Principal
Financial and
Accounting Officer)
/s/ Stephen W. Haley Senior Vice November 12, 1997
- ------------------------------------- President--
STEPHEN W. HALEY Compliance and Risk
Management
/s/ John T. French Director November 12, 1997
- -------------------------------------
JOHN T. FRENCH
/s/ Edmund M. Kaufman Director November 12, 1997
- -------------------------------------
EDMUND M. KAUFMAN
/s/ Daniel L. Villanueva Director November 12, 1997
- -------------------------------------
DANIEL L. VILLANUEVA
/s/ Luis Maizel Director November 12, 1997
- -------------------------------------
LUIS MAIZEL
</TABLE>
II-9
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
1.1 Form of Underwriting Agreement.
3.1 Amended and Restated Certificate of Incorporation of the Registrant.
3.2 Bylaws of the Registrant.
4.1* Form of stock certificate.
5.1* Opinion of Manatt, Phelps & Phillips, LLP.
10.1 Insurance Premium Financing Management Agreement dated May 17, 1995,
between Pan American Bank, FSB and BPN Corporation.
10.2 First Amendment to Insurance Premium Financing Management Agreement
and Guaranties dated October , 1995, between Pan American Bank, FSB
and BPN Corporation.
10.3 Second Amendment to Insurance Premium Financing Management Agreement
and Guaranties dated February 28, 1996, among Pan American Bank, FSB,
BPN Corporation, Cornelius J. O'Shea, Peter Walski and Barbara Walski.
10.4 Guaranty dated May 17, 1995 by Peter Walski and Barbara Walski to Pan
American Bank, FSB.
10.5 Guaranty dated May 17, 1995 by Cornelius J. O'Shea to Pan American
Bank, FSB.
10.6 Stock Option Agreement dated May 17, 1995, among BPN Corporation, Pan
American Group, Inc., Peter A. Walski, Barbara R. Walski, Cornelius J.
O'Shea and The Walski Family Trust.
10.7 First Amendment to Stock Option Agreement dated October 1, 1997, among
BPN Corporation, Pan American Group, Inc., Peter A. Walski, Barbara R.
Walski, Cornelius J. O'Shea and The Walski Family Trust.
10.8 Interim Capital Assistance Agreement dated September 9, 1994, among
Pan American Financial, Inc., Pan American Bank, FSB and the
Resolution Trust Corporation.
10.9 Amendment No. 1 to Interim Capital Assistance Agreement dated May 1,
1997, among Pan American Financial, Inc., Pan American Bank, FSB and
the Federal Deposit Insurance Corporation.
10.10 Interim Capital Assistance Agreement dated April 29, 1994, among Pan
American Financial, Inc., Pan American Bank, FSB and the Resolution
Trust Corporation.
10.11 Letter agreement dated March 2, 1995, between Pan American Bank, FSB
and the Resolution Trust Corporation.
10.12 Promissory Note dated September 9, 1994 in the amount of $4 million by
Pan American Financial, Inc. to the Resolution Trust Corporation.
10.13 Stock Pledge Agreement dated September 9, 1994, between Pan American
Financial, Inc. and the Resolution Trust Corporation.
10.14* Limited Branch Purchase and Assumption Agreement dated September 9,
1994, between the Resolution Trust Corporation as receiver of Western
Federal Savings Bank and Pan American Bank, FSB.
10.15* Lead Acquiror Waiver and Reimbursement Agreement dated September 9,
1994, between Home Savings of America and Pan American Bank, FSB.
10.16* Indemnity Agreement September 9, 1994, between the Resolution Trust
Corporation and Pan American Bank, FSB.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
10.17* Whole Purchase and Assumption Agreement dated April 29, 1994, between
the Resolution Trust Corporation and Pan American Bank, FSB.
10.18* Indemnity Agreement dated April 29, 1994, between the Resolution Trust
Corporation and Pan American Bank, FSB.
10.19 Promissory Note dated April 29, 1994 in the amount of $6,930,000 by
Pan American Financial, Inc. to the Resolution Trust Corporation.
10.20 Stock Pledge Agreement dated April 29, 1994, between Pan American
Financial, Inc. and the Resolution Trust Corporation.
10.21* Advances and Security Agreement dated January 29, 1996, between the
Federal Home Loan Bank of San Francisco and Pan American Bank, FSB.
10.22* Retail CD Brokerage Agreement dated April 30, 1996, between Pan
American Bank, FSB and Merrill Lynch, Pierce, Fenner & Smith,
Incorporated.
10.23* Fixed Rate Interest bearing--3 months and longer Retail Certificate of
Deposit of Pan American, FSB, Master Certificate No. 2 dated May 12,
1997.
10.24* Fixed Rate Interest bearing--3 months and longer Retail Certificate of
Deposit of Pan American Bank, FSB, Master Certificate No. 3 dated May
12, 1997.
10.25* License, Services, and Purchase Agreement dated December , 1996,
between Associated Software Consultants, Inc. and Pan American, FSB
and all addendums thereto.
10.26* Agreement for Remote Computing Services dated April 4, 1995, between
Pan American Bank, FSB and Fiserv Fresno, Inc.
10.27* Amendment to Computer Operating Agreement between Pan American Bank,
FSB and Fiserv Fresno, Inc.
10.28* Addendum No. 2 to Agreement for Remote Computing Services effective as
of April 1, 1996, between Pan American Bank, FSB and Fiserv Fresno,
Inc.
10.29* Item Processing Agreement dated January 27, 1993, between Systematics
Financial Services, Inc. and Pan American Savings Bank, FSB.
10.30* Support Services Agreement dated October 31, 1995, between Alan King
and Company, Inc. and Pan American Savings Bank, FSB.
10.31* Technical Support Services Agreement dated May 1, 1995, between Alan
King and Company, Inc. and Pan American Savings Bank, FSB.
10.32* License Agreement dated May 1, 1995, between Alan King and Company,
Inc. and Pan American Savings Bank, FSB.
10.33* Subservicing Agreement dated March 2, 1995, between Pan American Bank,
FSB and Dovenmuehle Mortgage, Inc.
10.34 Interim Operating Agreement dated July 1, 1997, between United PanAm
Mortgage Corp. and Pan American Bank, FSB.
10.35* Inter-Company Agreement dated May 1, 1994, between Pan American
Financial, Inc. and Pan American Bank, FSB.
10.36* Inter-Company Agreement dated August 1, 1994, between Pan American
Group, Inc. and Pan American Bank, FSB.
10.37 Employment Agreement dated May 7, 1996, between Pan American Bank, FSB
and Ray C. Thousand.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
10.38* Employment Agreement dated May 1, 1994, between the Registrant and
Lawrence J. Grill.
10.39 Employment Agreement dated October 1, 1997, among the Registrant, Pan
American Bank, FSB and Lawrence J. Grill.
10.40 Employment Agreement dated October 1, 1997, between the Registrant and
Guillermo Bron.
10.41 Employment Agreement dated October 1, 1997, between United PanAm
Mortgage Corp. and John T. French.
10.42 Salary Continuation Agreement dated October 1, 1997, between Pan
American Bank, FSB and Lawrence J. Grill.
10.43 Salary Continuation Agreement dated October 1, 1997, between Pan
American Bank, FSB and Guillermo Bron.
10.44 Form of Indemnification Agreement between the Registrant and Ms. Bucci
and each of Messrs. Bron, French, Grill, Haley, Kaufman, Maizel,
Thousand and Villanueva.
10.45* Agreement and Mutual General Release dated March 5, 1997, between Pan
American Bank, FSB and Robert Wilson.
10.46* Pan American Group, Inc. 1994 Stock Option Plan, together with forms
of incentive stock option and non-qualified stock option agreements.
10.47 Pan American Group, Inc. 1997 Stock Incentive Plan, together with
forms of incentive stock option, non-qualified stock option and
restricted stock agreements.
10.48* Pan American Bank, FSB Management Incentive Plan.
10.49* Pan American Bank, FSB 401(k) Profit Sharing Plan, as amended.
10.50* Income Tax Allocation Agreement dated October 19, 1994, between Pan
American Bank, FSB, Pan American Financial, Inc. and the Registrant.
10.51* Lease Agreement dated September 26, 1994, between the Resolution Trust
Corporation and Old Stone Bank of California and Pan American Bank,
FSB.
10.52* First Amendment to Lease Agreement dated November 19, 1995, between
the Resolution Trust Corporation and Old Stone Bank of California and
Pan American Bank, FSB.
10.53* Office Lease dated March 4, 1997, between Spieker Properties, L.P. and
Pan American Bank, FSB.
10.54* Office Space Lease dated January 18, 1996, between The Irvine Company
and Pan American Bank, FSB.
10.55* First Amendment to Office Space Lease dated July 2, 1996, between The
Irvine Company and Pan American Bank, FSB.
10.56* Standard Office Lease dated April 25, 1997, between CAL Portfolio VI,
L.L.C. and Pan American Bank, FSB.
10.57* Office Lease Agreement dated February 28, 1997, between P.R.A.
Biltmore Investments, L.L.C. and Pan American Bank, FSB.
10.58* Office Lease dated December 9, 1996, between Bernal Corporate Park and
Pan American Bank, FSB.
10.59* Bernal Corporate Park Lease First Amendment to Lease dated December 9,
1996.
10.60* Shopping Center Sublease dated September 22, 1995, between Panorama
Towne Center, L.P. and Pan American Bank, FSB.
10.61 Promissory Note in the principal amount of $225,000 dated October 15,
1997 by Lawrence J. Grill to the Registrant.
10.62 Loan and Stock Pledge Agreement dated October 15, 1997, between
Lawrence J. Grill and the Registrant.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
10.63 Promissory Note in the principal amount of $1,628,000 dated July 1,
1997 by the Registrant to Pan American Financial, L.P.
10.64 Promissory Note in the principal amount of $258,000 dated July 1, 1997
by the Registrant to BVG West Corp.
10.65 Promissory Note in the principal amount of $52,500 dated July 1, 1997
by the Registrant to Lawrence J. Grill.
10.66 Promissory Note in the principal amount of $33,000 dated July 1, 1997
by the Registrant to Robert Wilson.
10.67 Promissory Note in the principal amount of $28,500 dated July 1, 1997
by the Registrant to Villanueva Management, Inc.
10.68+ Master Repurchase Agreement Governing Purchases and Sales of Mortgage
Loans dated as of October 31, 1997, between Lehman Commercial Paper
Inc. and Pan American Bank, FSB.
10.69 Custodial Agreement dated November 6, 1997, among Lehman Commercial
Paper Inc., Pan American Bank, FSB and Bankers Trust Company of
California, N.A.
10.70 Loan Purchase and Sale Agreement dated April 1, 1997, among Aames
Capital Corporation, Aames Funding Corporation and Pan American Bank,
FSB.
10.71 Continuing Loan Purchase Agreement dated February 27, 1997, between
AMRESCO Residential Capital Markets, Inc. and Pan American Bank, FSB.
10.72 Mortgage Loan Purchase Agreement dated May 28, 1997, between Saxon
Mortgage, Inc. and Pan American Bank, FSB.
21.1 Subsidiaries.
23.1 Consent of KPMG Peat Marwick LLP.
23.2* Consent of Manatt, Phelps & Phillips, LLP (see Exhibit 5.1).
24.1 Power of Attorney (see Page II-8).
</TABLE>
- --------
* To be filed by amendment.
+ Confidential treatment requested.
<PAGE>
EXHIBIT 1.1
Shares
United PanAm Financial Corp.
Common Stock
Underwriting Agreement
dated _____________________, 1998
<PAGE>
Table of Contents
<TABLE>
<CAPTION>
<S> <C>
Section 1. Representations and Warranties of the Company............................... 2
Compliance with Registration Requirements.............................. 2
Offering Materials Furnished to Underwriters........................... 2
Distribution of Offering Material By the Company....................... 3
The Underwriting Agreement............................................. 3
Authorization of the Common Shares..................................... 3
No Applicable Registration or Other Similar Rights..................... 3
No Material Adverse Change............................................. 3
Independent Accountants................................................ 3
Preparation of the Financial Statements................................ 4
Incorporation and Good Standing of the Company and its Subsidiaries.... 4
Capitalization and Other Capital Stock Matters......................... 4
Stock Exchange Listing................................................. 5
Non-Contravention of Existing Instruments; No Further Authorizations
or Approvals Required.............................................. 5
No Material Actions or Proceedings..................................... 6
Intellectual Property Rights........................................... 6
Compliance with Laws................................................... 6
All Necessary Permits, etc............................................. 7
Title to Properties.................................................... 7
Tax Law Compliance..................................................... 7
Company Not an "Investment Company".................................... 7
Insurance.............................................................. 7
No Price Stabilization or Manipulation................................. 8
Related Party Transactions............................................. 8
No Unlawful Contributions or Other Payments............................ 8
Company's Accounting System............................................ 8
Adequate Environmental Procedures; Compliance with Environmental
Laws............................................................... 8
ERISA Compliance....................................................... 9
Bank Matters........................................................... 10
No Banking Orders...................................................... 10
Capital................................................................ 10
Section 2. Purchase, Sale and Delivery of the Common Shares............................ 10
The Firm Common Shares................................................. 10
The First Closing Date................................................. 11
The Optional Common Shares; the Second Closing Date.................... 11
Public Offering of the Common Shares................................... 12
Payment for the Common Shares.......................................... 12
Delivery of the Common Shares.......................................... 12
Delivery of Prospectus to the Underwriters............................. 12
</TABLE>
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<TABLE>
<S> <C>
Section 3. Additional Covenants of the Company......................................... 12
Representatives' Review of Proposed Amendments and Supplements......... 13
Securities Act Compliance.............................................. 13
Amendments and Supplements to the Prospectus and Other Securities Act
Matters............................................................ 13
Copies of any Amendments and Supplements to the Prospectus............. 13
Blue Sky Compliance.................................................... 14
Use of Proceeds........................................................ 14
Transfer Agent......................................................... 14
Earnings Statement..................................................... 14
Periodic Reporting Obligations......................................... 14
Agreement Not To Offer or Sell Additional Securities................... 14
Future Reports to the Representatives.................................. 15
Section 4. Payment of Expenses......................................................... 15
Section 5. Conditions of the Obligations of the Underwriters........................... 16
Accountants' Comfort Letter............................................ 16
Compliance with Registration Requirements; No Stop Order; No
Objection from NASD............................................... 16
No Material Adverse Change or Ratings Agency Change.................... 17
Opinion of Counsel for the Company..................................... 17
Opinion of Counsel for the Underwriters................................ 17
Officers' Certificate.................................................. 17
Bring-down Comfort Letter.............................................. 18
Lock-Up Agreement from Certain Stockholders of the Company............. 18
Additional Documents................................................... 18
Section 6. Reimbursement of Underwriters' Expenses..................................... 18
Section 7. Effectiveness of this Agreement............................................. 19
Section 8. Indemnification............................................................. 19
Indemnification of the Underwriters.................................... 19
Indemnification of the Company, its Directors and Officers............. 20
Notifications and Other Indemnification Procedures..................... 21
Settlements............................................................ 22
Section 9. Contribution................................................................ 22
Section 10. Default of One or More of the Several Underwriters......................... 23
Section 11. Termination of this Agreement.............................................. 24
Section 12. Representations and Indemnities to Survive Delivery........................ 25
Section 13. Notices.................................................................... 25
Section 14. Successors................................................................. 25
Section 15. Partial Unenforceability................................................... 26
</TABLE>
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<TABLE>
<S> <C>
Section 16. Governing Law Provisions................................................... 26
Section 17. General Provisions......................................................... 26
</TABLE>
SCHEDULE A1
EXHIBIT A1
EXHIBIT B1
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Underwriting Agreement
__________________ ___, 1998
NATIONSBANC MONTGOMERY SECURITIES, INC.
PIPER JAFFRAY INC.
As Representatives of the several Underwriters
c/o NATIONSBANC MONTGOMERY SECURITIES INC.
600 Montgomery Street
San Francisco, California 94111
Ladies and Gentlemen:
Introductory. United PanAm Financial Corp., a Delaware corporation (the
"Company"), proposes to issue and sell to the several underwriters named in
Schedule A hereto (the "Underwriters") an aggregate of shares
- ----------
(the "Firm Common Shares") of its Common Stock, par value $0.01 per share (the
"Common Stock"). In addition, the Company has granted to the Underwriters an
option to purchase up to an additional shares of Common Stock
(the "Optional Common Shares"), as provided in Section 2 hereof. The Firm
Common Shares and, if and to the extent such option is exercised, the Optional
Common Shares are collectively called the "Common Shares". NationsBanc
Montgomery Securities, Inc. and Piper Jaffray Inc. have agreed to act as
representatives of the several Underwriters (in such capacity, the
"Representatives") in connection with the offering and sale of the Common
Shares.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-1 (File No.
333-___), which contains a form of prospectus to be used in connection with the
public offering and sale of the Common Shares. Such registration statement, as
amended, including the financial statements, exhibits and schedules thereto, in
the form in which it was declared effective by the Commission under the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder (collectively, the "Securities Act"), including any information
deemed to be a part thereof at the time of effectiveness pursuant to Rule 430A
or Rule 434 under the Securities Act, is called the "Registration Statement".
Any registration statement filed by the Company pursuant to Rule 462(b) under
the Securities Act is called the "Rule 462(b) Registration Statement", and from
and after the date and time of filing of the Rule 462(b) Registration Statement
the term "Registration Statement" shall include the Rule 462(b) Registration
Statement. Such prospectus, in the form first used by the Underwriters to
confirm sales of the Common Shares, is called the "Prospectus"; provided,
however, if the Company has, with the consent of NationsBanc Montgomery
Securities, Inc., elected to rely upon Rule 434 under the Securities Act, the
term "Prospectus" shall mean the Company's prospectus subject to completion
(each, a "preliminary prospectus") dated _______________ ____, 1998 (such
preliminary prospectus is called the "Rule 434 preliminary prospectus"),
together with the applicable term sheet (the "Term Sheet") prepared and filed by
the Company with the Commission under Rules 434 and 424(b) under the Securities
Act and all references in this Agreement to the date of the Prospectus shall
mean the date of the Term Sheet. All references in this Agreement to the
Registration Statement, the Rule 462(b) Registration
<PAGE>
Statement, a preliminary prospectus, the Prospectus or the Term Sheet, or any
amendments or supplements to any of the foregoing, shall include any copy
thereof filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval System ("EDGAR").
The Company hereby confirms its respective agreements with the Underwriters
as follows:
Section 1. Representations and Warranties of the Company.
The Company hereby represents, warrants and covenants to each Underwriter
as follows:
(a) Compliance with Registration Requirements. The Registration
Statement and any Rule 462(b) Registration Statement have been declared
effective by the Commission under the Securities Act. The Company has complied
to the Commission's satisfaction with all requests of the Commission for
additional or supplemental information. No stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement is in effect and no proceedings for such purpose have been instituted
or are pending or, to the best knowledge of the Company, are contemplated or
threatened by the Commission.
Each preliminary prospectus and the Prospectus when filed complied in
all material respects with the Securities Act and, if filed by electronic
transmission pursuant to EDGAR (except as may be permitted by Regulation S-T
under the Securities Act), was identical to the copy thereof delivered to the
Underwriters for use in connection with the offer and sale of the Common Shares.
Each of the Registration Statement, any Rule 462(b) Registration Statement and
any post-effective amendment thereto, at the time it became effective and at all
subsequent times, complied and will comply in all material respects with the
Securities Act and did not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus, as
amended or supplemented, as of its date and at all subsequent times, did not and
will not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The
representations and warranties set forth in the two immediately preceding
sentences do not apply to statements in or omissions from the Registration
Statement, any Rule 462(b) Registration Statement, or any post-effective
amendment thereto, or the Prospectus, or any amendments or supplements thereto,
made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by the Representatives expressly
for use therein. There are no contracts or other documents required to be
described in the Prospectus or to be filed as exhibits to the Registration
Statement which have not been described or filed as required.
(b) Offering Materials Furnished to Underwriters. The Company has
delivered to each of the Representatives one complete manually signed copy of
the Registration Statement and of each consent and certificate of experts filed
as a part thereof, and conformed copies of the Registration Statement (without
exhibits) and preliminary prospectuses and the Prospectus, as amended or
supplemented, in such quantities and at such places as the Representatives have
reasonably requested for each of the Underwriters.
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<PAGE>
(c) Distribution of Offering Material By the Company. The Company has
not distributed and will not distribute, prior to the later of the Second
Closing Date (as defined below) and the completion of the Underwriters'
distribution of the Common Shares, any offering material in connection with the
offering and sale of the Common Shares other than a preliminary prospectus, the
Prospectus or the Registration Statement.
(d) The Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by, and is a valid and binding agreement of,
the Company, enforceable in accordance with its terms, except as rights to
indemnification hereunder may be limited by applicable law and except as the
enforcement hereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights and
remedies of creditors or by general equitable principles.
(e) Authorization of the Common Shares. The Common Shares to be
purchased by the Underwriters from the Company have been duly authorized for
issuance and sale pursuant to this Agreement and, when issued and delivered by
the Company pursuant to this Agreement, will be validly issued, fully paid and
nonassessable.
(f) No Applicable Registration or Other Similar Rights. There are no
persons with registration or other similar rights to have any equity or debt
securities registered for sale under the Registration Statement or included in
the offering contemplated by this Agreement, except for such rights as have been
duly waived.
(g) No Material Adverse Change. Except as otherwise disclosed in the
Prospectus, subsequent to the respective dates as of which information is given
in the Prospectus: (i) there has been no material adverse change, or any
development that could reasonably be expected to result in a material adverse
change, in the condition, financial or otherwise, or in the earnings, business,
operations or prospects, whether or not arising from transactions in the
ordinary course of business, of the Company and its subsidiaries, considered as
one entity (any such change is called a "Material Adverse Change"); (ii) the
Company and its subsidiaries, considered as one entity, have not incurred any
material liability or obligation, indirect, direct or contingent, not in the
ordinary course of business nor entered into any material transaction or
agreement not in the ordinary course of business; and (iii) there has been no
dividend or distribution of any kind declared, paid or made by the Company or,
except for dividends paid to the Company or other subsidiaries, any of its
subsidiaries on any class of capital stock or repurchase or redemption by the
Company or any of its subsidiaries of any class of capital stock.
(h) Independent Accountants. KPMG Peat Marwick LLP, who have
expressed their opinion with respect to the financial statements (which term as
used in this Agreement includes the related notes thereto) and supporting
schedules (if any) filed with the Commission as a part of the Registration
Statement and included in the Prospectus, are independent public or certified
public accountants as required by the Securities Act.
(i) Preparation of the Financial Statements. The financial statements
filed with the Commission as a part of the Registration Statement and included
in the Prospectus present fairly the consolidated financial position of the
Company and its subsidiaries as of and at the dates
3
<PAGE>
indicated and the results of their operations and cash flows for the periods
specified. The supporting schedules included in the Registration Statement, if
any, present fairly the information required to be stated therein. Such
financial statements and supporting schedules, if any, have been prepared in
conformity with generally accepted accounting principles applied on a consistent
basis throughout the periods involved, except as may be expressly stated in the
related notes thereto. No other financial statements or supporting schedules are
required to be included in the Registration Statement. The financial data set
forth in the Prospectus under the captions "Prospectus Summary--Summary Selected
Financial Data", "Selected Financial Data" and "Capitalization" fairly present
the information set forth therein on a basis consistent with that of the audited
financial statements contained in the Registration Statement.
(j) Incorporation and Good Standing of the Company and its
Subsidiaries. Each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation and has corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus and, in the case of the Company, to enter into
and perform its obligations under this Agreement. Each of the Company and its
subsidiaries is duly qualified as a foreign corporation to transact business and
is in good standing in the State of California and each other jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except for such jurisdictions
(other than the State of California) where the failure to so qualify or to be in
good standing would not, individually or in the aggregate, result in a Material
Adverse Change. All of the issued and outstanding capital stock of each of the
Company's subsidiaries has been duly authorized and validly issued, is fully
paid and nonassessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance or claim. The Company does not own or control, directly or
indirectly, any corporation, association or other entity other than the
subsidiaries listed in Exhibit 21.1 to the Registration Statement.
(k) Capitalization and Other Capital Stock Matters. The authorized,
issued and outstanding capital stock of the Company is as set forth in the
Prospectus under the caption "Capitalization" (other than for subsequent
issuances, if any, pursuant to employee benefit plans described in the
Prospectus or upon exercise of outstanding options described in the Prospectus).
The Common Stock (including the Common Shares) conforms in all material respects
to the description thereof contained in the Prospectus. All of the issued and
outstanding shares of Common Stock have been duly authorized and validly issued,
are fully paid and nonassessable and have been issued in compliance with federal
and state securities laws. None of the outstanding shares of Common Stock were
issued in violation of any preemptive rights, rights of first refusal or other
similar rights to subscribe for or purchase securities of the Company. There are
no authorized or outstanding options, warrants, preemptive rights, rights of
first refusal or other rights to purchase, or equity or debt securities
convertible into or exchangeable or exercisable for, any capital stock of the
Company or any of its subsidiaries other than those accurately described in the
Prospectus. The description of the Company's stock option, stock bonus and other
stock plans or arrangements, and the options or other rights granted thereunder,
set forth in the Prospectus accurately and fairly presents the information
required to be shown with respect to such plans, arrangements, options and
rights.
4
<PAGE>
(l) Stock Exchange Listing. The Common Shares have been approved for
inclusion on the Nasdaq National Market, subject only to official notice of
issuance.
(m) Non-Contravention of Existing Instruments; No Further
Authorizations or Approvals Required. Neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws or is in default (or,
with the giving of notice or lapse of time, would be in default) ("Default")
under any indenture, mortgage, loan or credit agreement, note, contract,
franchise, lease or other instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or to which
any of the property or assets of the Company or any of its subsidiaries is
subject (each, an "Existing Instrument"), except for such Defaults as would not,
individually or in the aggregate, result in a Material Adverse Change. Neither
the Company nor any of its subsidiaries was or is in Default under any of the
following agreements and instruments: the Standard Purchase and Assumption Terms
and Conditions Theta Version dated July 26, 1993 by and between the Resolution
Trust Corporation ("RTC") and Pan American Bank, FSB (the "Bank"), the Whole
Purchase and Assumption Agreement dated April 29, 1994 by and between the RTC
and the Bank, the Indemnity Agreement dated April 29, 1994 by and between the
RTC and the Bank, the Interim Capital Assistance Agreement dated April 29, 1994
by and between the RTC and the Bank, the Stock Pledge Agreement dated April 29,
1994 by and between the RTC and Pan American Financial, Inc. ("PAFI"), the
Promissory Note for $6,930,000 dated April 29, 1994 issued by PAFI to the RTC,
the Standard Purchase and Assumption Terms and Conditions Iota Version dated
December 25, 1993, the Limited Branch Purchase and Assumption Agreement dated
September 9, 1994 by and between the RTC and the Bank, the Indemnity Agreement
dated September 9, 1994 by and between the RTC and the Bank, the Lead Acquiror
Waiver and Reimbursement Agreement dated September 9, 1994 by and between Home
Savings of America, FSB and the Bank, the Interim Capital Assistance Agreement
dated September 9, 1994 by and between the RTC and the Bank, the Stock Pledge
Agreement dated September 9, 1994 by and between the RTC and PAFI and the
Promissory Note for $4,000,000 dated September 9, 1994 issued by PAFI to the RTC
(collectively, the "RTC Agreements"), except for such Defaults as would not,
individually or in the aggregate, result in a Material Adverse Change. The
Company's execution, delivery and performance of this Agreement and consummation
of the transactions contemplated hereby and by the Prospectus (i) have been duly
authorized by all necessary corporate action and will not result in any
violation of the provisions of the charter or by-laws of the Company or any
subsidiary, (ii) will not conflict with or constitute a breach of, or Default or
a Debt Repayment Triggering Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, or require the
consent of any other part to, any Existing Instrument, except for such
conflicts, breaches, Defaults, liens, charges or encumbrances as would not,
individually or in the aggregate, result in a Material Adverse Change and (iii)
will not result in any violation of any law, administrative regulation or
administrative or court decree applicable to the Company or any subsidiary. No
consent, approval, authorization or other order of, or registration or filing
with, any court or other governmental or regulatory authority or agency, is
required for the Company's execution, delivery and performance of this Agreement
and consummation of the transactions contemplated hereby and by the Prospectus,
except such as have been obtained or made by the Company and are in full force
and effect under the Securities Act, applicable state securities or blue sky
laws and from the National Association of Securities Dealers, Inc. (the "NASD").
As used
5
<PAGE>
herein, a "Debt Repayment Triggering Event" means any event or condition which
gives, or with the giving of notice or lapse of time would give, the holder of
any note, debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or any of its
subsidiaries.
(n) No Material Actions or Proceedings. There are no legal or
governmental actions, suits or proceedings pending (including, without
limitation, before or by any regulatory, administrative or governmental agency)
or, to the best of the Company's knowledge, threatened (i) against or affecting
the Company or any of its subsidiaries, (ii) which has as the subject thereof
any officer or director of, or property owned or leased by, the Company or any
of its subsidiaries or (iii) relating to environmental or discrimination
matters, where in any such case (A) there is a reasonable possibility that such
action, suit or proceeding might be determined adversely to the Company or such
subsidiary and (B) any such action, suit or proceeding, if so determined
adversely, would reasonably be expected to result in a Material Adverse Change
or adversely affect the consummation of the transactions contemplated by this
Agreement. No material labor dispute with the employees of the Company or any
of its subsidiaries exists or, to the best of the Company's knowledge, is
threatened or imminent.
(o) Intellectual Property Rights. The Company and its subsidiaries
own or possess sufficient trademarks, trade names, patent rights, copyrights,
licenses, approvals, trade secrets and other similar rights (collectively,
"Intellectual Property Rights") reasonably necessary to conduct their businesses
as now conducted; and the expected expiration of any of such Intellectual
Property Rights would not result in a Material Adverse Change. Neither the
Company nor any of its subsidiaries has received any notice of infringement or
conflict with asserted Intellectual Property Rights of others, which
infringement or conflict, if the subject of an unfavorable decision, would
result in a Material Adverse Change.
(p) Compliance with Laws. The Company and its subsidiaries are
conducting their respective businesses in compliance in all material respects
with all applicable federal, state and local laws, rules, regulations,
decisions, directives and orders (including, without limitation, the rules,
regulations, decisions, directives and orders of the OTS and the FDIC, each as
defined below, and laws governing the consumer lending activities of the Company
and its subsidiaries).
(q) All Necessary Permits, etc. Except as otherwise disclosed in the
Prospectus, the Company and each subsidiary possess such valid and current
certificates, authorizations or permits issued by the appropriate state, federal
or foreign regulatory agencies or bodies necessary to conduct their respective
businesses, and neither the Company nor any subsidiary has received any notice
of proceedings relating to the revocation or modification of, or non-compliance
with, any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, could
result in a Material Adverse Change.
(r) Title to Properties. Except as otherwise disclosed in the
Prospectus, the Company and each of its subsidiaries has good and marketable
title to all the properties and assets
6
<PAGE>
reflected as owned in the financial statements referred to in Section 1(i) above
(or elsewhere in the Prospectus), in each case free and clear of any security
interests, mortgages, liens, encumbrances, equities, claims and other defects,
except such as do not materially and adversely affect the value of such property
and do not materially interfere with the use made or proposed to be made of such
property by the Company or such subsidiary. The real property, improvements,
equipment and personal property held under lease by the Company or any
subsidiary are held under valid and enforceable leases, with such exceptions as
are not material and do not materially interfere with the use made or proposed
to be made of such real property, improvements, equipment or personal property
by the Company or such subsidiary.
(s) Tax Law Compliance. The Company and its consolidated subsidiaries
have filed all necessary federal, state and foreign income and franchise tax
returns and have paid all taxes required to be paid by any of them and, if due
and payable, any related or similar assessment, fine or penalty levied against
any of them. The Company has made adequate charges, accruals and reserves in the
applicable financial statements referred to in Section 1(i) above in respect of
all federal, state and foreign income and franchise taxes for all periods as to
which the tax liability of the Company or any of its consolidated subsidiaries
has not been finally determined.
(t) Company Not an "Investment Company". The Company has been
advised of the rules and requirements under the Investment Company Act of 1940,
as amended (the "Investment Company Act"). The Company is not, and after
receipt of payment for the Common Shares will not be, an "investment company"
within the meaning of Investment Company Act and will conduct its business in a
manner so that it will not become subject to the Investment Company Act.
(u) Insurance. Each of the Company and its subsidiaries is insured by
recognized, financially sound and reputable institutions with policies in such
amounts and with such deductibles and covering such risks as are generally
deemed adequate and customary for its businesses including, but not limited to,
policies covering real and personal property owned or leased by the Company and
its subsidiaries against theft, damage, destruction, acts of vandalism and
earthquakes. The Company has no reason to believe that it or any subsidiary will
not be able (i) to renew its existing insurance coverage as and when such
policies expire or (ii) to obtain comparable coverage from similar institutions
as may be necessary or appropriate to conduct its business as now conducted and
at a cost that would not result in a Material Adverse Change. Neither the
Company nor any subsidiary has been denied any insurance coverage which it has
sought or for which it has applied.
(v) No Price Stabilization or Manipulation. The Company has not taken
and will not take, directly or indirectly, any action designed to or that might
be reasonably expected to cause or result in stabilization or manipulation of
the price of the Common Stock to facilitate the sale or resale of the Common
Shares.
(w) Related Party Transactions. There are no business relationships
or related-party transactions involving the Company or any subsidiary or any
other person required to be described in the Prospectus which have not been
described as required.
7
<PAGE>
(x) No Unlawful Contributions or Other Payments. Neither the Company
nor any of its subsidiaries nor, to the best of the Company's knowledge, any
director, officer, employee or agent of the Company or any subsidiary, has made
any contribution or other payment to any official of, or candidate for, any
federal, state or foreign office in violation of any law or of the character
required to be disclosed in the Prospectus.
(y) Company's Accounting System. The Company maintains a system of
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(z) Adequate Environmental Procedures; Compliance with Environmental
Laws. The Company and each of its subsidiaries making loans secured by real
property have in effect policies and procedures at least commensurate with those
generally in effect in the consumer finance industry for determining the
existence of any Materials of Environmental Concern (as defined below) on, and
whether or not there exists a breach of any Environmental Law (as defined below)
with respect to, any such real property security prior to the Company's or any
of its subsidiary's foreclosure of its lien thereon. Except as would not,
individually or in the aggregate, result in a Material Adverse Change (i)
neither the Company nor any of its subsidiaries is in violation of any federal,
state, local or foreign law or regulation relating to pollution or protection of
human health or the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata) or wildlife,
including without limitation, laws and regulations relating to emissions,
discharges, releases or threatened releases of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum and
petroleum products (collectively, "Materials of Environmental Concern"), or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Materials of Environment Concern
(collectively, "Environmental Laws"), which violation includes, but is not
limited to, noncompliance with any permits or other governmental authorizations
required for the operation of the business of the Company or its subsidiaries
under applicable Environmental Laws, or noncompliance with the terms and
conditions thereof, nor has the Company or any of its subsidiaries received any
written communication, whether from a governmental authority, citizens group,
employee or otherwise, that alleges that the Company or any of its subsidiaries
is in violation of any Environmental Law; (ii) there is no claim, action or
cause of action filed with a court or governmental authority, no investigation
with respect to which the Company has received written notice, and no written
notice by any person or entity alleging potential liability for investigatory
costs, cleanup costs, governmental responses costs, natural resources damages,
property damages, personal injuries, attorneys' fees or penalties arising out
of, based on or resulting from the presence, or release into the environment, of
any Material of Environmental Concern at any location owned, leased or operated
by the Company or any of its subsidiaries, now or in the past (collectively,
"Environmental Claims"), pending or, to the best of the Company's knowledge,
threatened against the Company or any of its subsidiaries or any person
8
<PAGE>
or entity whose liability for any Environmental Claim the Company or any of its
subsidiaries has retained or assumed either contractually or by operation of
law; and (iii) to the best of the Company's knowledge, there are no past or
present actions, activities, circumstances, conditions, events or incidents,
including, without limitation, the release, emission, discharge, presence or
disposal of any Material of Environmental Concern, that reasonably could result
in a violation of any Environmental Law or form the basis of a potential
Environmental Claim against the Company or any of its subsidiaries or against
any person or entity whose liability for any Environmental Claim the Company or
any of its subsidiaries has retained or assumed either contractually or by
operation of law.
(aa) ERISA Compliance. The Company and its subsidiaries and any
"employee benefit plan" (as defined under the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, "ERISA")) established or maintained by
the Company, its subsidiaries or their "ERISA Affiliates" (as defined below) are
in compliance in all material respects with ERISA. "ERISA Affiliate" means,
with respect to the Company or a subsidiary of the Company, any member of any
group of organizations described in Section 414(b), (c), (m) or (o) of the
Internal Revenue Code of 1986, as amended, and the regulations and published
interpretations thereunder (collectively, the "Code") of which the Company or
such subsidiary is a member. No "reportable event" (as defined under ERISA) has
occurred or is reasonably expected to occur with respect to any "employee
benefit plan" established or maintained by the Company, any of its subsidiaries
or any of their ERISA Affiliates. No "employee benefit plan" established or
maintained by the Company, any of its subsidiaries or any of their ERISA
Affiliates, if such "employee benefit plan" were terminated, would have any
"amount of unfunded benefit liabilities" (as defined under ERISA). Neither the
Company, any of its subsidiaries nor any of their ERISA Affiliates has incurred
or reasonably expects to incur any liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any "employee benefit plan" or
(ii) Section 412, 4971, 4975 or 4980B of the Code. Each "employee benefit plan"
established or maintained by the Company, any of its subsidiaries or any of
their ERISA Affiliates that is intended to be qualified under Section 401(a) of
the Code is so qualified and nothing has occurred, whether by action or failure
to act, which would cause the loss of such qualification.
(bb) Bank Matters. Pan American Bank, FSB (the "Bank") is duly
chartered as a federal savings bank and is in good standing under the laws of
the United States. The Bank is a member in good standing with the Federal Home
Loan Bank of San Francisco (the "FHLB"). The deposit accounts and investment
certificates of the Bank are duly insured by the Federal Deposit Insurance
Corporation (the "FDIC") to the fullest extent permitted by law. No charge,
investigation or proceeding for the termination or revocation of such charter,
FHLB membership, good standing or FDIC insurance is pending or, to the best of
the Company's knowledge, threatened. The Company is a "savings and loan
holding company" within the meaning of the Home Owners Loan Act, as amended.
The Bank is, and immediately following the issuance and sale of the Common
Shares pursuant hereto will continue to be, a "Minority Institution", as defined
in Section 21A(s)(2)(A) of the Federal Home Loan Bank Act, 12 U.S.C.
1441a(s)(2)(A), as amended, and the Company currently has no plan or intention
of issuing any shares of capital stock or
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options, warrants or other securities convertible into or exchangeable for
shares of its capital stock in such amounts as would cause the Bank to lose its
status as a Minority Institution.
(cc) No Banking Orders. Neither the Company nor the Bank nor any
other subsidiary of the Company is subject to any cease-and-desist order, civil
money penalty, supervisory agreement, memorandum of understanding, consent
cease-and-desist order or other regulatory action of the Office of Thrift
Supervision (the "OTS"), the FDIC, or any other federal or state regulatory
agency.
(dd) Capital. The Bank is in compliance with all applicable
regulatory capital requirements, is "well capitalized" as defined in OTS
regulations and is not, to the Company's best knowledge, threatened with or
being considered for receivership or any special supervision by the OTS or the
FDIC.
Any certificate signed by an officer of the Company and delivered to
the Representatives or to counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company to each Underwriter as to the matters
set forth therein.
Section 2. Purchase, Sale and Delivery of the Common Shares.
The Firm Common Shares. The Company agrees to issue and sell to the
several Underwriters the Firm Common Shares upon the terms herein set forth. On
the basis of the representations, warranties and agreements herein contained,
and upon the terms but subject to the conditions herein set forth, the
Underwriters agree, severally and not jointly, to purchase from the Company the
respective number of Firm Common Shares set forth opposite their names on
Schedule A hereto. The purchase price per Firm Common Share to be paid by the
- ----------
several Underwriters to the Company shall be $___ per share.
The First Closing Date. Delivery of certificates for the Firm Common
Shares to be purchased by the Underwriters and payment therefor shall be made at
the offices of NationsBanc Montgomery Securities, Inc., 600 Montgomery Street,
San Francisco, California (or such other place as may be agreed to by the
Company and the Representatives) at 6:00 a.m. San Francisco time, on _______,
[THIRD/FOURTH BUSINESS DAY AFTER DATE OF THIS AGREEMENT]1998, or such other time
and date not later than 10:30 a.m., San Francisco time , on ______________,
[TENTH BUSINESS DAY AFTER DATE OF THIS AGREEMENT]1998 as the Representatives
shall designate by notice to the Company (the time and date of such closing are
called the "First Closing Date"). The Company hereby acknowledges that
circumstances under which the Representatives may provide notice to postpone the
First Closing Date as originally scheduled include, but are in no way limited
to, any determination by the Company or the Representatives to recirculate to
the public copies of an amended or supplemented Prospectus or a delay as
contemplated by the provisions of Section 10.
The Optional Common Shares; the Second Closing Date. In addition, on the
basis of the representations, warranties and agreements herein contained, and
upon the terms but subject to the conditions herein set forth, the Company
hereby grants an option to the several Underwriters to purchase, severally and
not jointly, up to an aggregate of Optional Common Shares from
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the Company at the purchase price per share to be paid by the Underwriters for
the Firm Common Shares. The option granted hereunder is for use by the
Underwriters solely in covering any over-allotments in connection with the sale
and distribution of the Firm Common Shares. The option granted hereunder may be
exercised at any time (but not more than once) upon notice by the
Representatives to the Company, which notice may be given at any time within 30
days from the date of this Agreement. Such notice shall set forth (i) the
aggregate number of Optional Common Shares as to which the Underwriters are
exercising the option, (ii) the names and denominations in which the
certificates for the Optional Common Shares are to be registered and (iii) the
time, date and place at which such certificates will be delivered (which time
and date may be simultaneous with, but not earlier than, the First Closing Date;
and in such case the term "First Closing Date" shall refer to the time and date
of delivery of certificates for the Firm Common Shares and the Optional Common
Shares). Such time and date of delivery, if subsequent to the First Closing
Date, is called the "Second Closing Date" and shall be determined by the
Representatives and shall not be earlier than three nor later than five full
business days after delivery of such notice of exercise. If any Optional Common
Shares are to be purchased, each Underwriter agrees, severally and not jointly,
to purchase the number of Optional Common Shares (subject to such adjustments to
eliminate fractional shares as the Representatives may determine) that bears the
same proportion to the total number of Optional Common Shares to be purchased as
the number of Firm Common Shares set forth on Schedule A hereto opposite the
----------
name of such Underwriter bears to the total number of Firm Common Shares. The
Representatives may cancel the option at any time prior to its expiration by
giving written notice of such cancellation to the Company.
Public Offering of the Common Shares. The Representatives hereby advise
the Company that the Underwriters intend to offer for sale to the public, as
described in the Prospectus, their respective portions of the Common Shares as
soon after this Agreement has been executed and the Registration Statement has
been declared effective as the Representatives, in their sole judgment, have
determined is advisable and practicable.
Payment for the Common Shares. Payment for the Common Shares shall be made
at the First Closing Date (and, if applicable, at the Second Closing Date) by
wire transfer of immediately available funds to the order of the Company.
It is understood that the Representatives have been authorized, for their
own accounts and the accounts of the several Underwriters, to accept delivery of
and receipt for, and make payment of the purchase price for, the Firm Common
Shares and any Optional Common Shares the Underwriters have agreed to purchase.
NationsBanc Montgomery Securities, Inc., individually and not as a
Representative of the Underwriters, may (but shall not be obligated to) make
payment for any Common Shares to be purchased by any Underwriter whose funds
shall not have been received by the Representatives by the First Closing Date or
the Second Closing Date, as the case may be, for the account of such
Underwriter, but any such payment shall not relieve such Underwriter from any of
its obligations under this Agreement.
Delivery of the Common Shares. The Company shall deliver, or cause to be
delivered, to the Representatives for the accounts of the several Underwriters
certificates for the Firm Common Shares at the First Closing Date, against the
irrevocable release of a wire transfer of immediately
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available funds for the amount of the purchase price therefor. The Company shall
also deliver, or cause to be delivered, to the Representatives for the accounts
of the several Underwriters, certificates for the Optional Common Shares the
Underwriters have agreed to purchase at the First Closing Date or the Second
Closing Date, as the case may be, against the irrevocable release of a wire
transfer of immediately available funds for the amount of the purchase price
therefor. The certificates for the Common Shares shall be in definitive form and
registered in such names and denominations as the Representatives shall have
requested at least two full business days prior to the First Closing Date (or
the Second Closing Date, as the case may be) and shall be made available for
inspection on the business day preceding the First Closing Date (or the Second
Closing Date, as the case may be) at a location in New York City as the
Representatives may designate. Time shall be of the essence, and delivery at the
time and place specified in this Agreement is a further condition to the
obligations of the Underwriters.
Delivery of Prospectus to the Underwriters. Not later than 12:00 p.m. on
the second business day following the date the Common Shares are released by the
Underwriters for sale to the public, the Company shall delivery or cause to be
delivered copies of the Prospectus in such quantities and at such places as the
Representatives shall request.
Section 3. Additional Covenants of the Company.
The Company further covenants and agrees with each Underwriter as follows:
(a) Representatives' Review of Proposed Amendments and Supplements.
During such period beginning on the date hereof and ending on the later of the
First Closing Date or such date, as in the opinion of counsel for the
Underwriters, the Prospectus is no longer required by law to be delivered in
connection with sales by an Underwriter or dealer (the "Prospectus Delivery
Period"), prior to amending or supplementing the Registration Statement
(including any registration statement filed under Rule 462(b) under the
Securities Act) or the Prospectus, the Company shall furnish to the
Representatives for review a copy of each such proposed amendment or supplement,
and the Company shall not file any such proposed amendment or supplement to
which the Representatives reasonably object.
(b) Securities Act Compliance. After the date of this Agreement, the
Company shall promptly advise the Representatives in writing (i) of the receipt
of any comments of, or requests for additional or supplemental information from,
the Commission, (ii) of the time and date of any filing of any post-effective
amendment to the Registration Statement or any amendment or supplement to any
preliminary prospectus or the Prospectus, (iii) of the time and date that any
post-effective amendment to the Registration Statement becomes effective and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
thereto or of any order preventing or suspending the use of any preliminary
prospectus or the Prospectus, or of any proceedings to remove, suspend or
terminate from listing or quotation the Common Stock from any securities
exchange upon which the it is listed for trading or included or designated for
quotation, or of the threatening or initiation of any proceedings for any of
such purposes. If the Commission shall enter any such stop order at any time,
the Company will use its best efforts to obtain the lifting of such order at the
earliest possible
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moment. Additionally, the Company agrees that it shall comply with the
provisions of Rules 424(b), 430A and 434, as applicable, under the Securities
Act and will use its reasonable efforts to confirm that any filings made by the
Company under such Rule 424(b) were received in a timely manner by the
Commission.
(c) Amendments and Supplements to the Prospectus and Other Securities
Act Matters. If, during the Prospectus Delivery Period, any event shall occur
or condition exist as a result of which it is necessary to amend or supplement
the Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if in the opinion of the Representatives or counsel for the Underwriters it
is otherwise necessary to amend or supplement the Prospectus to comply with law,
the Company agrees to promptly prepare (subject to Section 3(A)(a) hereof), file
with the Commission and furnish at its own expense to the Underwriters and to
dealers, amendments or supplements to the Prospectus so that the statements in
the Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be misleading or
so that the Prospectus, as amended or supplemented, will comply with law.
(d) Copies of any Amendments and Supplements to the Prospectus. The
Company agrees to furnish the Representatives, without charge, during the
Prospectus Delivery Period, as many copies of the Prospectus and any amendments
and supplements thereto as the Representatives may request.
(e) Blue Sky Compliance. The Company shall cooperate with the
Representatives and counsel for the Underwriters to qualify or register the
Common Shares for sale under (or obtain exemptions from the application of)
state securities or blue sky laws or Canadian provincial securities laws of
those jurisdictions designated by the Representatives, shall comply with such
laws and shall continue such qualifications, registrations and exemptions in
effect so long as required for the distribution of the Common Shares. The
Company shall not be required to qualify as a foreign corporation or to take any
action that would subject it to general service of process in any such
jurisdiction where it is not presently qualified or where it would be subject to
taxation as a foreign corporation. The Company will advise the Representatives
promptly of the suspension of the qualification or registration of (or any such
exemption relating to) the Common Shares for offering, sale or trading in any
jurisdiction or any initiation or threat of any proceeding for any such purpose,
and in the event of the issuance of any order suspending such qualification,
registration or exemption, the Company shall use its best efforts to obtain the
withdrawal thereof at the earliest possible moment.
Use of Proceeds. The Company shall apply the net proceeds from the
sale of the Common Shares sold by it in the manner described under the caption
"Use of Proceeds" in the Prospectus.
(g) Transfer Agent. The Company shall engage and maintain, at its
expense, a registrar and transfer agent for the Common Stock.
(h) Earnings Statement. As soon as practicable, the Company will make
generally available to its security holders and to the Representatives an
earnings statement (which
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need not be audited) covering the twelve-month period ending ____________, [LAST
DAY OF FIRST QUARTER AFTER 1 YEAR ANNIVERSARY OF EFFECTIVE DATE OF REG.
STMT.]1999 that satisfies the provisions of Section 11(a) of the Securities Act.
(i) Periodic Reporting Obligations. During the Prospectus Delivery
Period the Company shall file, on a timely basis, with the Commission and the
Nasdaq National Market all reports and documents required to be filed under the
Exchange Act. Additionally, the Company shall file with the Commission all
reports on Form SR as may be required under Rule 463 under the Securities Act.
(j) Agreement Not To Offer or Sell Additional Securities. During the
period of 180 days following the date of the Prospectus, the Company will not,
without the prior written consent of NationsBanc Montgomery Securities, Inc.
(which consent may be withheld at the sole discretion of NationsBanc Montgomery
Securities, Inc.), directly or indirectly, sell, offer, contract or grant any
option to sell, pledge, transfer or establish an open "put equivalent position"
within the meaning of Rule 16a-1(h) under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), or otherwise dispose of or transfer, or
announce the offering of, or file any registration statement under the
Securities Act in respect of, any shares of Common Stock, options or warrants to
acquire shares of the Common Stock or securities exchangeable or exercisable for
or convertible into shares of Common Stock (other than as contemplated by this
Agreement with respect to the Common Shares); provided, however, that the
Company may issue shares of its Common Stock or options to purchase its Common
Stock, or Common Stock upon exercise of options, pursuant to any stock option,
stock bonus or other stock plan or arrangement described in the Prospectus, but
only if the holders of such shares, options, or shares issued upon exercise of
such options, agree in writing not to sell, offer, dispose of or otherwise
transfer any such shares or options during such 180 day period without the prior
written consent of NationsBanc Montgomery Securities, Inc. (which consent may be
withheld at the sole discretion of the NationsBanc Montgomery Securities, Inc.).
(k) Future Reports to the Representatives. During the period of five
years hereafter the Company will furnish to the Representatives at NationsBanc
Montgomery Securities, Inc., 600 Montgomery Street, San Francisco, CA 94111
Attention: Kathleen Smythe, and Piper Jaffray Inc., 212 South Ninth Street,
Minneapolis, MN 55402 Attention: Stuart C. Harvey: (i) as soon as practicable
after the end of each fiscal year, copies of the Annual Report of the Company
containing the balance sheet of the Company as of the close of such fiscal year
and statements of income, stockholders' equity and cash flows for the year then
ended and the opinion thereon of the Company's independent public or certified
public accountants; (ii) as soon as practicable after the filing thereof, copies
of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form
10-Q, Current Report on Form 8-K or other report filed by the Company with the
Commission, the NASD or any securities exchange; and (iii) as soon as available,
copies of any report or communication of the Company mailed generally to holders
of its capital stock.
Section 4. Payment of Expenses. The Company agrees to pay all costs,
fees and expenses incurred in connection with the performance of its obligations
hereunder and in connection with the transactions contemplated hereby, including
without limitation (i) all expenses
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incident to the issuance and delivery of the Common Shares (including all
printing and engraving costs), (ii) all fees and expenses of the registrar and
transfer agent of the Common Stock, (iii) all necessary issue, transfer and
other stamp taxes in connection with the issuance and sale of the Common Shares
to the Underwriters, (iv) all fees and expenses of the Company's counsel,
independent public or certified public accountants and other advisors, (v) all
costs and expenses incurred in connection with the preparation, printing,
filing, shipping and distribution of the Registration Statement (including
financial statements, exhibits, schedules, consents and certificates of
experts), each preliminary prospectus and the Prospectus, and all amendments and
supplements thereto, and this Agreement, (vi) all filing fees, attorneys' fees
and expenses incurred by the Company or the Underwriters in connection with
qualifying or registering (or obtaining exemptions from the qualification or
registration of) all or any part of the Common Shares for offer and sale under
the state securities or blue sky laws or the provincial securities laws of
Canada, and, if requested by the Representatives, preparing and printing a "Blue
Sky Survey" or memorandum, and any supplements thereto, advising the
Underwriters of such qualifications, registrations and exemptions, (vii) the
filing fees incident to, and the reasonable fees and expenses of counsel for the
Underwriters in connection with, the NASD's review and approval of the
Underwriters' participation in the offering and distribution of the Common
Shares, (viii) the fees and expenses associated with including the Common Shares
on the Nasdaq National Market, and (ix) all other fees, costs and expenses
referred to in Item 13 of Part II of the Registration Statement. Except as
provided in this Section 4 and Section 6, Section 8 and Section 9 hereof, the
Underwriters shall pay their own expenses, including the fees and disbursements
of their counsel.
Section 5. Conditions of the Obligations of the Underwriters.
The obligations of the several Underwriters to purchase and pay for the
Common Shares as provided herein on the First Closing Date and, with respect to
the Optional Common Shares, the Second Closing Date, shall be subject to the
accuracy of the representations and warranties on the part of the Company set
forth in Section 1 hereof as of the date hereof and as of the First Closing Date
as though then made and, with respect to the Optional Common Shares, as of the
Second Closing Date as though then made, to the timely performance by the
Company of its covenants and other obligations hereunder, and to each of the
following additional conditions:
(a) Accountants' Comfort Letter. On the date hereof, the
Representatives shall have received from KPMG Peat Marwick LLP, independent
public or certified public accountants for the Company, a letter dated the date
hereof addressed to the Underwriters, in form and substance satisfactory to the
Representatives, containing statements and information of the type ordinarily
included in accountant's "comfort letters" to underwriters, delivered according
to Statement of Auditing Standards No. 72 (or any successor bulletin), with
respect to the audited and unaudited financial statements and certain financial
information contained in the Registration Statement and the Prospectus (and the
Representatives shall have received additional conformed copies of such
accountants' letter for each of the several Underwriters).
(b) Compliance with Registration Requirements; No Stop Order; No
Objection from NASD. For the period from and after effectiveness of this
Agreement and prior to the First Closing Date and, with respect to the Optional
Common Shares, the Second Closing Date:
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(i) the Company shall have filed the Prospectus with the
Commission (including the information required by Rule 430A under the Securities
Act) in the manner and within the time period required by Rule 424(b) under the
Securities Act; or the Company shall have filed a post-effective amendment to
the Registration Statement containing the information required by such Rule
430A, and such post-effective amendment shall have become effective; or, if the
Company elected to rely upon Rule 434 under the Securities Act and obtained the
Representatives' consent thereto, the Company shall have filed a Term Sheet with
the Commission in the manner and within the time period required by such Rule
424(b);
(ii) no stop order suspending the effectiveness of the
Registration Statement, any Rule 462(b) Registration Statement, or any post-
effective amendment to the Registration Statement, shall be in effect and no
proceedings for such purpose shall have been instituted or threatened by the
Commission; and
(iii) the NASD shall have raised no objection to the fairness and
reasonableness of the underwriting terms and arrangements.
(c) No Material Adverse Change or Ratings Agency Change. For the
period from and after the date of this Agreement and prior to the First Closing
Date and, with respect to the Optional Common Shares, the Second Closing Date:
(i) in the judgment of the Representatives there shall not have
occurred any Material Adverse Change; and
(ii) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any review
for a possible change that does not indicate the direction of the possible
change, in the rating accorded any securities of the Company or any of its
subsidiaries by any "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(d) Opinion of Counsel for the Company. On each of the First Closing
Date and the Second Closing Date, the Representatives shall have received the
opinion of Manatt, Phelps & Phillips, LLP, counsel for the Company, dated as of
such Closing Date, in substantially the form attached hereto as Exhibit A (and
---------
the Representatives shall have received additional conformed copies of such
counsel's legal opinion for each of the several Underwriters).
(e) Opinion of Counsel for the Underwriters. On each of the First
Closing Date and the Second Closing Date, the Representatives shall have
received the opinion of Gibson, Dunn & Crutcher LLP, counsel for the
Underwriters, dated as of such Closing Date, with respect to the incorporation
and good standing of the Company, the sufficiency of all corporate proceedings
and other legal matters related to this Agreement, the validity of the issuance
of the Common Shares, the Registration Statement and the Prospectus and other
related matters as the Underwriters may reasonably require (and the
Representatives shall have received additional conformed copies of such
counsel's legal opinion for each of the several Underwriters).
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(f) Officers' Certificate. On each of the First Closing Date and the
Second Closing Date, the Representatives shall have received a written
certificate executed by the Chairman of the Board, Chief Executive Officer or
President of the Company and the Chief Financial Officer or Chief Accounting
Officer of the Company, dated as of such Closing Date, to the effect set forth
in subsections (b)(ii) and (c)(ii) of this Section 5, and further to the effect
that:
(i) for the period from and after the date of this Agreement and
prior to such Closing Date, there has not occurred any Material Adverse Change;
(ii) the representations, warranties and covenants of the Company
set forth in Section 1 of this Agreement are true and correct with the same
force and effect as though expressly made on and as of such Closing Date; and
(iii) the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied at or
prior to such Closing Date.
(g) Bring-down Comfort Letter. On each of the First Closing Date and
the Second Closing Date, the Representatives shall have received from KPMG Peat
Marwick LLP, independent public or certified public accountants for the Company,
a letter dated such date, in form and substance satisfactory to the
Representatives, to the effect that they reaffirm the statements made in the
letter furnished by them pursuant to subsection (a) of this Section 5, except
that the specified date referred to therein for the carrying out of procedures
shall be no more than three business days prior to the First Closing Date or
Second Closing Date, as the case may be (and the Representatives shall have
received additional conformed copies of such accountants' letter for each of the
several Underwriters).
(h) Lock-Up Agreement from Certain Stockholders of the Company. On
the date hereof, the Company shall have furnished to the Representatives an
agreement in the form of Exhibit B hereto from each director, officer and each
---------
beneficial owner of Common Stock (as defined and determined according to Rule
13d-3 under the Exchange Act, except that a one hundred eighty day period shall
be used rather than the sixty day period set forth therein), and such agreement
shall be in full force and effect on each of the First Closing Date and the
Second Closing Date.
(i) Additional Documents. On or before each of the First Closing Date
and the Second Closing Date, the Representatives and counsel for the
Underwriters shall have received such information, documents and opinions as
they may reasonably require for the purposes of enabling them to pass upon the
issuance and sale of the Common Shares as contemplated herein, or in order to
evidence the accuracy of any of the representations and warranties, or the
satisfaction of any of the conditions or agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when and
as required to be satisfied, this Agreement may be terminated by the
Representatives by notice to the Company at any time on or prior to the First
Closing Date and, with respect to the Optional Common Shares, at any time prior
to the Second Closing Date, which termination shall be without liability on the
part
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of any party to any other party, except that Section 4, Section 6, Section 8 and
Section 9 hereof shall at all times be effective and shall survive such
termination.
Section 6. Reimbursement of Underwriters' Expenses.
If this Agreement is terminated by the Representatives pursuant to Section
5, Section 7, Section 10 or Section 11 hereof, or if the sale to the
Underwriters of the Common Shares on the First Closing Date is not consummated
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or to comply with any provision hereof, the Company
agrees to reimburse the Representatives and the other Underwriters (or such
Underwriters as have terminated this Agreement with respect to themselves),
severally, upon demand for all out-of-pocket expenses that shall have been
reasonably incurred by the Representatives and the Underwriters in connection
with the proposed purchase and the offering and sale of the Common Shares,
including but not limited to reasonable fees and disbursements of counsel,
printing expenses, reasonable travel expenses, postage, facsimile and telephone
charges.
Section 7. Effectiveness of this Agreement.
This Agreement shall not become effective until the later of (i) the
execution of this Agreement by the parties hereto and (ii) notification by the
Commission to the Company and the Representatives of the effectiveness of the
Registration Statement under the Securities Act.
Prior to such effectiveness, this Agreement may be terminated by the
Representatives by notice to the Company or by the Company by notice to the
Representatives, and any such termination shall be without liability on the part
of (a) the Company to any Underwriter, except that the Company shall be
obligated to reimburse the expenses of the Representatives and the Underwriters
pursuant to Sections 4 and 6 hereof, (b) of any Underwriter to the Company, or
(c) of any party hereto to any other party except that the provisions of Section
8 and Section 9 hereof shall at all times be effective and shall survive such
termination.
Section 8. Indemnification.
(a) Indemnification of the Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter, its officers and employees, and each person,
if any, who controls any Underwriter within the meaning of the Securities Act
and the Exchange Act against any loss, claim, damage, liability or expense, as
incurred, to which such Underwriter or such controlling person may become
subject, under the Securities Act, the Exchange Act or other federal or state
statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of the Company), insofar as such loss, claim, damage, liability or
expense (or actions in respect thereof as contemplated below) arises out of or
is based (i) upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, or any amendment thereto,
including any information deemed to be a part thereof pursuant to Rule 430A or
Rule 434 under the Securities Act, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading; or (ii) upon any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus or
the Prospectus (or any amendment or
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supplement thereto), or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; or (iii) in whole or
in part upon any inaccuracy in the representations and warranties of the Company
contained herein; or (iv) in whole or in part upon any failure of the Company to
perform its obligations hereunder or under law; or (v) any act or failure to act
or any alleged act or failure to act by any Underwriter in connection with, or
relating in any manner to, the Common Stock or the offering contemplated hereby,
and which is included as part of or referred to in any loss, claim, damage,
liability or action arising out of or based upon any matter covered by clause
(i) or (ii) above, provided that the Company shall not be liable under this
clause (v) to the extent that a court of competent jurisdiction shall have
determined by a final judgment that such loss, claim, damage, liability or
action resulted directly from any such acts or failures to act undertaken or
omitted to be taken by such Underwriter through its gross negligence, bad faith
or willful misconduct; and to reimburse each Underwriter and each such
controlling person for any and all expenses (including the reasonable fees and
disbursements of counsel chosen by NationsBanc Montgomery Securities, Inc.) as
such expenses are reasonably incurred by such Underwriter or such controlling
person in connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense or action; provided,
however, that the foregoing indemnity agreement shall not apply to any loss,
claim, damage, liability or expense to the extent, but only to the extent,
arising out of or based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in reliance upon and in conformity with
written information furnished to the Company by the Representatives expressly
for use in the Registration Statement, any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto); and provided, further, that
with respect to any preliminary prospectus, the foregoing indemnity agreement
shall not inure to the benefit of any Underwriter from whom the person asserting
any loss, claim, damage, liability or expense purchased Common Shares, or any
person controlling such Underwriter, if copies of the Prospectus were timely
delivered to the Underwriter pursuant to Section 2 hereof and a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
such Underwriter to such person, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of the Common Shares to such
person, and if the Prospectus (as so amended or supplemented) would have cured
the defect giving rise to such loss, claim, damage, liability or expense.
(b) Indemnification of the Company, its Directors and Officers. Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, each of its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of the Securities Act or the Exchange Act, against any loss, claim,
damage, liability or expense, as incurred, to which the Company, or any such
director, officer or controlling person may become subject, under the Securities
Act, the Exchange Act, or other federal or state statutory law or regulation, or
at common law or otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of such Underwriter), insofar as
such loss, claim, damage, liability or expense (or actions in respect thereof as
contemplated below) arises out of or is based upon any untrue or alleged untrue
statement of a material fact contained in the Registration Statement, any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), or arises out of or is based upon the omission or alleged
19
<PAGE>
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, any preliminary prospectus, the Prospectus (or any amendment or
supplement thereto), in reliance upon and in conformity with written information
furnished to the Company by the Representatives expressly for use therein; and
to reimburse the Company, or any such director, officer or controlling person
for any legal and other expense reasonably incurred by the Company, or any such
director, officer or controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action. The Company hereby acknowledges that the only
information that the Underwriters have furnished to the Company expressly for
use in the Registration Statement, any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) are the statements set forth (A) as the
last paragraph on the inside front cover page of the Prospectus concerning
stabilization by the Underwriters and (B) in the table in the first paragraph
and as the third and last paragraphs under the caption "Underwriting" in the
Prospectus; and the Underwriters confirm that such statements are correct. The
indemnity agreement set forth in this Section 8(b) shall be in addition to any
liabilities that each Underwriter may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly after
receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 8, notify
the indemnifying party in writing of the commencement thereof, but the omission
so to notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party for contribution or otherwise than under
the indemnity agreement contained in this Section 8 or to the extent it is not
prejudiced as a proximate result of such failure. In case any such action is
brought against any indemnified party and such indemnified party seeks or
intends to seek indemnity from an indemnifying party, the indemnifying party
will be entitled to participate in, and, to the extent that it shall elect,
jointly with all other indemnifying parties similarly notified, by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof with counsel
reasonably satisfactory to such indemnified party; provided, however, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that a conflict may arise between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that there
may be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of such indemnifying
party's election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (together with local counsel), approved by
20
<PAGE>
the indemnifying party (NationsBanc Montgomery Securities, Inc. in the case of
Section 8(b) and Section 9 hereof), representing the indemnified parties who are
parties to such action) or (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action, in each of
which cases the fees and expenses of counsel shall be at the expense of the
indemnifying party.
(d) Settlements. The indemnifying party under this Section 8 shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by Section
8(c) hereof, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement, compromise or consent
to the entry of judgment in any pending or threatened action, suit or proceeding
in respect of which any indemnified party is or could have been a party and
indemnity was or could have been sought hereunder by such indemnified party,
unless such settlement, compromise or consent includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding.
Section 9. Contribution.
If the indemnification provided for in Section 8 hereof is for any reason
held to be unavailable to or otherwise insufficient to hold harmless an
indemnified party in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount paid or payable by such indemnified party, as incurred, as
a result of any losses, claims, damages, liabilities or expenses referred to
therein (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Underwriters, on the
other hand, from the offering of the Common Shares pursuant to this Agreement or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company, on the one hand, and the Underwriters, on the other hand, in
connection with the statements or omissions or inaccuracies in the
representations and warranties herein which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one hand,
and the Underwriters, on the other hand, in connection with the offering of the
Common Shares pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the Common
Shares pursuant to this Agreement (before deducting expenses) received by the
Company, and the total underwriting discount received by the Underwriters, in
each case as set forth on the front cover
21
<PAGE>
page of the Prospectus (or, if Rule 434 under the Securities Act is used, the
corresponding location on the Term Sheet) bear to the aggregate initial public
offering price of the Common Shares as set forth on such cover. The relative
fault of the Company, on the one hand, and the Underwriters, on the other hand,
shall be determined by reference to, among other things, whether any such untrue
or alleged untrue statement of a material fact or omission or alleged omission
to state a material fact or any such inaccurate or alleged inaccurate
representation or warranty relates to information supplied by the Company, on
the one hand, or the Underwriters, on the other hand, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in Section 8(c) hereof, any legal or other
fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim. The provisions set forth in
Section 8(c) hereof with respect to notice of commencement of any action shall
apply if a claim for contribution is to be made under this Section 9; provided,
however, that no additional notice shall be required with respect to any action
for which notice has been given under Section 8(c) hereof for purposes of
indemnification.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter shall be
required to contribute any amount in excess of the underwriting commissions
received by such Underwriter in connection with the Common Shares underwritten
by it and distributed to the public. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 9 are several, and not joint, in proportion to their
respective underwriting commitments as set forth opposite their names in
Schedule A hereto. For purposes of this Section 9, each officer and employee of
- ----------
an Underwriter and each person, if any, who controls an Underwriter within the
meaning of the Securities Act and the Exchange Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each officer
of the Company who signed the Registration Statement, and each person, if any,
who controls the Company with the meaning of the Securities Act and the Exchange
Act shall have the same rights to contribution as the Company.
Section 10. Default of One or More of the Several Underwriters.
If, on the First Closing Date or the Second Closing Date, as the case may
be, any one or more of the several Underwriters shall fail or refuse to purchase
Common Shares that it or they have agreed to purchase hereunder on such date,
and the aggregate number of Common Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase does not exceed 10% of the
aggregate number of the Common Shares to be purchased on such date,
22
<PAGE>
the other Underwriters shall be obligated, severally, in the proportions that
the number of Firm Common Shares set forth opposite their respective names on
Schedule A hereto bears to the aggregate number of Firm Common Shares set forth
- ----------
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as may be specified by the Representatives with the consent of the
non-defaulting Underwriters, to purchase the Common Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date. If, on the First Closing Date or the Second Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase Common
Shares and the aggregate number of Common Shares with respect to which such
default occurs exceeds 10% of the aggregate number of Common Shares to be
purchased on such date, and arrangements satisfactory to the Representatives and
the Company for the purchase of such Common Shares are not made within 48 hours
after such default, this Agreement shall terminate without liability of any
party to any other party except that the provisions of Section 4, Section 8 and
Section 9 hereof shall at all times be effective and shall survive such
termination. In any such case either the Representatives or the Company shall
have the right to postpone the First Closing Date or the Second Closing Date, as
the case may be, but in no event for longer than seven days in order that the
required changes, if any, to the Registration Statement and the Prospectus or
any other documents or arrangements may be effected.
As used in this Agreement, the term "Underwriter" shall be deemed to
include any person substituted for a defaulting Underwriter under this Section
10. Any action taken under this Section 10 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
Section 11. Termination of this Agreement.
Prior to the First Closing Date, this Agreement may be terminated by the
Representatives by notice given to the Company if at any time (i) trading or
quotation in any of the Company's securities shall have been suspended or
limited by the Commission or by the Nasdaq Stock Market, or trading in
securities generally on either the Nasdaq Stock Market or the New York Stock
Exchange shall have been suspended or limited, or minimum or maximum prices
shall have been generally established on any of such stock exchanges by the
Commission or the NASD; (ii) a general banking moratorium shall have been
declared by any federal, New York, Delaware or California governmental
authority; (iii) there shall have occurred any outbreak or escalation of
national or international hostilities or any crisis or calamity, or any change
in the United States or international financial markets, or any substantial
change or development involving a prospective substantial change in United
States' or international political, financial or economic conditions, as in the
judgment of the Representatives is material and adverse and makes it
impracticable to market the Common Shares in the manner and on the terms
described in the Prospectus or to enforce contracts for the sale of securities;
(iv) in the judgment of the Representatives there shall have occurred any
Material Adverse Change; or (v) the Company shall have sustained a loss by
strike, fire, flood, earthquake, accident or other calamity of such character as
in the judgment of the Representatives may interfere materially with the conduct
of the business and operations of the Company regardless of whether or not such
loss shall have been insured. Any termination pursuant to this Section 11 shall
be without liability on the part of (a) the Company to any Underwriter,
23
<PAGE>
except that the Company shall be obligated to reimburse the expenses of the
Representatives and the Underwriters pursuant to Sections 4 and 6 hereof, (b)
any Underwriter to the Company, or (c) of any party hereto to any other party
except that the provisions of Section 8 and Section 9 hereof shall at all times
be effective and shall survive such termination.
Section 12. Representations and Indemnities to Survive Delivery.
The respective indemnities, agreements, representations, warranties and
other statements of the Company Parties, of its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter or the Company or any of its or their partners, officers or
directors or any controlling person, as the case may be, and will survive
delivery of and payment for the Common Shares sold hereunder and any termination
of this Agreement.
Section 13. Notices.
All communications hereunder shall be in writing and shall be mailed, hand
delivered or telecopied and confirmed to the parties hereto as follows:
If to the Representatives:
NationsBanc Montgomery Securities, Inc.
Piper Jaffray Inc.
c/o NationsBanc Montgomery Securities, Inc.
600 Montgomery Street
San Francisco, California 94111
Facsimile: (415) 249-5558
Attention: Richard A. Smith
with a copy to:
NationsBanc Montgomery Securities, Inc.
600 Montgomery Street
San Francisco, California 94111
Facsimile: (415) 249-5553
Attention: David A. Baylor, Esq.
If to the Company:
United PanAm Financial Corp.
1300 South El Camino Real
San Mateo, CA 94402-2962
Facsimile: (415) 349-8504
Attention: Lawrence J. Grill
24
<PAGE>
Any party hereto may change the address for receipt of communications by giving
written notice to the others.
Section 14. Successors.
This Agreement will inure to the benefit of and be binding upon the parties
hereto, including any substitute Underwriters pursuant to Section 10 hereof, and
to the benefit of the employees, officers and directors and controlling persons
referred to in Section 8 and Section 9 hereof, and in each case their respective
successors, and no other person will have any right or obligation hereunder.
The term "successors" shall not include any purchaser of the Common Shares as
such from any of the Underwriters merely by reason of such purchase.
Section 15. Partial Unenforceability.
The invalidity or unenforceability of any Section, paragraph or provision
of this Agreement shall not affect the validity or enforceability of any other
Section, paragraph or provision hereof. If any Section, paragraph or provision
of this Agreement is for any reason determined to be invalid or unenforceable,
there shall be deemed to be made such minor changes (and only such minor
changes) as are necessary to make it valid and enforceable.
Section 16. Governing Law Provisions.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED IN SUCH STATE.
(b) Consent to Jurisdiction. Any legal suit, action or proceeding arising
out of or based upon this Agreement or the transactions contemplated hereby
("Related Proceedings") may be instituted in the federal courts of the United
States of America located in the City and County of San Francisco or the courts
of the State of California in each case located in the City and County of San
Francisco (collectively, the "Specified Courts"), and each party irrevocably
submits to the exclusive jurisdiction (except for proceedings instituted in
regard to the enforcement of a judgment of any such court (a "Related
Judgment"), as to which such jurisdiction is non-exclusive) of such courts in
any such suit, action or proceeding. Service of any process, summons, notice or
document by mail to such party's address set forth above shall be effective
service of process for any suit, action or other proceeding brought in any such
court. The parties irrevocably and unconditionally waive any objection to the
laying of venue of any suit, action or other proceeding in the Specified Courts
and irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such suit, action or other proceeding brought in any such
court has been brought in an inconvenient forum.
Section 17. General Provisions.
This Agreement constitutes the entire agreement of the parties to this
Agreement and supersedes all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations with respect to the subject matter
hereof. This Agreement may be executed in two or
25
<PAGE>
more counterparts, each one of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Agreement may not be amended or modified unless in writing by all of the parties
hereto, and no condition herein (express or implied) may be waived unless waived
in writing by each party whom the condition is meant to benefit. The Table of
Contents and the Section headings herein are for the convenience of the parties
only and shall not affect the construction or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated business
person who was adequately represented by counsel during negotiations regarding
the provisions hereof, including, without limitation, the indemnification
provisions of Section 8 hereof and the contribution provisions of Section 9
hereof, and is fully informed regarding said provisions. Each of the parties
hereto further acknowledges that the provisions of Sections 8 and 9 hereof
fairly allocate the risks in light of the ability of the parties to investigate
the Company, its affairs and its business in order to assure that adequate
disclosure has been made in the Registration Statement, any preliminary
prospectus and the Prospectus (and any amendments and supplements thereto), as
required by the Securities Act and the Exchange Act.
26
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company the enclosed copies hereof,
whereupon this instrument, along with all counterparts hereof, shall become a
binding agreement in accordance with its terms.
Very truly yours,
UNITED PANAM FINANCIAL CORP.
By: __________________________
[Title]
The foregoing Underwriting Agreement is hereby confirmed and accepted by
the Representatives in San Francisco, California as of the date first above
written.
NATIONSBANC MONTGOMERY SECURITIES, INC.
PIPER JAFFRAY INC.
Acting as Representatives of the
several Underwriters named in
the attached Schedule A.
By: NATIONSBANC MONTGOMERY SECURITIES, INC.
By:
-----------------------------------
27
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Number of Firm
Common Shares
Underwriters to be Purchased
<S> <C>
NationsBanc Montgomery Securities, Inc............
Piper Jaffray Inc. ...............................
Total.............................................
---------------
</TABLE>
<PAGE>
EXHIBIT A
The final opinion in draft form should be attached as Exhibit A at the time this
Agreement is executed.
Opinion of counsel for the Company to be delivered pursuant to Section 5(e)
of the Underwriting Agreement.
References to the Prospectus in this Exhibit A include any supplements
---------
thereto at the Closing Date.
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Underwriting
Agreement.
(iii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in the State of California and, to the
best knowledge of such counsel, in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except for such jurisdictions (other than
the State of California) where the failure to so qualify or to be in good
standing would not, individually or in the aggregate, result in a Material
Adverse Change.
(iv) Each subsidiary of the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and, to the best knowledge of such counsel, is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except for such
jurisdictions where the failure to so qualify or to be in good standing would
not, individually or in the aggregate, result in a Material Adverse Change.
(v) All of the issued and outstanding capital stock of each such
subsidiary has been duly authorized and validly issued, is fully paid and non-
assessable and, except as set forth in the Prospectus, is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance or, to the best knowledge of such counsel,
any pending or threatened claim.
(vi) The authorized, issued and outstanding capital stock of the
Company (including the Common Stock) conforms to the description thereof set
forth in the Prospectus. All of the outstanding shares of Common Stock have
been duly authorized and validly issued, are fully paid and nonassessable and,
to the best of such counsel's knowledge, have been issued in compliance with the
registration and qualification requirements of federal and state securities
laws.
A-1
<PAGE>
The form of certificate used to evidence the Common Stock is in due and proper
form and complies with all applicable requirements of the charter and by-laws of
the Company and the General Corporation Law of the State of Delaware. The
description of the Company's stock option, stock bonus and other stock plans or
arrangements, and, to the best knowledge of such counsel, the options or other
rights granted and exercised thereunder, set forth in the Prospectus accurately
and fairly presents the information required to be shown with respect to such
plans, arrangements, options and rights. Except as disclosed or specifically
contemplated by the Prospectus, to the best knowledge of such counsel, there are
no outstanding options, warrants or other rights calling for the issuance of,
and no commitments, plans or arrangements to issue, any shares of capital stock
of the Company or any security convertible into or exchangeable for capital
stock of the Company.
(vii) No stockholder of the Company or any other person has any
preemptive right, right of first refusal or other similar right to subscribe for
or purchase securities of the Company arising (A) by operation of the charter or
by-laws of the Company or the General Corporation Law of the State of Delaware
or (B) to the best knowledge of such counsel, otherwise.
(viii) The Underwriting Agreement has been duly authorized, executed
and delivered by, and is a valid and binding agreement of, the Company,
enforceable in accordance with its terms, except as rights to indemnification
thereunder may be limited by applicable law and except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally or by
general equitable principles.
(ix) The Common Shares to be purchased by the Underwriters from the
Company have been duly authorized for issuance and sale pursuant to the
Underwriting Agreement and, when issued and delivered by the Company pursuant to
the Underwriting Agreement against payment of the consideration set forth
therein, will be validly issued, fully paid and nonassessable.
(x) Each of the Registration Statement and the Rule 462(b)
Registration Statement, if any, has been declared effective by the Commission
under the Securities Act. To the best knowledge of such counsel, no stop order
suspending the effectiveness of either of the Registration Statement or the Rule
462(b) Registration Statement, if any, has been issued under the Securities Act
and no proceedings for such purpose have been instituted or are pending or are
contemplated or threatened by the Commission. Any required filing of the
Prospectus and any supplement thereto pursuant to Rule 424(b) under the
Securities Act has been made in the manner and within the time period required
by such Rule 424(b).
(xi) The Registration Statement, including any Rule 462(b)
Registration Statement, the Prospectus and each amendment or supplement to the
Registration Statement and the Prospectus, as of their respective effective or
issue dates (other than the financial statements and supporting schedules
included therein or in exhibits to or excluded from the Registration Statement,
as to which no opinion need be rendered), comply as to form in all material
respects with the applicable requirements of the Securities Act.
(xii) The Common Shares have been approved for quotation on the
Nasdaq National Market.
A-2
<PAGE>
(xiii) The statements (A) in the Prospectus under the captions "Risk
Factors--Risks Associated with Mortgage Finance--Government Regulation", "Risk
Factors--Risks Associated With Automobile Finance--Impact of Government
Regulation and Litigation", "Risk Factors--Risks Associated With Insurance
Premium Finance--Government Regulation", "Risk Factors--Risks Associated With
the Bank--Financial Institution Regulation", "Risk Factors--Risks Associated
With the Company--Control by Existing Stockholders", "--Antitakeover
Provisions", and "--Shares Eligible for Future Sale", "Description of Capital
Stock", "Management's Discussion and Analysis and Results of Operations--
Liquidity and Capital Resources", "Business--Litigation", "Business--Supervision
and Regulation", and "Certain Transactions", "Description of Capital Stock--
Shares Eligible for Future Sale" and (B) in Items 14 and 15 of Part II of the
Registration Statement, insofar as such statements constitute matters of law,
summaries of legal matters, the Company's charter or by-law provisions,
documents or legal proceedings, or legal conclusions, has been reviewed by such
counsel and fairly present and summarize, in all material respects, the matters
referred to therein.
(xiv) To the best knowledge of such counsel, there are no legal or
governmental actions, suits or proceedings pending or threatened which are
required to be disclosed in the Registration Statement, other than those
disclosed therein.
(xv) To the best knowledge of such counsel, there are no Existing
Instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto;
and the descriptions thereof and references thereto are correct in all material
respects.
(xvi) No consent, approval, authorization or other order of, or
registration or filing with, any court or other governmental authority or
agency, is required for the Company's execution, delivery and performance of the
Underwriting Agreement and consummation of the transactions contemplated thereby
and by the Prospectus, except as required under the Securities Act, applicable
state securities or blue sky laws and from the NASD.
(xvii) The execution and delivery of the Underwriting Agreement by
the Company and the performance by the Company of its obligations thereunder
(other than performance by the Company of its obligations under the
indemnification section of the Underwriting Agreement, as to which no opinion
need be rendered) (A) have been duly authorized by all necessary corporate
action on the part of the Company; (B) will not result in any violation of the
provisions of the charter or by-laws of the Company or any subsidiary; or (C) to
the best knowledge of such counsel, will not result in any violation of any law,
administrative regulation or administrative or court decree applicable to the
Company or any subsidiary.
(xviii) The Company is not, and after receipt of payment for the
Common Shares will not be, an "investment company" within the meaning of
Investment Company Act.
(xix) Except as disclosed in the Prospectus, to the best knowledge
of such counsel, there are no persons with registration or other similar rights
to have any equity or debt securities registered for sale under the Registration
Statement or included in the offering contemplated by the Underwriting
Agreement, except for such rights as have been duly waived.
A-3
<PAGE>
(xx) To the best knowledge of such counsel, neither the Company nor
any subsidiary is in violation of its charter or by-laws or any law,
administrative regulation or administrative or court decree applicable to the
Company or any subsidiary or is in Default in the performance or observance of
any obligation, agreement, covenant or condition contained in any material
Existing Instrument (other than the RTC Agreements), except in each such case
for such violations or Defaults as would not, individually or in the aggregate,
result in a Material Adverse Change.
(xxi) To the best knowledge of such counsel, the Company and each of
its subsidiaries have all governmental licenses, permits, consents, orders,
approvals and other authorizations necessary to carry on their respective
businesses as described in the Prospectus, except where the failure to have such
governmental licenses, permits, consents, orders, approvals and other
authorizations would not result in a Material Adverse Change.
(xxii) The Bank is duly chartered as a federal savings bank and is in
good standing under the laws of the United States. The Bank is a member in good
standing with the FHLB. The deposit accounts and investment certificates of the
Bank are duly insured by the FDIC to the fullest extent permitted by law. To
the best knowledge of such counsel, no charge, investigation or proceeding for
the termination or revocation of such charter, FHLB membership, good standing or
FDIC insurance is pending or threatened.
(xxiii) To the best knowledge of such counsel, the Company and its
subsidiaries are not subject to any cease-and-desist order, civil money
penalty, supervisory agreement, memorandum of understanding, consent cease-and-
desist order or other regulatory action of the OTS, the FDIC or any other
federal or state regulatory agency (other than the RTC Agreements). To the best
knowledge of such counsel, the Company and its subsidiaries are conducting their
respective businesses in compliance in all material respects with all applicable
federal, state and local laws, rules, regulations, decisions, directives and
orders (including, without limitation, the rules, regulations, decisions,
directives and orders of the OTS and the FDIC, and laws governing the consumer
lending activities of the Company and its subsidiaries), except for any failure
to so comply which would not, individually or in the aggregate, result in a
Material Adverse Change.
(xxiv) The Company is a "savings and loan holding company" within
the meaning of the Home Owners Loan Act, as amended.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company,
representatives of the independent public or certified public accountants for
the Company and with representatives of the Underwriters at which the contents
of the Registration Statement and the Prospectus, and any supplements or
amendments thereto, and related matters were discussed and, although such
counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus (other than as specified above), and
any supplements or amendments thereto, on the basis of the foregoing, nothing
has come to their attention which would lead them to believe that either the
Registration Statement or any amendments thereto, at the time the Registration
Statement or such amendments became effective,
A-4
<PAGE>
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus, as of its date or at the First Closing
Date or the Second Closing Date, as the case may be, contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading (it being understood that such counsel need
express no belief as to the financial statements or schedules or other financial
or statistical data derived therefrom, included in the Registration Statement or
the Prospectus or any amendments or supplements thereto).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the General
Corporation Law of the State of Delaware, the General Corporation Law of the
State of California or the federal law of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion (which shall be
dated the First Closing Date or the Second Closing Date, as the case may be,
shall be satisfactory in form and substance to the Underwriters, shall expressly
state that the Underwriters may rely on such opinion as if it were addressed to
them and shall be furnished to the Representatives) of other counsel of good
standing who are satisfactory to counsel for the Underwriters, and (B) as to
matters of fact, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials; provided, however, that
notwithstanding the foregoing, such counsel may rely on the opinion of King,
Purtich, Holmes, Paterno & Berliner as to the matters described in clause (B) of
paragraph (xiii) above.
A-5
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EXHIBIT B
November __, 1997
NationsBanc Montgomery Securities, Inc.
Piper Jaffray Inc.
As Representatives of the Several Underwriters
c/o NationsBanc Montgomery Securities, Inc.
600 Montgomery Street
San Francisco, California 94111
Re: United PanAm Financial Corp. (the "Company")
Ladies & Gentlemen:
The undersigned is an owner of record or beneficially of certain shares of
Common Stock of the Company ("Common Stock") or securities convertible into or
exchangeable or exercisable for Common Stock. The Company proposes to carry out
a public offering of Common Stock (the "Offering") for which you will act as the
representatives of the underwriters. The undersigned recognizes that the
Offering will be of benefit to the undersigned and will benefit the Company by,
among other things, raising additional capital for its operations. The
undersigned acknowledges that you and the other underwriters are relying on the
representations and agreements of the undersigned contained in this letter in
carrying out the Offering and in entering into underwriting arrangements with
the Company with respect to the Offering.
In consideration of the foregoing, the undersigned hereby agrees that the
undersigned will not, without the prior written consent of NationsBanc
Montgomery Securities, Inc. (which consent may be withheld in its sole
discretion), directly or indirectly, sell, offer, contract or grant any option
to sell (including without limitation any short sale), pledge, transfer,
establish an open "put equivalent position" within the meaning of Rule 16a-1(h)
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
otherwise dispose of any shares of Common Stock, options or warrants to acquire
shares of Common Stock, or securities exchangeable or exercisable for or
convertible into shares of Common Stock currently or hereafter owned either of
record or beneficially (as defined in Rule 13d-3 under Exchange Act) by the
undersigned, or publicly announce the undersigned's intention to do any of the
foregoing, for a period commencing on the date hereof and continuing through the
close of trading on the date 180 days after the date of the Prospectus. The
undersigned also agrees and consents to the entry of stop transfer instructions
with the Company's transfer agent and registrar against the transfer of shares
of Common Stock or securities convertible into or exchangeable or exercisable
for Common Stock held by the undersigned except in compliance with the foregoing
restrictions.
With respect to the Offering only, the undersigned waives any registration
rights relating to registration under the Securities Act of any Common Stock
owned either of record or beneficially by the undersigned, including any rights
to receive notice of the Offering.
B-1
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This agreement is irrevocable and will be binding on the undersigned and the
respective successors, heirs, personal representatives, and assigns of the
undersigned.
- -----------------------------------
Printed Name of Holder
By:
--------------------------------
Signature
- -----------------------------------
Printed Name of Person Signing
(and indicate capacity of person signing if
signing as custodian, trustee, or on behalf
of an entity)
B-2
<PAGE>
EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
of
UNITED PANAM FINANCIAL CORP.,
a Delaware corporation
FIRST: NAME: The name of the corporation is United PanAm Financial Corp.
(the "Corporation").
SECOND: REGISTERED OFFICE AND REGISTERED AGENT. The address of the
registered office of the Corporation in the State of Delaware is 15 East North
Street, in the City of Dover, County of Kent, 19901. The name of its registered
agent at such address is AmeriSearch Corporate Services, Inc.
THIRD: PURPOSE. The purpose of the Corporation is to engage in any lawful
act or activity for which corporations may now or hereafter be organized under
the Delaware General Corporation Law.
FOURTH: CAPITAL STOCK. The total number of shares of all classes of
capital stock which the Corporation shall have authority to issue is 22,000,000,
consisting of 20,000,000 shares of common stock, $0.01 par value per share (the
"Common Stock"), and 2,000,000 shares of preferred stock, $0.01 par value per
share (the "Preferred Stock"). Upon the amendment and restatement of this
Certificate of Incorporation to read as herein set forth, each outstanding share
of Common Stock is split up and converted into one thousand eight hundred
seventy-five (1875) shares.
A description of the different classes and series (if any) of the
Corporation's capital stock and a statement of the designations, and the
relative rights, preferences, and limitations of the shares of each class of and
series (if any) of stock are as follows:
A. COMMON STOCK. Except as provided in this Article Fourth (or in any
resolution or resolutions adopted by the Board of Directors pursuant hereto),
the exclusive voting power shall be vested in the Common Stock, the holders
thereof being entitled to one vote for each share of such Common Stock standing
in the holder's name on the books of the Corporation. Subject to any rights and
preferences of any class or series of stock having preference over the Common
Stock with respect to dividends or upon liquidation, holders of Common Stock
shall be entitled to such dividends as may be declared by the Board of Directors
out of funds lawfully available therefor, which funds shall include, without
limitation, the Corporation's capital surplus. Upon any liquidation,
dissolution or winding up of the affairs of the Corporation, whether voluntary
or involuntary, holders of Common Stock shall be entitled to receive pro rata
the remaining assets of the Corporation after the holders of any class or series
of stock having preference over the Common Stock have been paid in full any sums
to which they may be entitled. Holders of Common Stock shall not be entitled to
preemptive
<PAGE>
rights with respect to any shares of Common Stock, Preferred Stock or any other
securities, debt or otherwise, issued by the Corporation.
B. PREFERRED STOCK. The Board of Directors is hereby expressly
authorized, by resolution or resolutions to provide, out of the unissued shares
of Preferred Stock, for series of Preferred Stock. Before any shares of any
such series are issued, the Board of Directors shall fix, and hereby is
expressly empowered to fix, by resolution or resolutions, the following
provisions of the shares thereof:
(i) the designations of such series, the number of shares to
constitute such series and the stated value thereof if different from the
par value thereof;
(ii) whether the shares of such series shall have voting rights, in
addition to any voting rights provided by law, and, if so, the terms of
such voting rights, which may be general or limited;
(iii) the dividends, if any, payable on such series, whether any such
dividends shall be cumulative, and, if so, from what dates, the payment
date or dates for dividends on shares of the series, and the participating
or other special rights, if any, with respect to dividends;
(iv) whether the shares of such series shall be subject to
redemption by the Corporation, and, if so, the times, prices and other
conditions of such redemption;
(v) the amount or amounts payable upon shares of such series upon,
and the rights of the holders of such series in, the voluntary or
involuntary liquidation, dissolution or winding up, or upon any
distribution of the assets, of the Corporation;
(vi) whether the shares of such series shall be subject to the
operation of a retirement or sinking fund and, if so, the extent to and
manner in which any such retirement or sinking fund shall be applied to the
purchase or redemption of the shares of such series for retirement or other
corporate purposes and the terms and provisions relative to the operation
thereof;
(vii) whether the shares of such series shall be convertible into, or
exchangeable for, shares of stock of any other class or any other series of
this class or any other securities, and, if so, the price or prices or the
rate or rates of conversion or exchange and the method, if any, of
adjusting the same, and any other terms and conditions of conversion or
exchange;
(viii) the limitations and restrictions, if any, to be effective while
any shares of such series are outstanding upon the payment of dividends or
the making of other distributions on, and upon the purchase, redemption or
other acquisition by the Corporation of, the Common Stock or shares of
stock of any other class or any other series of this class;
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(ix) the conditions or restrictions, if any, upon the creation of
indebtedness of the Corporation or upon the issue of any additional stock,
including additional shares of such series or of any other series of this
class or of any other class; and
(x) any other powers, preferences and relative, participating,
optional and other special rights, and any qualifications, limitations and
restrictions thereof.
The powers, preferences and relative, participating, optional and other
special rights of each series of Preferred Stock, and the qualifications,
limitations or restrictions thereof, if any, may differ from those of any and
all other series at any time outstanding. All shares of any one series of
Preferred Stock shall be identical in all respects with all other shares of such
series, except that shares of any one series issued at different times may
differ as to the dates from which dividends thereon shall accrue or be
cumulative.
FIFTH: DIRECTORS. The business and affairs of the Corporation shall be
managed by or under the direction of a Board of Directors. Except as otherwise
fixed pursuant to the provisions of Article Fourth hereof relating to the rights
of the holders of any class or series of stock having a preference over the
Common Stock as to dividends or upon liquidation to elect additional directors,
the number of directors shall be determined as stated in the Corporation's
Bylaws, as may be amended from time to time.
SIXTH: AUTHORITY OF THE BOARD. In furtherance and not in limitation of
the powers conferred by statute, the Board of Directors is expressly authorized:
(a) from time to time to set apart out of any funds or assets
of the Corporation available for dividends an amount or amounts to be reserved
as working capital or for any other lawful purpose and to abolish any reserve so
created and to determine whether any, and, if any, what part, of the surplus of
the Corporation or its net profits applicable to dividends shall be declared in
dividends and paid to its stockholders, and all rights of the holders of stock
of the Corporation in respect of dividends shall be subject to the power of the
Board of Directors so to do;
(b) subject to the laws of the State of Delaware, from time to
time to sell, lease or otherwise dispose of any part or parts of the properties
of the Corporation and to cease to conduct the business connected therewith or
again to resume the same, as it may deem best; and
(c) in addition to the powers and authorities hereinbefore and
by the laws of the State of Delaware conferred upon the Board of Directors, to
execute all such powers and to do all acts and things as may be exercised or
done by the Corporation; subject, nevertheless, to the express provisions of
said laws, of this Certificate of Incorporation and the Corporation's Bylaws.
SEVENTH: AMENDMENT OF BYLAWS. Except as otherwise may be provided by the
terms of any class or series of stock having a preference over the Common Stock
as to dividends or upon liquidation, the Bylaws of the Corporation may be
adopted, repealed, rescinded, altered or amended
3
<PAGE>
only by the affirmative vote of sixty percent (60%) or more of the entire Board
of Directors or the affirmative vote of the holders of seventy-five percent
(75%) or more of the outstanding shares of stock of the Corporation entitled to
vote thereon.
EIGHTH: ELECTION OF DIRECTORS AND TERM OF OFFICE. Except as otherwise
provided by the terms of any class or series of stock having a preference over
the Common Stock as to dividends or upon liquidation, each director shall serve
until his or her successor is elected and qualified or until his or her earlier
death, resignation, retirement, disqualification or removal from office in the
manner provided for in Article Tenth hereof, and no decrease in the authorized
number of directors shall shorten the term of any incumbent director. The Board
of Directors shall be divided into three classes as nearly equal in number as
possible, with one class to be elected annually. The terms of office of the
initial directors shall be as follows: the directors first appointed to Class I
of the Board of Directors shall serve for a term ending upon the election of
directors at the annual meeting of stockholders next following the end of the
calendar year 1997; the directors first appointed to Class II of the Board of
Directors shall serve for a term ending upon the election of directors at the
annual meeting of stockholders next following the end of the calendar year 1998;
and the directors first appointed to Class III of the Board of Directors shall
serve for a term ending upon the election of directors at the annual meeting of
stockholders next following the end of the calendar year 1999. At each annual
meeting of stockholders, directors elected to succeed those whose terms are
expiring shall be elected for a term of office to expire at the third succeeding
annual meeting of stockholders and when their respective successors are elected
and qualified. Stockholders of the Corporation shall not be entitled to
cumulate their votes for election of directors.
NINTH: BOARD VACANCIES. Except as otherwise provided by the terms of any
class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, any vacancies on the Board of Directors resulting
from death, resignation, retirement, disqualification or removal from office
shall be filled by the affirmative vote of a majority of the remaining directors
then in office, even though less than a quorum of the Board of Directors, or by
the sole remaining director, or, in the event of the failure of the directors or
the sole remaining director so to act, by the stockholders at the next election
of directors. Newly created directorships resulting from any increase in the
number of directors shall be filled by the affirmative vote of a majority of the
directors then in office. Any director elected in accordance with this Article
Ninth shall hold office for a term expiring at the annual meeting of
stockholders at which the term of the class to which such director has been
elected expires and until such director's successor shall have been elected and
qualified or until such director's death, resignation or removal, whichever
first occurs. If the number of directors is changed, any increase or decrease
shall be apportioned among the three classes so as to make all classes as nearly
equal in number as possible.
TENTH: REMOVAL OF DIRECTORS. Except as otherwise provided by the terms of
any class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, at an annual meeting of stockholders or at a
special meeting of stockholders called expressly for that purpose, a director
may be removed only for cause and only by a vote of the holders of a majority of
the outstanding shares of stock of the Corporation then entitled to vote in an
election of directors.
4
<PAGE>
Cause for removal shall be deemed to exist only if the director whose removal is
proposed has been convicted of a felony by a court of competent jurisdiction or
has been adjudged by a court of competent jurisdiction to be liable for gross
negligence or misconduct in the performance of such director's duty to the
Corporation and such adjudication is no longer subject to direct appeal.
ELEVENTH: STOCKHOLDER ACTION. Except as may be otherwise provided by the
terms of any class or series of stock having a preference over the Common Stock
as to dividends or upon liquidation, any action required or permitted to be
taken by the stockholders of the Corporation must be effected at a duly called
annual or special meeting of stockholders of the Corporation and may not be
taken by written consent.
TWELFTH: SPECIAL MEETINGS OF STOCKHOLDERS. Subject to the terms of any
class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, special meetings of the stockholders of the
Corporation may be called for any purpose or purposes at any time by a majority
of the Board of Directors, by the Chairman of the Board, the Chief Executive
Officer or the President and shall be called by the Chairman of the Board, the
Chief Executive Officer or the President upon the written request of the holders
of not less than twenty-five percent (25%) of the outstanding shares of stock of
the Corporation entitled to vote at such meeting. A special meeting shall be
held at such date and time as is requested by the person or persons calling the
meeting, within the limits fixed by law.
THIRTEENTH: INDEMNIFICATION. A director of the Corporation shall not be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability: (i) for any
breach of the director's duty of loyalty to the Corporation or its stockholders;
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; (iii) under Section 174 of the
Delaware General Corporation Law, as the same exists or as hereafter may be
amended; or (iv) for any transaction from which such director derived an
improper personal benefit. If the Delaware General Corporation Law hereafter is
amended to authorize the further elimination or limitation of the liability of
directors, then the liability of a director of the Corporation, in addition to
the limitation on liability provided for herein, shall be limited to the fullest
extent permitted by the Delaware General Corporation Law as so amended. No
amendment to or repeal of this Article Thirteenth shall apply to or have an
effect on the liability or alleged liability of any director of the Corporation
for or with respect to any acts or omissions of such director occurring prior to
such amendment or repeal.
FOURTEENTH: AMENDMENTS. The Corporation reserves the right to adopt,
repeal, rescind, alter or amend in any respect any provision contained in this
Certificate of Incorporation in the manner now or hereafter prescribed by
applicable law, and all rights conferred on stockholders herein are granted
subject to this reservation. Notwithstanding the foregoing, or the terms of any
class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation (and notwithstanding the fact that a lesser
percentage may be specified by law, this Certificate of Incorporation, or the
terms of any class or series of stock having a preference over the Common
Stock), the provisions set forth in this Article Fourteenth and in Articles
Fifth, Sixth, Seventh, Eighth,
5
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Eleventh, Twelfth and Thirteenth hereof may not be repealed, rescinded, altered
or amended in any respect, and no other provision or provisions may be adopted
which impair(s) in any respect the operation or effect of any such provision,
except by the affirmative vote of the holders of not less than seventy-five
percent (75%) of the outstanding shares of stock of the Corporation entitled to
vote thereon.
6
<PAGE>
EXHIBIT 3.2
BYLAWS
UNITED PANAM FINANCIAL CORP.,
a Delaware corporation
ARTICLE I
OFFICES
SECTION 1.1 REGISTERED OFFICE. United PanAm Financial Corp. (the
"Corporation") shall at all times maintain a registered office in the State of
Delaware, which, except as otherwise determined by the Board of Directors of the
Corporation (the "Board of Directors"), shall be in the City of Dover, County of
Kent.
SECTION 1.2 OTHER OFFICES. The Corporation may also have an office or
offices at such other place or places, either within or without the State of
Delaware, as the Board of Directors may, from time to time, determine or as the
business of the Corporation may require.
ARTICLE II
STOCKHOLDERS
SECTION 2.1 ANNUAL MEETINGS. An annual meeting of stockholders shall be
held for the election of directors at such date, time and place, either within
or without the State of Delaware, as may be designated by the Board of Directors
from time to time. Any other proper business may be transacted at the annual
meeting.
SECTION 2.2 SPECIAL MEETINGS. Subject to the rights of the holders of any
class or series of stock having a preference over the Corporation's Common Stock
(the "Common Stock") as to dividends or upon liquidation, special meetings of
stockholders of the Corporation may be called for any purpose or purposes at any
time by a majority of the Board of Directors, by the Chairman of the Board, the
Chief Executive Officer or the President and shall be called by the Chairman of
the Board, the Chief Executive Officer or the President upon the written request
of the holders of not less than twenty-five percent (25%) of the outstanding
shares of stock of the Corporation entitled to vote at such meeting. Each
special meeting shall be held at such date and time as is requested by the
person or persons calling the meeting, within the limits fixed by law.
SECTION 2.3 NOTICE OF MEETINGS. Notice stating the place, day and hour of
the meeting of stockholders and the purpose or purposes for which the meeting is
called shall be given by delivering personally or by mailing a written or
printed notice of the same, at the direction of the Chairman of the Board, the
President, Secretary or the directors calling the meeting, not less than ten
(10) nor more than sixty (60) days prior to the date of the meeting, to each
stockholder of record entitled to vote at such meeting. If mailed, such notice
shall be deemed given when deposited in the United States mail, postage prepaid,
addressed to the stockholder at his or her address as it appears
1
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on the records of the Corporation. When any stockholders' meeting, either annual
or special, is adjourned for thirty (30) days or more, or if a new record date
is fixed for an adjourned meeting of stockholders, notice of the adjourned
meeting shall be given as in the case of an original meeting. It shall not be
necessary to give notice of the time and place of any meeting adjourned for less
than thirty (30) days or of the business to be transacted thereat, other than an
announcement at the meeting at which such adjournment is taken.
SECTION 2.4 ADJOURNMENTS. Except as may be otherwise provided by the terms
of any class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, any meeting of stockholders, annual or special,
may adjourn from time to time to reconvene at the same or some other place and,
except as provided by Section 2.3 of these Bylaws, notice need not be given of
any such adjourned meeting if the time and place thereof are announced at the
meeting at which such adjournment is taken. At the adjourned meeting, the
Corporation may transact any business which might have been transacted at the
original meeting.
SECTION 2.5 QUORUM. At each meeting of stockholders, except where
otherwise provided by law, the Certificate of Incorporation, the terms of any
class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, or these Bylaws, the holders of a majority of the
outstanding shares of each class of stock entitled to vote at the meeting,
present in person or represented by proxy, shall constitute a quorum. For
purposes of the foregoing, two or more classes or series of stock shall be
considered a single class if the holders thereof are entitled to vote together
as a single class at the meeting. In the absence of a quorum, the stockholders
so present or represented at the meeting may, by majority vote, adjourn the
meeting from time to time in the manner provided by Section 2.4 of these Bylaws
until a quorum shall attend. At such adjourned meeting at which a quorum shall
be present or represented, any business may be transacted which might have been
transacted at the meeting as originally called. The stockholders present at a
duly organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum.
SECTION 2.6 VOTING BY THE CORPORATION. Shares of its own capital stock
belonging on the record date for the meeting to the Corporation or to another
corporation, if a majority of the shares entitled to vote in the election of
directors of such other corporation is held, directly or indirectly, by the
Corporation, shall neither be entitled to vote nor be counted for quorum
purposes; provided, however, that the foregoing shall not limit the right of the
Corporation to vote stock, including, but not limited to, its own stock, held by
it in a fiduciary capacity.
SECTION 2.7 CONDUCT OF MEETINGS. Meetings of the stockholders shall be
conducted in accordance with Delaware law unless otherwise prescribed by these
Bylaws. The Chairman of the Board, or in the absence of the Chairman of the
Board, the highest ranking officer of the Corporation who is present, or such
other person as the Board of Directors shall have designated, shall call to
order any meeting of the stockholders and shall act as chairman of the meeting.
The Secretary of the Corporation, if present at the meeting, shall be the
secretary of the meeting. In the absence of the Secretary of the Corporation,
the secretary of the meeting shall be such person as the chairman of the meeting
shall appoint. The chairman of any meeting of the stockholders, unless otherwise
prescribed
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by law or regulation or unless the Chairman of the Board has otherwise
determined, shall determine the order of business and the procedure at the
meeting.
SECTION 2.8 VOTING OF SHARES. Unless otherwise provided in the Certificate
of Incorporation or the terms of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation, each
stockholder, on each matter submitted to a vote at a meeting of stockholders,
shall have one vote for each share of stock registered in his or her name on the
books of the Corporation. If the Certificate of Incorporation provides for more
or less than one vote for any share on any matter, every reference in these
Bylaws to a majority or other proportion of stock shall refer to such majority
or other proportion of the votes of such stock. At all meetings of stockholders
for the election of directors or otherwise, all elections and questions shall,
unless otherwise provided by law or by the Certificate of Incorporation, be
decided by the vote of the holders of a majority of the outstanding shares of
all classes of stock entitled to vote thereon present in person or represented
by proxy at the meeting.
Directors are to be elected by a plurality of votes cast by the shares
entitled to vote in the election at a meeting at which a quorum is present. If,
at any meeting of stockholders, due to a vacancy or vacancies or otherwise,
directors of more than one class of the Board of Directors are to be elected,
each class of directors to be elected at the meeting shall be elected in a
separate election by a plurality vote. Stockholders shall not be entitled to
cumulate their votes for the election of directors.
SECTION 2.9 PROXIES. A stockholder may vote the shares owned by him of
record either in person or by proxy executed in writing (which shall include
writings sent by telex, telegraph, cable or facsimile transmission) by the
stockholder himself or his duly authorized attorney-in-fact. No such proxy shall
be voted or acted upon after three (3) years from its date, unless the proxy
provides for a longer period. A duly executed proxy shall be irrevocable if it
states that it is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A stockholder may
revoke any proxy which is not irrevocable by attending the meeting and voting in
person or by filing an instrument in writing revoking the proxy or another duly
executed proxy bearing a later date with the Secretary of the Corporation.
SECTION 2.10 FIXING OF RECORD DATE. For the purpose of determining the
stockholders entitled to notice of or to vote at any meeting of stockholders or
at any adjournment thereof, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date for any such determination of stockholders, which shall not
precede the date upon which the resolution fixing the record date is adopted by
the Board of Directors, and which shall not be more than sixty (60) nor less
than ten (10) days before the date of such meeting of stockholders nor more than
sixty (60) days prior to any other action. If no record date is fixed, the
record date for determining stockholders entitled to notice of or to vote at the
meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held, and the record date for determining stockholders
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for any other purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
SECTION 2.11 LIST OF STOCKHOLDERS ENTITLED TO VOTE. The Secretary of the
Corporation, or such other officer or agent of the Corporation having charge of
the stock transfer books for shares of the capital stock of the Corporation,
shall prepare and make, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder for any purpose
germane to the meeting during ordinary business hours for a period of at least
ten (10) days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept open at the time and place of the
meeting during the whole time thereof and may be inspected by any stockholder
who is present. The original stock transfer books of the Corporation shall
constitute the only evidence as to the stockholders entitled to examine such
list or the stock transfer books, or to vote in person or by proxy at the
meeting.
SECTION 2.12 INSPECTORS OF ELECTION. In advance of any meeting of
stockholders, the Board of Directors may appoint any persons other than nominees
for office to act as inspectors of election at the meeting or any adjournment
thereof. If no inspectors of election are appointed, the chairman of the meeting
may, and on the request of any stockholder or his proxy shall, appoint
inspectors of election at the meeting. The number of inspectors shall be either
one (1) or three (3). If inspectors are appointed at a meeting on the request of
one or more stockholders or proxies, the holders of a majority of shares present
in person or represented by proxy at the meeting shall determine whether one (1)
or three (3) inspectors are to be appointed. If any person appointed as
inspector fails to appear or fails or refuses to act, the vacancy may be filled
by appointment by the Board of Directors before the meeting, or by the chairman
of the meeting at the meeting.
The duties of the inspectors of election shall include: (i) determining
the number of shares outstanding and the voting power of each, the shares
represented at the meeting, the existence of a quorum, and the authenticity,
validity, and effect of proxies; (ii) receiving votes, ballots, or consents;
(iii) hearing and determining all challenges and questions in any way arising in
connection with the right to vote; (iv) counting and tabulating all votes or
consents; (v) determining the election results; and (vi) such other acts that
may be proper to conduct the election or vote with fairness to all stockholders.
SECTION 2.13 VOTING OF SHARES IN THE NAME OF TWO OR MORE PERSONS. When
ownership stands in the name of two or more persons, in the absence of written
directions to the Corporation to the contrary, at any meeting of the
stockholders of the Corporation any one or more of such stockholders may cast,
in person or by proxy, all votes to which such ownership is entitled. In the
event an attempt is made to cast conflicting votes, in person or by proxy, by
the several persons in
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whose names shares of stock stand, the vote or votes to which those persons are
entitled shall be cast as directed by a majority of those holding such stock and
present in person or by proxy at such meeting, but no votes shall be cast for
such stock if a majority cannot agree.
SECTION 2.14 VOTING OF SHARES BY CERTAIN HOLDERS. Shares standing in the
name of another corporation may be voted by an officer, agent or proxy as the
bylaws of such corporation may prescribe, or, in the absence of such provision,
as the Board of Directors of such corporation may determine. Shares held by an
administrator, executor, guardian or conservator may be voted by him or her,
either in person or by proxy, without a transfer of such shares into his or her
name. Shares standing in the name of a trustee may be voted by him or her,
either in person or by proxy, but no trustee shall be entitled to vote shares
held by him or her without a transfer of such shares into his or her name.
Shares standing in the name of a receiver may be voted by such receiver, and
shares held by or under the control of a receiver may be voted by such receiver
without the transfer thereof into his or her name if authority to do so is
contained in an appropriate order of the court or other public authority by
which such receiver was appointed. A stockholder whose shares are pledged shall
be entitled to vote such shares until the shares have been transferred into the
name of the pledgee, and thereafter the pledgee shall be entitled to vote the
shares so transferred.
SECTION 2.15 STOCKHOLDER PROPOSALS. At any annual meeting of stockholders,
only such business shall be conducted, and only such proposals shall be acted
upon, as shall have been brought before the meeting: (i) by, or at the direction
of, a majority of the Board of Directors; (ii) by the Chairman of the Board; or
(iii) by any stockholder of the Corporation who complies with the notice
procedures set forth in this Section 2.15. For a proposal to be properly brought
before the meeting by a stockholder, the stockholder must have given timely
notice thereof in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice must be delivered to or received at the principal executive
offices of the Corporation not less than 120 calendar days in advance of the
date of the Corporation's proxy statement released to stockholders in connection
with the previous year's annual meeting of stockholders, except that if no
annual meeting was held in the previous year or if the date of the annual
meeting has been changed by more than thirty (30) calendar days from the date
contemplated at the time of the previous year's proxy statement, notice by the
stockholder to be timely must be so received no later than the close of business
on the tenth (10th) day following the day on which such notice of the date of
the annual meeting was mailed. A stockholder's notice to the Secretary shall set
forth as to each matter the stockholder proposes to bring before the annual
meeting: (i) a brief description of the proposal to be made; (ii) the name and
address of the stockholder making such proposal; (iii) a representation that the
stockholder is a holder of record of stock of the Corporation entitled to vote
at such meeting and intends to appear in person or by proxy at the meeting to
move such proposal; (iv) the class and number of shares of the Corporation which
are owned of record by such stockholder; and (v) a description of any material
interest (other than proportionately, as a stockholder) of such stockholder in
such proposal. Notwithstanding anything in these Bylaws to the contrary, no
business shall be conducted at an annual meeting except in accordance with the
procedures set forth in this Section 2.15.
Any such proposal may be deemed out of order and need not be discussed,
considered, acted or voted upon or laid over for action at any meeting of
stockholders if the Chairman of the Board (or
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such other officer of the Corporation presiding at such meeting of stockholders)
determines that such proposal was not delivered in compliance with these Bylaws
or that such proposal deals or relates to: (i) any action or matter that, if
taken or effected by the Corporation, would be in violation of, or contrary to,
any applicable law or regulation or would result in a breach or violation by the
Corporation of any contractual obligation; (ii) any action or matter that is
impossible or beyond the Corporation's power to take or effect; (iii) any action
or matter that is not a proper subject for action by the stockholders of the
Corporation; (iv) any action or matter involving or relating to the conduct of
the ordinary business of the Corporation; (v) any action or matter that is
substantially duplicative of, or counter to, any business or proposal that is to
be considered at such meeting of stockholders; (vi) any action or matter that
has been rendered moot; or (vii) the redress of a personal claim or grievance
against the Corporation or any other person or entity, or any action or matter
that is designed to result in a benefit to the stockholder or to further a
personal interest, which benefit or interest is not shared with stockholders of
the Corporation at large.
SECTION 2.16 STOCKHOLDER ACTION. Except as may be otherwise provided by the
terms of any class or series of stock having a preference over the Common Stock
as to dividends or upon liquidation, any action required or permitted to be
taken by the stockholders of the Corporation must be effected at a duly called
annual or special meeting of stockholders of the Corporation and may not be
taken by written consent.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.1 POWERS. The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors, except as may be
otherwise required by law or in the Certificate of Incorporation.
SECTION 3.2 NUMBER OF DIRECTORS. Except as may be provided by the terms of
any class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, the number of directors of the Corporation shall
be fixed from time to time by resolution of the Board of Directors, but shall
not be less than five (5) nor more than fifteen (15), divided into three classes
as nearly equal in number as possible. If the number of directors is changed by
the Board of Directors, then any newly created directorships or any decrease in
directorships shall be apportioned among the classes so as to make all classes
as nearly equal as possible; provided, however, that no decrease in the number
of directors shall shorten the term of any incumbent director.
SECTION 3.3 ELECTION AND TERM OF OFFICE. Except as otherwise provided by
the terms of any class or series of stock having a preference over the Common
Stock as to dividends or upon liquidation, each director shall serve for a term
ending on the third annual meeting following the annual meeting of stockholders
at which such director was elected and until his or her successor is elected and
qualified or until his or her earlier death, resignation, retirement,
disqualification or removal from office in the manner provided for in Section
3.14 of these Bylaws; provided, however,
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that the directors first appointed to Class I of the Board of Directors shall
serve for a term ending upon the election of directors at the annual meeting of
stockholders next following the end of the calendar year 1997; the directors
first appointed to Class II of the Board of Directors shall serve for a term
ending upon the election of directors at the annual meeting of stockholders next
following the end of the calendar year 1998; and the directors first appointed
to Class III of the Board of Directors shall serve for a term ending upon the
election of directors at the annual meeting of stockholders next following the
end of the calendar year 1999.
SECTION 3.4 ELECTION OF CHAIRMAN. At the meeting of the Board of Directors
immediately following the annual meeting of stockholders, the directors shall
elect a Chairman of the Board from among the directors then in office. Such
Chairman of the Board shall hold office until the corresponding meeting of the
Board of Directors in the next year and until his or her successor shall have
been elected or until his or her earlier death, resignation or removal. Any
vacancy in such office may be filled for the unexpired portion of the term in
the same manner by the Board of Directors at any regular or special meeting.
SECTION 3.5 VACANCIES AND ADDITIONAL DIRECTORSHIPS. Except as may be
otherwise provided by the terms of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation, any
vacancies on the Board of Directors resulting from death, resignation or removal
shall be filled by the affirmative vote of a majority of the remaining directors
then in office, even though less than a quorum of the Board of Directors, or by
the sole remaining director, or, in the event of the failure of the directors or
the sole director so to act, by the stockholders at the next election of
directors. Newly created directorships resulting from any increase in the number
of directors shall be filled by the affirmative vote of a majority of the
directors then in office. Any director elected in accordance with this Section
3.5 shall hold office for a term expiring at the annual meeting of stockholders
at which the term of the class to which such director has been elected expires
and until such director's successor shall have been elected and qualified or
until such director's death, resignation or removal, whichever first occurs.
SECTION 3.6 REGULAR MEETINGS. Regular meetings of the Board of Directors
may be held at such places within or without the State of Delaware and at such
times as the Board of Directors may from time to time determine and, if so
determined, notice thereof need not be given.
SECTION 3.7 SPECIAL MEETINGS. Special meetings of the Board of Directors
may be held at any time or place within or without the State of Delaware
whenever called by the Chairman of the Board, the Chief Executive Officer, the
President, or by a majority of directors then in office. Reasonable notice
thereof shall be given by the person or persons calling the meeting.
SECTION 3.8 TELEPHONIC MEETINGS PERMITTED. Members of the Board of
Directors, or any committee thereof, as the case may be, may participate in a
meeting of the Board of Directors or such committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a meeting
pursuant to this Section 3.8 shall constitute presence in person at such
meeting.
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SECTION 3.9 QUORUM; VOTE REQUIRED FOR ACTION. At all meetings of the Board
of Directors a majority of the entire Board of Directors shall constitute a
quorum for purposes of the transaction of business. The vote of a majority of
the directors present at a meeting at which a quorum is present shall be the act
of the Board of Directors unless the Certificate of Incorporation or these
Bylaws shall require the vote of a greater number. In case at any meeting of the
Board of Directors a quorum shall not be present, the members of the Board of
Directors present may adjourn the meeting from time to time until a quorum shall
attend.
SECTION 3.10 REGISTERING DISSENT. A director who is present at a meeting of
the Board of Directors at which action on a corporate matter is taken shall be
presumed to have assented to such action unless his or her dissent shall be
entered in the minutes of the meeting, or unless he or she shall file his or her
written dissent to such action with the person acting as the secretary of the
meeting before the adjournment thereof, or shall forward such dissent by
registered mail to the Secretary of the Corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
SECTION 3.11 CONDUCT OF MEETINGS. Meetings of the Board of Directors shall
be presided over by the Chairman of the Board, or in his or her absence by the
Chief Executive Office or in his or her absence by the President, or in their
absence by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his or her absence the chairman of the meeting
may appoint any person to act as secretary of the meeting.
SECTION 3.12 ACTION BY DIRECTORS WITHOUT A MEETING. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, any action
required or permitted to be taken at any meeting of the Board of Directors, or
any committee thereof, may be taken without a meeting if all members of the
Board of Directors or such committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board of Directors or committee thereof.
SECTION 3.13 COMPENSATION OF DIRECTORS. The Board of Directors shall have
the authority to fix the compensation of directors.
SECTION 3.14 REMOVAL. Except as otherwise provided by the terms of any
class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, at an annual meeting of stockholders or at a
special meeting of stockholders called expressly for that purpose, a director
may be removed only for cause and only by a vote of the holders of a majority of
the outstanding shares of stock of the Corporation then entitled to vote in an
election of directors. Cause for removal shall be deemed to exist only if the
director whose removal is proposed has been convicted of a felony by a court of
competent jurisdiction or has been adjudged by a court of competent jurisdiction
to be liable for gross negligence or misconduct in the performance of such
director's duty to the Corporation and such adjudication is no longer subject to
direct appeal.
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SECTION 3.15 RESIGNATION. Any director may resign at any time by sending a
written notice of such resignation to the Corporation addressed to the Board of
Directors, the Chairman of the Board, the Chief Executive Officer, the President
or the Secretary. Unless otherwise specified therein, such resignation shall
take effect upon receipt thereof.
SECTION 3.16 NOMINATIONS. Only persons who are nominated in accordance with
the procedures set forth in this Section 3.16 shall be eligible for election as
directors. The Board of Directors or, at the discretion of the Board, a
committee of the Board of Directors appointed for that purpose, shall act as a
nominating committee for selecting the Board of Director's nominees for election
as directors. Except in the case of a nominee substituted as a result of the
death or other incapacity of the Board of Director's nominee, the nominating
committee shall deliver written nominations to the Secretary of the Corporation
at least twenty (20) days prior to the date of the annual meeting. Provided such
committee makes such nominations, no nominations for directors except those made
by the nominating committee shall be voted upon at the annual meeting unless
other nominations by stockholders are made in accordance with the following.
Nominations for directors may be made by any stockholder of the Corporation
entitled to vote for the election of directors at that meeting pursuant to
timely notice in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice shall be delivered to or received at the principal
executive offices of the Corporation not less than twenty (20) days prior to the
meeting; provided, however, that in the event that less than thirty (30) days'
notice of the date of the meeting is given to stockholders, notice by the
stockholder to be timely must be so received not later than the close of
business on the tenth (10th) day following the day on which such notice of the
date of the meeting was mailed. Such stockholder's notice shall set forth: (i)
as to each person whom the stockholder proposes to nominate for election or
reelection as a director: (a) the name, age, business address and residence
address of such person; (b) the principal occupation or employment of such
person; and (c) such person's written consent to serving as a director, if
elected; and (ii) as to the stockholder giving the notice: (a) the name and
address of such stockholder; and (b) the class and number of shares of the
Corporation which are owned of record by such stockholder. At the request of the
Board of Directors any person nominated by the Board of Directors for election
as a director shall furnish to the Secretary of the Corporation the information
required to be set forth in a stockholders' notice of nomination which pertains
to the nominee together with the required written consents. Ballots bearing the
names of all persons nominated by the nominating committee and by stockholders
shall be provided for use at the annual meeting. If the nominating committee
shall fail or refuse to act at least twenty (20) days prior to the annual
meeting, nominations for directors may be made at the annual meeting by any
stockholder entitled to vote and shall be voted upon.
ARTICLE IV
COMMITTEES
SECTION 4.1 COMMITTEES. The Board of Directors may by resolution passed by
a majority of the Board of Directors, designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. The
Board of Directors may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified member
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at any meeting of the committee. In the absence or disqualification of a member
of a committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they, constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in place of any such absent or disqualified member. Any such committee,
to the extent provided for in the resolution of the Board of Directors
designating such committee, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it; provided, however, that no such
committee shall have power or authority to: (i) amend the Certificate of
Incorporation; (ii) adopt an agreement of merger or consolidation; (iii)
recommend to the stockholders the sale, lease or exchange of all, or
substantially all, of the Corporation's property and assets; (iv) recommend to
the stockholders a dissolution of the Corporation or a revocation of
dissolution; (v) remove or indemnify directors; or (vi) amend these Bylaws;
provided, further, that unless the resolution of the Board of Directors
designating such committee expressly so provides, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock.
SECTION 4.2 COMMITTEE RULES. Unless the Board of Directors otherwise
provides, each committee designated by the Board of Directors may adopt, amend
and repeal rules for the conduct of its business, and in the absence of a
provision by the Board of Directors or a provision in the rules of such
committee to the contrary, a majority of the entire authorized number of members
of such committee shall constitute a quorum for the transaction of business, the
vote of a majority of the members present at a meeting at the time of such vote
if a quorum is then present shall be the act of such committee, and in other
respects each committee shall conduct its business in the same manner as the
Board of Directors conducts its business pursuant to Article III of these
Bylaws.
ARTICLE V
OFFICERS
SECTION 5.1 OFFICERS; ELECTION. As soon as practicable after the annual
meeting of stockholders in each year, the Board of Directors shall elect a
President, a Chief Executive Officer and a Secretary, and it may, if it so
determines, designate the Chairman of the Board as an officer. The Board of
Directors may also elect one or more Executive Vice Presidents, one or more
Senior Vice Presidents, one or more Vice Presidents, one or more Assistant
Secretaries, a Treasurer, one or more Assistant Treasurers and such other
officers as the business of the Corporation may require, and may give any of
them such further designations or alternate titles as it considers desirable.
Any number of offices may be held by the same person.
SECTION 5.2 TERM OF OFFICE; RESIGNATION; REMOVAL; VACANCIES. Except as
otherwise provided in the resolution of the Board of Directors electing any
officer, each officer shall hold office until the first meeting of the Board of
Directors after the annual meeting of stockholders next succeeding his election,
and until his successor is elected and qualified or until his earlier death,
resignation or removal. Any officer may resign at any time upon written notice
to the Board of
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Directors, the Chairman of the Board, the Chief Executive Officer, the President
or the Secretary of the Corporation. Such resignation shall take effect at the
time specified therein, and unless otherwise specified therein, no acceptance of
such resignation shall be necessary to make it effective. The Board of Directors
may remove any officer with or without cause at any time. Any such removal,
other than for cause, shall be without prejudice to the contractual rights of
such officer, if any, with the Corporation, but the election of an officer by
the Board of Directors shall not of itself create contractual rights. Any
vacancy occurring in any office of the Corporation by death, resignation,
removal or otherwise may be filled for the unexpired portion of the term by the
Board of Directors at any regular or special meeting.
SECTION 5.3 POWERS AND DUTIES. The officers of the Corporation shall have
such powers and duties in the management of the Corporation as shall be stated
in these Bylaws or in a resolution of the Board of Directors which is not
inconsistent with these Bylaws and, to the extent not so stated, as generally
pertain to their respective offices, subject to the control of the Board of
Directors. The Secretary shall have the duty to record the proceedings of the
meetings of stockholders, the Board of Directors and any committees in a book to
be kept for that purpose and shall have custody of the corporate seal of the
Corporation with the authority to affix such seal to any instrument requiring
it. The Board of Directors may require any officer, agent or employee to give
security for the faithful performance of his duties.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND OTHER CORPORATE AGENTS
SECTION 6.1 RIGHT TO INDEMNIFICATION. Each person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the Corporation, or was serving at the request of the Corporation as a
director or officer of another corporation, partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit plans, or
was a director or officer of a foreign or domestic corporation which was a
predecessor of the Corporation or of another enterprise at the request of such
predecessor corporation, whether the basis of such proceeding is alleged action
in an official capacity as a director or officer or in any other capacity while
serving as a director or officer shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the Delaware General Corporation
Law, as the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the Corporation
to provide broader indemnification rights than said law permitted the
Corporation to provide prior to such amendment), against all expense, liability
and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement, if the settlement is
approved in advance by the Corporation) actually and reasonably incurred or
suffered by such person in connection therewith if the person acted in good
faith and in a manner the person reasonably believed to be in or not
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opposed to the best interests of the Corporation, and such indemnification shall
continue as to a person who has ceased to be a director or officer and shall
inure to the benefit of his or her heirs, executors and administrators;
provided, however, that, except as provided in Section 6.3 of this Article VI,
the Corporation shall indemnify such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation. The right to indemnification conferred in this Section 6.1
shall include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that any such expenses shall only be paid upon receipt by the
Corporation of an undertaking by or on behalf of such director or officer to
repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this Section or
otherwise. The Corporation may by action of its Board of Directors, provide
indemnification to employees and agents of the Corporation with the same scope
and effect as the foregoing indemnification of directors and officers. This
Article VI shall create a right of indemnification for each such indemnifiable
party whether or not the proceeding to which the indemnification relates arose
in whole or in part prior to adoption of this Article VI.
SECTION 6.2 DETERMINATION OF ELIGIBILITY. Any indemnification under this
Article VI (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
director or officer is proper in the circumstances because such person has met
the applicable standard of conduct set forth in the Delaware General Corporation
Law. Such determination shall be made: (i) by a majority vote of the directors
who are not parties to such action, suit or proceeding, even though less than a
quorum; or (ii) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion; or (iii) by a majority vote
of the stockholders.
SECTION 6.3 RIGHT OF CLAIMANT TO BRING SUIT. If a claim under Section 6.1
of this Article VI is not paid in full by the Corporation within thirty (30)
days after a written claim has been received by the Corporation, or if
applicable, whatever time is reasonably necessary for the Corporation to
complete an investigation of such claim, the claimant may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the claim
and, if successful in whole or in part, the claimant shall be entitled to be
paid also the expense of prosecuting such claim. It shall be a defense to any
such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the
Corporation) that the claimant has not met the standards of conduct which make
it permissible under the Delaware General Corporation Law for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper into the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
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SECTION 6.4 NONEXCLUSIVITY OF RIGHTS. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Article VI shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, provision of these Bylaws,
agreement or contract, vote of stockholders or of the disinterested members of
the Board of Directors of the Corporation or otherwise.
SECTION 6.5 INSURANCE. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation, or a person who is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability, whether or not
the Corporation would have the power to indemnify such person against such
expense, liability or loss under the Delaware General Corporation Law.
ARTICLE VII
STOCK
SECTION 7.1 CERTIFICATES. Certificates representing shares of the capital
stock of the Corporation shall be issued in numerical order, and each
stockholder shall be entitled to a certificate signed by the President or a Vice
President, and the Secretary or the Treasurer. The signatures of such officers
may be facsimiles if the certificate is manually signed on behalf of a transfer
agent, or registered by a registrar, other than the Corporation itself or an
employee of the Corporation. If an officer who has signed or whose facsimile
signature has been placed upon such certificate ceases to be an officer before
the certificate is issued, it may be issued by the Corporation with the same
effect as if the person were an officer on the date of issue. Each certificate
of stock shall state: (i) that the Corporation is organized under the laws of
the State of Delaware; (ii) the name of the person to whom issued; (iii) the
number and class of shares and the designation of the series, if any, which such
certificate represents; and (iv) the par value of each share represented by such
certificate, or a statement that such shares are without par value.
SECTION 7.2 TRANSFERS. Transfers of stock shall be made only upon the
stock transfer books of the Corporation, kept at the registered office of the
Corporation or at its principal place of business, or at the office of its
transfer agent or registrar, and before a new certificate is issued the old
certificate shall be surrendered for cancellation. The Board of Directors may,
by resolution, open a share register in any state of the United States, and may
employ an agent or agents to keep such register, and to record transfers of
shares therein.
Shares of stock shall be transferred by delivery of the certificates
therefor, accompanied either by an assignment in writing on the back of the
certificate or an assignment separate from the certificate, or by a written
power of attorney to sell, assign and transfer the same, signed by the holder of
said certificate. No shares of stock shall be transferred on the books of the
Corporation until the outstanding certificates therefor have been surrendered to
the Corporation.
13
<PAGE>
SECTION 7.3 REGISTERED OWNER. Registered stockholders shall be treated by
the Corporation as the holders in fact of the stock standing in their respective
names and the Corporation shall not be bound to recognize any equitable or other
claim to or interest in any share on the part of any other person, whether or
not it shall have express or other notice thereof, except as provided in this
Section 7.3 or as required by the laws of the State of Delaware. The Board of
Directors may adopt by resolution a procedure whereby a stockholder of the
Corporation may certify in writing to the Corporation that all or a portion of
the shares registered in the name of such stockholder are held for the account
of a specified person or persons. The resolution shall set forth: (i) the
classification of stockholder who may certify; (ii) the purpose or purposes for
which the certification may be made; (iii) the form of certification and
information to be contained therein; (iv) if the certification is with respect
to a record date or closing of the stock transfer books, the date within which
the certification must be received by the Corporation; and (v) such other
provisions with respect to the procedure as are deemed necessary or desirable.
Upon receipt by the Corporation of a certification complying with the above
requirements, the persons specified in the certification shall be deemed, for
the purpose or purposes set forth in the certification, to be the holders of
record of the number of shares specified in place of the stockholders making the
certification.
SECTION 7.4 MUTILATED, LOST OR DESTROYED CERTIFICATES. In case of any
mutilation, loss or destruction of any certificate of stock, another may be
issued in its place upon receipt of proof of such mutilation, loss or
destruction. The Board of Directors may impose conditions on such issuance and
may require the giving of a bond or indemnity to the Corporation in such sum as
they might determine or establish such other procedures as they deem necessary.
SECTION 7.5 FRACTIONAL SHARES OR SCRIP. The Corporation may: (i) issue
fractions of a share which shall entitle the holder to exercise voting rights,
to receive dividends thereon, and to participate in any of the assets of the
Corporation in the event of liquidation; (ii) arrange for the disposition of
fractional interests by those entitled thereto; (iii) pay in cash the fair value
of fractions of a share as of the time when those entitled to receive such
shares are determined; or (iv) issue scrip in registered or bearer form which
shall entitle the holder to receive a certificate for a full share upon the
surrender of such scrip aggregating a full share.
SECTION 7.6 SHARES OF ANOTHER CORPORATION. Shares owned by the Corporation
in another corporation, domestic or foreign, may be voted by such officer, agent
or proxy as the Board of Directors may determine or, in the absence of such
determination, by the President of the Corporation.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 FISCAL YEAR. The fiscal year of the Corporation shall be
determined by the Board of Directors.
14
<PAGE>
SECTION 8.2 SEAL. The Corporation may have a corporate seal which shall
have the name of the Corporation inscribed thereon and shall be in such form as
may be approved from time to time by the Board of Directors. The corporate seal
may be used by causing it or a facsimile thereof to be impressed or affixed or
in any other manner reproduced.
SECTION 8.3 WAIVER OF NOTICE OF MEETINGS OF STOCKHOLDERS, DIRECTORS AND
COMMITTEES. Whenever notice is required to be given by law or under any
provision of the Certificate of Incorporation or these Bylaws, a written waiver
thereof, signed by the person entitled to notice, whether before or after the
time stated therein, shall be deemed equivalent to notice. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders,
directors, or members of a committee of directors need be specified in any
written waiver of notice unless so required by the Certificate of Incorporation
or these Bylaws. Unless either proper notice of a meeting of the Board of
Directors, or any committee thereof, has been given, where required by law, by
the Certificate of Incorporation or by these Bylaws, or else the persons
entitled thereto have waived such notice (either in writing or by attendance as
set forth above), any business transacted at such meeting shall be null and
void.
SECTION 8.4 FORM OF RECORDS. Any records maintained by the Corporation in
the regular course of its business, including its stock ledger, books of account
and minute books, may be kept on, or be in the form of, punch cards, magnetic
tape, photographs, microphotographs or any other information storage device,
provided that the records so kept can be converted into clearly legible form
within a reasonable time. The Corporation shall so convert any records so kept
upon the request of any person entitled to inspect the same.
15
<PAGE>
SECTION 8.5 AMENDMENT OF BYLAWS. Except as may be otherwise provided by
the terms of any class or series of stock having a preference over the Common
Stock as to dividends or upon liquidation, these Bylaws may be amended or
repealed, and new Bylaws adopted, by the affirmative vote of sixty percent (60%)
or more of the entire Board of Directors or by the affirmative vote of the
holders of seventy-five percent (75%) or more of the outstanding shares of stock
of the Corporation entitled to vote thereon.
16
<PAGE>
EXHIBIT 10.1
INSURANCE PREMIUM FINANCING MANAGEMENT AGREEMENT
DATED MAY 17, 1995,
BETWEEN
PAN AMERICAN BANK
and
BPN CORPORATION
<PAGE>
TABLE OF CONTENTS
<TABLE>
<C><S> <C>
1. Term.............................................................. 1
2. Contractor's Obligations.......................................... 1
2.1 Managerial Services........................................ 2
2.2 Computer Software.......................................... 2
2.3 Compliance with Policies and Procedures.................... 2
2.4 Satisfaction of Loan Standards............................. 2
2.5 Contractor's Managers and Other Employees.................. 3
2.6 Cooperation................................................ 3
2.7 Program Documents.......................................... 3
2.8 Audit of Records........................................... 3
2.9 Professional Liability Insurance........................... 3
2.10 No Changes................................................. 4
2.11 Licenses and Other Authorities............................. 4
2.12 Financial Statements....................................... 4
3. Bank's Obligations................................................ 4
3.1 Bank Employees............................................. 4
3.2 Cooperation................................................ 4
3.3 Policies and Procedures.................................... 4
3.4 Business Plan.............................................. 5
4. Representations and Warranties of Bank; Certain Covenants......... 5
4.1 Bank....................................................... 5
4.2 Contractor................................................. 6
5. Compensation...................................................... 7
5.1 Residual Income............................................ 7
5.2 Service Fees............................................... 8
5.3 Bank Accounts.............................................. 8
5.4 Payment of Compensation.................................... 9
6. Non-Performing Loans; Receipt of Amounts Charged-Off.............. 9
6.1 Non-Performing Loans and Charged-Off Loans................. 9
6.2 Subsequent Receipt of Charge-Off Amounts................... 10
7. Program Expenses.................................................. 10
7.1 General Expenses........................................... 10
7.2 Program Expenses Shared Equally by Bank and
Contractor............................................... 10
7.3 Expenses Paid by Contractor................................ 11
8. Non-Competition................................................... 11
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
8.1 Similar Agreement and A1ternative Financing................ 11
8.2 Post-Term Activities....................................... 11
9. Computer Software and Program Documentation........................ 11
9.1 Limited License During the Term............................ 11
9.2 Limited License Upon Termination of this Agreement......... 12
9.3 Return of the Computer Software............................ 12
9.4 Program Documentation...................................... 12
10. Confidentiality and Nonsolicitation............................... 12
10.1 Confidential Information................................... 12
10.2 Nonsolicitation............................................ 13
11. Termination....................................................... 13
11.1 Termination by Mutual Agreement............................ 13
11.2 Termination Without Cause.................................. 13
11.3 Termination for Cause...................................... 13
11.4 Obligation Upon Termination................................ 14
12. Independent Contractor............................................ 15
13. Indemnification................................................... 15
13.1 Indemnification of Bank.................................... 15
13.2 Indemnification of Contractor.............................. 16
13.3 Indemnification Claims Subject to Section 7.2 (b).......... 16
13.4 Notice of Claim for Indemnification........................ 16
13.5 Defense of Third Party Claims.............................. 16
13.6 Survival of Indemnification................................ 17
14. General Provisions................................................ 17
14.1 Further Instruments........................................ 17
14.2 Severability............................................... 17
14.3 Notices.................................................... 17
14.4 Waivers.................................................... 18
14.5 Entire Agreement........................................... 18
14.6 Successors and Assigns..................................... 18
14.7 Governing Law.............................................. 18
14.8 Venue and Jurisdiction..................................... 18
14.9 Gender and Number.......................................... 18
14.10 Paragraph and Subparagraph Headings........................ 19
14.11 Third Parties.............................................. 19
14.12 Legal Action............................................... 19
14.13 Counterparts............................................... 19
</TABLE>
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<PAGE>
INSURANCE PREMIUM FINANCING MANAGEMENT AGREEMENT
------------------------------------------------
THIS INSURANCE PREMIUM FINANCING AGREEMENT, (this "Agreement") is
made and entered into as of May 17, 1995, (the "Execution Date"), by and between
PAN AMERICAN BANK, a federal savings bank ("Bank"), and BPN CORPORATION, a
California corporation ("Contractor") , with reference to the following
recitals:
RECITALS
A. Bank desires to make insurance premium finance loans to consumers
and small commercial enterprises for the purpose of assisting those consumers
and enterprises in obtaining automobile insurance and other types of property
and casualty insurance coverage (the "IPF Loans" or, as the context may require,
an "IPF Loan").
B. Contractor is experienced in arranging IPF Loans on behalf of
financial institutions and providing related marketing and administrative
services with respect thereto. Contractor provides those services under its
registered fictitious business name, "ClassicPlan."
C. In connection with providing IPF Loan-related services, Contractor
has developed and is the owner of a computer software program designed to
process and assist in the management and administration of IPF Loans (the
"Computer Software").
D. Bank desires to engage Contractor to perform management and
related administrative services with respect to the operation of its IPF Loan
portfolio and related lending program (the "Program"), and Contractor desires to
perform such services for Bank, in accordance with the terms and conditions of
this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Term.
----
The term of this Agreement shall commence immediately upon expiration
of the one hundred twenty (120) day notice of termination period set forth in
that certain Restatement and Amendment of the Management Services Agreement
(Insurance Premium Financing) between Contractor and Republic Bank, a California
corporation, or such earlier date following the Execution Date if deemed
permissible by Contractor under such agreement (the "Effective Date"), and
continue until terminated in accordance with Section 11 hereof (the "Term").
2. Contractor's Obligations. Commencing immediately upon the Effective
------------------------
Date, Contractor will faithfully perform the following
<PAGE>
duties as required within the scope of this Agreement to the best of
Contractor's professional knowledge, skill and judgment:
2.1 Managerial Services. Render managerial and other related
-------------------
services to Bank with respect to the operation and administration of the
Program, including but not limited to, (a) processing IPF Loan applications, (b)
collecting on behalf of Bank all IPF Loan proceeds, loan fees, and unearned
premium and commission; (c) acting as a liaison with insurance producers whose
customers desire to obtain IPF Loans; (d) recommending to Bank, on an ongoing
basis, for Bank's consideration, amendments and modifications to Bank's Policies
and Procedures (as defined below); (e) performing such marketing and business
development and other additional services for the Program as Bank may reasonably
request consistent with the Policies and Procedures as in effect from time to
time; (f) assuring the Program's compliance with the requirements in the
Policies and Procedures with respect to truth-in-lending and other consumer
protection and disclosure laws and insurance laws applicable to the Program;
provided, however, Contractor shall not be responsible for the IPF Loan forms
- --------- -------
and documentation or the rate tables used in connection with the IPF Loans; (g)
maintaining and updating at Contractor's expense the Computer Software; (h)
maintain all original IPF Loan and related documents and a computer data base
for such records in such manner as may reasonably be required by Bank,
consistent with the capacity of the Computer Software.
2.2 Computer Software. Utilize the Computer Software in performing
-----------------
its obligations hereunder;
2.3 Compliance with the Policies and Procedures. Comply with all
-------------------------------------------
written policies, procedures, standards, guidelines, underwriting requirements,
and instructions for the management, operation and administration of the Program
adopted by the Bank respecting the Program (the "Policies and Procedures") in
performing its obligations hereunder;
2.4 Satisfaction of Loan Standards. Ensure that borrowers for IPF
------------------------------
Loans under the Program satisfy the following requirements:
(a) The borrower makes a down payment in an amount consistent
with industry practices and approved by Bank in accordance with the Policies and
Procedures;
(b) The borrower purchases a policy from an insurer listed in the
Policies and Procedures;
(c) The borrower assigns to Bank as security for the IPF Loan all
unearned premium attributable to the financed insurance policy; and
(d) The borrower or the borrower's designated agent executes all
required loan documents, including a promissory note and power of attorney form;
-2-
<PAGE>
2.5 Contractor's Managers and Other Employees. Provide the services
-----------------------------------------
of Peter Walski, Barbara Walski, and Cornelius J. O'Shea or such other person(s)
as may be approved by Bank (collectively, the "Managers") to oversee
Contractor's operations in performing its obligations hereunder. Contractor
shall cause the Managers to devote as much of their regular business time to the
affairs of the Program as is reasonably necessary to carry out Contractor's
obligations hereunder. Contractor shall direct, supervise, and control the
Managers as well as its other employees, and the Managers and such other
employees of Contractor shall report solely to Contractor for instructions and
directions. In addition, Contractor shall maintain sufficient computer capacity
and support staff as required to fully carry out its responsibilities hereunder;
2.6 Cooperation. Cooperate at all times with Bank (a) to ensure the
-----------
proper management, operation and administration of the Program and (b) in
connection with the sale of the IPF Loans by Bank;
2.7 Program Documents. Utilize only Bank-approved documents, forms or
-----------------
other written materials disseminated to customers or the public with respect to
the Program;
2.8 Audit of Records. Upon forty-eight (48) hours advance written
----------------
notice to Contractor or as may otherwise be required by the Office of Thrift
Supervision ("OTS") or any other bank regulatory or supervisory agency which has
jurisdiction to examine Bank, permit representatives of Bank or such authorities
or agencies to visit, inspect, examine, and audit at Contractor's office during
regular business hours, Contractor's records and any of the properties,
accounts, files, computer data bases, systems, documents, books, reports, work
papers and other records (other than documents subject to an attorney-client
privilege) belonging to or in the possession or control of Contractor relating
to the services provided by Contractor hereunder or to the customers of Bank,
provided that such audit shall not unreasonably interfere with Contractor's
normal course of business;
2.9 Professional Liability Insurance. Contractor shall maintain in
--------------------------------
full force and effect during the Term a policy for errors and omissions
insurance coverage with an insurance carrier reasonably acceptable to Bank (A.M.
Best Rating of "A-" or better) with limits of liability in no event less than $1
million, and Contractor shall seek obtain $2 million in such coverage or such
greater amount as may be required by Bank, in its reasonable discretion, should
applicable bank regulatory authorities require increased coverage (the
"Policy"). The annual premium on the Policy shall be paid by Contractor provided
that the amount thereof does not exceed the greater of $50,000.00 or the cost of
insurance for coverage in an amount equal to five percent (5%) of the principal
balance of the then outstanding performing and non-performing IPF Loans, in
which case the Program shall be responsible for the payment of all premium in
excess of such amount as a Program expense as set forth in Section 7.2 hereof.
The Policy shall name Bank as
-3-
<PAGE>
an additional insured and shall require by its terms that it cannot be cancelled
except on at least thirty (30) days' written notice to Bank. Contractor shall
provide Bank with such evidence of coverage under the Policy as Bank may
reasonably request, including evidence of the renewal thereof. Contractor also
agrees to satisfy all reasonable requirements for extending fidelity bond
coverage to Contractor and its employees; provided that all premiums with
respect thereto shall be paid by Bank;
2.10 No Changes. Except with respect to a transfer to an entity which
----------
is an affiliate of Bank as of the Execution Date, no change shall be made in the
ownership, management, control or form of business of Contractor without the
prior written consent of Bank;
2.11 Licenses and Other Authorities. Maintain in full force and
------------------------------
effect all licenses or other government authorizations required in connection
with its business; and
2.12 Financial Statements. Within ninety (90) days following the end
--------------------
of each year during which this Agreement is in effect, Contractor shall provide
Bank unaudited financial statements reflecting the operations for the year then
ended and the financial condition of Contractor as of such date, meeting the
requirements for Contractor Financial Statements set forth in Section 4.2(a)
hereof, and, upon the written request of Bank, shall provide Bank with quarterly
Contractor Financial Statements within forty-five (45) days of the end of each
quarter.
3. Bank's Obligations. Commencing on the Effective Date, Bank
------------------
will faithfully perform the following duties as required within the scope of
this Agreement to the best of Bank's professional knowledge, skill and judgment:
3.1 Bank Employees. Maintain a staff of necessary employees to
--------------
underwrite and fund IPF Loans under the Program;
3.2 Cooperation. Cooperate at all times with Contractor to ensure
-----------
the proper management, operation and administration of the Program;
3.3 Policies and Procedures. Provide Contractor with the Policies
-----------------------
and Procedures. The Policies and Procedures shall include, among such other
requirements as may be included by Bank, the following with respect to the
Program: (a) A list of insurers on whose policies IPF Loans may be made (and any
individual or aggregate policy limits applicable to such insurers); (b) Fees to
be charged borrowers; (c) Interest rates on IPF Loans; (d) Borrower underwriting
requirements; (e) Allow for IPF Loans to be made on commercial insurance
products, the aggregate amount of which loans shall not exceed, without further
review of the commercial lines business by Bank, $500,000.00; and (f) Allow for
advances to be made on IPF Loans financing broker's fees, the aggregate amount
of which
-4-
<PAGE>
shall not exceed, without further review by Bank, $200,000.00. The Policies and
Procedures are subject to reasonable amendment consistent with then current
industry practices at any time by Bank upon notice to Contractor. In accordance
with the Business Plan (as hereinafter defined in Section 3.4 hereof), the
insurance companies listed in Exhibit A attached hereto and incorporated herein
by this reference are acceptable insurers on whose personal lines automobile
insurance policies IPF Loans may be made under the Program; and
3.4 Business Plan. Bank shall fund IPF Loans under the Program in
-------------
accordance with its Revised Fiscal 1995/96 (June 30, 1995 through June 30, 1996)
Business Plan that was filed with and acknowledged by the OTS (the "Business
Plan"), subject to the regulations, policies, directions and required approvals
of the OTS and other bank regulatory authorities and provided Contractor
supplies sufficient IPF Loans satisfying the requirements of the Program.
4. Representations and Warranties of Bank; Certain Covenants.
---------------------------------------------------------
4.1 Bank. Bank hereby represents and warrants to Contractor, as of
----
the Execution Date as follows:
(a) Licenses and Other Authorization. Bank is duly chartered as
--------------------------------
a Federal Savings Bank and each of its required licenses have been lawfully
obtained and are in full force and effect in accordance with their terms by
reason of performing its obligations hereunder. Without limiting the foregoing,
(a) Bank is in full compliance with the terms and conditions of its charter and
all such licenses, (b) there are no disputes or proceedings pending, or, to the
knowledge of Bank after reasonable investigation, threatened with respect to the
suspension, revocation, nonrenewal or limitation of any such license, (c) no
event has occurred which, whether with notice or lapse of time or both, will or
may result in the suspension, revocation, nonrenewal or limitation of any such
license, and (d) all filings, submissions and other actions required to have
been made or taken in order to renew any such license have been made or taken
within the time periods required or reasonably necessary for such renewal. Bank
covenants that it shall keep all necessary licenses and authorizations in full
force and effect during the term of this Agreement.
(b) Usury Laws. The IPF Loans to be made under the Program by
----------
Bank are not subject to interest rate or usury limitations under California or
federal law.
(c) Financial Statements of Bank. Bank has delivered to
----------------------------
Contractor true and complete copies of Bank's financial statements for the
period ended June 30, 1994, accompanied by the opinion of its accountant (the
"Bank Financial Statements") . The Bank Financial Statements, together with the
notes thereto, have been prepared in accordance with generally accepted
accounting
-5-
<PAGE>
principles ("GAAP") applied on a consistent basis with prior periods (except as
may be indicated in the notes thereto) and represent fairly the financial
position of Bank as of the date shown. The Financial Statements do not fail to
disclose any material liabilities of Bank as of the date thereof that are
required to be reflected or reserved against under GAAP, whether liquidated or
unliquidated, fixed, contingent or inchoate.
(d) Non-Contravention. The execution, delivery and performance
-----------------
of this Agreement and the consummation of the transactions contemplated hereby
will not violate, conflict with or constitute a default or breach under any
agreement, lease, or contract to which Bank is a party or by which Bank is
bound.
(e) Authority. The execution, delivery and performance of this
---------
Agreement and the transactions contemplated by this Agreement by Bank have been
duly authorized by any necessary corporate action, including, without
limitation, any necessary director or shareholder approval. Bank has full power
and authority to execute and deliver this Agreement and to perform its
obligations hereunder.
4.2 Contractor. Contractor hereby represents and warrants to Bank,
----------
as of the Execution Date as follows:
(a) Financial Statements of Contractor. Contractor has delivered
---------------------------------
to Bank true and complete copies of Contractor's unaudited financial statements
for the period ended December 31, 1994, maintained by Contractor on a consistent
basis with prior periods (except as may be indicated in any note thereto) (the
"Contractor Financial Statements") . The Contractor Financial Statements do not
fail to disclose any material liabilities of Contractor as of the date
thereof including any liabilities which, to the knowledge of Contractor, are
required to be reflected or reserved against under GAAP, whether liquidated or
unliquidated, fixed, contingent or inchoate. No material liabilities have been
incurred by Contractor since December 31, 1994, other than those liabilities
incurred in the ordinary course of business, consistent with past practices.
Notwithstanding the foregoing, Contractor does not maintain reserves for
processing any outstanding IPF Loans.
(b) Non-Contravention. The execution, delivery and performance
-----------------
of this Agreement and the consummation of the transactions contemplated hereby
will not violate, conflict with or constitute a default or breach under any
agreement, lease, or contract to which Contractor is a party or by which
Contractor is bound.
(c) Licenses and Other Authorization. Contractor is a corporation
--------------------------------
duly organized, validly existing and in good standing under the laws of the
State of California and each of its required licenses have been lawfully
obtained and are in full force and effect in accordance with their terms by
reason of
-6-
<PAGE>
performing its obligations hereunder. Without limiting the foregoing, (i)
Contractor is in full compliance with the terms and conditions of all such
licenses, (ii) there are no disputes or proceedings pending, or, to the
knowledge of Contractor after reasonable investigation, threatened with respect
to the suspension, or revocation, nonrenewal or limitation of any such license,
(iii) no event has occurred which, whether with notice or lapse of time or both,
will or may result in the suspension, revocation, nonrenewal or limitation of
any such license, and (iv) all filings, submissions and other actions required
to have been made or take in order to renew any such license have been made or
taken within the time periods required or reasonably necessary for such renewal.
Contractor covenants that it shall keep all necessary licenses and
authorizations in full force and effect during the term of this Agreement.
(d) No Infringement. Contractor owns or shall have the right to
---------------
use and it shall maintain the right to use throughout the term of this
Agreement, all computer software, proprietary designs, trademarks, trademark
applications, trade names, trade secrets, service marks, brand marks, brand
names, and copyrights utilized by Contractor in connection with the operation of
the Program and Bank shall be entitled to utilize such Program assets as
provided herein without restriction or infringement upon the rights of any third
party as contemplated under this Agreement.
(c) Authority. The execution, delivery and performance of this
---------
Agreement and the transactions contemplated by this Agreement by Contractor have
been duly authorized by any necessary corporate action, including, without
limitation, any necessary director or shareholder approval. Contractor has full
power and authority to execute and deliver this Agreement and to perform its
obligations hereunder.
5. Compensation.
------------
5.1 Residual Income. On all performing and nonperforming IPF Loans
---------------
made under the Program, Contractor shall be credited one half of the Residual
Income (as hereinafter defined) less a mutually agreed upon reserve for
uncollectible interest. The "Residual Income" shall be the accrued interest with
respect to the performing and non-performing IPF Loans, less accrued interest on
the outstanding principal balance on the then outstanding performing and non-
performing IPF Loans in the amount of two percent (2%) per annum above the prime
rate as published in the Money Rates column of The Wall Street Journal ("Prime
-----------------------
Rate"), or, in the event such rate shall cease to be published, such rate as may
be mutually agreed upon by Bank and Contractor in substitution therefor, as such
prime rate of interest is published from time to time; provided, however,
-------- -------
interest shall cease to accrue on such performing and non-performing IPF Loans
on the Pay-Off Date (as defined in Section 6.1 hereof). For the purposes of
this Agreement, "performing" IPF Loans are all loans except for non-performing
IPF Loans as defined in Section 6
-7-
<PAGE>
hereof. Non-performing IPF Loans and charged-off IPF Loans shall be treated as
provided in Section 6 hereof.
5.2 Service Fees. Contractor shall be entitled to the following
------------
amounts as provided in the Policies and Procedures (the "Service Fees") with
respect to each IPF Loan made under the Program, which amounts are subject to
change from time to time by mutual agreement of Bank and Contractor in order to
remain consistent with then current industry practices:
(a) A loan service fee equal to the amount of the IPF Loan-
related fee charged to the borrowers, the amount of which is currently $40.00
per IPF Loan;
(b) All cancellation fees charged by Bank, the amounts of which
are currently $10.00 per IPF Loan; and
(c) Fifty percent (50%) of all fees charged by Bank to borrowers,
including but not limited to, returned check fees and late charges.
5.3 Bank Accounts.
-------------
(a) Post Office Box and IPF Loan Account. All borrowers under
------------------------------------
the IPF Loans shall be directed to submit their respective loan payments made
payable to "Classic Plan/Pan American Bank" to a post office box designated by
and under the control of Bank and Contractor. Contractor shall deposit all such
payments in an account maintained in the name of Bank at Bank or such other bank
as Bank may approve (the "IPF Loan Account"). Bank shall take all necessary
steps in order to and shall authorize and permit Contractor to make deposits to
the IPF Loan Account.
(b) Operating Account. Contractor and Bank shall take all
-----------------
necessary steps in order to and shall authorize and permit Contractor to issue,
sign or countersign checks or other orders for the payment of money on an
account designated by and in the name of Bank (the "Operating Account") so that
Contractor may pay return unearned premium to borrowers of the IPF Loans, and
make other payments to third parties necessary for the operation of the Program.
In accordance with the Policies and Procedures, Bank shall maintain sufficient
funds in the Operating Account to clear all such checks.
(c) Draft Clearing Account. Contractor and Bank shall take all
----------------------
necessary steps in order to and shall authorize and permit Contractor to issue,
sign or countersign drafts for the payment of money on a draft clearing account
designated by and in the name of Bank (the "Draft Clearing Account") . The Draft
Clearing Account shall be established in accordance with and for the purposes
set forth in the Policies and Procedures, and in accordance therewith, Bank
shall maintain sufficient funds in the Draft Clearing Account to clear all
drafts properly issued on said account.
-8-
<PAGE>
5.4 Payment of Compensation.
-----------------------
(a) Payment of the Section 5.2(a) Loan Service Fees. Contractor
-----------------------------------------------
shall provide Bank with a weekly accounting of the IPF Loans initiated during
the immediately preceding week in form acceptable to Bank and with sufficient
detail to permit Bank to compute the loan service fees referred to in Section
5.2(a) due Contractor (the "Weekly Accounting"). Within two (2) business days
following Bank's receipt of the Weekly Accounting, Bank shall deposit directly
into an interest bearing bank account of Contractor designated by Contractor and
maintained at Bank the loan service fees referred to in Section 5.2(a) hereof
with respect to such IPF Loans; provided, however, such amounts to be paid to
-------- -------
Contractor shall be reduced by the amount of any loan service fees referred to
in Section 5.2(a) previously paid to Contractor that relate to insurance
policies that were never issued by an insurer or otherwise rescinded from
inception.
(b) Payment of Residual Income and Other Amounts. On such date
--------------------------------------------
of each calendar month as Bank and Contractor shall mutually agree, Bank shall
provide Contractor with an accounting, based on data provided by Contractor,
computed on a daily basis and in form acceptable to Bank and Contractor showing
the principal balance outstanding and interest calculated at the rate of two
percent (2%) per annum above the Prime Rate with respect to the IPF Loans and
such information as may be reasonably required by Contractor or Bank to reflect
income accrued on the performing IPF Loans and non-performing IPF Loans after an
appropriate allowance for the reserve for uncollectible interest referred to in
Section 5.1 hereof. Within two (2) business days following the approval of the
accounting by the parties, Bank shall pay Contractor fifty percent (50%) of the
Residual Income for such month with respect to the performing and non-performing
IPF Loans, and Bank shall pay itself and Contractor such parties' respective
share of amounts referred to in Sections 5.2(b) and (c) hereof that are then
due, less, in the case of any payments otherwise due to Contractor, any sums
then due Bank under Section 6.1 hereof.
6. Non-Performing Loans; Receipt of Amounts Charged-Off.
----------------------------------------------------
6.1 Non-Performing and Charged-Off Loans. An IPF Loan shall be
------------------------------------
considered to be non-performing on the first date that a notice of cancellation
may be sent under the policy to which the IPF Loan in question relates. Any
amount of unearned premium received from an insurer on a non-performing IPF
Loan shall be applied first to the payment of principal, then to the payment of
Bank's share of accrued interest with respect thereto, then to Residual Income,
and then to Service Fees. The date that such unearned premium is received shall
be deemed the "Unearned Premium Receipt Date." Unpaid amounts with respect to
non-performing IPF Loans shall be charged-off on the date which is eight (8)
weeks following the earlier of (i) the Unearned Premium Receipt Date or (ii) the
date it is determined that no unearned premium with respect thereto is
receivable (the "Charge-Off Date"). IPF Loan charge-off
-9-
<PAGE>
amounts (including principal, interest and Service Fees) (the "Charge-Off
Amounts") shall be borne fifty percent (50%) by Bank and fifty percent (50%) by
Contractor, except that Contractor shall be responsible for one hundred percent
(100%) of the Charge-Off Amounts incurred as the result of the gross negligence
of Contractor, provided, however, no loss incurred in connection with the
--------- -------
insolvency of any insurance producer or other loan originator or insurer shall
be deemed under any circumstances to be the result of the negligence or gross
negligence of Contractor on any Charge-Off Amounts. Contractor shall pay to
Bank its share of Charge-Off Amounts within five (5) days of Bank's demand
therefor; provided, that Bank may, at its option, deduct any amounts owed by
Contractor in respect of charged-off IPF Loans against any current or future
compensation or distributions due Contractor hereunder. The date that Charge-
Off Amounts are paid by Contractor in accordance with this Section 6.1 shall be
hereinafter referred to as the "Charge-Off Payment Date." The date that all
amounts of principal and Bank's share of accrued interest are paid in full,
which may be the Unearned Premium Receipt Date or the Charge-Off Payment Date,
as the case may be, shall be referred to herein as the "Pay-Off Date."
6.2 Subsequent Receipt of Charge-Off Amounts. Funds received from
----------------------------------------
borrowers, insurers, insurance producers, collection agencies or any other
source that relate to IPF Loans previously charged-off under the Program, shall
be divided equally between Bank and Contractor.
7. Program Expenses.
----------------
7.1 General Expenses. Except as otherwise provided in Sections 7.2
----------------
and 7.3 hereof, all expenses of Contractor and Bank incurred in connection with
the Program, including but not limited to, legal fees, automobile expenses,
computer expenses, insurance, employment, licenses, memberships, dues,
publications, office supplies, postage, rent, payroll and other taxes,
telephone, travel and entertainment, and utilities, shall be borne solely by the
party incurring such expenses.
7.2 Program Expenses Shared Equally by Bank and Contractor. The
------------------------------------------------------
following expenses shall be shared equally by Bank and Contractor: (a) The cost
of the initial printing of loan forms, stationary and other related documents
utilized by Contractor that refer to Bank as the lender on the IPF Loans, which
documents shall reflect any and all changes or revisions requested by Bank as a
consequence of the initial compliance review thereof by legal counsel to Bank;
(b) All costs, losses, expenses, judgments, attorneys' fees and settlements
relating to any first party or third party claims arising from IPF Loans made
under the Program as a consequence of Contractor's negligence or otherwise, the
cost of defense and indemnification of which does not exceed $10,000.00 per
claim; provided, however, claims for fees made by insurance producers or others
-------- -------
originating IPF Loans under the Program shall be the sole responsibility of
Contractor; and (c) The reasonable
-10-
<PAGE>
salaries of the individuals (currently two) reasonably determined by Contractor
to be required for collection activities with respect to the non-performing and
charged-off IPF Loans. For the purposes of Section 7.2(b) above, two or more
claims arising out of a single act or a series of related acts shall be treated
as a single claim thereunder. The reimbursement of amounts referred to in this
Section 7.2 shall be made monthly on such date of each month as mutually agreed
upon by the parties hereto.
7.3 Expenses Paid by Contractor. Contractor shall be responsible for
---------------------------
the costs that it incurs in marketing and promoting the Program. Contractor
shall promptly pay or cause to be paid from its funds at its sole expense all
sums due insurance producers or others for originating IPF Loans under the
Program.
8. Non-Competition
---------------
8.1 Similar Agreement and Alternative Financing. Contractor shall
-------------------------------------------
provide Bank with written notice in the event that Contractor reasonably
believes that it will require funding for IPF Loans in an amount in excess of
Bank's current lending capacity with respect to the Program or if it desires to
obtain funding for IPF Loans that do not conform to the Program. If, within
ninety (90) days following the date of such written notice, Bank declines to
fund IPF Loans that do not conform to the Program or declines or is unable to
increase its lending capacity or is unable to obtain a lender to provide
additional financing with respect to the Program, Contractor may enter into like
agreements to obtain alternative direct financing for IPF Loans that do not
conform to the Program or IPF Loans that conform to the Program in excess of
Bank's current lending capacity. Contractor shall advise Bank of all discussions
it has with other lenders at the time such discussions commence and will provide
Bank with a copy of any agreement with any such lender. Such agreement will not
provide more favorable terms to the lender thereunder than those offered to Bank
under this Agreement and Contractor's services under such agreement shall not
interfere with or restrict Contractor's ability to perform Contractor's
obligations to provide services for Bank hereunder. Contractor may utilize the
Computer Software in managing and processing IPF Loans funded by such
alternative sources of financing.
8.2 Post-Term Activities. At any time during or after the Term,
--------------------
Contractor may take any and all steps that it deems appropriate to secure
alternative sources of financing for IPF Loans to policyholders to be made
following termination of this Agreement and to arrange for the use of the
Computer Software in connection therewith; provided that Contractor first
notifies Bank of any action that it proposes to take in such regard.
9. Computer Software and Program Documentation.
-------------------------------------------
9.1 Limited License During the Term. During the Term, Contractor
-------------------------------
hereby grants to Bank a personal nonexclusive and
-11-
<PAGE>
nontransferable license to use the Computer Software. Bank acknowledges and
agrees that the computer Software and all copies thereof are Contractor's
exclusive property and constitute a valuable trade secret and "Confidential
Information" (as defined in Section 10.1 hereof) of Contractor. Without
Contractor's prior written consent, Bank shall neither make copies of nor
disclose or make available to third parties the Computer Software or any portion
thereof.
9.2 Limited License Upon Termination of this Agreement. If
--------------------------------------------------
this Agreement is terminated by either party, Contractor shall, at no cost to
Bank, grant Bank a personal nonexclusive and nontransferable license to use the
Computer Software for a period of two (2) years following the effective date of
termination of this Agreement (the "Post Termination License Period") . During
the Post Termination License Period and thereafter, Bank shall neither make
copies of nor disclose or make available to third parties the Computer Software
or any portion thereof, except to such servicing or processing firms as may be
retained by Bank to service or process IPF Loans and collections, all of which
shall be required to agree to use such Computer Software only in accordance with
the terms hereof. The failure of Bank to comply with the requirements of the
preceding sentence will result in the immediate terminating of the license
granted pursuant to this Section 9.2.
9.3 Return of the Computer Software. Upon expiration of the
-------------------------------
Post Termination License Period, Bank shall cease any further use of the
Computer Software or any portion thereof and return the same and all copies
thereof to Contractor.
9.4 Program Documentation. Bank and Contractor acknowledge
---------------------
that except for the Computer Software, which is the sole property of Contractor,
and the Policies and Procedures, which is the sole property of Bank, all
Program-related manuals, documents, files, reports, studies, instruments, and
other materials that were developed jointly by Bank and Contractor may be used
without limitation by each following the termination of this Agreement. The
right of joint use provided for in this Section 9.4 shall not extend to the
Computer Software or the Policies and Procedures or any modifications,
enhancements, updates or revisions that were made thereto during the Term.
10. Confidentiality and Nonsolicitation.
-----------------------------------
10.1 Confidential Information. During the Term, Bank and
------------------------
Contractor may acquire access to confidential or proprietary information of one
another, including, but not limited to, the identities of one another's
respective clients, customers, prospective client and customer lists, computer
software, marketing surveys, cost analyses and procedures (collectively,
"Confidential Information") . The parties agree that, except for the Computer
Software, or as provided in Section 11.4(a), such Confidential Information that
relates to the Program may be used by the Bank
-12-
<PAGE>
without compensation except as expressly provided herein or by future agreement,
and, without limiting the foregoing, the parties agree that Bank shall be free
to market services or products other than IPF Loans to clients and customers or
prospective clients and custorners of Contractor. Any Confidential Information
of a party, except as otherwise provided in the preceding sentence, shall not be
used by the other party except to carry out its obligations under this
Agreement; shall be maintained in confidence by the other party; and shall not
be revealed, disclosed, published or used by such party except as provided
hereunder.
10.2 Nonsolicitation. For a period of one (1) year following
---------------
the termination of this Agreement, Contractor shall not directly or indirectly
call on, solicit, take away, or attempt to call on, solicit or take away, either
for Contractor or for any other person, firm, corporation or entity, any of
Bank's borrowers, other than obligors under the IPF Loans, existing before or at
the time of termination of this Agreement.
The provisions of this Section 10 shall survive the termination of
this Agreement.
11. Termination.
-----------
11.1 Termination by Mutual Agreement. Bank and Contractor may
-------------------------------
mutually agree to terminate this Agreement at anytime.
11.2 Termination Without Cause. Either party may terminate this
-------------------------
Agreement without cause upon one hundred twenty (120) days prior written notice
to the other party.
11.3 Termination for Cause.
---------------------
(a) Termination for Cause by Bank or Contractor. At any time
-------------------------------------------
during the Term, Bank or Contractor may terminate this Agreement immediately for
cause upon written notification to the other party of such termination. Such
written notice shall state the "cause" with specificity. As used in this Section
11.3(a), the term "cause" shall mean any one or more of the following events:
(i) Misappropriation of Funds. The misappropriation by a party
-------------------------
of funds or property of the other party;
(ii) License Suspension or Revocation. The expiration or
--------------------------------
cancellation of or refusal to renew by a regulatory authority any license,
certificate or other regulatory approval required in order for a party to
perform its duties under this Agreement; or
(iii) Breach. A party's failure to pay amounts due hereunder to
------
the other party which is not paid within ten (10) days following notice from the
other party with respect to
-13-
<PAGE>
such nonpayment or, with respect to matters other than nonpayment of amounts due
hereunder, a party's material breach of this Agreement which is not cured within
sixty (60) days following notice from the other party of such breach.
(b) Termination for Cause by Bank. At any time during the Term,
-----------------------------
Bank may terminate this Agreement immediately for cause upon written
notification to Contractor of such termination. Such written notice shall state
the "cause" with specificity. As used in this Section 11.3(b), the term "cause"
shall mean any one or more of the following events:
(i) Malfeasance. Contractor engaging in acts of malfeasance
-----------
in performing its obligations hereunder;
(ii) Bankruptcy of Contractor. The institution of any
------------------------
bankruptcy, reorganization, insolvency or similar proceedings by or against
Contractor;
(iii) Regulatory Action. The OTS or any other regulatory
-----------------
authority or agency having jurisdiction over the Bank's officers shall require
that Bank terminate this Agreement; or
(iv) Termination of Insurance. The Policy is cancelled or
------------------------
nonrenewed and Contractor does not obtain replacement coverage that is effective
as of the effective date of such cancellation or nonrenewal.
(c) Termination for cause by Contractor. At any time during the
-----------------------------------
Term, Contractor may terminate this Agreement immediately for cause upon written
notification to Bank and such termination. Such written notice shall state the
"cause" with specificity. As used in this Section 11.3(c), the term "cause"
shall mean any one or more of the following events:
(i) Insolvency. The issuance of any rehabilitation,
----------
conservation or liquidation order by the OTS or other regulatory authority
against Bank or issuance of any order or directive requiring that Bank terminate
this Agreement; or
(ii) Business Plan. Bank's failure or inability to make IPF
-------------
Loans under the Program in accordance with the Business Plan.
11.4 Obligations Upon Termination.
----------------------------
(a) Return of Property and Use of Names. In addition to the
-----------------------------------
requirements set forth in Section 9 hereof with respect to the use of the
Computer Software, upon the termination of this Agreement or the expiration of
the Term, Contractor shall return the Policies and Procedures to Bank without
retaining any copy thereof and each party shall immediately return to the other
all records and other property of the party that owns such property. In
addition, Contractor and Bank shall not use the other's
-14-
<PAGE>
trademarks, service marks, trade names, trade styles or logos, or any other
words or logos similar to that of Bank or Contractor, as the case may be.
(b) Loan Servicing. In the event of any termination of this
--------------
Agreement, Bank and Contractor shall continue to perform and satisfy their
respective duties and obligations with respect to all uncollected IPF Loans that
were made under the program during the Term. Such duties and obligations shall
be performed in accordance with the terms of this Agreement as if this Agreement
had not been terminated, until all such loans have been fully collected or
charged-off (the "Run-off Period") . During the Run-off Period, Bank and
Contractor shall continue to allocate the expenses pertaining to the Program as
described in Section 7 hereof.
(c) Payments Due Following Termination. If this Agreement is
----------------------------------
terminated as provided in this Section 11, Bank shall continue to pay Contractor
the amounts described in Section 5 hereof in respect of IPF Loans with
application dates on or before the date of such termination.
12. Independent Contractor.
----------------------
This Agreement is not a contract of employment. Nothing contained in this
Agreement shall be construed to create the relationship of joint venture,
partnership or employer and employee between Bank and Contractor. Each party is
an independent contractor and shall be free, subject to the terms and conditions
of this Agreement, to exercise judgment and discretion with regard to the
conduct of its business. Each party shall be solely responsible with respect
to, and will promptly pay or withhold, as required, all taxes or sums due to
federal, state or local taxing authorities for its respective employees.
13. Indemnification.
---------------
13.1 Indemnification of Bank. Contractor shall indemnify, defend and
-----------------------
hold harmless Bank and its affiliates as well as its and their respective
directors, officers, agents, employees and shareholders from and against any and
all claims, suits, hearings, actions, damages, liabilities, fines, penalties,
costs, losses or expenses, including reasonable attorney's fees (in the
singular, an "Indemnification Claim" and collectively, "Indemnification
Claims"), caused by or resulting from any breach of this Agreement by
Contractor, or any misconduct, error, omission, or other unauthorized act by
Contractor or by Contractor's managers, officers, directors, shareholders,
employees, agents or representatives with respect to the IPF Loans made under
the Program (except to the extent that such alleged misconduct, act, error,
omission or other unauthorized or improper act or claim with respect thereto is
primarily attributable to Bank), or any breach or alleged breach or termination
of any agreement of Contractor to which Contractor has been or will at any time
be a party respecting the making of IPF Loans or any claim that any person
indemnified
-15-
<PAGE>
hereunder induced Contractor to breach or terminate or otherwise interfere with
any such agreement; provided, however, Contractor's responsibility for IPF Loan
--------- -------
losses is subject to indemnification only as provided in Section 6.1 hereof, and
not pursuant to this Section 13.1 or Section 7.2(b).
13.2 Indemnification of Contractor. Bank shall indemnify, defend
-----------------------------
and hold harmless Contractor and its affiliates as well as its and their
respective directors, officers, agents, employees and shareholders from and
against any and all indemnification Claims, caused by or resulting from any
breach of this Agreement by Bank, or any misconduct, error, omission, or other
unauthorized act by Bank or by bank's officers, directors, shareholders,
employees, agents or representatives with respect to the IPF Loans made under
the Program or otherwise, except to the extent that such alleged misconduct,
act, error, omission or other unauthorized or improper act or claim with respect
thereto is primarily attributable to Contractor; provided, however, Bank will
--------- -------
have no liability to Contractor in the event that Bank is unable to fund IPF
Loans under the Program as a consequence of its receipt of a written directive
from the OTS or other bank regulatory authorities.
13.3 Indemnification Claims Subject to Section 7.2 (b). Any claims
-------------------------------------------------
subject to Section 7.2(b) hereof shall not be subject to indemnification under
this Section 13 unless and until the amount of claims and expenses involved
equal $10,000.00 at which point the entire claim and related expenses shall be
subject to Section 13 rather than Section 7.2, including the first $10,000.00
thereof.
13.4 Notice of Claim for Indemnification. Upon obtaining
-----------------------------------
knowledge of an Indemnification Claim which could give rise to indemnification
under this Section 13, the party demanding such indemnification (the
"Indemnitee") shall promptly notify the party from whom indemnification is
sought (the "Indemnitor"), in writing, of any Indemnification Claim which the
Indemnitee has determined has given or could give rise to a right of
indemnification under Sections 13.1 or 13.2 hereof (the "Notice of Claim").
The Notice of Claim shall specify, in reasonable detail, the nature of any such
Indemnification Claim giving rise to the right of indemnification.
13.5 Defense of Third Party Claims. With respect to any third
-----------------------------
party Indemnification Claim set forth in a Notice of Claim, the Indemnitor may
defend, in good faith and at is own expense, any such Indemnification Claim and
the Indemnitee, at its expense, shall have the right to participate in the
defense of any such third party Indemnification Claim. In connection with its
defense of a third party Indemnification Claim, the Indemnitor shall have the
right to choose or approve counsel for the defense or prosecution of such
action, subject to the reasonable approval of the Indemnified Party. So long as
the Indemnitor is defending in
-16-
<PAGE>
good faith any such third party Indemnification Claim, the Indemnitee shall not
settle or compromise such third party Indemnification Claim without the consent
of the Indemnitor, which shall not be unreasonably withheld. The Indemnitee
shall make available to the Indemnitor or its representatives all records and
other materials reasonably required by them for its use in contesting any third
party Indemnification Claim and shall cooperate fully with the Indemnitor in the
defense of all such Indemnification Claims. The Indemnitor shall furnish, at
its expense, any bond or other security required to release any lien,
garnishment, attachment or execution required in connection with any third party
proceeding. The Indemnitor may settle any claim without the consent of the
Indemnitee in the event that the sole relief requested is money damages and such
money damages are paid in full by the Indemnitor and all litigation against the
Indemnitee with respect thereto is dismissed with prejudice (or an unconditional
release satisfactory to Indemnitee is entered into).
13.6 Survival of Indemnification. The indemnification provided
---------------------------
under this Section 13 shall survive the termination of this Agreement.
14. General Provisions.
------------------
14.1 Further Instruments. Each party shall execute and deliver
-------------------
all further instruments, documents and papers, and shall perform any and all
acts necessary, to give full force and effect to all of the terms and provisions
of this Agreement.
14.2 Severability. If any provision of this Agreement, as applied to
------------
any party or to any circumstance, shall be found by a court of competent
jurisdiction to be void, invalid or unenforceable, the same shall in no way
affect any other provision of this Agreement, the application of any such
provision in any other circumstance, or the validity or enforceability of this
Agreement.
14.3 Notices. All notices, statements or demands shall be in
-------
writing and shall be served in person, by telegraph, by express mail, by
certified mail or by private overnight delivery. Service shall be deemed
conclusively made (a) at the time of service, if personally served, (b) at the
time received, if sent by facsimile, and receipt is confirmed, (c) seventy-two
(72) hours after deposit in the United States mail, (d) five (5) days after
deposit in the United States mail, properly addressed and postage prepaid,
return receipt requested, if served by certified mail and (e) twenty-four (24)
hours after delivery by the party giving the notice, statement or demand to the
private overnight deliverer, if served by private overnight delivery.
-17-
<PAGE>
Any notice or demand to Contractor shall be given to:
BPN Corporation
13750 Pipeline Avenue
Chino, California 91710
Attention: Peter A. Walski, Barbara R. Walski
and Cornelius J. O'Shea
Any notice or demand to Bank shall be given to:
Pan American Bank, FSB
1300 South El Camino Real
San Mateo, California 94401-0986
Attention: Lawrence J. Grill, President
Any party may, by virtue of written notice in compliance with this Paragraph,
alter or change the address or the identity of the person to whom any notice, or
copy thereof, is to be sent.
14.4 Waivers. A waiver by any party of any of the terms and
-------
conditions of this Agreement in any one instance shall not be deemed or
construed to be a waiver of such term or condition for the future, or of any
subsequent breach thereof, nor shall it be deemed a waiver of performance of any
other obligation hereunder.
14.5 Entire Agreement. This Agreement contains the entire
----------------
understanding of the parties hereto relating to the subject matter hereof and
supersedes all prior and collateral agreements, understandings, statements and
negotiations of the parties. Each party acknowledges that no representations,
inducements, promises, or agreements, oral or written, with reference to the
subject matter hereof have been made other than as expressly set forth herein.
14.6 Successors and Assigns. This Agreement shall be binding upon
----------------------
and shall inure to the benefit of the parties hereto and their respective
estates, successors, legal or personal representatives, heirs, distributees,
designees and assigns.
14.7 Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of California.
14.8 Venue and Jurisdiction. Any and all actions to enforce any of
----------------------
the terms or conditions of this Agreement or to resolve any disputes between the
parties hereto shall be brought only in the United States District Court for the
Central District of California or the Superior or Municipal Court of the State
of California, County of Los Angeles, as appropriate.
14.9 Gender and Number. In all matters of interpretation, whenever
-----------------
necessary to give effect to any provision of this Agreement, each gender shall
include the other, the singular shall include the plural, and the plural shall
include the singular.
-18-
<PAGE>
14.10 Paragraph and Subparagraph Headings. The titles of the
-----------------------------------
paragraphs of this Agreement are for convenience only and shall not in any way
affect the interpretation of any provision or condition of this Agreement.
14.11 Third Parties. Except as may be expressly set forth
-------------
herein, the parties hereto do not intend to confer any rights or remedies upon
any person other than the parties hereto.
14.12 Legal Action. In the event of any litigation between or
------------
among the parties hereto respecting or arising out of this Agreement, the
prevailing party or parties shall be entitled to recover reasonable attorneys'
fees and costs, whether or not such litigation proceeds to final judgment or
determination.
14.13 Counterparts. This Agreement may be executed in
------------
counterparts which, taken together, shall constitute the whole of the Agreement
as between the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly appointed and authorized officer whose incumbency and authority to bind
Bank and Contractor, respectively, are warranted by execution hereof, as of the
day and year first above written.
BANK: PAN AMERICAN BANK
By: /s/ LARRY GRILL
----------------------------
Its: PRESIDENT
---------------------------
Printed Name: LARRY GRILL
------------------
CONTRACTOR: BPN CORPORATION
By: /s/ PETER A. WALSKI
----------------------------
Its: President
---------------------------
Printed Name: PETER A. WALSKI
------------------
-19-
<PAGE>
EXHIBIT 10.2
FIRST AMENDMENT TO INSURANCE
----------------------------
PREMIUM FINANCING MANAGEMENT AGREEMENT AND GUARANTIES
-----------------------------------------------------
THIS FIRST AMENDMENT TO INSURANCE PREMIUM FINANCING MANAGEMENT
AGREEMENT AND GUARANTIES is made as of the ___ day of October, 1995, by and
among Pan American Bank, a federal savings bank ("Bank"), BPN Corporation, a
California corporation ("Contractor"), and Cornelius J. O'Shea and Peter Walski
and Barbara Walski (individually, a "Guarantor" and collectively the
"Guarantors").
R E C I T A L S:
---------------
A. Bank and Contractor are parties to that certain Insurance Premium
Financing Management Agreement, dated May 17, 1995 under which Contractor is to
provide Bank with management and related administrative services in connection
with the operation of the insurance premium finance loan business to be
conducted by the Bank (the "Agreement"). Guarantors are the sole shareholders of
Contractor and have guarantied the payment of certain obligations of Contractor
arising under the Agreement under Guaranties dated as of May 17, 1995 (each a
"Guaranty" and collectively the "Guaranties"), subject to the dollar limitations
set forth therein.
B. Guarantors and Contractor have requested that the Bank increase
the aggregate amount of IPF Loans (as defined in the Agreement) to be provided
to brokers in accordance with the provisions of Section 3.3(f) of the Agreement
from $200,000 to $1,500,000.
C. The Bank is willing to extend such additional credit in
accordance with the terms of the Agreement to brokers provided that the
Guarantors agree to increase the dollar limitations applicable to the Guaranties
as provided herein.
D. All capitalized terms used herein and not otherwise defined shall
have the meaning set forth therefor in the Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Modifications to the Agreement. The Agreement is hereby amended
------------------------------
by replacing subsection 3.3(f) with the following:
"(f) Allow for advances to be made on IPF Loans
financing broker's fees, the aggregate amount of
which shall not exceed, without further review by
Bank, $1,500,000, and which loans shall comply
with the requirements of Schedule 1 hereto and such
other requirements as may be reasonably imposed
by Bank."
2. Modifications to the Guaranties. The Guaranties are hereby
-------------------------------
amended as provided below:
-1-
<PAGE>
(a) The Guaranty of Cornelius J. O'Shea is amended by replacing
paragraph 13 thereof with the following:
"13. The amount of this Guaranty and the liability
of the Guarantor hereunder shall be limited to
$500,000 plus any costs of enforcement of this
Guaranty, including attorneys' fees."
(b) The Guaranty of Peter Walski and Barbara Walski shall be
amended by replacing paragraph 13 thereof as follows:
"13. The amount of this Guaranty and the liability
of the Guarantor hereunder shall be limited to
$750,000 plus any costs of enforcement of this
Guaranty, including attorneys' fees."
3. Except as modified by this Amendment, all other terms and
provisions of the Agreement and the Guaranties shall remain in full force and
effect, without modification.
IN WITNESS WHEREOF, the undersigned have executed the foregoing
Amendment.
BANK: PAN AMERICAN BANK
- ----
A FEDERAL SAVINGS BANK
By: /s/ LAWRENCE J. GRILL
-----------------------------------
Its: President
----------------------------------
CONTRACTOR: BPN CORPORATION
- ----------
A CALIFORNIA CORPORATION
By: /s/ PETER A. WALSKI
-----------------------------------
Its: President
----------------------------------
/s/ CORNELIUS J. O'SHEA
--------------------------------------
GUARANTORS: CORNELIUS J. O'SHEA
- ----------
/s/ PETER A. WALSKI
--------------------------------------
PETER WALSKI
/s/ BARBARA WALSKI
--------------------------------------
BARBARA WALSKI
-2-
<PAGE>
SCHEDULE 1
----------
Customer Financed Broker Fees - Requirements
<TABLE>
<C> <S> <C>
a. A minimum broker reserve target based on a multiple of 2 times average
monthly volume of financed broker fees with a minimum reserve accumulation
rate of 25% per contract of gross fees financed.
b. Maximum individual gross fee to be financed per contract. $ 300
c. Maximum net outstandings related to fees financed through individual $ 100,000
producer source subject to an offsetting reserve of $25,000.
d. Maximum net outstandings related to fees financed through Eastwood. $ 500,000
(Above $200,000 based on separate justification and support.)
e. Maximum net outstandings at any time as follows before broker reserve $ 750,000
(assumed to be a minimum of $375,000)
f. The reserve multiple of 2 times average monthly volume as well as the
reserve accumulation rate of 25% are factors based on a 30% average
cancellation rate and timely settlement of any receivables. Any significant
variation from these base assumptions may be cause for revision of the
aforementioned factors are relates to any individual producer.
g. Broker must be billed within 30 days for unpaid amount of broker fees
financed on customer accounts cancelled and collected within 30 days.
h. Overview of underlying assumptions:
Gross broker fees financed. $1,500,000
Less: Amount paid by customer from downpayment. (225,000)
Less: Customer contract payments allocated to broker fees financed. (465,000)
Less: Collected from brokers to reimburse for cancelled contracts. (181,500)
Resulting net outstanding $ 628,500
Maximum net outstandings at any time as follows before broker reserve $ 750,000
(assumed to be a minimum of $375,000)
NOTE: Any significant variation from these underlying assumptions may be
cause for changes in the program.
</TABLE>
-3-
<PAGE>
EXHIBIT 10.3
SECOND AMENDMENT TO INSURANCE
-----------------------------
PREMIUM FINANCING MANAGEMENT AGREEMENT AND GUARANTIES
-----------------------------------------------------
THIS SECOND AMENDMENT TO INSURANCE PREMIUM FINANCING MANAGEMENT AGREEMENT
AND GUARANTIES is made as of the 28th day of February, 1996, by and among Pan
American Bank, a federal savings bank (the "Bank"), BPN Corporation, a
California corporation (the "Contractor"), and Cornelius J. O'Shea and Peter
Walski and Barbara Walski (individually, a "Guarantor" and collectively the
"Guarantors").
RECITALS:
---------
A. Bank and Contractor are parties to that certain Insurance Premium
Financing Management Agreement, dated May 17, 1995 under which Contractor is to
provide Bank with management and related administrative services in connection
with the operation of the insurance premium finance loan business to be
conducted by the Bank (the "Agreement"). Guarantors are the sole shareholders
of Contractor and have guarantied the payment of certain obligations of
Contractor arising under the Agreement under Guaranties dated as of May 17, 1995
(each a "Guaranty" and collectively the "Guaranties"), subject to the dollar
limitations set forth therein.
B. Guarantors and Contractor and the Bank agreed to increase the gross
aggregate amount of IPF Loans for broker fee financing (as defined in the
Agreement) to be provided to brokers in accordance with the provisions of
Section 3.3(f) of the Agreement from $200,000 to $1,500,000 and as amended and
more fully set forth in The First Amendment to the Insurance Premium Financing
-------------------
Management Agreement and Guaranties dated October 1995, including Schedule 1
thereof ("The First Amendment").
C. Under the terms of The First Amendment, while aggregate broker loans
could increase to $1,500,000, the maximum net brokers fees outstanding at any
time before broker cash reserves (assumed to be a minimum of $375,000) would not
exceed $750,000 (as more fully set forth in Schedule 1 to The First Amendment)
or $375,000 after the broker reserves; and accordingly the Bank's risks exposure
from loss was to be limited to $187,500 (50% share of losses up to $375,000).
D. Furthermore, Schedule 1 to The First Amendment provided that the
maximum net brokers fees outstanding to the Eastwood Insurance Broker before
their broker cash reserves would not exceed $500,000, as part of the $750,000
limit referred to in C. above.
E. Guarantors and Contractor desire to have the Bank increase its funding
to allow for an increase in IPF loans so that the amount of net brokers fees
outstanding may exceed $750,000 and increase the single amount limit to Eastwood
beyond $500,000.
F. The Bank is willing to increase such financing but only if its total
exposure from broker fee financing does not exceed $187,500, the original amount
agreed to, and Guarantors and Contractor guaranty,indemnify and hold harmless
the Bank from any losses up to 50% of the first $375,000 of losses but not
exceeding $187,500.
- 1 -
<PAGE>
G. All capitalized terms used herein and not otherwise defined shall have
the meaning set forth therefor in the Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Modifications to the Agreement, the Agreement is hereby amended by adding
------------------------------
to the end of subsection 13.1 as follows:
"further provided, however and included in the foregoing contractor's
indemnification of the Bank, Contractor hereby agrees that from this date
forward until June 30, 1996 it will assume all risk, liabilities and costs
resulting from losses in financing IPF broker fee loans in an amount
exceeding the sum determined as follows,
a. The amount of IPF loans for brokers' fees financed by the Bank will be
aggregated, as well as tracked by each individual broker loan, and
accounted for, including payments and advances, on a daily basis by
Contractor.
b. Any cash reserves collected from brokers as security in connection
with financing brokers' fees and deposited with the Bank, shall be
available to offset losses resulting from uncollected and unearned
brokers' fees upon IPF contract cancellation and as to each broker
based on their deposits.
c. If any broker fee is not repaid from customer contract payments or
directly from a broker to reimburse for unearned brokers fee resulting
from canceled contract within 90 days after presentment of the claim
to the broker by Contractor (which presentment will be within 60 days
after contract cancellation), then the balance owning shall be
recovered from the cash reserve account, and to the extent the reserve
is not sufficient to pay the unearned broker fee portion of the total
loan, then the unsecured and unpaid portion shall be deemed to be a
loss.
d. The Bank's share of such losses shall in no event exceed $187,500,
based on 50% of the amount such unsecured loan losses up to $375,000;
and Contractor shall assume all losses in excess thereof.
e. The total net outstanding amount of IPF broker loans financed (as
defined in Schedule 1 to The First Amendment to now) by the Bank at
any time, shall not exceed $1.25 million.
f. Contractor shall deliver to the Bank from time to time current
financial statements and adequate collateral as may be reasonably
required by the Bank to secure its obligation to the Bank.
g. On or before July 1, 1996 and in no event later than May 17, 1997 the
parties shall take the steps necessary to track and document the
actual performance of the broker loan financing and reassess the risk
therefrom and reach a mutual agreement to modify or replace this
Second Amendment; however it shall remain in full force and effect
until either mutually modified or replaced.
2. Modification to the Guaranties. The Guaranties are hereby amended as
follows:
a. The Guaranty of Cornelius J. O'Shea is amended adding to the end of
paragraph 13 thereof the following sentence:
-2-
<PAGE>
"In addition to the foregoing liability of Guarantor there shall be
an amount equal to 40% of any loss resulting from any sums owing to
Bank and not paid by BPN Corporation under the last phrase of Section
13.1 of that certain Insurance Premium Financing Management Agreement
dated May 17, 1995, as modified by the Second Amendment to such
Agreement.
b. The Guaranty of Peter Walski and Barbara Walski shall be amended by
adding to the end of paragraph 13 hereof the following sentence:
"In addition to the foregoing liability of Guarantor there shall be
an amount equal to 60% of any loss resulting from any sums owing to
Bank and not paid by BPN Corporation under the last phrase of Section
13.1 of that certain Insurance Premium Financing Management Agreement
dated May 17, 1995, as modified by the Second Amendment to such
Agreement.
3. Guarantors jointly agree to deliver to the Bank from time to time current
individual financial statements and adequate collateral as may be
reasonably required by the Bank to secure their obligation to the Bank.
4. Except as modified by this Amendment and The First Amendment, all other
-------------------
terms and provisions of the Agreement and the Guaranties shall remain in
full force and effect, without modification.
IN WITNESS WHEREOF, the undersigned have executed the foregoing Amendment.
BANK: PAN AMERICAN BANK
- ---- a Federal Savings Bank
By: /s/ LAWRENCE J. GRILL
----------------------------
Its: President
---------------------------
CONTRACTOR: BPN CORPORATION
- ---------- a California Corporation
By: /s/ PETER A. WALSKI
----------------------------
Its: PRES
---------------------------
GUARANTORS: /s/ CORNELIUS J. O'SHEA
- ---------- -------------------------------
CORNELIUS J. O'SHEA
/s/ PETER A. WALSKI
-------------------------------
PETER A. WALSKI
/s/ BARBARA WALSKI
-------------------------------
BARBARA WALSKI
-3-
<PAGE>
EXHIBIT 10.4
GUARANTY
TO: PAN AMERICAN BANK, FSB
FOR GOOD AND valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the undersigned (hereinafter referred to as the
"Guarantors") hereby jointly and severally guarantee, promise and undertake as
follows:
1. Guarantors unconditionally, absolutely and irrevocably guarantee and
promise to pay to PAN AMERICAN BANK, FSB ("Bank"), on demand, any sums owing to
Bank and not paid by BPN Corporation ("Contractor") under that certain Insurance
Premium Financing Management Agreement of even date herewith between Contractor
and Bank (the "Agreement") within fifteen (15) days of Bank's demand therefor
given on or after the date on which Contractor's performance is due thereunder:
2. This Guaranty ("Guaranty") shall remain effective so long as any
amounts remain due under the Agreement to Bank or until the "Closing Date" as
defined in that certain Stock Option Agreement of even date herewith by and
among Contractor, Pan American Group, Inc., Peter A. Walski, Barbara R. Walski,
Cornelius J. O'Shea and The Walski Family Trust, whichever occurs earlier;
provided, however, any claim asserted by Bank prior to the Closing Date that is
- -------- -------
subject to this Guaranty shall not be affected by the limitations contained in
this sentence. Guarantors agree that nothing shall discharge or satisfy their
obligations created hereunder except for the full payment of all sums due and
owing to Bank by Contractor under the Agreement. This Guaranty is a personal and
direct obligation of Guarantors, irrespective of the regularity, validity, or
enforceability of any provision of the Agreement against Contractor and shall
not be affected or impaired by any compromise, release, renewal, extension,
indulgence, alteration, change in or modification of the Agreement, nor by any
failure, negligence, or omission on the part of Bank to realize upon any
obligations of Contractor or any other security therefor.
3. Guarantors agree that they are directly and primarily liable to Bank,
that their obligations hereunder are independent of the obligations of
Contractor under the Agreement, or of any other guarantor, and that a separate
action or actions may be brought and prosecuted against Guarantors or any of
them, whether action is brought against Contractor or any other guarantor or
whether Contractor or Guarantors are joined in any such action or actions.
In the event that any bankruptcy, insolvency, receivership or similar
proceeding is instituted by or against Contractor, the obligations of the
Guarantors hereunder shall be immediately due, payable and enforceable against
Guarantors without Bank's prior demand of any kind for performance given to
Contractor.
As a condition to payment or performance by Guarantors under this
Guaranty, Bank shall not be required to, and Guarantors hereby waive any and all
rights to require Bank to prosecute or seek to enforce any remedies against
Contractor or any other party liable to Bank and/or to require Bank to seek to
enforce or resort to any remedies with respect to any security interests, liens
or encumbrances granted to Bank by Contractor or any other party.
1
<PAGE>
4. Guarantors hereby authorize Bank to assign, without notice, the benefit
of this Guaranty in whole or in part and/or Bank's rights hereunder to any
assignee of the Agreement or of any loans originated thereunder.
5. Guarantors hereby waive any right to assert against Bank any
defense (legal or equitable), set-off, counterclaims, and/or claim which
Guarantors may now or at any time hereafter have against Contractor and/or any
other party liable to Bank in any way or manner.
Guarantors hereby waive any defenses arising by reason of any claim
based upon an election of remedies by Bank, which, in any manner impairs,
affects, reduces, releases, destroys and/or extinguishes Guarantors' subrogation
rights, rights to proceed against Contractor for reimbursement, and/or any other
rights of the Guarantors to proceed against Contractor, against any other
guarantor, or against any other person or security, including without limitation
any defense that may arise by reason of the incapacity, lack of authority, death
or disability of, or revocation hereof by, any other or others or the failure of
Bank to file or enforce a claim against the estate (either in administration,
bankruptcy, or other proceeding) of any other or others.
Any and all present and future debts of Contractor to Guarantors are
hereby postponed in favor of and subordinated to the full payment and
performance of all present and future debts and obligations of Contractor to
Bank. All monies or other property of Guarantors at any time in Bank's
possession may be held by Bank as security for any and all obligations of
Guarantors to Bank no matter how or when arising, whether absolute or
contingent, whether due or to become due, and whether under this Guaranty or
otherwise.
6. Guarantors are presently informed of the financial condition of
Contractor and of all other circumstances which a diligent inquiry would reveal
and which bear upon the risk of nonpayment of any obligation of Contractor to
Bank under the Agreement. Guarantors hereby covenant that they will continue to
keep themselves informed of Contractor's financial condition and of all other
circumstances which bear upon the risk of nonpayment. Guarantors hereby waive
their rights, if any, to require Bank to disclose to them any information which
Bank may now or hereafter acquire concerning such condition or circumstances.
7. This Guaranty shall continue in full force and effect until the
earlier to occur of (i) the Closing Date, provided, however, that any claim
--------- -------
asserted by Bank prior to the Closing Date that is subject to this Guaranty
shall not be affected by such limitation, or (ii) Contractor's obligations to
Bank under the Agreement are fully paid, performed and discharged and Bank gives
the Guarantors written notice of that fact. In connection with subpart (ii) of
this paragraph 7, Contractor's obligations shall not be considered fully paid,
performed and discharged unless and until all payments by Contractor to Bank are
no longer subject to any right on the part of any person whomsoever, including
but not limited to Contractor, Contractor as a debtor-in-possession, and/or any
trustee in bankruptcy, to set aside such payments or seek to recoup the amount
of such payments, or any part thereof. The foregoing shall include, by way of
example and not by way of limitation, all
2
<PAGE>
rights to recover preferences voidable under Title 11 of the United States
Bankruptcy Code. In the event that any such payments by Contractor to Bank are
set aside after the making thereof, in whole or in part, or settled without
litigation, to the extent of such settlement, all of which is within Bank's
discretion, Guarantors shall be liable for the full amount Bank is required to
repay up to the amount of the dollar limit of this Guaranty plus costs,
interest, attorneys' fees and any and all reasonable expenses which Bank paid or
incurred in connection therewith.
8. This Guaranty shall be binding upon the successors and assigns of
the Guarantors and shall inure to the benefit of Bank's successors and assigns.
The death of any Guarantor and the incapacity, lack of authority, death,
disability or revocation hereof by any other Guarantor shall not terminate or
otherwise impair this Guaranty.
9. No modification of this Guaranty shall be effective for any purpose
unless it is in writing and executed by an officer of Bank authorized to do so.
This Guaranty merges all negotiations, stipulations and provisions relating to
the subject matter of this Guaranty which preceded or may accompany the
execution of this Guaranty.
10. Guarantors agree to pay reasonable attorneys' fees and all costs and
expenses which may be incurred by Bank in the enforcement of this Guaranty or in
any way arising out of, following, or consequential to the enforcement of
Contractor's obligations under the Agreement.
11. All acts and transactions hereunder and the rights and obligations
of the parties hereto shall be governed, construed and interpreted in accordance
with the laws of the State of California.
12. No action which Bank may take or omit to take in connection with the
Agreement, nor any course of dealing with Contractor or any other person shall
release undersigned's obligations hereunder, affect this Guaranty in any way or
afford undersigned any recourse, claims or offsets against Bank, which
undersigned hereby waives.
13. The amount of this Guaranty and the joint and several liability of
the Guarantors hereunder shall be limited to $600,000.00 plus any costs of
enforcement of this Guaranty, including attorneys' fees.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty this
17th day of May , 1995.
- ---- ------
"Guarantors"
/s/ PETER WALSKI
----------------------------
PETER WALSKI
/s/ BARBARA WALSKI
----------------------------
BARBARA WALSKI
3
<PAGE>
Exhibit 10.5
GUARANTY
TO: PAN AMERICAN BANK, FSB
FOR GOOD AND valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the undersigned (hereinafter referred to as the
"Guarantor") hereby guarantees, promises and undertakes as follows:
1. Guarantor unconditionally, absolutely and irrevocably guarantees
and promises to pay to PAN AMERICAN BANK, FSB ("Bank"), on demand, any sums
owing to Bank and not paid by BPN Corporation ("Contractor") under that certain
Insurance Premium Financing Management Agreement of even date herewith between
Contractor and Bank (the "Agreement") within fifteen (15) days of Bank's demand
therefor given on or after the date on which Contractor's performance is due
thereunder.
2. This Guaranty ("Guaranty") shall remain effective so long as any
amounts remain due under the Agreement to Bank or until the "Closing Date" as
defined in that certain Stock Option Agreement of even date herewith by and
among Contractor, Pan American Group, Inc., Peter A. Walski, Barbara R. Walski,
Cornelius J. O'Shea and The Walski Family Trust, whichever occurs earlier;
provided, however, any claim asserted by Bank prior to the Closing Date that is
- -------- -------
subject to this Guaranty shall not be affected by the limitations contained in
this sentence. Guarantor agrees that nothing shall discharge or satisfy his
obligations created hereunder except for the full payment of all sums due and
owing to Bank by Contractor under the Agreement. This Guaranty is a personal and
direct obligation of Guarantor, irrespective of the regularity, validity, or
enforceability of any provision of the Agreement against Contractor and shall
not be affected or impaired by any compromise, release, renewal, extension,
indulgence, alteration, change in or modification of the Agreement, nor by any
failure, negligence, or omission on the part of Bank to realize upon any
obligations of Contractor or any other security therefor.
3. Guarantor agrees that he is directly and primarily liable to Bank,
that his obligation hereunder is independent of the obligations of Contractor
under the Agreement, or of any other guarantor, and that a separate action or
actions may be brought and prosecuted against Guarantor, whether action is
brought against Contractor or any other guarantor or whether Contractor or
Guarantor are joined in any such action or actions.
In the event that any bankruptcy, insolvency, receivership or similar
proceeding is instituted by or against Contractor, the obligations of the
Guarantor hereunder shall be immediately due, payable and enforceable against
Guarantor without Bank's prior demand of any kind for performance given to
Contractor.
As a condition to payment or performance by Guarantor under this
Guaranty, Bank shall not be required to, and Guarantor hereby waives any and all
rights to require Bank to prosecute or seek to enforce any remedies against
Contractor or any other party liable to Bank and/or to require Bank to seek to
enforce or resort to any
<PAGE>
remedies with respect to any security interests, liens or encumbrances granted
to Bank by Contractor or any other party.
4. Guarantor hereby authorizes Bank to assign, without notice, the
benefit of this Guaranty in whole or in part and/or Bank's rights hereunder to
any assignee of the Agreement or of any loans originated thereunder.
5. Guarantor hereby waives any right to assert against Bank any
defense (1egal or equitable), set-off, counterclaims, and/or claim which
Guarantor may now or at any time hereafter have against Contractor and/or any
other party liable to Bank in any way or manner.
Guarantor hereby waives any defenses arising by reason of any claim
based upon an election of remedies by Bank, which, in any manner impairs,
affects, reduces, releases, destroys and/or extinguishes Guarantor' subrogation
rights, rights to proceed against Contractor for reimbursement, and/or any other
rights of the Guarantor to proceed against Contractor, against any other
guarantor, or against any other person or security, including without limitation
any defense that may arise by reason of the incapacity, lack of authority, death
or disability of, or revocation hereof by, any other or others or the failure of
Bank to file or enforce a claim against the estate (either in administration,
bankruptcy, or other proceeding) of any other or others.
Any and all present and future debts of Contractor to Guarantor are
hereby postponed in favor of and subordinated to the full payment and
performance of all present and future debts and obligations of Contractor to
Bank. All monies or other property of Guarantor at any time in Bank's possession
may be held by Bank as security for any and all obligations of Guarantor to Bank
no matter how or when arising, whether absolute or contingent, whether due or to
become due, and whether under this Guaranty or otherwise.
6. Guarantor is presently informed of the financial condition of
Contractor and of all other circumstances which a diligent inquiry would reveal
and which bear upon the risk of nonpayment of any obligation of Contractor to
Bank under the Agreement. Guarantor hereby covenants that he will continue to
keep himself informed of Contractor's financial condition and of all other
circumstances which bear upon the risk of nonpayment. Guarantor hereby waives
his right, if any, to require Bank to disclose to him any information which Bank
may now or hereafter acquire concerning such condition or circumstances.
7. This Guaranty shall continue in full force and effect until the
earlier to occur of (i) the Closing Date, provided, however, that any claim
-------- -------
asserted by Bank prior to the Closing Date that is subject to this Guaranty
shall not be affected by such limitation, or (ii) Contractor's obligations to
Bank under the Agreement being fully paid, performed and discharged and Bank
giving the Guarantor written notice of that fact. In connection with subpart
(ii) of this paragraph 7, Contractor's obligations shall not be considered fully
paid, performed and discharged unless and until all payments by Contractor to
Bank are no longer subject to any right on the part of any person whomsoever,
including but not
- 2 -
<PAGE>
limited to Contractor, Contractor as a debtor-in-possession, and/or any trustee
in bankruptcy, to set aside such payments or seek to recoup the amount of such
payments, or any part thereof. The foregoing shall include, by way of example
and not by way of limitation, all rights to recover preferences voidable under
Title 11 of the United States Bankruptcy Code. In the event that any such
payments by Contractor to Bank are set aside after the making thereof, in whole
or in part, or settled without litigation, to the extent of such settlement, all
of which is within Bank's discretion, Guarantor shall be liable for the full
amount Bank is required to repay up to the amount of the dollar limit of this
Guaranty plus costs, interest, attorneys' fees and any and all reasonable
expenses which Bank paid or incurred in connection therewith.
8. This Guaranty shall be binding upon the successors and assigns of
the Guarantor and shall inure to the benefit of Bank's successors and assigns.
The death of Guarantor and the incapacity, lack of authority, death, disability
or revocation hereof by Guarantor shall not terminate or otherwise impair this
Guaranty.
9. No modification of this Guaranty shall be effective for any purpose
unless it is in writing and executed by an officer of Bank authorized to do so.
This Guaranty merges all negotiations, stipulations and provisions relating to
the subject matter of this Guaranty which preceded or may accompany the
execution of this Guaranty.
10. Guarantor agrees to pay reasonable attorneys' fees and all costs
and expenses which may be incurred by Bank in the enforcement of this Guaranty
or in any way arising out of, following, or consequential to the enforcement of
Contractor's obligations under the Agreement.
11. All acts and transactions hereunder and the rights and obligations
of the parties hereto shall be governed, construed and interpreted in accordance
with the laws of the State of California.
12. No action which Bank may take or omit to take in connection with
the Agreement, nor any course of dealing with Contractor or any other person
shall release undersigned's obligations hereunder, affect this Guaranty in any
way or afford undersigned any recourse, claims or offsets against Bank, which
undersigned hereby waives.
13. The amount of this Guaranty and the liability of the Guarantor
hereunder shall be limited to $400,000.00 plus any costs of enforcement of this
Guaranty, including attorneys' fees.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty this
17th day of May, 1995.
"Guarantor"
/s/ CORNELIUS J. O'SHEA
-----------------------------------
CORNELIUS J. O'SHEA
- 3 -
<PAGE>
Exhibit 10.6
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
----------------------------------
STOCK OPTION AGREEMENT
----------------------------------
DATED May 17, 1995,
AMONG
BPN CORPORATION,
PAN AMERICAN GROUP, INC.,
PETER A. WALSKI, BARBARA R. WALSKI, CORNELIUS J. O'SHEA
AND
THE WALSKI FAMILY TRUST
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
STOCK OPTION AGREEMENT
This STOCK OPTION AGREEMENT (this "Agreement") is entered into effective as
of _____ __, 1995 (the "Effective Date") by and among BPN CORPORATION, a
California corporation ("BPN"), PAN AMERICAN GROUP, INC., a Delaware corporation
("PAGI"), and PETER A. WALSKI, an individual ("P. Walski"), BARBARA R. WALSKI,
an individual ("B. Walski") (B. Walski and P. Walski collectively, the
"Walskis"), CORNELIUS J. O'SHEA, an individual ("O'Shea"), and THE WALSKI FAMILY
TRUST, dated August 30, 1989 (the "Trust") (P. Walski, B. Walski and O'Shea,
each a "Principal" and collectively, the "Principals") (the Trust and O'Shea
each, a "Shareholder" and collectively, the "Shareholders"), with reference to
the following recitals:
RECITALS
A. As of the Effective Date, the Shareholders own beneficially and of
record all the issued and outstanding shares (the "Shares") of BPN as follows:
<TABLE>
<CAPTION>
Shareholder No. of Shares
----------- -------------
<S> <C>
Trust 750
O'Shea 350
</TABLE>
B. BPN is engaged in the business of arranging insurance premium
financing loans and providing related marketing and servicing activities for
consumers and small commercial enterprises, primarily for the purposes of
obtaining automobile insurance, as well as other types of property and casualty
coverages (the "Program"). BPN currently operates the Program pursuant to the
terms of that certain Restatement and Amendment of the Management Services
Agreement (the "Republic Agreement") between BPN and Republic Bank, a California
corporation ("Republic").
C. The Principals are currently organizing and subsequent to the
Effective Date may organize corporations in certain other states, jurisdictions
or territories of the United States of America outside the State of California
for the purpose of operating the Program in such other states, jurisdictions or
territories (collectively, the "BPN Affiliates"). In connection therewith, the
Walskis' shares of each of the BPN Affiliates will be issued to the Trust. The
BPN Affiliates shall not, however, include corporations organized by the
Principals following the Closing Date (as defined in Section 4.2 hereof).
D. Subject to the terms and conditions contained herein, PAGI desires
to acquire options to purchase, and each Shareholder desires to grant to PAGI
such options to purchase, the Shares and all the issued and outstanding shares
of each of the BPN Affiliates (the "Affiliate Shares").
<PAGE>
E. The Shareholders and the Walskis are each a party to a "Stock
Retirement Agreement" dated August 25, 1990, that provides for the disposition
of the Shares in certain situations. A copy of the Stock Retirement Agreement
is attached hereto as Exhibit A. The Shareholders and the Walskis shall cause
the Stock Retirement Agreement to be amended to provide that the rights of the
parties thereto, including such parties' respective estates, successors, legal
or personal representatives, heirs, distributees, designees and assigns, shall
be subordinated to terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. GRANT OF OPTION
---------------
Each of the Shareholders hereby grants to PAGI the right to purchase such
Shareholder's Shares (the "Share Option") and the Affiliate Shares (the
"Affiliate Share Option") at a price and subject to the conditions set forth in
this Agreement.
2. CONSIDERATION FOR OPTION
------------------------
As consideration for the Share Option and the Affiliate Share Option, on
the Effective Date PAGI shall pay each of the Shareholders the following amount
(the "Option Payment")
<TABLE>
<CAPTION>
Shareholder Amount
----------- ------
<S> <C>
Trust $6,500.00
O'Shea $3,500.00
</TABLE>
The Option Payment shall be deemed earned upon receipt by each of the
Shareholders and nonrefundable.
3. OPTION PERIOD
-------------
The Share Option and the Affiliate Share Option shall have a term (the
"Option Period") commencing on the Effective Date after BPN has given the
appropriate notice of termination under the Republic Agreement and ending March
31, 2000 (the "Option Termination Date"). Sections 2, 11 and 12 hereof shall
survive the expiration of the Option Termination Date or any termination of this
Agreement.
-2-
<PAGE>
4. EXERCISE OF OPTION
------------------
4.1 The Shares and the Affiliate Shares. The Share Option and
-----------------------------------
the Affiliate Share Option may be exercised as provided herein prior to the
Option Termination Date or the termination of this Agreement, whichever occurs
sooner, and shall only be exercised once during the Option Period in whole and
not in part with respect to the Shares, and if appropriate, all the Affiliate
Shares. The Affiliate Share Option may only be exercised if (a) the Share Option
is exercised simultaneously therewith and (b) it is exercised with respect to
all of the Affiliate Shares.
4.2 Written Notice. In the event that PAGI desires to exercise
--------------
the Share Option, alone, or the Share Option and the Affiliate Share Option,
together, it shall do so by concurrently delivering an executed written notice
to each of the Shareholders and BPN, on or before the Option Termination Date,
of its election to exercise the same (the "Exercise Notice"). In the event that
the closing of the transaction described in the Exercise Notice (the "Closing")
is not consummated within twelve (12) months following the date of said notice,
BPN shall have the right, by providing written notice in accordance with Section
13.6 hereof, to terminate the Share Option and the Affiliate Share Option upon
such written notice to and without the consent or prior approval of PAGI. PAGI
shall provide the Shareholders and BPN with at least fifteen (15) days prior
written notice in accordance with Section 13.6 hereof of the date that it
desires to consummate the transactions described in the Exercise Notice (the
"Closing Date")
5. EXERCISE PRICE OF THE SHARE OPTION AND THE AFFILIATE SHARE OPTION
-----------------------------------------------------------------
5.1 Exercise Price of the Share Option. BPN shall provide
----------------------------------
written notice to PAGI (the "Lending Target Notice") in the event that it has
had $30 million or more in premium finance loans outstanding for six (6)
consecutive months (the "Lending Target") under that certain Insurance Premium
Financing Management Agreement (the "PAB Agreement") to be entered into as of
the Effective Date between BPN and PAGI's wholly-owned subsidiary, Pan American
Bank, FSB, a federal savings bank ("PAB"). If, prior to the Lending Target
Notice being met or within ninety (90) days following the date of the Lending
Target Notice, PAGI delivers an Exercise Notice as required pursuant to Section
4.2 hereof concerning its desire to exercise the Share Option, the exercise
price with respect thereto shall be $2 million. In the event that PAGI does not
deliver such Exercise Notice prior to the expiration of the aforementioned
ninety (90) day period, the exercise price of the Share Option shall thereafter
be the greater of (a) $2 million or (b) four (4) times BPN's pre-tax earnings
for the twelve (12) complete consecutive calendar months immediately preceding
the date of the Exercise Notice less the "Non-Competition Consideration" (as
defined in Section 10.4 hereof). For the purposes of this Section 5.1 and
Section 5.2 hereof, BPN's "pre-tax earnings" shall include the gross
-3-
<PAGE>
amounts of the salaries and other compensation and distributions, excluding
amounts paid with respect to the Facility Lease (as hereinafter defined), that
BPN paid to the Shareholders and the Walskis to the extent that such amounts
exceed $330,000 for such twelve (12) month period. For a period of two years
following the Closing Date, any Principal remaining as an employee of BPN shall
be paid an annual base salary of $110,000.00 for providing services to BPN
similar to those provided by the employed Principal immediately prior to the
Closing Date. The preceding sentence shall not be construed to create an
employment agreement between or be binding upon BPN or any Principal, but merely
represents the intention of the parties in the event that a Principal is
employed by BPN following the Closing Date. The exercise price described in this
Section 5.1 shall hereinafter be referred to as the "Share Option Exercise
Price."
5.2 Exercise Price of the Share Option and the Affiliate Share
----------------------------------------------------------
Option. In the event that PAGI desires to exercise both the Share Option and
- ------
the Affiliate Share Option, the exercise price with respect thereto shall be the
sum of (i) four (4) times the BPN Affiliates pre-tax earnings for the twelve
(12) complete consecutive calendar months immediately preceding the date of the
Exercise Notice, plus (ii) the Share Option Exercise Price. The exercise price
described in this Section 5.2 shall hereinafter be referred to as the "Affiliate
Share Option Exercise Price."
5.3 Determination of Pre-Tax Earnings. The pre-tax earnings of BPN
---------------------------------
and, if appropriate, the BPN Affiliates, shall be determined in accordance with
generally accepted accounting principles ("GAAP"), consistently applied with
prior periods, except as modified by Section 5.1 hereof respecting the treatment
of compensation and distributions paid to the Shareholders and the Walskis. In
the event that PAGI desires to exercise the Share Option and, if appropriate,
the Affiliate Share Option, within forty-five (45) days of BPN's receipt of an
Exercise Notice, BPN shall provide PAGI with a statement of income for the
relevant twelve (12) month period for which pre-tax earnings are to be
calculated, computed on an accrual basis prepared in accordance with GAAP,
consistently applied with prior periods, together with such supporting detail as
PAGI may reasonably request. The calculation of pre-tax earnings contained in
the income statement shall be deemed to be accepted by PAGI unless PAGI notifies
BPN in writing within thirty (30) days following its receipt of the income
statement that it rejects the calculation of pre-tax earnings contained therein.
In the event of such rejection, the Shareholders shall, at PAGI's expense,
engage the Big 6 Accounting Firm of their choice to conduct an audit of BPN for
the twelve (12) month period covered by the income statement in question. The
accounting firm's determination of pre-tax earnings as a consequence of
conducting that audit shall be binding on the parties hereto.
5.4 Lending Target Audit. In order to verify whether BPN has
--------------------
reached the Lending Target, PAGI shall, at its own expense and during BPN's
regular business hours, have the right to
-4-
<PAGE>
conduct an audit of BPN's insurance premium financing activities under the
Program.
6. TERMINATION AND OPTION PERIOD REDUCTION
---------------------------------------
6.1 Termination of the Share Option and the Affiliate Share Option.
--------------------------------------------------------------
The Share Option and the Affiliate Share Option shall terminate immediately upon
the occurrence of any of the following events prior to the Option Termination
Date:
(a) The institution of any bankruptcy, reorganization,
insolvency or similar proceedings by or against PAGI;
(b) The assignment of the Share Option and/or the Affiliate
Share Option by PAGI for the benefit of its creditors; or
(c) PAGI's failure to exercise the Share Option and the
Affiliate Share Option, if appropriate, within thirty (30) days following the
date of a "Notice of Curtailment" (as defined in Section 6.2 hereof).
6.2 Option Period Reduction. In the event that the Lending
-----------------------
Capacity is reduced below $30 million on an annual basis and such reduction
results in the inability of BPN to fund then existing available loans under the
Program that satisfy PAB's lending and underwriting criteria as consistently
applied during the Option Period, BPN shall provide PAGI with written notice in
accordance with Section 13.6 hereof of any such curtailment (a "Notice of
Curtailment") and PAGI shall have thirty (30) days from the date thereof to
deliver an Exercise Notice as required pursuant to Section 4.2 hereof. The
Option Period shall terminate without the further action of the Shareholders or
PAGI in the event that PAGI fails to exercise the Share Option and, if
appropriate, the Affiliate Share Option, within such thirty (30) day period.
7. CLOSING OF THE SHARE OPTION AND THE AFFILIATE SHARE OPTION
----------------------------------------------------------
7.1 Purchase and Sale. Subject to the terms, conditions,
-----------------
representations and warranties set forth herein, on the Closing Date the
Shareholders shall sell to PAGI and PAGI shall purchase from the Shareholders
the Shares and, if appropriate, the Affiliate Shares.
7.2 Consideration. On the Closing Date, the Shareholders shall
-------------
deliver to PAGI all certificates for the Shares and, if appropriate, the
Affiliate Shares, duly assigned and endorsed to PAGI in good form for transfer
or accompanied by stock powers duly endorsed, and PAGI shall deliver to (a) the
Shareholders cashier's checks made payable to each of the Shareholders in an
-5-
<PAGE>
amount equal to each Shareholder's respective portion of the Share Option Price
or Affiliate Share Option Price, as is appropriate and (b) the Principals
cashier's checks made payable to each of the Principals in an amount equal to
each Principal's respective portion of the Non-Competition Consideration (as
defined in Section 10.4 hereof).
7.3 Closing Location. The Closing shall take place on the Closing
----------------
Date at the offices of counsel to the Shareholders and BPN, Barger & Wolen, 515
South Flower, 34th Floor, Los Angeles, California 90071.
8. REPRESENTATIONS AND WARRANTIES
------------------------------
8.1 Representations and Warranties of the Shareholders and the
----------------------------------------------------------
Walskis.
- -------
The Shareholders and the Walskis hereby jointly and severally represent and
warrant to PAGI, as of the Effective Date and the Closing Date, as follows:
(a) Capitalization of BPN. The authorized capital stock of
---------------------
BPN consists of 10,000 shares of common stock, $0.10 par value per share, of
which one thousand (1,000) shares are issued and outstanding. Provided, however,
-------- -------
the number of issued and outstanding Shares referred to above in this Section
8.1(a) may be subject to reduction in accordance with the terms of the Stock
Retirement Agreement. The Shares, which represent all the issued and outstanding
equity interests of BPN, are validly issued, fully paid and nonassessable. BPN
has no other shares of capital stock of any kind authorized, issued or
outstanding and there are no outstanding subscriptions, options, warrants,
calls, convertible or exchangeable securities, or other rights or commitments of
any kind to issue, sell or acquire any shares of capital stock of BPN.
(b) Corporate Existence, Power and Authorization of BPN. BPN
---------------------------------------------------
is a corporation duly organized, validly existing and in good standing under the
laws of the State of California, with full power and authority, corporate and
other, to carry on its business as it is now being conducted and to own or lease
the properties and assets which it now owns or leases.
(c) Authority. The Shareholders and the Walskis have full
---------
power and authority to execute and deliver this Agreement and to perform their
respective obligations hereunder and such actions will not constitute a default
under or be prohibited or restricted by any other agreements or obligations to
which the Shareholders or the Walskis are or BPN is a party.
(d) Compliance with Covenants. As of the Closing Date, the
-------------------------
Shareholders and the Walskis shall have complied and, as applicable, shall have
caused BPN to comply with each of the covenants set forth in Section 9 hereof.
-6-
<PAGE>
(e) No Other Representations and Warranties. Except as set
---------------------------------------
forth in subsections (a), (b), (c) and (d) of this Section 8.1, the Shareholders
and the Walskis are not making any other representations or warranties
whatsoever with respect to BPN.
8.2 Representations and Warranties of PAGI.
--------------------------------------
PAGI hereby represents and warrants to the Shareholders and the Walskis, as
of the Effective Date and as of the Closing Date, as follows:
(a) Corporate Existence, Power and Authorization of PAGI.
----------------------------------------------------
PAGI is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, with full power and authority,
corporate and other, to carry on its business as it is now being conducted and
to own or lease the properties and assets which it now owns or leases.
(b) Authority. The execution, delivery and performance of
---------
this Agreement and the transactions contemplated by this Agreement by PAGI have
been duly authorized by any necessary corporate action, including, without
limitation, any necessary director or shareholder approval. PAGI has full power
and authority to execute and deliver this Agreement and to perform its
obligations hereunder and such actions will not constitute a default under or be
prohibited or restricted by any other agreements or obligations to which PAGI is
a party.
(c) Title to Shares of PAB. As of the Effective Date only,
----------------------
PAGI has full and valid title, both legal and beneficial, to all the issued and
outstanding shares of PAB.
(d) Regulatory Approvals. The Execution of this Agreement is
--------------------
not subject to any federal, state or local regulatory approvals or notification
requirements.
8.3 Survival of Representations and Warranties. The
------------------------------------------
representations and warranties in Sections 8.1 and 8.2 hereof shall survive the
Closing Date.
9. COVENANTS OF THE SHAREHOLDERS AND THE WALSKIS
---------------------------------------------
The Shareholders and the Walskis hereby jointly and severally covenant and
agree as follows:
9.1 Operations of BPN. BPN shall engage in no business other than
-----------------
the insurance premium financing business in a manner consistent with the terms
of the PAB Agreement and, to the extent applicable, the Republic Agreement. Each
of the Principals shall devote such time to the business of BPN as shall be
required to fully develop, implement and manage the Program.
-7-
<PAGE>
9.2 Legend on Share Certificates. During the Option Period, all
----------------------------
certificates representing the Shares and the Affiliate Shares shall bear a
legend reflecting the restrictions on transfer imposed by this Agreement.
9.3 Statements of Income and Loss. The Shareholders and Principals
-----------------------------
shall cause BPN to provide PAGI with quarterly statements of income and loss,
cash flow and capitalization, together with such other financial information as
PAGI may reasonably request in order to keep fully apprised of the financial
condition, prospects and results of operations of BPN or to satisfy any
applicable regulatory requirements.
9.4 No Shop. Unless this Agreement is otherwise terminated in
-------
accordance with its terms, from the Effective Date until the Option Termination
Date, the Shareholders and the Walskis will cause BPN to conduct its affairs
only in the ordinary course of business consistent with past practices and the
Shareholders and the Principals will not enter into any discussions,
negotiations or agreements for the purpose of merging BPN with or selling BPN's
assets to any other person, or issuing any stock or other equity interests or
any options, warrants or other rights to purchase stock or other equity
interests of BPN.
9.5 Liabilities. Except for the lease obligation on BPN's office
-----------
facility located at 13750 Pipeline Avenue, Chino, California 91710 (the
"Facility Lease"), on the Closing Date, BPN shall have no liabilities, whether
fixed or contingent, which are reflected, or are required to be reflected, as
liabilities on the balance sheet of BPN as prepared in accordance with GAAP
other than current liabilities incurred in the ordinary course of business.
Except upon six (6) months prior written notice to PAGI and BPN given on or
after the Closing Date, the rent payable under the Facility Lease shall not be
increased following the Closing Date to an amount exceeding the rent paid on a
monthly basis for the twelve (12) consecutive months preceding the Closing Date.
9.6 Termination of the Facility Lease. On or following the Closing
---------------------------------
Date, either PAGI or the Principals may terminate the Facility Lease upon six
(6) months prior written notice. In the event of the termination of the
Facility Lease, a Principal may terminate his or her employment agreement then
in force between such Principal and BPN as of the date of such termination.
9.7 Program Assets.
--------------
(a) On the Closing Date, BPN shall own the computer hardware
and own or have the right to use all computer software (the "Program Software"),
proprietary designs, trademarks, trademark applications, trade names, trade
secrets, service marks, brand marks, brand names, and copyrights utilized by BPN
in connection with its operation of the Program, all of which shall hereinafter
be referred to as the "Program Assets." The rights to
-8-
<PAGE>
the Program Assets as a whole for use in connection with insurance premium
finance applications will be exclusive to BPN except as otherwise provided
herein.
(b) In the event that PAGI does not exercise the Affiliate
Share Option, the BPN Affiliates and any and all other entities organized by the
Principals, jointly or severally, following the Closing Date shall automatically
be deemed to have an irrevocable license at no cost to use the Program Assets
(excluding the computer hardware) in connection with insurance premium
financing-related activities by such entities (the "License"). In the event that
the covenant not to compete set forth in Section 10 hereof is violated or
breached in any way, the License shall be immediately revoked. PAGI acknowledges
that it has been informed by the Principals that for a period of two (2) years
following the date of termination of the Republic Agreement, Republic has
nonexclusive license to use the Program Software at no cost, and PAGI does not
object to nor will it interfere with such nonexclusive license.
(c) The cost of all upgrades or modifications to the Program
Software made by or on behalf of BPN, the BPN Affiliates, or PAB shall be shared
equitably by such parties, and all such upgrades or modifications shall be
provided to any of such parties entitled to use the Program Software.
9.8 Distribution of Assets. At any time and from time to time
----------------------
prior to the Closing Date, the Shareholders may cause BPN to distribute to the
Shareholders all or any portion of its income and/or assets, other than the
Facility Lease, the Program Assets and BPN's books and records.
9.9 Minimum Net Worth. On the Closing Date the Shareholders shall
-----------------
cause BPN to have a net worth of at least $0, which shall be determined in
accordance with GAAP.
9.10 Organization of BPN Affiliates. Prior to the Closing Date, the
------------------------------
shares of each of the BPN Affiliates shall be owned by the Shareholders in the
same proportion as the share ownership of BPN and the Shareholders shall cause
all certificates representing the Affiliate Shares to bear a legend reflecting
the restrictions on transfer imposed by this Agreement.
9.11 Stock Retirement Agreement. As of the Effective Date, the
--------------------------
Stock Retirement Agreement shall be amended to provide that the rights of the
parties thereto, including such parties' respective estates, successors, legal
or personal representatives, heirs, distributees, designees and assigns, shall
be subordinated to the terms and conditions of this Agreement. The Shareholders
and the Walskis shall not amend the Stock Retirement Agreement without the prior
written consent of PAGI prior to the earlier of either the Option Termination
Date or the termination of this Agreement. The redemption of any of the Shares
pursuant to the Stock Retirement Agreement shall not constitute a breach of this
Agreement.
-9-
<PAGE>
10. COVENANT NOT TO COMPETE
-----------------------
10.1 California Non-Compete. For a period of five (5) years
----------------------
commencing on the Closing Date (the "Non-Competition Period"), within the State
of California, each of the Principals and the BPN Affiliates, if not acquired
hereunder, shall not, jointly or severally, directly or indirectly, organize,
own, manage, operate, control, consult with or otherwise participate in or carry
on any business (either financially as a shareholder of or lender to such
business or of the entity that controls such business, or as an employee,
director, officer, partner, consultant or agent or in any capacity that calls
for the rendering of personal services, advice, or acts of management, operation
or control or in any other manner whatsoever) that is competitive with the
premium finance business conducted by BPN on the Closing Date. Notwithstanding
the foregoing, a Principal may own as a passive investment up to five percent
(5%) of the outstanding voting securities of any publicly held entity that is
engaged in the insurance premium finance business that competes with the
operations of BPN.
10.2 BPN Affiliates Non-Compete. During the Non-Competition Period
--------------------------
within any state, jurisdiction or territory of the United States of America in
which a BPN Affiliate that was acquired hereunder by PAGI is engaged in
operating the Program, each of the Principals shall not, jointly or severally,
directly or indirectly, organize, own, manage, operate, control, consult with or
otherwise participate in or carry on any business (either financially as a
shareholder of or lender to such business or of the entity that controls such
business, or as an employee, director, officer, partner, consultant or agent or
in any capacity that calls for the rendering of personal services, advice, or
acts of management, operation or control or in any other manner whatsoever) that
is competitive with the premium finance business conducted by BPN Affiliates on
the Closing Date. Notwithstanding the foregoing, a Principal may own as a
passive investment up to five percent (5%) of the outstanding voting securities
of any publicly held entity that is engaged in the insurance premium finance
business that competes with the operations of a BPN Affiliate.
10.3 Survival of Non-Competition Provision. The covenants contained
-------------------------------------
in each of Sections 10.1 and 10.2 hereof (the "Non-Competition Provisions") are
separate and distinct. If any Non-Competition Provision or any provision or
portion thereof is held invalid, inoperative or unenforceable, the remaining
Non-Competition Provision and the provisions or portions thereof shall be
considered valid, operative and enforceable, and, to the extent possible, effect
shall be given to the intent manifested by the Non-Competition Provision or the
Non-Competition Provisions, or the provisions of portions thereof, held invalid,
inoperative or unenforceable. The Non-Competition Provisions may be specifically
enforced by a court of competent jurisdiction and the parties hereto acknowledge
that monetary damages will not adequately compensate PAGI or BPN for any
violation thereof. Such remedy shall not,
-10-
<PAGE>
however, limit any other remedy available to PAGI, BPN or their respective
successors or assigns.
10.4 Consideration for Covenant Not to Compete. As consideration
-----------------------------------------
for the covenant not to compete contained in this Section 10, on the Closing
Date PAGI shall pay the Principals the aggregate amount of $2 million (the "Non-
Competition Consideration"), which shall be allocated among the Principals in
accordance with the following percentages:
<TABLE>
<CAPTION>
Principal Percentage
--------- ----------
<S> <C>
P. Walski 35%
B. Walski 30%
O'Shea 35%
</TABLE>
In the event that one or more of the aforementioned Principals is not employed
by BPN on the Closing Date, the Non-Compensation Consideration consisting of $2
million shall be divided among the remaining Principals consistent with the
above table. For example, in the event that (a) B. Walski is no longer employed
by BPN, P. Walski and O'Shea shall each receive fifty percent (50%) of the Non-
Compensation Consideration, or (b) O'Shea is no longer employed by BPN, P.
Walski shall receive 53.85 percent of the Non-Competition Consideration and B.
Walski shall receive 46.15 percent of the Non-Competition Consideration.
11. INDEMNIFICATION
---------------
11.1 Indemnification of PAGI. The Shareholders and the Walskis
-----------------------
shall jointly and severally indemnify, defend and hold harmless PAGI, PAB and
their respective affiliates as well as their respective directors, officers,
agents, employees and shareholders (each, an "Indemnified Party" and
collectively, the "Indemnified Parties") from and against any and all claims,
suits, hearings, actions, damages, liabilities, fines, penalties, costs, losses
or expenses, including reasonable attorney's fees (in the singular, an
"Indemnification Claim" and collectively, "Indemnification Claims"), caused by
or resulting from the relationship of BPN and the Principals with Republic with
respect to any period of time prior to the Closing Date, including but not
limited to any breach or alleged breach or termination of the Republic
Agreement, any claim that any Indemnified Party induced BPN or the Principals to
breach or terminate the Republic Agreement or otherwise interfered with the
Republic Agreement, or, as to PAGI only, any misconduct, error, omission, or
other unauthorized act by BPN or by BPN's officers, directors, shareholders,
employees, agents or representatives that occurred prior to the Closing Date.
11.2 Notice of Claim for Indemnification. Upon obtaining knowledge
-----------------------------------
of an Indemnification Claim which could give rise to indemnification under this
Section 11, the Indemnified Party demanding such indemnification (the
"Indemnitee") shall promptly
-11-
<PAGE>
notify the party from whom indemnification is sought (the "Indemnitor"), in
writing, of any Indemnification Claim which the Indemnitee has determined has
given or could give rise to a right of indemnification under Section 11.1 hereof
(the "Notice of Claim") The Notice of Claim shall specify, in reasonable detail,
the nature of any such Indemnification Claim giving rise to the right of
indemnification.
11.3 Defense of Third Party Claims. With respect to any third party
-----------------------------
Indemnification Claim set forth in a Notice of Claim, the Indemnitor may defend,
in good faith and at its own expense, any such Indemnification Claim and the
Indemnitee, at its expense, shall have the right to participate in the defense
of any such third party Indemnification Claim. In connection with its defense of
a third party Indemnification Claim, the Indemnitor shall have the right to
choose or approve counsel for the defense or prosecution of such action, subject
to the reasonable approval of the Indemnified Party. So long as the Indemnitor
is defending in good faith any such third party Indemnification Claim, the
Indemnitee shall not settle or compromise such third party Indemnification Claim
without the consent of the Indemnitor, which shall not unreasonably be withheld.
The Indemnitee shall make available to the Indemnitor or its representatives all
records and other materials reasonably required by them for its use in
contesting any third party Indemnification Claim and shall cooperate fully with
the Indemnitor in the defense of all such Indemnification Claims. The Indemnitor
shall furnish, at its expense, any bond or other security required to release
any lien, garnishment, attachment or execution required in connection with any
third party proceeding subject to this Section 11. The Indemnitor may settle any
claim without the consent of the Indemnitee in the event that the sole relief
requested is money damages and such money damages are paid in full by the
Indemnitor and all litigation against the Indemnitee with respect thereto is
dismissed with prejudice (or an unconditional release satisfactory to Indemnitee
is entered into).
12. CONFIDENTIALITY
---------------
Subject to disclosure as otherwise required by law, pursuant to legal
process, PAGI shall, and shall cause its agents, accountants and attorneys, to
keep confidential any and all trade secrets and confidential information (unless
readily ascertainable from public or published information or resources)
obtained from BPN, the Shareholders or the Walskis in connection with this
Agreement. In the event that this Agreement shall terminate or upon the Option
Termination Date, promptly following any such termination, all documents,
including copies and reproductions thereof, obtained by PAGI in connection with
the transactions contemplated by this Agreement and not previously made public,
shall be returned to BPN. No information concerning BPN (except such that is
readily ascertainable from public sources) obtained in connection with the
transactions contemplated by this Agreement shall be used by PAGI for any
purposes whatsoever other than purposes consistent with this Agreement.
-12-
<PAGE>
13. GENERAL PROVISIONS
------------------
13.1 Press Release. No press release or other public announcement
-------------
in respect of the transactions contemplated by this Agreement shall be made
except upon the mutual agreement of the Shareholders, the Walskis and PAGI.
13.2 Costs. Each party hereto shall pay its own costs and expenses
-----
associated with the preparation of this Agreement.
13.3 Assignment. This Agreement and the rights, duties and
----------
obligations of the parties hereto shall not be assignable by either party hereto
without the prior written consent of the other party and any purported
assignment in the absence of such consent shall be void; provided, however, PAGI
-------- -------
may assign the Share Option or the Affiliate Share Option to any affiliate of
PAGI. In addition, PAB may assign participations in or sell loans made under the
PAB Agreement, which loans shall be included, as necessary, in determining if
the Lending Capacity has been satisfied.
13.4 Further Instruments. Each party shall execute and deliver all
-------------------
further instruments, documents and papers, and shall perform any and all acts
necessary, to give full force and effect to all of the terms and provisions of
this Agreement.
13.5 Severability. If any provision of this Agreement, as applied
------------
to any party or to any circumstance, shall be found by a court of competent
jurisdiction or panel of arbitrators to be void, invalid or unenforceable, the
same shall in no way affect any other provision of this Agreement, the
application of any such provision in any other circumstance, or the validity or
enforceability of this Agreement.
13.6 Notices. All notices which are required to be given or
-------
submitted pursuant to this Agreement shall be made in writing and shall be
deemed given when deposited with the United States Postal Service, postage
prepaid, registered or certified mail, return receipt requested, or when
deposited with an overnight mail delivery service, to the last address of record
of each party being notified which is maintained by the other party in the
ordinary course of business.
Any notice or demand required to be made under this Agreement to P. Walski
shall be given to:
Mr. Peter A. Walski
2820 English Road
Chino Hills, California 91709
-13-
<PAGE>
Any notice or demand required to be made under this Agreement to B. Walski
shall be given to:
Ms. Barbara R. Walski
2820 English Road
Chino Hills, California 91709
Any notice or demand required to be made under this Agreement to O'Shea
shall be given to:
Mr. Cornelius J. O'Shea
17038 Geanine Place
Granada Hills, California 91344
Any notice or demand required to be made under this Agreement to the Trust
shall be given to:
The Walski Family Trust
2820 English Road
Chino Hills, California 91709
Any notice or demand required to be made under this Agreement to BPN shall
be given to:
BPN Corporation
13750 Pipeline Avenue
Chino, California 91710
Attention: Peter A. Walski, Barbara R. Walski and Cornelius J. O'Shea
Any notice or demand required to be made under this Agreement to PAGI shall
be given to:
Pan American Group, Inc.
1999 Avenue of the Stars
Suite 2960
Los Angeles, California 90067
Attention: Guillermo Bron
Any party may, by virtue of written notice in compliance with this paragraph,
alter or change the address or the identity of the person to whom any notice, or
copy thereof, is to be sent.
13.7 Waivers. A waiver by any party of any of the terms and
-------
conditions of this Agreement in any one instance shall not be deemed or
construed to be a waiver of such term or condition for the future, or of any
subsequent breach thereof, nor shall it be deemed a waiver of performance of any
other obligation hereunder.
13.8 Entire Agreement. This Agreement contains the entire
----------------
understanding of the parties hereto relating to the subject matter hereof and
supersedes all prior and collateral agreements, understandings, statements and
negotiations of the parties. Each party acknowledges that no representations,
inducements, promises or
-14-
<PAGE>
agreements, oral or written, with reference to the subject matter hereof have
been made other than as expressly set forth herein.
13.9 Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of California.
13.10 Gender and Number. In all matters of interpretation, whenever
-----------------
necessary to give effect to any provision of this Agreement, each gender shall
include the other, the singular shall include the plural and the plural shall
include the singular.
13.11 Section and Subsection Headings. The titles of the sections of
-------------------------------
this Agreement are for convenience only and shall not in any way affect the
interpretation of any provision or condition of this Agreement.
13.12 Third Parties. Except as may be expressly set forth herein,
-------------
the parties hereto do not intend to confer any rights or remedies upon any
person other than the parties hereto.
13.13 Successors and Assigns. This Agreement shall be binding upon
----------------------
and shall inure to the benefit of the parties hereto and their respective
estates, successors, legal or personal representatives, heirs, distributees,
designees and assigns.
13.14 Legal Action. In the event of any litigation between or among
------------
the parties hereto respecting or arising out of this Agreement, the prevailing
party or parties shall be entitled to recover reasonable attorneys' fees and
costs, whether or not such litigation proceeds to final judgment or
determination.
13.15 Amendment. This Agreement may not be amended except by a
---------
writing signed by both parties.
13.16 Counterparts. This Agreement may be executed in counterparts
------------
which, taken together, shall constitute the whole of the Agreement as between
the parties.
13.17 Asset Purchase. The purchase of the Shares and, if
--------------
appropriate, the Affiliate Shares, may, at the election of PAGI, be structured
as a purchase of the assets of such entity or entities, as the case may be,
provided that the Shareholders receive the same after tax consideration they
would have received had the
-15-
<PAGE>
Share Option and, if appropriate, the Affiliate Share Option, been exercised as
a stock purchase or stock purchases, as the case may be.
IN WITNESS WHEREOF, the parties have executed this Agreement
effective as of the day and year first above written.
PAGI: PAN AMERICAN GROUP, INC>
By: /s/ WILLIAM BRON
------------------------------
Its: Chairman
----------------------------
Printed Name: William Bron
--------------------
BPN: BPN CORPORATION
By: /s/ PETER A. WALSKI
------------------------------
Its: President
-----------------------------
Printed Name: Peter A. Walski
--------------------
Trust: THE WALSKI FAMILY TRUST,
August 30, 1989
By: /s/ PETER A. WALSKI
------------------------------
Peter A. Walski, Trustee
By: /s/ BARBARA R. WALSKI
------------------------------
Barbara R. Walski, Trustee
P. Walski: /s/ PETER A. WALSKI
---------------------------------
PETER A. WALSKI
B. Walski: /s/ BARBARA R. WALSKI
---------------------------------
BARBARA R. WALSKI
O'Shea: /s/ CORNELIUS J. O'SHEA
---------------------------------
CORNELIUS J. O'SHEA
-16-
<PAGE>
EXHIBIT 10.7
FIRST AMENDMENT
TO
STOCK OPTION AGREEMENT
This FIRST AMENDMENT to STOCK OPTION AGREEMENT (the "Amendment") is entered
into effective as of October 1, 1997 (the "Amendment Effective Date") by and
among BPN CORPORATION, a California corporation ("BPN"), PAN AMERICAN GROUP,
INC., a Delaware corporation ("PAGI"), and PETER A. WALSKI, an individual ("P.
Walski"), BARBARA R. WALSKI, an individual ("B. Walski") (B. Walski and P.
Walski collectively, the "Walskis"), CORNELIUS J. O'SHEA, an individual
("O'Shea"), and THE WALSKI FAMILY TRUST, dated August 30, 1989 (the "Trust") (P.
Walski, B. Walski and O'Shea, each a "Principal" and collectively, the
"Principals") (the Trust and O'Shea each, a "Shareholder" and collectively, the
"Shareholders"), and amends the Stock Option Agreement (the "Agreement"), dated
as of May 17, 1995 between the parties.
R E C I T A L S
A. As of the Amendment Effective Date, the Shareholders own beneficially
and of record all the issued and outstanding shares (the "Shares") of BPN as
follows:
<TABLE>
<CAPTION>
Shareholder No. of Shares
----------- -------------
<S> <C>
Trust 750
O'Shea 350
</TABLE>
B. Under the terms of the Agreement, the Shareholders granted to PAGI the
Share Option and the Affiliate Share Option to acquire the Shares and the
Affiliate Shares.
C. On or about April 28, 1997, BPN delivered to PAGI the Lending Target
Notice described in Section 5.1 of the Agreement, and on July 24, 1997, PAGI
delivered to BPN, and each of the Shareholders an Exercise Notice respecting its
exercise of the Share Option and Affiliate Share Option as contemplated by
Sections 4.2 and 5.1 of the Agreement.
D. The parties hereto desire to provide for the withdrawal by BPN of the
April 28, 1997 Lending Target Notice and the withdrawal by PAGI of the July 24,
1997 Exercise Notice, and to amend the terms of the Agreement respecting the
Share Option and the Affiliate Share Option as provided herein.
NOW, THEREFORE, in consideration of mutual promises and covenants contained
in this amendment and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
<PAGE>
1. Withdrawal of Notices. BPN hereby withdraws the April 28, 1997 Lending
----------------------
Target Notice and PAGI consents to the withdrawal of the Lending Target Notice
by BPN. PAGI hereby withdraws its July 24, 1997 Exercise Notice and BPN, the
Principals and Shareholders hereby consent to such withdrawal by PAGI. The
parties agree that PAGI shall remain entitled to exercise the Share Option and
Affiliate Share Option, and to deliver the Exercise Notice pursuant to the terms
of Section 4.1 of the Agreement.
2. Extension of Option. The Option Termination Date as set forth in
-------------------
Section 3 of the Agreement is hereby extended to March 31, 2005, and the Option
Period shall be extended to such date.
3. Future Exercise of Option. BPN agrees that it shall not deliver the
-------------------------
Lending Target Notice contemplated by Section 5.1 of the Agreement prior to
October 29, 1999. At the time the Lending Target Notice is delivered, BPN shall
have had $30,000,000 or more in premium finance loans outstanding for the six
consecutive months preceding delivery of such notice to PAGI. PAGI agrees that
it shall not deliver the Exercise Notice to exercise the Share Option or
Affiliate Share Option prior to April 29, 1999; provided, however, that PAGI may
--------
exercise the Share Option and Affiliate Option prior to such date in the event
of the breach by BPN, any Shareholder or any Principal of their obligations
under the Agreement, the Insurance Premium Financing Management Agreement
between BPN and Pan American Bank, FSB (the "Bank"), or the Guaranties delivered
by the Principals for the benefit of the Bank in connection with such Insurance
Premium Financing Management Agreement.
4. Exercise Price of the Share Option and the Affiliate Share Option. In
-----------------------------------------------------------------
the event the Exercise Notice is delivered on or prior to the date occurring 90
days after delivery of the Lending Target Notice to PAGI, the Share Option
Exercise Price shall be $3,250,000. PAGI shall also be required to make the
Non-Competition Consideration payments contemplated by Section 10.4 of the
Agreement, which Section 10.4 is hereby amended to reduce the aggregate amount
of the Non-Competition Consideration from $2,000,000 to $750,000. If the
Exercise Notice is given at anytime after the 90th day following delivery to
PAGI of the Lending Exercise Notice, the Share Option Exercise Price shall be
the greater of (a) $3,250,000 or (b) four times BPN's pre-tax earnings for the
twelve complete consecutive calendar months immediately preceding the date of
the Exercise Notice less the $750,000 in total Non-Competition Consideration
provided in Section 10.4 of the Agreement.
5. Capitalized Terms. Capitalized terms not otherwise defined herein
-----------------
shall have the meanings set forth for such terms in the Agreement.
2
<PAGE>
6. No Other Changes. Except to set forth in this Amendment, the Agreement
----------------
shall remain in full force and effect without modification or amendment.
PAGI: PAN AMERICAN GROUP, INC.
By: /s/ LAWRENCE J. GRILL
------------------------------
Its: President
-----------------------------
Printed Name: LAWRENCE J. GRILL
--------------------
BPN: BPN CORPORATION
By: /s/ PETER A. WALSKI
------------------------------
Its: President
-----------------------------
Printed Name: PETER A. WALSKI
--------------------
TRUST: THE WALSKI FAMILY TRUST,
August 30, 1989
By: /s/ PETER A. WALSKI
------------------------------
Peter A. Walski, Trustee
By: /s/ BARBARA R. WALSKI
------------------------------
Barbara R. Walski, Trustee
P. WALSKI: /s/ PETER A. WALSKI
---------------------------------
Peter A. Walski
B. WALSKI: /s/ BARBARA R. WALSKI
---------------------------------
Barbara R. Walski
O'SHEA: /s/ CORNELIUS J. O'SHEA
---------------------------------
Cornelius J. O'Shea
3
<PAGE>
Exhibit 10.8
INTERIM CAPITAL ASSISTANCE AGREEMENT
------------------------------------
This Interim Capital Assistance Agreement (the "Agreement"), dated as
of this 9th day of September, 1994, is made and entered into by and among the
Shareholder[s], as defined in Section 1[s] below and Pan American Bank, FSB, an
insured depository institution within the meaning of the Federal Deposit
Insurance Act, as amended (the "FDIA"), 12 U.S.C. Section 1811, et seq.,
-- ---
organized and existing as a federal savings bank with its principal place of
business at San Mateo, California (the "Assuming Institution") and the
Resolution Trust Corporation, in its corporate capacity (in such capacity, the
"Corporation").
RECITALS
--------
WHEREAS, pursuant to Section 5(d) of the Home Owners' Loan Act, as
amended, (the "HOLA") 12 U.S.C. Section 1464(d), the Office of Thrift
Supervision ("OTS") has closed Western Federal Savings Bank, (the "Failed
Association") and has appointed the Resolution Trust Corporation as receiver of
the Failed Association;
WHEREAS, the Receiver has determined pursuant to Section 11(d) (2) (G)
of the FDIA, as amended (the "FDIA"), 12 U.S.C. Section 1821(d)(2)(G), that it
is appropriate and necessary to transfer certain assets and liabilities of the
Failed Association to the Assuming Institution;
WHEREAS, the parties intend that such transfer be made on the terms
and conditions set forth in the Standard Terms as that document is defined in
Section 1(t) hereof;
WHEREAS, interim capital assistance may be provided by the Corporation
pursuant to the Corporation's Minority Capital Assistance Program and Section
21A(u) of the Federal Home Loan Bank Act, as amended (the "FHLBA"), 12 U.S.C.
1441a(u).
WHEREAS, application has been made to the Corporation to provide
interim capital assistance to the Assuming Institution in connection with the
resolution of the Failed Association and, in that connection, the Shareholder[s]
and the Assuming Institution have executed and delivered to the Corporation an
Application for Interim Capital Assistance dated August 29, 1994 (the
"Application") and a Minority Ownership Affidavit dated August 29, 1994 (the
"Affidavit").
<PAGE>
WHEREAS, the Shareholder[s] have represented that they are
"Minorities" and the Assuming Institution has represented that it is a "Minority
Institution" in accordance with the definition of those terms under Sections
21A[s] and 21A(u) of the FHLBA, as amended, 12 U.S.C. Sections 1441a[s] and
1441a(u).
WHEREAS, the Corporation has agreed to provide interim capital
assistance to the Assuming Institution and [each of] the Shareholder[s] for the
sole purpose of facilitating the resolution of the Failed Association on the
terms and conditions set forth in this Agreement; and
WHEREAS the Assuming Institution has executed a Purchase and
Assumption Agreement, and Related Agreement[s] in connection with the resolution
of the Failed Association.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the Parties hereto agree as follows:
1. Defined Terms.
-------------
(a) Except as otherwise provided herein, capitalized terms used
in this Agreement shall have the respective meanings assigned to them in the
Standard Terms (such meanings to be equally applicable to both the singular and
plural forms of the terms defined).
(b) "Affiliate" shall have the meaning set forth in (i) in
---------
Section 2(k) of the Bank Holding Company Act of 1956, as amended, 12 U.S.C.
Section 1841(k); or (ii) in subsection (a) (1) (H) of Section 10 of the HOLA, 12
U.S.C. Section 1467a(a)(1)(H), whichever is applicable.
(c) "Agreement" shall mean this Interim Capital Assistance
---------
Agreement, as amended, modified or supplemented from time to time.
(d) "Collateral" shall mean the Pledged Collateral as that term
----------
is defined in the Stock Pledge Agreement.
(e) "Cost of Funds" shall mean the end of the calendar quarter
-------------
Monday Auction yield price for 13 week U.S. Treasury Bills, as quoted in
Tuesday's Wall Street Journal, plus 12.5 basis points.
(f) "Event of Default" shall have the meaning set forth in
----------------
Section 5 hereof.
(g) "Failed Association" shall mean Western Federal Savings
------------------
Bank, formerly a federal savings association under the
2
<PAGE>
HOLA, as amended, 12 U.S.C. Section 1461 et seq., and having its principal place
-------
of business in Marina Del Ray, California which was closed pursuant to Order No.
_________of the OTS.
(h) "Holding Company" shall mean any Person that is subject to
---------------
the Bank Holding Company Act of 1956, as amended, or Section 10 of the HOLA, as
the case may be, as a results of its ownership or control of all or any portion
of the outstanding capital stock of the Assuming Institution.
(i) "Interim Capital Assistance Documents" shall mean this
------------------------------------
Agreement, the Promissory Note, the Stock Pledge Agreement and any other
document or agreement now or hereafter delivered in connection herewith or
therewith.
(j) "Lien" shall mean, with respect to any asset of any Person,
----
any mortgage, deed of trust, pledge, security interest, hypothecation,
assignment, deposit arrangement, charge, encumbrance, lien (statutory or other),
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever with respect to such asset (including, without limitation, any
conditional sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing and the filing of
any financing statement under the Uniform Commercial Code or comparable law of
any jurisdiction).
(k) "Minority" shall have the meaning as statutorily set forth
--------
in Section 21A(s) (2) (C) of the FHLBA, as amended, 12 U.S.C. 1441a(s)(2)(C).
(1) "Minority Institution" shall have the meaning set forth in
--------------------
Section 21A(s) (2) (A) of the FHLBA, as amended, 12 LS.C. 1441a(s) (2) (A)
(m) "Party" shall mean the Shareholder[s], the Assuming
-----
Institution or the Corporation and "Parties" shall mean the Shareholder[s], the
-------
Assuming Institution, and the Corporation.
(n) "Pledged Shares" shall mean 100% of the issued and
--------------
outstanding shares of capital stock of the Assuming Institution, as more
specifically described in Schedule 2 of the Stock Pledge Agreement attached
hereto.
(o) "Promissory Note" shall mean the promissory note made by
---------------
each Shareholder[s] of the Assuming Institution in connection herewith attached
as Exhibit A, which is incorporated herein by reference, and referred to in
Section 2 hereof.
(p) "Purchase and Assumption Agreement" shall mean the Purchase
---------------------------------
and Assumption Agreement by and between the Resolution
3
<PAGE>
Trust Corporation as receiver of the Failed Association and the Assuming
Institution of even date herewith.
(q) "Receiver" shall have the meaning as set forth in the
--------
Purchase and Assumption Agreement.
(r) "Related Agreements" shall have the meaning set forth in the
------------------
Purchase and Assumption Agreement.
(s) "Shareholder[s]" shall have the meaning set forth in
--------------
Schedule 1 of the Stock Pledge Agreement and shall include, except as otherwise
expressly set forth herein, Pan American Financial, Inc.
(t) "Standard Terms" shall mean the RTC Standard Purchase and
--------------
Assumption Terms and Conditions (Iota version dated December 25, 1993).
(u) "Stock Pledge Agreement" shall mean the Stock Pledge
----------------------
Agreement attached hereto as Exhibit B in favor of the Corporation made by each
of the Shareholders of the Assuming Institution in connection herewith and is
incorporated herein by reference.
2. Interim Capital Assistance. The Corporation hereby agrees to make
--------------------------
a term loan (the "Interim Capital Assistance") to the Shareholder[s] in the
principal amount of $4,000,000.00. As additional evidence of the indebtedness of
the Shareholder[s] to the Corporation resulting from the Interim Capital
Assistance, the Shareholder[s] have executed the Promissory Note attached as
Exhibit A. The Interim Capital Assistance shall be provided after Association
Closing but not later than the initial cash payment date as set forth in Article
6 of the Standard Terms. The Shareholder[s] hereby covenant that they shall,
immediately upon receipt of the Interim Capital Assistance, invest the entire
amount thereof in the Assuming Institution, and further, that they shall
maintain and use such amount solely as capital of the Assuming Institution.
3. Repayment of the Interim Capital Assistance
-------------------------------------------
(a) Maturity. The Shareholder[s] shall repay the outstanding
--------
principal balance of the Interim Capital Assistance, plus any accrued,
previously unpaid interest thereon, in a single lump sum installment on
September 8, 1999.
(b) Optional Prepayment. The Shareholder[s], at their option and
-------------------
from time to time, may prepay the outstanding principal amount of the Interim
Capital Assistance, in whole or in part.
4
<PAGE>
(c) Mandatory Prepayment. If, prior to the maturity of the
--------------------
Interim Capital Assistance, the Shareholder[s] obtain all or any material
portion of their permanent financing (through a loan, capital infusion or
otherwise), they shall promptly prepay all or a portion of the Interim Capital
Assistance in an amount equal to the amount of financing so obtained.
(d) Application of Prepayments. Any such mandatory or optional
--------------------------
prepayments shall be applied first to accrued interest to the date of such
prepayment and then to the outstanding principal amount of the Interim Capital
Assistance.
4. Interest.
---------
(a) The Shareholder[s] shall pay interest on the outstanding
principal balance of the Interim Capital Assistance for the first full calendar
quarter after Association Closing and for each calendar quarter thereafter until
the maturity (whether at stated maturity, by acceleration or otherwise) of the
Interim Capital Assistance. Each interest payment is due and payable on the
first Thursday of the month following the end of the preceding calendar quarter.
Interest shall accrue at an initial rate per annum of __.__ % which is no
greater than the Corporation's Cost of Funds as of the end of the most recently
completed calendar quarter prior to Association Closing. The interest rate will
be adjusted every calendar quarter thereafter based on the Corporation's Cost of
Funds as of the end of the most recently completed calendar quarter prior to the
interest payment being due. Interest on Optional and Mandatory Prepayments of
Assistance shall be due and payable pursuant to Section 3.
(b) In the event that any amount of principal or interest on the
Interim Capital Assistance or any other amount payable hereunder or under the
Promissory Note is not paid in full when due, the Shareholder[s] agree to pay
interest on such unpaid principal and accrued interest or other amount, for each
day from the date such amount became due until the date paid, at a rate which is
no greater than the sum of the Corporation's Cost of Funds as of the end of the
most recently completed calendar quarter plus 300 basis points or, if less, the
----
maximum amount of interest permissible by law to be charged on such unpaid
principal or other amount payable hereunder or thereunder. This interest rate
will be adjusted every calendar quarter thereafter based on the Corporation's
Cost of Funds plus 300 basis points as of the end of the most recently completed
calendar quarter prior to the interest payment being due.
5. Events of Default. If any one or more of the following events
-----------------
(each, an "Event of Default") shall occur and be continuing, it shall constitute
an Event of Default:
5
<PAGE>
(a) The Shareholder[s] shall fail to pay any amount of principal
or interest on the Interim Capital Assistance or the Promissory Note or any
other amount payable hereunder or thereunder when due; or
(b) Any representation or warranty by one or more of the
Shareholder[s] or the Assuming Institution in this Agreement or any other
Interim Capital Assistance Document shall prove to have been incorrect when
made; or
(c) One or more of the Shareholder[s] or the Assuming
Institution shall fail in any material respect to perform or observe any term,
covenant or agreement contained in this Agreement or any other Interim Capital
Assistance Document to which it is a party; or
(d) One or more of the Shareholder[s) or the Assuming
Institution shall fail to perform or observe any term, covenant or agreement
contained in any Interim Capital Assistance Document to which they are a party
or shall revoke or repudiate their obligations under any such Interim Capital
Assistance Document; or
(e) One or more of the Shareholder[s] or the Assuming
Institution shall admit in writing their inability to, or shall fail generally
or be generally unable to, pay their debts as such debts become due, or shall
make a general assignment for the benefit of creditors; or shall have filed a
voluntary petition in bankruptcy, a petition for dissolution, or filed a
petition or answer seeking reorganization, to effect a plan or other arrangement
with creditors or any other relief under any state or federal law relating to
bankruptcy or reorganization granting relief to debtors, or shall file an answer
admitting the jurisdiction of the court and the material allegations of any
involuntary petition filed against it; or any order for relief shall be entered
against one or more of the Shareholder[s] or the Assuming Institution in any
involuntary proceeding under any such state or federal law, or one or more of
the Shareholder[s] or the Assuming Institution shall be adjudicated bankrupt, or
shall make an assignment for the benefit of creditors, or shall apply for the
appointment of any custodian, conservator, receiver, or trustee for all or any
substantial part of their property, or shall take any action to authorize any of
the actions set forth in this subsection (e); or any involuntary petition
seeking any of the relief specified in this subsection (e) shall be filed
against one or more of the Shareholder[s] and shall not be dismissed or stayed
within 60 days; or any order shall be issued under state or federal law
appointing a conservator or receiver for the Assuming Institution.
(g) The Stock Pledge Agreement, shall for any reason cease or
fail to create a valid and perfected first priority lien on any of the
collateral purported to be covered thereby; or
6
<PAGE>
(h) Any event[s] shall occur which give reasonable grounds to
conclude, in the judgement of the Corporation, that one or more of the
Shareholder[s] or the Assuming Institutions will not, or will be unable to,
perform or observe their obligations under the Promissory Note, this Agreement
or any other Interim Capital Assistance Document.
6. Acceleration. If any such Event of Default shall occur: (i) the
------------
Corporation, in its sole discretion, may declare the entire unpaid principal
amount of the Interim Capital Assistance and the Promissory Note, all interest
accrued and unpaid thereon and all other amounts payable under this Agreement
and any other Interim Capital Assistance Document to be immediately due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by each of the Shareholder[s] and the
Assuming Institution; and (ii) the Corporation may immediately, and whether or
not the actions specified in clause (i) have been taken, exercise any or all of
the Corporation's rights and remedies under any other Interim Capital Assistance
Document, including, without limitation, the rights of a secured party pursuant
to the Uniform Commercial Code; provided further, that for any Event of Default
----------------
other than the voluntary or involuntary appointment of a conservator or receiver
for the Assuming Institution, the Corporation shall, prior to accelerating the
Promissory Note as provided in this Section, give the Shareholders written
notice of default which shall specify the circumstances constituting the Event
of Default; Shareholders shall have the right to cure the Event of Default
within 30 days of the date of mailing of the notice in the case of any Event of
Default described in Section 5(a) of this Agreement, or 60 days in the case of
any other Event of Default.
7. Consent to Appointment of Conservator or Receiver. The
-------------------------------------------------
Shareholder[s] and the Assuming Institution hereby acknowledge and agree that in
the event any amount of principal or interest hereunder is not paid when due
(whether at stated maturity, by acceleration or otherwise), such default, if not
cured by the Shareholders as provided in Section 6 above, shall constitute
grounds for the appointment of a conservator or receiver of the Assuming
Institution pursuant to Federal law, including without limitation, the FDIA, as
amended, 12 U.S.C. Section 1821(c)(5), by the appropriate primary federal
regulator, and each of the Shareholder[s] and the Assuming Institution hereby
consent to any such appointment of a conservator or receiver by the appropriate
primary federal regulator and waive any and all right to contest any such
appointment.
8. Negative Covenants of Shareholder[s] and the Assuming Institution.
-----------------------------------------------------------------
Until all of the Assuming Institution's obligations under this Agreement and the
Shareholders' obligations under this Agreement and the Promissory Note have been
discharged,
7
<PAGE>
the Assuming Institution will not:
(a) Declare or pay any dividends, or issue any of its capital
stock or any options or other rights in respect thereto, or repurchase, redeem,
retire or otherwise acquire for value any of its outstanding capital stock, or
make any distribution of its assets to any of its Shareholders or Holding
Company as such, provided however that dividends may be paid if; (i) there is no
----------------
Event of Default in existence under this Agreement or the Promissory Note, (ii)
the Assuming Institution would not cause an Event of Default under this
Agreement or Promissory Note by the declaration or payment of any such
dividends, and (iii) the declaration or payment of such dividends are not
prohibited or objected to by the Assuming Institution's primary federal
regulator.
(b) Make any loan or advance to any Shareholder[s] or Holding
Company or to any Affiliate of the Assuming Institution, Shareholder[s] or
Holding Company, or enter into any other transaction with any Shareholder[s] or
Holding Company or any Affiliate of the Assuming Institution, Shareholder[s] or
Holding Company, including, without limitation, any transaction involving the
purchase, sale, exchange or lease of property or the provision of services
(other than standard deposit transactions entered into in the ordinary course of
business on terms no less favorable to the Assuming Institution than it would
obtain in an arm's length deposit transaction with a person not such a
Shareholder[s] or Holding Company or an Affiliate), provided however, the
----------------
Assuming Institution may enter into transactions with its Affiliated mortgage
and consumer finance companies so long as any such transaction does not require
the Assuming Institution to repurchase any loans from its Affiliated companies
or any other Affiliate or third party purchaser which would result in any loss
to the Assuming Institution;
(c) Increase the compensation of, or pay any bonuses to, any of
its officers, directors or key employees, provided however, that compensation
----------------
for officers, directors or key employees may be increased in the second year of
operations of the Assuming Institution and in each year thereafter so long as
this Agreement is in effect and all such increases shall be pre-approved in
writing by the Corporation.
(d) Sell, assign, lease or otherwise dispose of all or
substantially all of its assets, or enter into any merger or consolidation, or
agree to do any of the foregoing, unless the performance of such agreement is
conditioned on the prior or simultaneous repayment, in full, of the Interim
Capital Assistance, provided however that the Assuming Institution may
----------------
reorganize its branch structure subject to written approval from its regulators;
or
8
<PAGE>
(e) Enter into any agreement providing for a change of control
of the Assuming Institution prior to the date of repayment, in full, of the
Interim Capital Assistance (whether by stated maturity, acceleration or
otherwise), plus accrued interest, unless the performance of such agreement is
conditioned on the prior or simultaneous repayment, in full, of the Interim
Capital Assistance.
9. Affirmative Covenants of Shareholder[s] and the Assuming
--------------------------------------------------------
Institution.
- -----------
(a) Until all of the Shareholder[s] and Assuming Institution's
obligations under this Agreement and the Promissory Note have been discharged,
the Assuming Institution will:
(i) Maintain its core capital, tangible capital and risk-
based capital (calculated in accordance with the regulations prescribed by the
OTS in an amount equal to at least 75% of the amount of its core capital,
tangible capital and risk based capital on the first Business Day following the
date of Association Closing;
(ii) Comply with all applicable laws, rules, regulations
and orders, including, without limitation, rules and regulations of the OTS;
(iii) Provide monthly financial reports to the Corporation
or its successor in such form as the Corporation or its successor may reasonably
request in order to monitor the financial condition and capital ratios of the
Assuming Institution;
(iv) Permit representatives of the Corporation or its
successor, at any reasonable time and from time to time, to examine the books
and records of the Assuming Institution at its place of business;
(v) Conduct its operations in a prudent and businesslike
manner; and
(vi) maintain insurance with responsible and reputable
insurers in such amounts and covering such risks as is carried by financial
institutions engaged in similar businesses and owning similar properties,
including, without limitation, fire, extended coverage, business interruption,
public liability, property damage, worker's compensation, banker's blanket bond,
directors and officers, and errors and omissions, all as reasonably determined
by the Corporation or its successor.
(b) Prior to the date of repayment, in full, of the principal
amount of the Interim Capital Assistance (whether by stated maturity,
acceleration or otherwise), plus accrued interest,
9
<PAGE>
and until all of the Shareholder[s] and the Assuming Institution's obligations
under this Agreement have been discharged, the Assuming Institution will remain
at all times a Minority Institution.
10. Assuming Institution Representations and Warranties. The Assuming
---------------------------------------------------
Institution hereby represents and warrants to the Corporation as follows:
(a) Capitalization. 100% of the issued and outstanding shares of
--------------
capital stock of the Assuming Institution are the Pledged Shares, all of which
are validly issued, fully paid and nonassessable. No securities convertible into
or exchangeable for any shares of capital stock of the Assuming Institution, or
any options, warrants or other commitments entitling any person to purchase or
otherwise acquire any shares of capital stock of the Assuming Institution, are
issued and outstanding. The Shareholder[s] listed on Schedule 1 to the Stock
Pledge Agreement are the record and beneficial owners of the Pledged Shares.
None of the Pledged Shares has been transferred in violation of the securities
registration, securities disclosure or similar laws of any jurisdiction to which
such transfer may be subject.
(b) Authorization. The execution and delivery of this Agreement
-------------
and the other Interim Capital Assistance Documents to which it is a party, and
performance by the Assuming Institution of its obligations hereunder and
thereunder, the execution and delivery of each Interim Capital Assistance
Document to which it is a party by each of the Shareholder[s] and performance of
their obligations thereunder, and the consummation of the transactions
contemplated hereby and thereby, have been duly authorized by all necessary
corporate action on the part of the Assuming Institution and each of the
Shareholder[s]. This Agreement and the other Interim Capital Assistance
Documents each have been duly executed and delivered and, upon receipt of the
regulatory approvals or waivers contemplated by this Agreement, will constitute
a legal, valid and binding obligation of the Assuming Institution and each of
the Shareholder[s], as the case may be, enforceable in accordance with their
respective terms subject to bankruptcy, insolvency, reorganization or similar
laws affecting the enforcement of creditors rights generally and to general
principles of equity.
(c) No Conflict. Except as previously disclosed to the
-----------
Corporation in writing, the execution, delivery and performance of this
Agreement and the other Interim Capital Assistance Documents by the Assuming
Institution, the execution, delivery and performance of each Interim Capital
Assistance Document to which it is a party by each of the Shareholder[s], and
the consummation of the transactions contemplated hereby and thereby, will not
(i) violate or conflict with any provision of the charter or bylaws of the
Assuming Institution or any Holding Company or any law, rule,
10
<PAGE>
or regulation affecting the Assuming Institution or any of the Shareholder[s] or
by which the Assuming Institution or any of the Shareholder[s] is bound, the
violation of which could have a material adverse effect on the financial
condition of the Assuming Institution or any of the Shareholder[s], as the case
may be, or (ii) violate or conflict with any order, judgement, award,
administrative interpretation, injunction, writ, decree or the like affecting
the Assuming Institution or any of the Shareholder[s] or by which the Assuming
Institution or any of the Shareholder[s] is bound, the violation of which could
have a material adverse effect on the operations or financial condition of the
Assuming Institution or any of the Shareholder[s], as the case may be, or (iii)
result in a breach of or constitute a default under any indenture or other
material agreement to which the Assuming Institution or any of the
Shareholder[s] is a party or by which the Assuming Institution or any of the
Shareholder[s] or any material portion of its respective properties is bound.
(d) Regulatory Approvals. No authorization, consent, approval,
--------------------
license, exemption or other action by, or notice to or registration or filing
with any governmental authority or administrative or regulatory body is required
for either the execution, delivery or performance of this Agreement and the
other Interim Capital Assistance Documents to which the Assuming Institution is
a party, or the execution, delivery and performance of each Interim Capital
Assistance Document to which any of the Shareholder[s] is a party, or the
consummation of the transactions contemplated hereby and thereby, except such as
shall have been made or obtained prior to the date of Association Closing.
(e) Absence of Litigation. Except as previously disclosed to the
---------------------
Corporation in writing, there are no pending or threatened actions, suits or
proceedings before any court, governmental agency, arbitrator or instrumentality
affecting the Assuming Institution or any of the Shareholder[s] which (i) if
determined adversely to Assuming Institution or any of the Shareholder[s],
could reasonably be expected, individually or in the aggregate, to materially
affect the financial condition, properties or operation of the Assuming
Institution or any of the Shareholder[s] or (ii) purport to affect the legality,
validity or enforceability of this Agreement or any other Interim Capital
Assistance Document.
(f) Accuracy of Application and Affidavit. All statements and
-------------------------------------
information provided by the Shareholder[s] and the Assuming Institution in the
Application and the Affidavit are true and correct on and as of the date hereof
as if made on and as of the date hereof. Such Interim Capital Assistance
Documents do not fail to state a material fact necessary to make the statements
made therein not misleading.
11
<PAGE>
(g) Minimum Capital Requirement. The Interim Capital Assistance
---------------------------
does not exceed two-thirds (2/3) of the amount necessary to maintain the
Assuming Institution's ratio of tangible capital to total assets (after the
reduction of the tangible capital due to the payment of the premium) at the
percentage level that existed prior to Association Closing.
11. Conditions. The obligation of the Corporation to make the Interim
----------
Capital Assistance is subject to the satisfaction of the following conditions:
(a) Compliance. The Assuming Institution and each of the
----------
Shareholder[s] shall have complied in all material respects with each of the
covenants and agreements contained herein which are required to be performed or
complied with by them on or prior to the date such Interim Capital Assistance is
provided.
(b) Accuracy of Representations. Each of the representations and
---------------------------
warranties contained in Section 10 shall be true and correct in all material
respects on the date such Interim Capital Assistance is made as if made at and
as of such date.
(c) Officer's Certificate. The Corporation shall have received a
---------------------
certificate, dated the date of Association Closing, of the chief executive
officer of the Assuming Institution certifying as to the matters specified in
subsections (a) and (b) of this Section 11, which shall constitute a
representation of the Assuming Institution with respect thereto.
(d) Purchase and Assumption Transaction. The Receiver and the
-----------------------------------
Assuming Institution shall have entered into the Purchase and Assumption
Agreement and the Corporation shall have received evidence satisfactory to it
that the conditions precedent set forth in the Purchase and Assumption Agreement
shall have been satisfied or waived and that the Purchase and Assumption
Agreement shall have become effective in accordance with its terms.
(e) Other Interim Capital Assistance Documents. Each of the
------------------------------------------
Shareholder[s] of the Assuming Institution shall have executed and delivered to
the Corporation the Promissory Note and one or more Stock Pledge Agreement[s].
(f) Legal Opinion. Counsel for the Receiver shall have received
-------------
an opinion from counsel for the Assuming Institution, in form and substance
satisfactory to counsel for the Receiver, dated the date of Association Closing,
which confirms that the Assuming Institution is a Minority Institution as
defined in Section 21A(s) of the FHLBA, 12 U.S.C. 1441a(s).
12
<PAGE>
12. Miscellaneous.
-------------
(a) Entire Agreement. This Agreement and the other Interim
----------------
Capital Assistance Documents and any Related Agreements embody the entire
agreement of the Parties in relation to the subject matter herein and therein
and supersede all prior understandings or agreements, oral or written, between
the Parties.
(b) Headings. The headings and subheadings of the Articles and
--------
Sections contained in this Agreement, except the terms identified for definition
in Section 1 of this Agreement, are inserted for convenience only and shall not
affect the meaning or interpretation of this Agreement or any provision
thereof.
(c) Counterparts This Agreement may be executed in any number of
------------
counterparts and by the duly authorized representative of a different Party on
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
Agreement.
(d) GOVERNING LAW. THE AGREEMENT AND THE RIGHTS AND OBLIGATIONS
-------------
UNDER THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
FEDERAL LAW OF THE UNITED STATES OF AMERICA, AND IN THE ABSENCE OF CONTROLLING
FEDERAL LAW, IN ACCORDANCE WITH THE LAWS OF THE STATE SPECIFIED IN THE PURCHASE
AND ASSUMPTION AGREEMENT.
(e) Successors. Subject to the limitations of subsection (f) of
----------
this Section 12, subsection (e) of Section 8, and subsection (b) of Section 9,
all terms and conditions of the Agreement shall be binding on the successors and
assigns of the Corporation, the Assuming Institution and each of the
Shareholder[s]. Except as otherwise specifically provided in the Agreement,
nothing expressed or referred to in the Agreement is intended or shall be
construed to give any Person other than the Corporation, the Assuming
Institution and the Shareholder[s] any legal or equitable right, remedy or claim
under or with respect to this Agreement or any provisions contained herein, it
being the intention of the Parties that this Agreement, the obligations and
statements of responsibilities thereunder, and all other conditions and
provisions thereof are for the sole and exclusive benefit of the Corporation,
the Assuming Institution and Shareholder[s] and for the benefit of no other
person.
(f) Modification; Assignment. No amendment or other
------------------------
modification, rescission, release, annulment or assignment of any part of this
Agreement shall be effective except pursuant to a written agreement subscribed
by the duly authorized representatives of the Parties.
13
<PAGE>
(g) Notice. Any notice, request, demand, consent, approval or
------
other communication to any Party hereto shall be effective when received and
shall be given in writing, and delivered in person against receipt therefor, or
sent by certified mail, postage prepaid or courier service to its address set
forth below or at such other address or number as it shall hereafter furnish in
writing to the others. All such notices and other communications shall be deemed
given on the date received by the addressee.
<TABLE>
<CAPTION>
CORPORATION Shareholder[s] and Assuming
- ----------- ---------------------------
<S> <C>
Institution
-----------
RESOLUTION TRUST CORPORATION PAN AMERICAN BANK, FSB
801 17th Street, N.W. 1300 South El Camino Real
Washington, DC 20006 San Mateo, CA 94401
Attention: Vice President Attention: President
Department of Resolutions
With copies to: Senior Counsel for Resolutions
Resolution Trust Corporation
</TABLE>
(h) Waiver. Each of the Parties may waive their respective
------
rights, powers or privileges under this Agreement; provided, that such waiver
-------- ----
shall be in writing; and further provided, that no failure or delay on the part
------- -------- ----
of the Corporation, the Shareholder[s] or the Assuming Institution to exercise
any right, power or privilege under this Agreement shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
by the Corporation, the Shareholder[s], or the Assuming Institution under the
terms of this Agreement, nor will any such waiver operate or be construed as a
future waiver of such right, power or privilege under this Agreement.
(i) Costs, Fees and Expenses. Each Party hereto agrees to pay
------------------------
all costs, fees and expenses which it had incurred or will incur, in connection
with or incidental to the matters contained in this Agreement, including without
limitation any fees and disbursements to its advisers, accountants and counsel.
(j) Severability. If any provision of this Agreement is invalid
------------
or unenforceable then, to the extent possible, all of the remaining provisions
of this Agreement shall remain in full force and effect and shall be binding
upon the Parties hereto.
(k) Effectiveness This Agreement shall become effective upon the
-------------
satisfaction or waiver of the conditions set
14
<PAGE>
forth in Section 11 hereof.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as
of the day and year first above written.
<TABLE>
<CAPTION>
<S> <C>
ASSUMING INSTITUTION:
Witness: /s/ [SIGNATURE ILLEGIBLE] By: /s/ LAWRENCE J. GRILL
------------------------- -----------------------------
Its: President
----------------------------
[HOLDING COMPANY]
Witness: /s/ [SIGNATURE ILLEGIBLE] By: /s/ LAWRENCE J. GRILL
------------------------- -----------------------------
Its: President
----------------------------
SHAREHOLDER[S]
Witness: /s/ [SIGNATURE ILLEGIBLE] By: /s/ LAWRENCE J. GRILL
------------------------- --------------------------
RESOLUTION TRUST CORPORATION
Witness: By: /s/ [SIGNATURE ILLEGIBLE]
------------------------ -----------------------------
Its:
----------------------------
</TABLE>
15
<PAGE>
Exhibit 10.9
AMENDMENT NO. 1 TO
INTERIM CAPITAL ASSISTANCE AGREEMENT
------------------------------------
THIS AMENDMENT NO. 1, dated as of this 1 day of May, 1997, is made and
entered into by and among the Shareholder(s), Pan American Financial, Inc., an
insured depository institution within the meaning of the Federal Deposit
Insurance Act, as amended (the "FDIA"), 12 U.S.C. Section 1811, et seq.,
-- ---
organized and existing as a financial institution with its principal place of
business at 1300 El Camino Real, San Mateo, California, Pan American Bank, FSB
(the "Assuming Institution"), and the Federal Deposit Insurance Corporation, as
Manager of the FSLIC Resolution Fund (the successor to the assets and
liabilities of the Resolution Trust Corporation (the "RTC")), a corporation duly
organized and existing under the laws of the United states of America and having
its principal office in Washington, D.C. (the "FDIC").
RECITALS
--------
WHEREAS, the Shareholder(s), Assuming Institution, and the former RTC
entered into an Interim Capital Assistance Agreement dated as of April 29, 1994
(the "Agreement"); and
WHEREAS, subsection (f) of Section 12 of the Agreement provides, in
pertinent part, that no amendment or other modification of the Agreement shall
be effective except pursuant to a written agreement subscribed by the duly
authorized representatives of the Parties; and
WHEREAS, the Shareholder(s), Assuming Institution, and FDIC desire to amend
the Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and other good valuable consideration, the
receipt and sufficiency of which are herby acknowledged, the Shareholder(s),
Assuming Institution, and FDIC hereby agree as follows:
1. Defined Terms. Except as otherwise provided herein, capitalized
-------------
terms used in this Amendment shall have the respective meanings assigned to them
in the Agreement (such meanings to be equally applicable to both the singular
and plural forms of the terms defined).
<PAGE>
2. Negative Covenants of Shareholder(s) and Assuming Institution.
-------------------------------------------------------------
Subsection (a) of Section 8 of the Agreement is hereby amended by deleting such
subsection in its entirety and substituting in lieu thereof the following:
"(a) Declare or pay any dividends, or issue any of its capital
stock or any options or other rights in respect thereto, or repurchase,
redeem, retire or otherwise acquire for value any of its outstanding
capital stock, or make any distribution of its assets to any of its
Shareholders or Holding Company as such; provided, that dividends may be
-------- ----
paid if:
(i) used by the Shareholder(s) exclusively for payment of principal
or interest on the Promissory Note, or
(ii) The Assuming Institution has provided the FDIC with 30 days'
prior written notice of its intent to declare or pay any such dividends,
which includes a written certification from the Assuming Institution's
chief executive officer that it is in compliance with all of the conditions
set forth in clauses (A) through (E) below:
(A) the Assuming Institution has enclosed in such notice a
business plan setting forth in specific detail its plans for repayment of
the Promissory Note,
(B) the payment of any such dividends would not exceed 50% of the
net income of the Assuming Institution earned during the period in which
dividends are to be declared and paid,
(C) there is no Event of Default in existence under the Agreement
or the Promissory Note,
(D) the Assuming Institution would not cause an Event of Default
under the Agreement or the Promissory Note by the declaration or payment of
any such dividends, and
(E) the declaration or payment of any such dividends is not
prohibited or objected to by the Assuming Institution's primary Federal
regulator."
2
<PAGE>
3. Miscellaneous.
-------------
(a) Ratification: Effective Date. Except as specifically amended
----------------------------
hereby, the Agreement and the Promissory Note shall remain in full force and
effect and are hereby ratified and confirmed.
(b) Counterparts. This Amendment No. 1 may be executed in any
------------
number of counterparts and by the duly authorized representative of a different
Party on separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one and
the same Amendment.
SIGNATURE PAGE FOLLOWS
3
<PAGE>
IN WITNESS WHEREOF, the Parties have duly executed this Amendment as of the
day and year first above written.
ASSUMING INSTITUTION:
PAN AMERICAN BANK FSB
Witness: /s/ ANDREE B. MOORE By: /s/ LAWRENCE J. GRILL
-------------------------- -----------------------------
Its: President
----------------------------
SHAREHOLDERS:
PAN AMERICAN FINANCIAL, INC.
Witness: /s/ CHERYL STUDLEY By: /s/ GUILLERMO BRON
------------------------- -----------------------------
Its: Chairman
----------------------------
FEDERAL DEPOSIT INSURANCE
CORPORATION
Witness:/s/ [SIGNATURE ILLEGIBLE] By: /s/ RICHARD H. FISCHMAN
------------------------- -----------------------------
Its: RICHARD H. FISCHMAN
----------------------------
Assistant Director
4
<PAGE>
Exhibit 10.10
INTERIM CAPITAL ASSISTANCE AGREEMENT
------------------------------------
This Interim Capital Assistance Agreement (the "Agreement"), dated as
of this 29th day of April, 1994, is made and entered into by Pan American
Financial, Inc. ("Shareholders"), Pan American Bank, FSB, an insured depository
institution within the meaning of the Federal Deposit Insurance Act, as amended
(the "FDIA"), 12 U.S.C. Section 1811, et seq., organized and existing as a
------
federal savings bank with its principal place of business in San Mateo,
California, (the "Assuming Institution"), and the Resolution Trust Corporation,
in its corporate capacity (in such capacity, the "Corporation").
RECITALS
--------
WHEREAS, pursuant to Section 5(d) of the Home Owners' Loan Act, as
amended, (the "HOLA") 12 U.S.C. Section 1464(d), the Office of Thrift
Supervision ("OTS") has closed Pan American Federal Savings Bank, (the "Failed
Association") and has appointed the Resolution Trust Corporation as receiver of
the Failed Association;
WHEREAS, the Receiver has determined pursuant to Section 11(d) (2) (G)
of the FDIA, as amended (the "FDIA"), 12 U.S.C. Section 1821(d)(2)(G), that it
is appropriate and necessary to transfer certain assets and liabilities of the
Failed Association to the Assuming Institution;
WHEREAS, the parties intend that such transfer be made on the terms
and conditions set forth in the "RTC Standard Purchase and Assumption Terms and
Conditions" as that document is defined in Section 1(q) hereof;
WHEREAS, on April 1, 1992 the Corporation adopted an amended policy
statement entitled "RTC Guidelines Regarding Minority - Preference Resolutions"
(the "Guidelines") which authorizes the Corporation to provide interim capital
assistance to Minority-Owned Depository Institutions in order to preserve the
ownership characteristics and increase the number of such institutions whenever
practical and the Minority Capital Assistance Program has been established
statutorily in Section 21A(u) of the Federal Home Loan Bank Act, as amended (the
"FHLBA"), 12 U.S.C. 1441a(u).
<PAGE>
WHEREAS, the Failed Association was formerly a Minority-Owned
Depository Institution.
WHEREAS, application has been made to the Corporation to provide
interim capital assistance to the Assuming Institution pursuant to the
Guidelines in connection with the resolution of the Failed Association and, in
that connection, the Shareholders and the Assuming Institution have executed and
delivered to the Corporation an Application for Interim Capital Assistance dated
September 7, 1993 (the "Application") and a Minority Ownership Affidavit dated
September 7, 1993 (the "Affidavit").
WHEREAS, the Shareholders and the Assuming Institution have
represented that they are "Minorities" and a "Minority-Owned Depository
Institution" within the intent and definition of those terms under Sections
21A(s) and 21A(u) of the FHLBA, as amended, 12 U.S.C. Sections 1441a(s) and
1441a(u), and the Guidelines.
WHEREAS, the Corporation has agreed to provide interim capital
assistance to the Assuming Institution and each of the Shareholders for the sole
purpose of facilitating the resolution of the Failed Association on the terms
and conditions set forth in this Agreement; and
WHEREAS the Assuming Institution has executed a Purchase and
Assumption Agreement, Indemnity Agreement and Related Agreements in connection
with the resolution of the Failed Association.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter contained, the Parties hereto agree as
follows:
1. Defined Terms.
-------------
(a) Except as otherwise provided herein, capitalized terms used in
this Agreement shall have the respective meanings assigned to them in the
Standard Terms (such meanings to be equally applicable to both the singular and
plural forms of the terms defined).
(b) "Affiliate" shall have the meaning set forth in (i) in Section
---------
2(k) of the Bank Holding Company Act of 1956, as amended, 12 U.S.C. Section
1841(k); or (ii) in subsection (a) (1) (H) of Section 10 of the HOLA, 12 U.S.C.
Section 1467a(a)(l)(H), whichever is applicable.
(c) "Agreement" shall mean this Interim Capital Assistance
---------
Agreement, as amended, modified or supplemented from time to time.
2
<PAGE>
(d) "Assistance Documents" shall mean this Agreement, the
--------------------
Promissory Note, the Stock Pledge Agreement and any other document or agreement
now or hereafter delivered in connection herewith or therewith.
(e) "Collateral" shall mean the Pledged Collateral as that term
----------
is defined in the Stock Pledge Agreement.
(f) "Cost of Funds" shall mean the end of the calendar quarter
-------------
Monday Auction yield price for 13 week U.S. Treasury Bills, as quoted in
Tuesday's Wall Street Journal, plus 12.5 basis points.
(g) "Event of Default" shall have the meaning set forth in
----------------
Section 5 hereof.
(h) "Failed Association" shall mean Pan American Federal Savings
------------------
Bank, formerly a federal savings association under the HOLA, as amended, 12
U.S.C. Section 1461, et seq. and having its principal place of business in San
------
Mateo; California which was closed pursuant to Order No. __________ of the OTS.
(i) "Holding Company" shall mean any Person that is subject to the
---------------
Bank Holding Company Act of 1956, as amended, or Section 10 of the HOLA, as the
case may be, as a result of its ownership or control of all or any portion of
the outstanding capital stock of the Assuming Institution.
(j) "Lien" shall mean, with respect to any asset of any Person,
----
any mortgage, deed of trust, pledge, security interest, hypothecation,
assignment, deposit arrangement, charge, encumbrance, lien (statutory or other),
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever with respect to such asset (including, without limitation, any
conditional sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing and the filing of
any financing statement under the Uniform Commercial Code or comparable law of
any jurisdiction).
(k) "Minority" shall have the meaning as statutorily set forth in
--------
Section 21A(s) (2) (C) of the FHLBA, as amended, 12 U.S.C. 1441a(s) (2) (C).
(1) "Minority-Owned Depository Institution" shall have the meaning
-------------------------------------
set forth in Section 21A(s) (2) (A) of the FHLBA, as amended, 12 U.S.C. 1441a(s)
(2) (A).
(m) "Party" shall mean the Shareholder[s], the Assuming
-----
Institution or the Corporation and "Parties" shall mean the Shareholder[s], the
Assuming Institution, and the Corporation.
3
<PAGE>
(n) "Pledged Shares" shall mean all of the issued and outstanding
--------------
shares of capital stock of the Assuming Institution, as more specifically
described in Schedule 1 of the Stock Pledge Agreement attached hereto.
(0) "Promissory Note" shall mean the promissory note made by each
---------------
Shareholder of the Assuming Institution in connection herewith attached as
Exhibit A, which is incorporated herein by reference, and referred to in Section
2 hereof.
(p) "Receiver" shall have the meaning as set forth in the
--------
Standard Terms.
(q) "Shareholder" shall have the meaning set forth in the
-----------
Preamble to this Agreement.
(r) "Standard Terms" shall mean the RTC Standard Purchase and
--------------
Assumption Terms and Conditions (Theta version dated July 26, 1993),
incorporated by reference in (and expressly made a part of) the Whole Purchase
and Assumption Agreement dated as of April 29, 1994 (the "Purchase and
Assumption Agreement") and as supplemented, modified or amended by the Purchase
and Assumption Agreement. References to Articles, Sections, Exhibits and the
like refer to the Articles, Sections, Exhibits and the like of the Standard
Terms, as defined herein, unless otherwise indicated.
(s) "Stock Pledge Agreement" shall mean the Stock Pledge Agreement
----------------------
attached hereto as Exhibit B in favor of the Corporation made by each
Shareholder of the Assuming Institution in connection herewith and is
incorporated herein by reference.
2. Interim Capital Assistance. The Corporation hereby agrees to make
--------------------------
a term loan (the "Interim Capital Assistance") to the Shareholders in the
principal amount of $6,930,000.00. As additional evidence of the indebtedness of
the Shareholders to the Corporation resulting from the Interim Capital
Assistance, the Shareholders have executed the Promissory Note attached as
Exhibit A. The Interim Capital Assistance shall be provided upon the
consummation of the transactions contemplated by the Standard Terms and not
later than the initial payment date as set forth in Article 6 of the Standard
Terms.
3. Repayment of the Interim Capital Assistance.
-------------------------------------------
(a) Maturity. The Shareholders shall repay the outstanding
--------
principal balance of the Interim Capital Assistance with any accrued previously
unpaid interest thereon in a single lump sum installment on April 28, 1999.
4
<PAGE>
(b) Optional Prepayment. The Shareholders, at their option and
-------------------
from time to time, may prepay the outstanding principal amount of the Interim
Capital Assistance, in whole or in part.
(c) Mandatory Prepayment. If, prior to the maturity of the
--------------------
Interim Capital Assistance, the Shareholders obtain all or any material portion
of their permanent financing, they shall promptly prepay all or a portion of the
Interim Capital Assistance in an amount equal to the amount of financing so
obtained.
(d) Application of Prepayments. Any such mandatory or
--------------------------
optional prepayments shall be applied first to accrued interest to the date of
such prepayment on the amount prepaid and then to the outstanding principal
amount of the Interim Capital Assistance.
4. Interest.
--------
(a) The Shareholders shall pay interest on the outstanding
principal balance of the Assistance for the first calendar quarter after
Association Closing and for each calendar quarter thereafter until the maturity
(whether at stated maturity, by acceleration or otherwise) of the Assistance,
payable the first Thursday of the month following the end of the preceding
calendar quarter. Interest shall accrue at a rate per annum of 3.688% for the
first two (2) years. Thereafter, interest shall accrue at a variable rate to be
adjusted annually, which rate shall equal the Cost of Funds as of the end of the
most recently completed calendar quarter prior to the beginning of years three
(3), four (4), and five (5). Interest on Optional and Mandatory Prepayments of
Assistance shall be due and payable pursuant to Section 3.
(b) In the event that any amount of principal or interest on the
Interim Capital Assistance or Promissory Note or any other amount payable
hereunder or thereunder is not paid in full when due, the Shareholders agree to
pay interest on such unpaid principal and accrued interest or other amount, for
each day from the date such amount became due until the date paid, at the rate
then in effect plus 300 basis points or, if less, the maximum amount of interest
----
permissible by law to be charged on such unpaid principal or other amount
payable hereunder or thereunder.
5. Events of Default. If any one or more of the following events
-----------------
(each, an "Event of Default") shall occur and be continuing, it shall constitute
an Event of Default:
(a) The Shareholders shall fail to pay any amount of principal or
interest on the Interim Capital Assistance or the
5
<PAGE>
Promissory Note or any other amount payable hereunder or thereunder when due; or
(b) Any representation or warranty by one or more of the
Shareholders or the Assuming Institution in this Agreement or any other Interim
Capital Assistance Document shall prove to have been incorrect when made; or
(c) One or more of the Shareholders or the Assuming Institution
shall fail in any material respect to perform or observe any term, covenant or
agreement contained in this Agreement or any other Interim Capital Assistance
Document to which it is a party; or
(d) One or more of the Shareholders or the Assuming Institution
shall fail to perform or observe any term, covenant or agreement contained in
any Interim Capital Assistance Document to which they are a party or shall
revoke or repudiate their obligations under any such Interim Capital Assistance
Document; or
(e) The death or incapacity of any individual Shareholder; or
(f) One or more of the Shareholders or the Assuming Institution
shall admit in writing their inability to, or shall fail generally or be
generally unable to, pay their debts as such debts become due, or shall make a
general assignment for the benefit of creditors; or shall have filed a voluntary
petition in bankruptcy or a petition or answer seeking reorganization; to effect
a plan or other arrangement with creditors or any other relief under any state
or federal law relating to bankruptcy or reorganization granting relief to
debtors, or shall file an answer admitting the jurisdiction of the court and the
material allegations of any involuntary petition filed against it; or any order
for relief shall be entered against one or more of the Shareholders or the
Assuming Institution in any involuntary proceeding under any such state or
federal law, or one or more of the Shareholders or the Assuming Institution
shall be adjudicated bankrupt, or shall make an assignment for the benefit of
creditors, or shall apply for or consent to the appointment of any custodian,
receiver or trustee for all or any substantial part of their property, or shall
take any action to authorize any of the actions set forth in this subsection
(f); or any involuntary petition seeking any of the relief specified in this
subsection (f) ; or any involuntary petition seeking any of the relief specified
in this subsection (f) shall be filed against one or more of the Shareholders or
the Assuming Institution and shall not be dismissed or stayed within 60 days;
(g) The Stock Pledge Agreement, shall for any reason cease or
fail to create a valid and perfected first priority lien on any of the
collateral purported to be covered thereby; or
6
<PAGE>
(h) Any event shall occur which gives reasonable grounds to
conclude, in the judgement of the Corporation, that one or more of the
Shareholders or the Assuming Institutions will not; or will be unable to,
perform or observe in the normal course their obligations under the Promissory
Note, this Agreement or the other Interim Capital Assistance Documents.
6. Acceleration. If any such Event of Default shall occur: (i) the
------------
Corporation, in its sole discretion, may declare the entire unpaid principal
amount of the Interim Capital Assistance and the Promissory Note, all interest
accrued and unpaid thereon and all other amounts payable under this Agreement
and any other Interim Capital Assistance Documents to be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by each of the Shareholders; provided, that
--------
if an event of the type described in Section 5(e) hereof shall occur, the result
which would otherwise occur only upon giving of notice by the Corporation to the
Shareholders as specified above shall occur automatically, without the giving of
any such notice; and (ii) the Corporation may immediately, and whether or not
the actions specified in clause (i) have been taken, exercise any or all of the
Corporation's rights and remedies under any other Interim Capital Assistance
Document, including, without limitation, the rights of a secured party pursuant
to the Uniform Commercial Code; provided further, that the Corporation shall,
----------------
prior to taking any action as provided in this Section, give the Shareholders
written notice of default which shall specify the circumstances constituting the
Event of Default; Shareholders shall have the right to cure the Event of Default
within 30 days of the date of mailing of the notice in the case of any Event of
Default described in Section 5(a) of this Agreement, or 60 days in the case of
any other Event of Default.
7. Consent to Appointment of Conservator or Receiver. The
-------------------------------------------------
Shareholders and the Assuming Institution hereby acknowledge and agree that in
the event any amount of principal or interest hereunder is not paid when due
(whether at stated maturity, by acceleration or otherwise), such default, if not
cured by the Shareholders as provided in Section 6 above, shall constitute
grounds for the appointment of a conservator or receiver of the Assuming
Institution pursuant to the FDIA, as amended, 12 U.S.C. Section 1821(c) (5), by
the appropriate Federal Banking Regulator and each of the Shareholders and the
Assuming Institution hereby consent to any such appointment of a conservator or
receiver by the appropriate Federal Banking Regulator and waive any and all
right to contest any such appointment.
8. Negative Covenants of Shareholders and the Assuming Institution.
---------------------------------------------------------------
Until all of the Assuming Institution's obligations under this Agreement and the
Shareholders' obligations under this Agreement and the Promissory Note have been
discharged, the Assuming Institution will not:
7
<PAGE>
(a) Declare or pay any dividends, or issue any of its capital
stock or any options or other rights in respect thereto, or repurchase, redeem,
retire or otherwise acquire for value any of its outstanding capital stock, or
make any distribution of its assets to any of its Shareholders or Holding
Company as such, provided however that dividends may be paid if used by the
----------------
Shareholders exclusively for payment of principal or interest on the Promissory
Note;
(b) Make any loan or advance to any Shareholder or Holding
Company or to any Affiliate of the Assuming Institution, Shareholder or Holding
Company, or enter into any other transaction with any Shareholder or Holding
Company or any Affiliate of the Assuming Institution, Shareholder or Holding
Company, including, without limitation, any transaction involving the purchase,
sale, exchange or lease of property or the provisions of services (other than
standard deposit transactions entered into in the ordinary course of business on
terms no less favorable to the Assuming Institution than it would obtain in an
arm's length deposit transaction with a person not such a Shareholder or Holding
Company or an Affiliate), provided however, the Assuming Institution may enter
-------- -------
into transactions with its Affiliated mortgage company so long as any such
transaction does not require the Assuming Institution to repurchase any loans
from its Affiliated mortgage company or any other Affiliate or third party
purchaser which would result in any loss to the Assuming Institution;
(c) Increase the compensation of or pay any bonuses to any of its
officers, directors or key employees, provided however, that compensation for
----------------
officers, directors or key employees may be increased in the second year of
operations of the Assuming Institution and in each year thereafter so long as
this Agreement is in effect and all such increases shall be preapproved in
writing by the Corporation and provided further this exception allowing increase
-------- -------
in compensation shall not be available to officers, directors or key employees
who own 5% or more of the voting stock in the holding company (Pan American
Financial, Inc.) or its parent (Pan American Group, Inc.) or any Affiliate of
the Assuming Institution or any members of the immediate family of any
individual who owns 5% or more of such stock;
(d) Sell, assign, lease or otherwise dispose of all or
substantially all of its assets, or enter into any merger or consolidation, or
agree to do any of the foregoing; provided however that the Assuming Institution
----------------
may reorganize its branch structure subject to written approval from its
regulators; or
8
<PAGE>
(e) Enter into any agreement which effects a change of control of
the Assuming Institution prior to the expiration of one year after repayment of
the principal amount of the Interim Capital Assistance (whether by stated
maturity, acceleration or otherwise).
9. Affirmative Covenants of Shareholders and the Assuming
------------------------------------------------------
Institution.
- -----------
(a) Until all of the Shareholder's and Assuming Institution's
obligations under this Agreement and the Promissory Note have been discharged,
the Assuming Institution will:
(i) Maintain its core capital, tangible capital and risk-
based capital (calculated in accordance with the regulations prescribed by the
FDIC or OTS in an amount equal to at least 75% of the amount of its core
capital, tangible capital and risk-based capital on the first Business Day
following the date of Association Closing;
(ii) Comply with all applicable laws, rules, regulations and
orders, including, without limitation, rules and regulations of the FDIC or OTS;
(iii) Provide monthly financial reports to the Corporation or
its successor in such form as the Corporation or its successor may reasonably
request in order to monitor the financial condition and capital ratios of the
Assuming Institution;
(iv) Permit representatives of the corporation or its
successor, at any reasonable time and from time to time, to examine the books
and records of the Assuming Institution at its place of business;
(v) Conduct its operations in a prudent and businesslike
manner; and
(vi) maintain insurance with responsible and reputable
insurers in such amounts and covering such risks as is carried by financial
institutions engaged in similar businesses and owning similar properties,
including, without limitation, fire, extended coverage, business interruption,
public liability, property damage, worker's compensation, banker's blanket bond,
directors and officers, and errors and omissions, all as reasonably determined
by the Corporation or its successor.
(b) For a period of one year after repayment of the principal amount
of the Interim Capital Assistance (whether by stated maturity, acceleration or
otherwise) and all of the Shareholders' and the Assuming Institution's
obligations under this Agreement have been discharged, the Assuming Institution
will
9
<PAGE>
remain at all times a Minority-Owned Depository Institution.
10. Assuming Institution Representations and Warranties. The Assuming
---------------------------------------------------
Institution hereby represents and warrants to the Corporation as follows:
(a) Capitalization. The only issued and outstanding shares of
--------------
capital stock of the Assuming Institution are the Pledged Shares, all of which
are validly issued, fully paid and nonassessable. No securities convertible into
or exchangeable for any shares of capital stock of the Assuming Institution, or
any options, warrants or other commitments entitling any person to purchase or
otherwise acquire any shares of capital stock of the Assuming Institution, are
issued and outstanding. The Shareholders listed on Schedule 1 of the Stock
Pledge, Agreement attached hereto are the record and beneficial owners of the
Pledged Shares. None of the Pledged Shares has been transferred in violation of
the securities registration, securities disclosure or similar laws of any
jurisdiction to which such transfer may be subject.
(b) Authorization. The execution and delivery of this Agreement
-------------
and the other Interim Capital Assistance Documents to which it is a party and
performance by the Assuming Institution of its obligations hereunder and
thereunder, the execution and delivery of each Interim Capital Assistance
Document to which it is a party by each of the Shareholders and performance of
their obligations thereunder, and the consummation of the transactions
contemplated hereby and thereby, have been duly authorized by all necessary
corporate action on the part of the Assuming Institution and each of the
Shareholders. This Agreement and the other Interim Capital Assistance Documents
each have been duly executed and delivered and, upon receipt of the regulatory
approvals or waivers contemplated by this Agreement, will constitute a legal,
valid and binding obligation of the Assuming Institution and each of the
Shareholders, as the case may be, enforceable in accordance with their
respective terms subject to bankruptcy, insolvency, reorganization or similar
laws affecting the enforcement of creditors rights generally and to general
principles of equity.
(c) No Conflict. Except as previously disclosed to the
-----------
Corporation in writing, the execution, delivery and performance of this
Agreement and the other Interim Capital Assistance Documents by the Assuming
Institution, the execution, delivery and performance of each Interim Capital
Assistance Document to which it is a party by each of the Shareholders, and the
consummation of the transactions contemplated hereby and thereby, will not (i)
violate or conflict with any provision of the charter or bylaws of the Assuming
Institution or any Holding Company or any law, rule, regulation affecting the
Assuming Institution or any of the Shareholders or by which the Assuming
Institution or any of the Shareholders is bound, the violation of which could
have a material adverse effect on the financial condition of the Assuming
10
<PAGE>
Institution or any of the Shareholders, as the case may be, or (ii) violate or
conflict with any order, judgement, award, administrative interpretation,
injunction writ, decree or the like affecting the Assuming Institution or any of
the Shareholders or by which the Assuming Institution or any of the Shareholders
is bound, the violation of which could have a material adverse effect on the
operations or financial condition of the Assuming Institution or any of the
Shareholders, as the case may be, or (iii) result in a breach of or constitute a
default under any indenture or other material agreement to which the Assuming
Institution or any of the Shareholders is a party or by which the Assuming
Institution or any of the Shareholders or any material portion of its respective
properties is bound.
(d) Regulatory Approvals. No authorization, consent, approval,
--------------------
license, exemption or other action by, or notice to or registration or filing,
with any governmental authority or administrative or regulatory body is required
for either the execution, delivery or performance of this Agreement and the
other Interim Capital Assistance Documents to which the Assuming Institution is
a party, or the execution, delivery and performance of each Interim Capital
Assistance Document to which any of the Shareholders is a party, or the
consummation of the transactions contemplated hereby and thereby, except such as
shall have been made or obtained prior to the date of Association Closing.
(e) Absence of Litigation. Except as previously disclosed to the
---------------------
Corporation in writing, there are no pending or threatened actions, suits or
proceedings before any court, governmental agency, arbitrator or instrumentality
affecting the Assuming Institution or any of the Shareholders which (i) if
determined adversely to the Assuming Institution or any of the Shareholders,
could reasonably be expected, individually or in the aggregate, to materially
affect the financial condition, properties or operation of the Assuming
Institution or any of the Shareholders or (ii) purport to affect the legality,
validity or enforceability of this Agreement or any other Interim Capital
Assistance Document.
(f) Accuracy of Application and Affidavit. All statements and
-------------------------------------
information provided by the Shareholders and the Assuming Institution in the
Application and the Affidavit are true and correct on and as of the date hereof
as if made on and as of the date hereof. Such Interim Capital Assistance
Documents do not fail to state a material fact necessary to make the statements
made therein not misleading.
(g) Minimum Capital Requirement. The Interim Capital Assistance
---------------------------
does not exceed two-thirds (2/3) of the required minimum capital of the Assuming
Institution.
11
<PAGE>
11. Conditions. The obligation of the Corporation to make the Interim
----------
Capital Assistance is subject to the satisfaction of the following conditions:
(a) Compliance. The Assuming Institution and each of the
----------
Shareholders shall have complied in all material respects with each of the
covenants and agreements contained herein, which are required to be performed or
complied with by them on or prior to the date such Interim Capital Assistance is
provided.
(b) Accuracy of Representations. Each of the representations and
---------------------------
warranties contained in Section 10 shall be true and correct in all material
respects on the date such Interim Capital Assistance is made as if made at and
as of such date.
(c) Officer's Certificate. The Corporation shall have received a
---------------------
certificate, dated the date of Association Closing, of the chief executive
officer of the Assuming Institution and the Shareholders certifying as to the
matters specified in subsections (a) and (b) of this Section 11, which shall
constitute a representation of the Assuming Institution and its Shareholders
with respect thereto.
(d) Purchase and Assumption Transaction. The Receiver and the
-----------------------------------
Assuming Institution shall have entered into the Standard Terms and the
Corporation shall have received evidence satisfactory to it that the conditions
precedent set forth in the Standard Terms shall have been satisfied or waived
and that the Standard Terms shall have become effective in accordance with its
terms.
(e) Other Interim Capital Assistance Documents. Each Shareholder
------------------------------------------
of the Assuming Institution shall have executed and delivered to the Corporation
one or more than one Stock Pledge Agreement[s].
12. Miscellaneous.
-------------
(a) Entire Agreement. This Agreement and the other Interim
----------------
Capital Assistance Documents embody the entire agreement of the Parties in
relation to the subject matter herein and therein and supersede all prior
understandings or agreements, oral or written, between the Parties.
(b) Headings. The headings and subheadings of the Articles and
--------
Sections contained in this Agreement, except the terms identified for definition
in Article 1 of the Standard Terms and elsewhere in this Agreement, are inserted
for convenience only and shall not affect the meaning or interpretation of this
Agreement or any provision thereof.
12
<PAGE>
(c) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the duly authorized representative of a different Party on
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
Agreement.
(d) GOVERNING LAW. THE AGREEMENT AND THE RIGHTS AND OBLIGATIONS
-------------
UNDER THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
FEDERAL LAW OF THE UNITED STATES OF AMERICA, AND IN THE ABSENCE OF CONTROLLING
FEDERAL LAW, IN ACCORDANCE WITH THE LAWS OF THE STATE SPECIFIED IN THE STANDARD
TERMS.
(e) Successors. Subject to the limitations of subsection (f) of
----------
this Section 12, subsection (e) of Section 8, and subsection (b) of Section 9,
all terms and conditions of the Agreement shall be binding on the successors and
assigns of the Corporation, the Assuming Institution and each of the
Shareholders. Except as otherwise specifically provided in the Agreement,
nothing expressed or referred to in the Agreement is intended or shall be
construed to give any Person other than the Corporation, the Assuming
Institution and the Shareholders any legal or equitable right, remedy or claim
under or with respect to this Agreement or any provisions contained herein, it
being the intention of the Parties that this Agreement, the obligations and
statements of responsibilities thereunder, and all other conditions and
provisions thereof are for the sole and exclusive benefit of the Corporation,
the Assuming Institution and Shareholders and for the benefit of no other
person.
(f) Modification; Assignment. No amendment or other modification,
------------------------
rescission, release, annulment or assignment of any part of this Agreement shall
be effective except pursuant to a written agreement subscribed by the duly
authorized representatives of the Parties.
(g) Notice. Any notice, request, demand, consent, approval or
------
other communication to any Party hereto shall be effective when received and
shall be given in writing, and delivered in person against receipt therefor, or
sent by certified mail, postage prepaid or courier service to its address set
forth below or at such other address or number as it shall hereafter furnish in
writing to the others. All such notices and other communications shall be deemed
given on the date received by the addressee.
13
<PAGE>
<TABLE>
<CAPTION>
CORPORATION SHAREHOLDERS
- ----------- ------------
<S> <C>
RESOLUTION TRUST CORPORATION Pan American Financial, Inc.
801 17th Street, N.W. c/o Bastion Capital
Washington, DC 20006 1999 Avenue of the Stars, #2800
Los Angeles, California 90067
Attention: J. Paul Ramey
Vice President Attention: Mr. Guillermo Bron
Department of Resolutions
cc: Assistant General Counsel ASSUMING INSTITUTION
Resolution Trust Corporation --------------------
4000 MacArthur Boulevard Pan American Bank, FSB
Newport Beach, CA 92660 1300 South El Camino Real
and P.O. Box 2079
San Mateo, California 94402
Vice President Attention: Lawrence J. Grill
Resolution Trust Corporation President
4000 MacArthur Boulevard
Newport Beach, CA 92660
</TABLE>
(h) Waiver. The Corporation, the Shareholders, and the Assuming
------
Institution may waive their respective rights, powers or privileges under this
Agreement; provided, that such waiver shall be in writing; and further provided,
-------- ---- ------- --------
that no failure or delay on the part of the Corporation, the Shareholders or the
- ----
Assuming Institution to exercise any right, power or privilege under this
Agreement shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege by the Corporation, the Shareholders, or
the Assuming Institution under the terms of this Agreement, nor will any such
waiver operate or be construed as a future waiver of such right, power or
privilege under this Agreement.
(i) Costs, Fees and Expenses. Each Party hereto agrees to pay all
------------------------
costs, fees and expenses which it had incurred or will incur, in connection with
or incidental to the matters contained in this Agreement, including without
limitation any fees and disbursements to its advisers, accountants and counsel.
(j) Severability. If any provision of this Agreement is invalid
------------
or unenforceable then, to the extent possible, all of the remaining provisions
of this Agreement shall remain in full force and effect and shall be binding
upon the Parties hereto.
(k) Effectiveness. This Agreement shall become effective upon the
-------------
satisfaction or waiver of the conditions set
14
<PAGE>
forth in Section 11 hereof.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as
of the day and year first above written.
SHAREHOLDERS:
Pan American Financial, Inc.
By: /s/ WILLIAM (GUILLERMO) BRON
------------------------------------
Printed Name: William (Guillermo) Bron
Title: Chairman of the Board
ASSUMING INSTITUTION:
Pan American Bank, FSB
By: /s/ WILLIAM (GUILLERMO) BRON
------------------------------------
Printed Name: William (Guillermo) Bron
Title: Chairman of the Board
RESOLUTION TRUST CORPORATION
By: /s/ LEWIS W. FRALIN
------------------------------------
Printed Name: Lewis W. Fralin
Title: Director of Resolutions
15
<PAGE>
EXHIBIT 10.11
[Letterhead of the Resolution Trust Corporation]
March 2, 1995
Lawrence J. Grill
Chief Executive Officer
Pan American Bank, FSB
1300 South El Camino Real
P.O. Box 2079
San Mateo, CA 94401-0986
Re: Waiver of Certain Provisions of Interim
Capital Assistance Agreement dated April 29,
1994 and September 9, 1994.
Dear Mr. Grill:
This is in response to letters from you and your counsel dated August
24, September 6, and December 2, 1994, requesting waivers or modifications of
certain provisions of the Interim Capital Assistance Agreements dated April 29,
1994 ("April ICA") and September 9, 1994 ("September ICA") by and between Pan
American Financial Inc. ("PAFI"), Pan American Bank, FSB, San Mateo, California
("Pan American") and the Resolution Trust Corporation ("RTC"), (collectively,
the "ICA Agreements") and the associated April 29, 1994 ("April Stock Pledge
Agreement") and September 9, 1994 ("September Stock Pledge Agreement") Stock
Pledge Agreements (collectively, the "Stock Pledge Agreements"). Those requests
were made in connection with the September 9, 1994 resolution of Western Federal
Savings Bank ("Western FSB"), in which Pan American assumed the deposits of the
Panorama City Branch and executed an additional Interim Capital Assistance
Agreement, and related documents, which provided an additional ICA loan. As you
know, our definitive response to those requests was delayed until your recent
delivery of the shares of stock required to be pledged with the RTC pursuant to
the September ICA and September Stock Pledge Agreement.
Your requests were primarily for modifications to: (a) allow Pan
American to issue additional stock to PAFI to facilitate a capital infusion
required by the Office of Thrift Supervision, (b) delete the April ICA
provisions prohibiting a change of control, and requiring maintenance of
minority status, during the twelve months after repayment of the April ICA loan,
and (c) permit Pan American to sell loans to, and repurchase
1
<PAGE>
loans from, its consumer finance affiliate, subject to the same restrictions
that apply to such transactions with your affiliated mortgage company.
According to your letters, OTS conditioned its approval of Pan
American's acquisition of the Panorama City Branch of Western FSB from the RTC
on Pan American increasing its capital by approximately $750,000. To comply
with this regulatory requirement, Pan American issued an additional 75,000
shares of common stock, at $10 a share, to PAFI on or about September 9, 1994.
Your letters also indicate that Pan American issued an additional 400,000 shares
of common stock to PAFI an or about September 9, 1994 in consideration of PAFI
downstreaming the $4 Million in ICA provided by the RTC in connection with the
resolution of Western.
On January 18, 1995 you tendered Pan American Bank, F.S.B. Stock
Certificate No. 2, representing the 475,000 shares of common stock. You have
represented that the RTC now holds all of the issued and outstanding common
stock -- 1,610,000 shares -- of Pan American Bank, F.S.B., San Mateo,
California. You have also agreed that all such shares shall serve as collateral
for the ICA, Stock Pledge and other ICA Agreements previously executed by and
between PAFI, Pan American and the RTC.
Based on your representations, we have determined to grant your
requests as noted below.
1. Capital Infusion Modifications
Your requests for a partial waiver of subsections 3(c) and 8(a) of the
ICA Agreements and sections 7 and 8 of the Stock Pledge Agreements are granted
to the extent necessary to permit Pan American's previous issuance of an
additional 475,000 shares of capital stock to PAFI, provided that the $4,750,000
infusion of capital into Pan American has been completed and that such funds
remain in Pan American as capital and, provided further, that such additional
475,000 shares of stock which have been transferred to the custody of the RTC
shall be considered "Pledged Shares" under the ICA Agreements and the Stock
Pledge Agreements.
2. Affiliated Transactions
Your request for a revision of Section 8(b) of the April ICA to
conform it to Section 8(b) of the September ICA which expands the mortgage
company affiliate exception to include Pan American's consumer finance company
affiliate is granted to the extent necessary to permit Pan American to sell
loans to, and
2
<PAGE>
repurchase loans (not resulting in a loss to Pan American) from, its consumer
finance affiliate.
3. Change of Control/Minority Status
Your request for a revision of the Provisions of Sections 8(e) and
9(b) of the April ICA to conform them to Sections 8(e) and 9(b) of the September
ICA to the extent necessary to remove the prohibition against entering into a
change of control agreement, and the requirement that Pan American maintain its
status as a minority institution, during the twelve months after the ICA loan
has been repaid and satisfied in full is granted. However the change in control
prohibition and minority status requirement remain in full force and effect
until the repayment in full of that loan and until full satisfaction of all
other provisions of the April ICA agreement. This modification is intended to
make the terms of the April and September ICA agreements consistent on this
issue.
4. Corporate Reorganizations
Your request for a revision of Section 8(d) of the April ICA Agreement
to conform it to Section 8(d) of the September ICA Agreement, which permits
specified corporate transactions if the ICA's repayment is a condition of the
transaction, is granted.
5. Events of Default
In addition, it is hereby agreed that compliance with the provisions
of the ICA Agreements and Stock Pledge Agreements, as amended by this letter
agreement, shall not constitute an Event of Default under those Agreements.
6. Stock Pledge Schedules
Schedules 2, 3 and 4 of the Stock Pledge Agreements are also hereby
amended to reflect the additional 475,000 shares of common stock pledged as a
result of the September ICA and associated stock sale.
7. Effective Date of Changes
The revisions and modifications to the April ICA and April Stock
Pledge Agreements become effective as of the effective dates of the September
ICA and September Stock Pledge Agreements when this letter is signed by you, in
the space provided below, and returned to me.
3
<PAGE>
Except to the extent expressly waived or modified herein, all of the
terms, provisions, covenants and conditions contained in the ICA Agreements, the
Stock Pledge Agreements and in any of the other documents, instruments, and
agreements executed in connection with those documents remain unchanged and in
full force and effect.
If you have any questions regarding this letter please contact Gregory
B. Smith, Senior Counsel, at (202) 736-3013 or Edward Thomas, Financial Analyst,
at (202) 416-7179.
Sincerely yours,
/s/ J. PAUL RAMEY
-----------------
J. Paul Ramey,
Vice President,
Division of Resolutions
Agreed to on April 25, 1995.
By: /s/ LAWRENCE J. GRILL
---------------------
Lawrence J. Grill
Chief Executive Officer
Pan American Bank, FSB
Witness: /s/ ROBERT B. WILSON
--------------------
Name: Robert B. Wilson
Title: Executive Vice President
cc: Herbert J. Held
H. Ronald Hoch
Edward Thomas
Jay Earle
Gregory B. Smith, Esq.
Patrick J. McCarty, Esq.
4
<PAGE>
EXHIBIT 10.12
PROMISSORY NOTE
---------------
$4,000,000.00 September 9, 1994
FOR VALUED RECEIVED, Pan American Financial, Inc. (the
"Shareholders"), jointly and severally, to the extent of the Pledged Shares,
hereby unconditionally promise to pay to the order of the RESOLUTION TRUST
CORPORATION in its corporate capacity (the "Corporation") on September 8, 1999
the principal sum of Four Million Dollars ($4,000,000.00).
The Shareholders further promise to pay interest on the aggregate
principal balance outstanding hereunder from time to time until the maturity
thereof (whether at stated maturity, by acceleration or otherwise) at the
interest rate and in the manner set forth in the Interim Capital Assistance
Agreement of even date herewith (the "Interim Capital Assistance Agreement") by
and among __________________________, the Shareholders and the Corporation.
Interest shall be payable in arrears. All payments hereon shall be applied
first to the payment of accrued interest and the balance shall be applied to
principal.
Both principal and interest are payable in lawful money of the United
States of America in immediately available funds to the Resolution Trust
Corporation, at its main office at 801 17th Street, N.W., Washington, D.C.
20434, or such other place as the Corporation may designate in writing.
This promissory note is referred to and is made pursuant to the terms
and conditions set forth in the Interim Capital Assistance Agreement as
supplemented, modified or amended. The Interim Capital Assistance Agreement
provides, among other things, for required and optional prepayments, interest
rates and acceleration (which in certain cases shall be automatic) of the
maturity hereof upon the occurrence of certain stated events, in each case
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived. Capitalized terms used herein but not otherwise
defined herein shall have the respective meanings assigned to them in the
Interim Capital Assistance Agreement.
This promissory note is secured by a Stock Pledge Agreement in favor
of the Corporation covering certain collateral more specifically described in
the Stock Pledge Agreement and provided for in the Interim Capital Assistance
Agreement, and is entitled to the benefits thereof.
<PAGE>
The Shareholders agree to pay all costs, including reasonable
attorneys' fees, incurred by the Corporation in enforcing payment hereof.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE FEDERAL LAW OF THE UNITED STATES OF AMERICA AND, TO THE EXTENT NOT
INCONSISTENT THEREWITH, THE LAWS OF THE STATE OF CALIFORNIA.
[SHAREHOLDERS]:
-----------------------------
Attest: Pan American Financial Inc.
/s/ [SIGNATURE ILLEGIBLE] /s/ LAWRENCE J. GRILL
- ----------------------------- -----------------------------
-----------------------------
<PAGE>
EXHIBIT 10.13
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT dated as of September 9, 1994 (this
"Agreement") is made by and between each of the persons named in Schedule 1
hereto (such persons are hereinafter referred to individually as a "Pledgor" and
collectively as "Pledgors") and the Resolution Trust Corporation, organized and
existing under the laws of the United States, in its corporate capacity (in such
capacity, the "Secured Party" or the "Corporation").
RECITALS
--------
WHEREAS, pursuant to Section 5(d) of the Home Owners' Loan Act, as amended
(the "HOLA"), 12 U.S.C. Section 1464(d), the Office of Thrift Supervision
("OTS") has closed Western Federal Savings Bank, (the "Failed Association") and
has appointed the Resolution Trust Corporation as receiver of the Failed
Association (the "Receiver");
WHEREAS, the Receiver has determined pursuant to Section 11(d) (2) (G) of
the Federal Deposit Insurance Act, as amended (the "FDIA"), 12 U.S.C. Section
1821{d)(2)(G), that it is appropriate and necessary to transfer certain assets
and liabilities of the Failed Association to the Assuming Institution;
WHEREAS, the Parties intend that such transfer be made on the terms and
conditions set forth in the "RTC Standard Purchase and Assumption Terms and
Conditions (IOTA version dated December 25, 1993) (the "Standard Terms");
<PAGE>
WHEREAS, the Corporation has adopted the Minority Capital Assistance
Program which has been established statutorily in the Federal Home Loan Bank
Act, as amended (the "FHLBA"), 12 U.S.C. 1441a(u) and has implemented policies,
procedures and rules regarding minority preference resolutions which permits the
Corporation to provide interim capital assistance to Minority Institutions in
order to preserve the ownership characteristics and increase the number of such
institutions whenever practical;
WHEREAS, application has been made to the Corporation to provide interim
capital assistance to the Pledgors in connection with the resolution of the
Failed Association and, in that connection, the Pledgors have executed and
delivered to the Corporation an Application for Interim Capital Assistance dated
August 29, 1994 (the "Application");
WHEREAS, the Pledgors have represented that they are "Minorities" and that
the Assuming Institution is a "Minority Institution" as those terms are defined
in Sections 21A(s) and 21A(u) of the Federal Home Loan Bank Act, 12 U.S.C.
1441a(s) and (u), of the FHLBA, as amended, 12 U.S.C. Sections 1441a(s) and
(u);
WHEREAS, the Corporation has agreed to provide interim capital assistance
to the Pledgors for the sole purpose of facilitating the resolution of the
Failed Association on the terms and conditions set forth in this Agreement; and
WHEREAS, as a condition to receipt of Interim Capital Assistance, the
Pledgors have agreed to pledge to the Corporation 100% of issued and outstanding
shares of capital stock of the Assuming Institution and any Additional
Collateral as may be hereinafter acquired.
NOW, THEREFORE, in consideration of the premises and to induce the
Corporation to provide such interim capital assistance, it is hereby agreed as
follows:
1. Defined Terms.
-------------
Except as otherwise provided herein, capitalized terms used in this
Agreement shall have the respective meanings assigned
2
<PAGE>
to them in the Interim Capital Assistance Agreement of even date herewith, by
and among the Assuming Institution, the Corporation and the Shareholder[s] (the
"Interim Capital Assistance Agreement") (such meanings to be equally applicable
to both the singular and plural forms of the terms defined).
(a) "Additional Collateral" means, for each Pledgor, all additional shares
---------------------
of capital stock of the Assuming Institution hereinafter acquired in any manner
by such Pledgor, all options or other rights to acquire the same, and all
dividends and distributions (whether of cash, securities or other property)
received or receivable with respect to the Pledged Shares or Qualifying Shares
of such Pledgor or such additional shares of such Pledgor or in exchange
therefor, and any and all proceeds of the Pledged Shares of such Pledgor and of
the foregoing, provided that, nothing in this Agreement is intended to, or shall
be construed to, prohibit or restrict the payment of dividends used by the
Shareholder[s] exclusively for the payment of principal or interest on the
Promissory Note.
(b) "Assistance Documents" shall mean the Interim Capital Agreement,
--------------------
the Promissory Note, this Agreement and any other document or agreement now or
hereafter delivered in connection herewith or therewith.
(c) "Assuming Institution" shall mean Pan American Bank, FSB, an
--------------------
insured depository institution within the meaning of the FDIA, organized and
existing as a federal savings bank with its principal place of business at San
Mateo, California.
(d) "Event of Default" shall have the meaning set forth in Section 5
----------------
of the Interim Capital Assistance Agreement.
(e) "Failed Association" shall mean Western Federal Savings Bank,
------------------
formerly a federal savings association under the HOLA, as amended, 12 U.S.C.
Section 1461, et seq., and having its principal place of business in Marina Del
------
Ray, California, which was closed pursuant to Order No. ____________ of the OTS.
3
<PAGE>
(f) "Minority" shall have the meaning as statutorily set forth in
--------
Section 21A(s)(2)(C) of the FHLBA, 12 U.S.C. 1441a(s) (2)(C).
INSERT ALTERNATIVE A OR B AS APPLICABLE
(g) "Pledged Shares" shall mean 100% of the issued and outstanding
--------------
shares of capital stock of the Assuming Institution, as more specifically
described in Schedule 2 hereto.
(h) "Promissory Note" shall mean the promissory note (attached as
---------------
Exhibit A to the Interim Capital Assistance Agreement of even date herewith and
incorporated herein by reference) made by each Shareholder of the Assuming
Institution.
(i) "Purchase and Assumption Agreement" shall mean the Purchase and
---------------------------------
Assumption Agreement, of even date herewith, by and between the Resolution Trust
Corporation as receiver of the Failed Association and the Assuming Institution.
(j) "Receiver" shall have the meaning as set forth in the Purchase and
--------
Assumption Agreement.
(k) "Qualifying Shares" means, for each Pledgor who is also a director
-----------------
of the Assuming Institution, the number of shares of capital stock of the
Assuming Institution owned by such Pledgor which are the minimum number of
shares required to be owned by such Pledgor (pursuant to any applicable federal
and/or state statutes and regulations, including 12 U.S.C. Section 72) which are
more fully described in Schedule 3 hereto.
(l) "Secured Obligations" shall have the meaning set forth in Section
-------------------
3 hereof.
2. Pledge of Pledged Collateral.
----------------------------
(a) As security for the payment and performance of the Secured
Obligations, and for other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, each Pledgor hereby grants to the
Corporation a security interest in all of the following (collectively, the
"Pledged Collateral"):
(i) the Pledged Shares of such Pledgor and the stock certificates
representing such Pledged Shares; and
4
<PAGE>
(ii) the Additional Collateral of such Pledgor and the stock
certificates representing such Additional Collateral.
(b) Each Pledgor hereby agrees to deliver, at the time of execution
of this Agreement, all stock certificates representing the Pledged Shares of
such Pledgor to the Corporation, together with such Pledgor's endorsement or
appropriate stock powers duly executed in blank, in each case with signatures
guaranteed.
(c) Subject to the provisions of Section 8(a) hereof, if any Pledgor
shall become entitled to receive or shall receive any items of Additional
Collateral, such Pledgor shall accept any such items, and shall hold them in
trust for the Corporation, and shall promptly (and in any event within three (3)
Business Days) deliver all items of Additional Collateral forthwith to the
Corporation in the exact form received, together with such Pledgor's endorsement
or with appropriate stock powers duly executed in blank, in each case with
signatures guaranteed, to be held by the Corporation subject to the terms hereof
as part of the Pledged Collateral. Each such Pledgor shall also, upon obtaining
any additional shares of capital stock of the Assuming Institution which are not
Pledged Shares, promptly (and in any event within three (3) Business Days)
deliver to the Corporation a Pledge Amendment, duly executed by such Pledgor, in
substantially the form of Schedule 4 hereto and incorporated herein by reference
(a "Pledge Amendment"), with respect to such shares. Each Pledgor hereby
authorizes the RTC to attach any such Pledge Amendment to this Agreement and
agrees that all shares listed on any Pledge Amendment delivered to the RTC shall
for all purposes hereunder be considered Pledged Collateral.
3. Security for Obligations. This Agreement secures, and the Pledged
------------------------
Collateral is security for, the payment and performance of (a) all indebtedness
and other obligations of the Pledgors now or hereafter existing under the
Interim Capital Assistance Agreement, the Promissory Note, all other Assistance
Documents to which any Pledgors is a party, and all other documents now or
hereafter delivered in connection therewith, whether due or not
5
<PAGE>
due, absolute or contingent, liquidated or unliquidated, and (b) all
indebtedness and other obligations now or hereafter existing of the Pledgors
under this Agreement and all other documents now or hereafter delivered in
connection herewith (collectively, the "Secured Obligations").
4. Pledgor's Waivers.
-----------------
(a) Each Pledgor waives and agrees not to assert (i) each of the
following rights to require the Corporation (A) to proceed against any other
Pledgor or guarantor or any other Person, (B) to proceed against or exhaust any
of the Pledged Collateral or any other security held for the Secured
Obligations, (C) to give notice of the terms, time and place of any public or
private sale of the Pledged Collateral or any other security held for the
Secured Obligations, and (D) to comply with any other provisions of Section 9-
504 of the Uniform Commercial Code (or any equivalent provision of any other
applicable law); provided however, that the Corporation shall endeavor to give
-------- -------
notice to each Pledgor of the terms, time and place of any sale of any
Collateral Pledged or any other security held for the Secured Obligations, (ii)
the defense of the statute of limitations in any action hereunder or for the
collection or performance of the Secured Obligations, (iii) any defense arising
by reason of any lack of authority or any other defense of such Pledgor or any
other Person, and (iv) any defense based upon an election of remedies
(including, if available, an election to proceed by nonjudicial foreclosure)
which destroys or impairs the subrogation rights of such Pledgor or the right of
such Pledgor to proceed against any other Pledgor or other obligor of the
Secured Obligations for reimbursement. Each Pledgor assumes responsibility for
keeping informed of the financial condition of the Assuming Institution and
agrees that the Corporation has no obligation to keep such Pledgor so informed.
(b) Each Pledgor waives any and all notice of the acceptance of this
Stock Pledge Agreement, and any and all notice of (i) the creation, renewal,
modification, extension or accrual of
6
<PAGE>
the Secured Obligations, (ii) the reliance by the Corporation upon this Stock
Pledge Agreement, or (iii) the exercise of any right, power or privilege
hereunder. The Secured Obligations shall conclusively be deemed to have been
created, contracted, incurred and permitted to exist in reliance upon this Stock
Pledge Agreement. Each Pledgor waives presentment, protest, demand for payment,
and notice of default, dishonor, protest, or nonpayment and all other notices
to, or upon such Pledgor or any other Person with respect to the Secured
Obligations.
(c) The obligations of each Pledgor hereunder are independent of the
obligations of any other Pledgor and upon the occurrence, and during the
continuance of any Event of Default, a separate action or actions may be brought
against any one or more of such Pledgors, whether or not any other Pledgor is
joined therein or a separate action or actions are brought against any other
Pledgor.
(d) Until satisfaction of the Secured Obligations in full, no Pledgor
shall have any right of subrogation with respect to the Secured Obligations.
(e) The obligations of each Pledgor hereunder shall be irrevocable,
absolute and unconditional, irrespective of the genuineness, legality, validity,
regularity or enforceability of any Assistance Documents or of any other
circumstance which might otherwise constitute a legal or equitable discharge of
a surety or guarantor, and shall not be subject to any counterclaim, set-off,
deduction or defense which any such Pledgor may have against the Receiver or the
Corporation.
(f) Each Pledgor hereby consents and agrees that, without notice to,
or further assent from, such Pledgor:
(i) the principal amount of the Secured Obligations may be
increased or decreased and additional indebtedness or obligations of any Pledgor
under the Assistance Documents may be
7
<PAGE>
incurred, in accordance with any Assistance Document, or by an amendment,
modification or renewal of any Assistance Document or otherwise;
(ii) the time, manner, place or terms of any payment under any
Assistance Document may be extended or changed, including by an increase or
decrease in the interest rate on any Secured Obligation or any other amount
payable under any Assistance Document, in accordance with any Assistance
Document, or by an amendment, modification or renewal of such Assistance
Document or otherwise;
(iii) any action may be taken under or with respect to any
Assistance Document in the exercise of any right, remedy, power or privilege
therein contained (including, without limitation, the acceleration of the
maturity of the Promissory Note) or otherwise, or such right, remedy, power or
privilege may be waived, omitted or not enforced;
(iv) the time for any Pledgor's performance of or compliance
with any term, covenant or agreement on its part to be performed or observed
under any Assistance Document may be extended, or such performance or compliance
waived, or failure in or departure from such performance or compliance consented
to, all in such manner and upon such terms as the Corporation may deem proper;
(v) the Corporation may discharge or release, in whole or in
part, any other Pledgor or other guarantor or any other person liable for the
payment and performance of all or any part of the Secured Obligations, and may
permit or consent to any such action or any result of such action, and shall not
be obligated to demand or enforce payment upon any of the Pledged Collateral,
nor shall the Corporation be liable to such Pledgor for any failure to collect
or enforce payment of the Secured Obligations or to realize on the other Pledged
Collateral therefor;
(vi) in addition to the Pledged Collateral, the Corporation may
take and hold other security (legal or equitable)
8
<PAGE>
of any kind, at any time, as collateral for the Secured Obligations, and may,
from time to time, in whole or in part, exchange, sell, surrender, release,
subordinate, modify, waive or extend such security and may permit or consent to
any such action or the result of any such action, and may apply such security
and direct the order or manner of sale thereof; and
(vii) the Corporation may exercise or refrain from exercising
any right, remedy or power (including, without limitation, any power of sale)
granted by any Assistance Document or other security document or agreement, in
law or in equity or otherwise, with respect to the Secured Obligations or any of
the Pledged Collateral or other security or lien (legal or equitable) held,
given or intended to be given therefor; all as the Corporation may deem
advisable, and all without impairing, abridging, releasing or affecting this
Stock Pledge Agreement.
5. Continuing Obligation.
---------------------
This Stock Pledge Agreement shall continue in effect and be binding upon
each Pledgor until satisfaction of the Secured Obligations in full. This Stock
Pledge Agreement shall be automatically reinstated if, for any reason, any
payment by or on behalf of the Pledgors shall be rescinded or must otherwise be
restored, whether as a result of proceedings in bankruptcy or reorganization or
otherwise.
6. Representations and Warranties.
------------------------------
In addition to the representations and warranties of each Pledgor set forth
in the other Assistance Documents, which are incorporated herein by this
reference, each Pledgor hereby represents and warrants to the Corporation that:
(a) The Pledged Shares and the Qualifying Shares of such
Pledgor constitute 100% issued and outstanding shares of capital stock owned or
controlled by such Pledgor, and all of such
9
<PAGE>
Pledged Shares and Qualifying Shares are validly issued, fully paid and
nonassessable;
(b) No securities convertible into or exchangeable for any
shares of capital stock of the Assuming Institution, or any options, warrants or
other commitments entitling any Person to purchase or otherwise acquire any
shares of capital stock of the Assuming Institution, are issued and outstanding;
(c) Such Pledgor is the record and beneficial owner of the
Pledged Shares of such Pledgor, and will be the record and beneficial owner of
any Additional Collateral of such Pledgor upon acquisition thereof by such
Pledgor, free and clear of all Liens, except those created in favor of the
Corporation hereunder;
(d) Such Pledgor has the right and requisite authority to
pledge, assign, transfer, deliver, deposit and set over the Pledged Collateral
pledged by such Pledgor to the Corporation as provided herein;
(e) None of the Pledged Shares of such Pledgor has been
transferred in violation of the securities registration, securities disclosure
or similar laws of any jurisdiction to which such transfer may be subject;
(f) No consent, approval, authorization or other order of any
Person and no consent, authorization, approval, or other action by, and no
notice to or filing with, any governmental authority or regulatory body is
required to be made or obtained by such Pledgor either (i) for the pledge by
such Pledgor of the Pledged Collateral pursuant to this Stock Pledge Agreement
or for the execution, delivery or performance of this Stock Pledge Agreement by
such Pledgor, or (ii) for the exercise by the Corporation of the voting or other
rights provided for in this Stock Pledge Agreement or the remedies with respect
to the Pledged Collateral pursuant to this Stock Pledge Agreement, except as may
be required in connection with such disposition by laws affecting the offering
and sale of securities generally;
10
<PAGE>
(g) The pledge, assignment and delivery of the Pledged
Collateral pursuant to this Stock Pledge Agreement will create a valid perfected
first priority Lien on the Pledged Collateral pledged by such Pledgor and the
proceeds thereof, securing the Secured Obligations; and
(h) This Stock Pledge Agreement has been duly executed and
delivered by such Pledgor and constitutes a legal, valid and binding obligation
of such Pledgor enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, or other similar laws
affecting the rights of creditors generally or by the application of general
equity principles.
The representations and warranties set forth in this Section 6 shall
survive the execution and delivery of this Stock Pledge Agreement.
7. Covenants.
---------
In addition to the covenants of each Pledgor set forth in the other
Assistance Documents to which it is a party, which covenants are incorporated
herein by this reference, each Pledgor hereby covenants and agrees:
(a) At its own expense, to appear in and defend any action or
proceeding which purports to affect title to the Pledged Collateral pledged by
such Pledgor or the Lien in favor of the Corporation therein.
(b) (i) Not to sell, convey, transfer, assign or otherwise
dispose of the Pledged Collateral pledged by such Pledgor or any right, title
or interest therein other than pursuant hereto, (ii) not to create, incur or
permit to exist any Lien on the Pledged Collateral pledged by such Pledgor,
other than the Lien in favor of the Corporation created by this Agreement, and
(iii) not to consent to or approve the issuance to any person of any additional
shares of any class of capital stock of the Assuming Institution, any securities
convertible into or exchangeable for
11
<PAGE>
any such shares or any warrants, options or other rights to purchase or
otherwise acquire any such shares.
(c) Upon the written request of the Corporation, from time to
time to execute, acknowledge and deliver, and file and record, all such
instruments, including without limitation Uniform Commercial Code financing
statements, and take all such other action, as is reasonably necessary to carry
out the purposes of this Agreement.
(d) To maintain at all times ownership of all of the Pledged
Shares owned by such Pledgor as of the date hereof.
(e) (i) To execute, acknowledge, deliver, file, notarize and
register at its own expense all such further agreements, instruments,
certificates, documents and assurances and perform such acts as the Corporation
shall deem necessary or appropriate to effectuate the purposes of the Assistance
Documents to which such Pledgor is a party, (ii) promptly obtain from time to
time and maintain in full force and effect at its own expense all such
governmental licenses, authorizations, consents, permits and approvals as may be
required to enable the Pledgor to comply with its obligations under the
Assistance Documents to which it is a party and all other documents made and
delivered, or to be made and delivered, pursuant thereto, and (iii) promptly
provide the Corporation with evidence of the foregoing satisfactory in form and
substance to the Corporation.
8. Administration of the Pledged Collateral.
----------------------------------------
(a) As long as no Event of Default shall have occurred and
be continuing, each Pledgor shall have the right, from time to time, to vote and
give consents with respect to the Pledged Collateral pledged by it or any part
thereof for all purposes not inconsistent with the provisions of this
Agreement, the Interim Capital Assistance Agreement and any other Assistance
Documents; provided, however, that in any event no vote shall be cast, and no
-------- -------
consent shall be given or action taken, which would have the effect of impairing
the position or interest of the Corporation with
12
<PAGE>
respect to the Pledged Collateral pledged by such Pledgor which would authorize
or effect (i) any action prohibited under the terms of any Assistance Document,
(ii) any change in the authorized number of shares, the stated capital or the
authorized capital of the Assuming Institution or the issuance of any additional
shares of stock of the Assuming Institution, or (iii) the alteration of the
voting rights with respect to the stock of the Assuming Institution.
(b) Upon the occurrence, and during the continuance, of any
Event of Default:
(i) the Corporation shall have the right following prior
written notice to any Pledgor to vote the Pledged Collateral pledged by such
Pledgor or to give shareholder consent in respect of the Pledged Collateral
pledged by such Pledgor (including without limitation, the right to vote such
Pledged Collateral to elect a new board of directors of the Assuming
Institution) and to exercise all rights of conversion, exchange, subscription or
any other rights, privileges or options pertaining to the Pledged Collateral
pledged by such Pledgor as if the Corporation were the absolute owner thereof
(and each such Pledgor hereby irrevocably appoints the Corporation its proxy and
attorney-in-fact with full power of substitution to do so and agrees, if so
requested, to execute or cause to be executed appropriate proxies therefor); and
(ii) any or all of the Pledged Collateral held by the
Corporation hereunder may, at the option of the Corporation, be registered in
the name of the Corporation or its nominee.
(c) Notwithstanding any provision contained herein, the
Corporation shall have no duty to exercise any of the aforesaid rights,
privileges or options and shall not be responsible to any Pledgor or any other
person for any failure to do so or delay in doing so.
13
<PAGE>
9. Corporation's Remedies.
----------------------
Should the Pledgors not cure an Event of Default, the Corporation shall
have, in addition to all rights and remedies specified elsewhere in this
Agreement and all rights and remedies of a secured party under the Uniform
Commercial Code or other applicable statutes or rules, the following rights and
remedies:
(a) Any item of the Pledged Collateral of any Pledgor may be
sold for cash or other value in any number of lots at brokers' board, public
auction or private sale without demand, advertisement or notice (excepting only
that the Corporation shall give such Pledgor five (5) days' prior written notice
of the time and place of any public sale or the time after which a private sale
may take place, which notice each Pledgor and the Corporation hereby agree to be
reasonable) and such other demands, advertisements, or notices as may be
required by applicable law. At any sale or sales of the Pledged Collateral
(except a private sale) the Corporation or any Person acting on its behalf or
its assigns may bid for and purchase the whole or any part of the Pledged
Collateral so sold and upon compliance with the terms of such sale may hold and
dispose of such Pledged Collateral without further accountability to the
Pledgor, except for the proceeds of such sale or sales.
(b) The proceeds of all sales and collections, and any other
amounts (including any cash contained in the Pledged Collateral) the application
of which is not otherwise provided for herein, shall be applied (i) first, to
the payment of the costs, expenses and disbursements incurred in connection with
such sale or sales and collections, including reasonable attorneys' fees and any
other amounts then due to the Corporation; (ii) second, to the payment of
accrued and unpaid interest on the Promissory Note comprising the Secured
Obligations; (iii) third, to the payment of the principal amount of the
Promissory Note comprising the Secured Obligations; and (iv) fourth, to the
payment of any other amount of the Secured Obligations. Any excess of proceeds
which exists after
14
<PAGE>
such disposition shall, subject to the rights of any junior lienholders, be
paid over to the Pledgors.
10. Notice.
------
Any notice, request, demand, consent, approval or other communication to
any party hereto shall be effective when received and shall be given in writing,
and delivered in person against receipt therefor,, or sent by certified mail,
postage prepaid, or courier service at its address set forth below or at such
other address as it shall hereafter furnish in writing to the others. All such
notices and other communications shall be deemed given on the date received by
the addressee.
Secured Party Pledgors
- ------------- --------
Resolution Trust Corporation See Schedule 1
801 17th Street, N.W.
Washington, D.C. 20549
Attention: Vice President
Department of Resolutions
with a
copy to: General Counsel
11. No Waiver; Cumulative Remedies.
------------------------------
No failure to exercise, and no delay in exercising, on the part of the
Corporation, any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any further exercise thereof or the exercise of any
other right, power or privilege. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law. Each Pledgor waives any right to
require the Corporation to proceed against any Person or to exhaust any other
collateral or security for the Secured Obligations or to pursue any remedy in
the Corporation's power.
12. Indemnity, Expenses and Liability.
---------------------------------
(a) The Pledgors jointly and severally agree to indemnify the
Corporation from and against any and all claims, losses, costs, expenses and
liabilities growing out of or resulting
15
<PAGE>
from this Agreement (including, without limitation, enforcement of this
Agreement), except claims, losses or liabilities resulting from the
Corporation's gross negligence or willful misconduct.
(b) The Pledgors jointly and severally agree upon demand to pay
to the Corporation the amount of any and all losses, costs, liabilities and
expenses (including, without limitation, the reasonable fees and disbursements
of its counsel and of any experts and agents) which the Corporation may incur in
connection with (i) the perfection and protection of the security interest
granted or purported to be granted hereby, (ii) the exercise or enforcement of
any of the rights or remedies of the Corporation hereunder, including in any
out-of-court workout or in any bankruptcy case, and (iii) the preservation of or
realization upon the Pledged Collateral, including without limitation losses,
costs, liabilities and expenses sustained by the Corporation as a result of any
failure by any Pledgor to perform or observe its obligations contained in this
Agreement.
13. Assignment.
----------
All rights, powers and remedies of the Corporation under this Agreement
shall inure to the benefit of its respective successors and assigns, and all
obligations of each Pledgor hereunder shall bind such Pledgor's heirs, personal
representatives, successors and assigns.
14. Severability.
------------
Any provision of this Agreement which shall be held invalid or
unenforceable shall be ineffective without invalidating the remaining provisions
hereof.
15. Governing Law.
-------------
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE FEDERAL LAW OF THE UNITED
STATES OF AMERICA, AND IN THE ABSENCE OF CONTROLLING FEDERAL LAW, IN ACCORDANCE
WITH THE LAWS OF THE STATE SPECIFIED IN THE PURCHASE AND ASSUMPTION AGREEMENT.
16
<PAGE>
16. Termination.
-----------
Upon payment in full of all amounts of principal, interest, expenses and
all other liquidated amounts payable with respect to the Secured Obligations,
and satisfaction of all other then known Secured Obligations, this Agreement
shall terminate (except to the extent explicitly provided for otherwise herein)
and the Corporation shall redeliver to each Pledgor any of the Pledged
Collateral of such Pledgor in the Corporation's possession and shall execute and
deliver to such Pledgor such documents as shall be necessary to evidence
termination of the security interests granted to the Corporation hereunder;
provided, however, that if at such time there shall exist, in the reasonable
- -------- -------
opinion of the Corporation, an unsatisfied Secured Obligation which is
contingent or unliquidated as to amount, this Agreement shall not terminate, and
the Corporation shall not be obligated to redeliver to any Pledgor any of the
Pledged Collateral of such Pledgor in the Corporation's possession and shall
not be obligated to execute and deliver any release documents, until such
contingent or unliquidated Secured Obligation is liquidated by agreement between
the Corporation and each such Pledgor and is paid in full, or is adequately
secured by cash collateral.
17. Entire Agreement; Amendments.
----------------------------
This Agreement and the other Assistance Documents constitute the entire
agreement between the parties with respect to the matters set forth herein and
therein. This Agreement may not be amended or supplemented except by a writing
signed by the Corporation and each Pledgor.
18. Counterparts.
------------
This Agreement may be executed in any number of counterparts, and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed an original and all of which taken together shall
constitute but one and the same agreement.
17
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19. Headings.
--------
The headings which are used in this Agreement are for the convenience of
the parties only and shall not affect the meaning of any provision of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Stock Pledge
Agreement to be duly executed as of the date first above written.
RESOLUTION TRUST CORPORATION
By: /s/ [SIGNATURE ILLEGIBLE]
-------------------------------------
Its: Director Office Major Resolutions
-------------------------------------
PLEDGORS:
------------------------------------
/s/ LAWRENCE J. GRILL
------------------------------------
PAN AMERICAN FINANCIAL, INC.
------------------------------------
------------------------------------
------------------------------------
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EXHIBIT 10.19
PROMISSORY NOTE
---------------
$6,930,000.00 April 29, 1994
FOR VALUE RECEIVED, the undersigned, Pan American Financial, Inc. (the
"Shareholders"), hereby unconditionally promise to pay to the order of the
RESOLUTION TRUST CORPORATION in its corporate capacity (the "Corporation") on
April 28, 1999 the principal sum of six million nine hundred thirty thousand
Dollars ($6,930,000.00).
The Shareholders further promise to pay interest on the aggregate
principal amount balance outstanding hereunder (whether at stated maturity, by
acceleration or otherwise) at the end of each calendar quarter and interest rate
set forth in the Interim Capital Assistance Agreement of even date herewith (the
"Interim Capital Assistance Agreement") between the Shareholders and the
Corporation. Interest shall be payable in arrears upon any prepayment of
principal hereof (to the extent accrued on the amount prepaid) and at maturity.
Both principal and interest are payable in lawful money of the United
States of America in immediately available funds to the Resolution Trust
Corporation, at its main office at 801 17th Street, N.W., Washington, D.C.
20434, or such other place as the Corporation may designate in writing.
This promissory note is referred to and is made pursuant to the terms
and conditions set forth in the Interim Capital Assistance Agreement as
supplemented, modified or amended. The Interim Capital Assistance Agreement
provides, among other things, for required and optional prepayments, interest
rates and acceleration (which in certain cases shall be automatic) of the
maturity hereof upon the occurrence of certain stated events, in each case
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived. Capitalized terms used herein but not otherwise
defined herein shall have the respective meanings assigned to them in the
Interim Capital Assistance Agreement.
This promissory note is secured by a Stock Pledge Agreement in favor of
the Corporation covering certain collateral more specifically described in the
Interim Capital Assistance Agreement and is provided for in the Stock Pledge
Agreement, and is entitled to the benefits thereof.
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The Shareholders agree to pay all costs, including reasonable attorneys'
fees, incurred by the Corporation in enforcing payment hereof.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE FEDERAL LAW OF THE UNITED STATES OF AMERICA AND, TO THE EXTENT NOT
INCONSISTENT THEREWITH, THE LAWS OF THE STATE OF CALIFORNIA.
Attest: SHAREHOLDERS:
Pan American Financial, Inc.
By: /s/ LAWRENCE J. GRILL By: /s/ WILLIAM BRON
--------------------------- ---------------------------
Printed Name: Lawrence J. Grill Printed Name: William (Guillermo) Bron
Title: President and Corporate Title: Chairman of the Board
Secretary
2
<PAGE>
EXHIBIT 10.20
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT dated as of April 29, 1994 (this
"Agreement") is made between each of the persons named in Schedule 1 hereto
(such persons are hereinafter referred to individually as a "Pledgor" and
collectively as "Pledgors") and the Resolution Trust Corporation, organized and
existing under the laws of the United States, in its corporate capacity (in such
capacity, the "Secured Party" or the "Corporation").
RECITALS
--------
WHEREAS, pursuant to Section 5(d) of the Home Owners' Loan Act, as
amended (the "HOLA"), 12 U.S.C. Section 1464(d), the Office of Thrift
Supervision ("OTS") has closed Pan American Federal Savings Bank, (the "Failed
Association") and has appointed the Resolution Trust Corporation as receiver of
the Failed Association; WHEREAS, the Receiver has determined pursuant to Section
1l(d)(2)(G) of the Federal Deposit Insurance Act, as amended (the "FDIA"), 12
U.S.C. Section 1821(d)(2)(G), that it is appropriate and necessary to transfer
certain assets and liabilities of the Failed Association to the Assuming
Institution;
WHEREAS, the Parties intend that such transfer be made on the terms
and conditions set forth in the "RTC Standard Purchase and Assumption Terms and
Conditions (Theta version dated July 26, 1993) (the "Standard Terms"),
incorporated by reference in (and expressly made a part of) the Whole Purchase
and Assumption Agreement dated as of April 29, 1994 (the "Purchase and
Assumption Agreement") and as supplemented, modified or amended by the
Purchase and Assumption Agreement;
WHEREAS, on April 1, 1992 the Corporation adopted an amended
1
<PAGE>
policy statement entitled "RTC Guidelines Regarding Minority-Preference
Resolutions" (the "Guidelines") which authorizes the Corporation to provide
interim capital assistance to Minority-owned Depository Institutions in order
to preserve the ownership characteristics and increase the number of such
institutions whenever practical, and the Minority Capital Assistance Program has
been established statutorily in the Federal Home Loan Bank Act, as amended (the
"FHLBA"), 12 U.S.C. 1441a(u);
WHEREAS, the Failed Association was formerly a Minority-Owned Depository
Institution;
WHEREAS, application has been made to the Corporation to provide interim
capital assistance to the Pledgors pursuant to the Guidelines in connection
with the resolution of the Failed Association and, in that connection, the
Pledgors have executed and delivered to the Corporation an Application for
Interim Capital Assistance dated Septeluber 7, 1993 (the "Application");
WHEREAS, the Pledgors have represented that they are "Minorities" and
a "Minority-Owned Depository Institution" within the intent and definition of
those terms under Sections 21A(s) and 21A(u) of the Federal Home Loan Bank Act,
12 U.S.C. 1441a(s) and (u), of the FHLBA, as amended, 12 U.S.C. Sections
1441a(s) and (u), and the Guidelines;
WHEREAS, the Corporation has agreed to provide interim capital assistance to
the Pledgors for the sole purpose of facilitating the resolution of the Failed
Association on the terms and conditions set forth in this Agreement; and
WHEREAS, as a condition to receipt of Interim Capital Assistance, the
Pledgors have agreed to pledge to the Corporation all of issued and outstanding
shares of capital stock of the Assuming Institution and any Additional
Collateral as may be hereinafter acquired.
NOW, THEREFORE, in consideration of the premises and to induce the
Corporation to provide such interim capital assistance, it is hereby agreed as
follows:
2
<PAGE>
1. Defined Terms.
-------------
Except as otherwise provided herein, capitalized terms used in this Agreement
shall have the respective meanings assigned to them in the Interim Capital
Assistance Agreement (such meanings to be equally applicable to both the
singular and plural forms of the terms defined).
(a) "Additional Collateral" means, for each Pledgor, all additional shares of
---------------------
capital stock of the Assuming Institution hereinafter acquired in any manner by
such Pledgor, all options or other rights to acquire the same, and all
dividends and distributions (whether of cash, securities or other property)
received or receivable with respect to the Pledged Shares or Qualifying Shares
of such Pledgor or such additional shares of such Pledgor or in exchange
therefor, and any and all proceeds of the Pledged Shares of such Pledgor and of
the foregoing.
(b) "Assistance Documents" shall mean the Interim Capital Assistance
---------------------
Agreement, the Promissory Note, this Agreement and any other document or
agreement now or hereafter delivered in connection herewith or therewith.
(c) "Assuming Institution" shall mean Pan American Bank, FSB, an insured
--------------------
depository institution within the meaning of the FDIA, organized and existing as
a federal savings bank with its principal place of business in San Mateo,
California.
(d) "Event of Default" shall have the meaning set forth in Section 5 of the
----------------
Interim Capital Assistance Agreement.
(e) "Failed Association" shall mean Pan American Federal Savings Bank,
------------------
formerly a federal savings association under the HOLA, as amended, 12 U.S.C.
Section 1461, et seq., and having its principal place of business in San Mateo,
-------
California, which was closed pursuant to Order No. ___________ of the OTS.
(f) "Minority" shall have the meaning as statutorily set forth in Section
21A(s)(2)(C) of the FHLBA, 12 U.S.C. 1441a(s) (2) (C).
3
<PAGE>
(g) "Pledged Shares" shall mean all of the issued and outstanding shares of
--------------
capital stock of the Assuming Institution, as more specifically described in
Schedule 2 hereto.
(h) "Receiver" shall have the meaning as set forth in the Standard Terms and
--------
the Purchase and Assumption Agreement.
(i) "Qualifying Shares" means, for each Pledgor who is also a director of the
-----------------
Assuming Institution, the number of shares of capital stock of the Assuming
Institution owned by such Pledgor which are the minimum number of shares
required to be owned by such Pledgor pursuant to state or federal banking laws
or regulations, if applicable, and which are more fully described in Schedule 3
hereto.
(j) "Secured Obligations" shall have the meaning set forth in Section 3
-------------------
hereof.
2. Pledge of Pledged Collateral.
----------------------------
(a) For valuable consideration, the sufficiency and receipt of which are
hereby acknowledged, as security for the payment and performance of the Secured
Obligations, each Pledgor hereby grants to the Corporation a security interest
in all of the following (collectively, the "Pledged Collateral"):
(i) the Pledged Shares of such Pledgor and the stock certificates
representing such Pledged Shares; and
(ii) the Additional Collateral of such Pledgor and the stock certificates
representing such Additional Collateral.
(b) Each Pledgor hereby agrees to deliver all stock certificates representing
the Pledged Shares of such Pledgor to the Corporation, together with such
Pledgor's endorsement or appropriate stock powers duly executed in blank, in
each case with signatures guaranteed.
(c) Subject to the provisions of Section 8(a) hereof, if any Pledgor shall
become entitled to receive or shall receive any items of Additional Collateral,
such Pledgor shall accept any such items, and shall hold them in trust for the
Corporation, and shall promptly (and in any event within three (3) Business
Days) deliver
4
<PAGE>
all items of Additional Collateral forthwith to the Corporation in the exact
form received, together with such Pledgor's endorsement or with appropriate
stock powers duly executed in blank, in each case with signatures guaranteed, to
be held by the Corporation subject to the terms hereof as part of the Pledged
Collateral. Each such Pledgor shall also, upon obtaining any additional shares
of capital stock of the Assuming Institution which are not Pledged Shares,
promptly (and in any event within three (3) Business Days) deliver to the
Corporation a Pledge Amendment, duly executed by such Pledgor, in substantially
the form of Schedule 4 hereto and incorporated herein by reference (a "Pledge
Amendment"), with respect to such shares. Each Pledgor hereby authorizes the
RTC to attach any such Pledge Amendment to this Agreement and agrees that all
shares listed on any Pledge Amendment delivered to the RTC shall for all
purposes hereunder be considered Pledged Collateral.
3. Security for Obligations. This Agreement secures, and the Pledged
------------------------
Collateral is security for, the payment and performance of (a) all indebtedness
and other obligations of the Shareholders now or hereafter existing under the
Interim Capital Assistance Agreement, the Note, all other Assistance Documents
to which any Shareholder is a party, and all other documents now or hereafter
delivered in connection therewith, whether due or not due absolute or
contingent; liquidated or unliquidated, and (b) all indebtedness and other
obligations now or hereafter existing of the Pledgors under this Agreement and
all other documents now or hereafter delivered in connection herewith
(collectively, the "Secured Obligations").
4. Pledgor's Waivers.
-----------------
(a) Each Pledgor waives and agrees not to assert (i) any right to require the
Corporation to proceed against any other Pledgor or guarantor or any other
Person, to proceed against or exhaust any of the Pledged Collateral or any other
security held for the Secured Obligations or to give notice of the terms, time
and place of any public or private sale of the Pledged Collateral
5
<PAGE>
or any other security held for the Secu(Pounds)ed Obligations or comply with any
other provisions of Section 9-504 of the Uniform Commercial Code (or any
equivalent provision of any other applicable law); provided however, that
-------- -------
the Corporation shall endeavor to give notice to each Pledgor of the terms, time
and place of any sale of any Collateral Pledged or any other security held for
the Secured Obligations, (ii) the defense of the statute of limitations in any
action hereunder or for the collection or performance of the Secured
Obligations, (iii) any defense arising by reason of any lack of authority or any
other defense of such Pledgor or any other Person, and (iv) any defense based
upon an election of remedies (including, if available, an election to proceed by
nonjudicial foreclosure) which destroys or impairs the subrogation rights of
such Pledgor or the right of such Pledgor to proceed against any other Pledgor
or other obligor of the Secured Obligations for reimbursement. Each Pledgor
assumes responsibility for keeping informed of the financial condition of the
Assuming Institution and agrees that the Corporation has no obligation to keep
such Pledgor so informed.
(b) Each Pledgor waives any and all notice of the acceptance of this Stock
Pledge Agreement, and any and all notice of the creation, renewal, modification,
extension or accrual of the Secured Obligations, or the reliance by the
Corporation upon this Stock Pledge Agreement, or the exercise of any right,
power or privilege hereunder. The Secured Obligations shall conclusively be
deemed to have been created, contracted, incurred and permitted to exist in
reliance upon this Stock Pledge Agreement. Each Pledgor waives presentment,
protest, demand for payment, notice of default, dishonor or nonpayment and all
other notices to or upon such Pledgor or any other Person with respect to
the Secured Obligations.
(c) The obligations of each Pledgor hereunder are independent of the
obligations of any other Pledgor and upon the occurrence and during the
continuance of any Event of Default, a
6
<PAGE>
separate action or actions may be brought against any such Pledgor, whether or
not any other Pledgor is joined therein or a separate action or actions are
brought against any other Pledgor.
(d) Until satisfaction of the Secured Obligations in full, no Pledgor shall
have any right of subrogation with respect to the Secured Obligations.
(e) The obligations of each Pledgor hereunder shall be irrevocable, absolute
and unconditional, irrespective of the genuineness, legality, validity,
regularity or enforceability of any Assistance Documents or of any other
circumstance which might otherwise constitute a legal or equitable discharge of
a surety or guarantor, and shall not be subject to any counterclaim, set-off,
deduction or defense which any such Pledgor may have against the Receiver or the
Corporation.
(f) Each Pledgor hereby consents and agrees that, without notice to or further
assent from such Pledgor:
(i) the principal amount of the Secured Obligations may be increased or
decreased and additional indebtedness or obligations of any Shareholder under
the Assistance Documents may be incurred, by an amendment, modification or
renewal of any Assistance Document or otherwise;
(ii) the time manner, place or terms of any payment under any Assistance
Document may be extended or changed, including by an increase or decrease in the
interest rate on any Secured Obligation or any other amount payable under any
Assistance Document, by an amendment, modification or renewal of such
Assistance Document or otherwise;
(iii) any action may be taken under or with respect to any Assistance
Document in the exercise of any remedy, power or privilege therein contained
(including, without limitation, the acceleration of the maturity of the Note) or
otherwise, or such remedy, power or privilege may be waived, omitted or not
enforced;
(iv) the time for any Shareholder's performance of or compliance with any
term, covenant or agreement on its part to be
7
<PAGE>
performed or observed under any Assistance Document may be extended, or such
performance or compliance waived, or failure in or departure from such
performance or compliance consented to, all in such manner and upon such terms
as the Corporation may deem proper;
(v) the Corporation may discharge or release, in whole or in part, any
other Pledgor or other guarantor or any other Person liable for the payment and
performance of all or any part of the Secured Obligations, and may permit or
consent to any such action or any result of such action, and shall not be
obligated to demand or enforce payment upon any of the Pledged Collateral, nor
shall the Corporation be liable to such Pledgor for any failure to collect or
enforce payment of the Secured Obligations or to realize on the other Pledged
Collateral therefor;
(vi) in addition to the Pledged Collateral, the Corporation may take and
hold other security (legal or equitable) of any kind, at any time, as
collateral for the Secured Obligations, and may, from time to time, in whole
or in part, exchange, sell, surrender, release, subordinate, modify, waive or
extend such security and may permit or consent to any such action or the result
of any such action, and may apply such security and direct the order of manner
of sale thereof; and
(vii) the RTC may exercise or refrain from exercising any right, remedy
or power (including, without limitation, any power of sale) granted by any
Assistance Document or other security document or agreement, in law or in equity
or otherwise, with respect to the Secured Obligations or any of the Pledged
Collateral or other security or lien (legal or equitable) held, given or
intended to be given therefor; all as the Corporation may deem advisable, and
all without impairing, abridging, releasing or affecting this Stock Pledge
Agreement.
5. Continuing Obligation.
---------------------
This Stock Pledge Agreement shall continue in effect and be binding upon each
Pledgor until satisfaction of the Secured
8
<PAGE>
Obligations in full. This Stock Pledge Agreement shall be automatically
reinstated if, for any reason, any payment by or on behalf of the Pledgors shall
be rescinded or must otherwise be restored, whether as a result of proceedings
in bankruptcy or reorganization or otherwise.
6. Representations and Warranties
------------------------------
In addition to the representations and warranties of each Pledgor set forth
in the other Assistance Documents, which are incorporated herein by this
reference, each Pledgor hereby represents and warrants to the Corporation
that:
(a) The Pledged Shares and the Qualifying Shares of such Pledgor
constitute the only issued and outstanding shares of capital stock owned or
controlled by such Pledgor, and all of such Pledged Shares and Qualifying Shares
are validly issued, fully paid and nonassessable;
(b) No securities convertible into or exchangeable for any shares of
capital stock of the Assuming Institution, or any options, warrants or other
commitments entitling any Person to purchase or otherwise acquire any shares of
capital stock of the Assuming Institution, are issued and outstanding;
(c) Such Pledgor is the record and beneficial owner of the Pledged Shares
of such Pledgor, and will be the record and beneficial owner of any Additional
Collateral of such Pledgor upon acquisition thereof by such Pledgor, free and
clear of all Liens, except those created in favor of the Corporation hereunder;
(d) Such Pledgor has the right and requisite authority to pledge, assign,
transfer, deliver; deposit and set over the Pledged Collateral pledged by such
Pledgor to the Corporation as provided herein;
(e) None of the Pledged Shares of such Pledgor has been transferred in
violation of the securities registration, securities disclosure or similar laws
of any jurisdiction to which such-transfer may be subject;
(f) No consent, approval, authorization or other
9
<PAGE>
order of any Person and no consent, authorization, approval, or other action by,
and no notice to or filing with, any governmental authority or regulatory body
is required to be made or obtained by such Pledgor either (i) for the pledge by
such Pledgor of the Pledge Collateral pursuant to this Stock Pledge Agreement or
for the execution, delivery or performance of this Stock Pledge Agreement by
such Pledgor, or (ii) for the exercise by the Corporation of the voting or
other rights provided for in this Stock Pledge Agreement or the remedies in
respect of the Pledged Collateral pursuant to this Stock Pledge Agreement or the
remedies with respect to the Pledged Collateral pursuant to this Stock Pledge
Agreement, except as may be required in connection with such disposition by laws
affecting the offering and sale of securities generally;
(g) The pledge, assignment and delivery of the Pledged Collateral
pursuant to this Stock Pledge Agreement will create a valid perfected first
priority Lien on the Pledged Collateral pledged by such Pledgor and the proceeds
thereof, securing the Secured Obligations; and
(h) This Stock Pledge Agreement has been duly executed and delivered by
such Pledgor and constitutes a legal, valid and binding obligation of such
Pledgor enforceable in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, or other similar laws affecting the rights
of creditors generally or by the application of general equity principles.
The representations and warranties set forth in this Section 6 shall
survive the execution and delivery of this Stock Pledge Agreement.
7. Covenants.
---------
In addition to the covenants of each Pledgor set forth in the other Assistance
Documents to which it is a party, which covenants are incorporated herein by
this reference, each Pledgor hereby agrees:
10
<PAGE>
(a) At its own expense, to appear in and defend any action or proceeding
which purports to affect title to the Pledged Collateral pledged by such Pledgor
or the Lien in favor of the Corporation therein.
(b) (i) Not to sell, convey, transfer, assign or otherwise dispose of
the Pledge Collateral pledged by such Pledgor or any right, title or interest
therein other than pursuant hereto, (ii) not to create, incur or permit to exist
any Lien on the Pledged Collateral pledged by such Pledgor, other than the Lien
in favor of the Corporation created by this Agreement, and (iii) not to consent
to or approve the issuance to any Person of any additional shares of any class
of capital stock of the Assuming Institution, any securities convertible into or
exchangeable for any such shares or any warrants, options or other rights to
purchase or otherwise acquire any such shares.
(c) Upon the written request of the Corporation, from time to time to
execute, acknowledge and deliver, and file and record, all such instruments,
including without limitation Uniform Commercial Code financing statements, and
take all such other action, as is reasonably necessary to carry out the purposes
of this Agreement.
(d) To maintain at all times ownership of all of the shares of capital
stock of the Assuming Institution owned by such Pledgor as of the date hereof.
(e) (i) To execute, acknowledge, deliver, file, notarize and register at
its own expense all such further agreements, instruments, certificates,
documents and assurances and perform such acts as the Corporation shall deem
necessary or appropriate to effectuate the purposes of the Assistance Documents
to which such Pledgor is a party, (ii) promptly obtain from time to time and
maintain in full force and effect at its own expense all such governmental
licenses, authorizations, consents, permits and approvals as may be required to
enable the Pledgor to comply with its obligations under the Assistance Documents
to which it is a
11
<PAGE>
party and all other documents made and delivered, or to be made and delivered,
pursuant thereto, and (iii) promptly provide the Corporation with evidence of
the foregoing satisfactory in form and substance to the Corporation.
8. Administration of the Pledged Collateral.
----------------------------------------
(a) As long as no Event of Default shall have occurred and be continuing,
each Pledgor shall have the right, from time to time, to vote and give consents
with respect to the Pledged Collateral pledged by it or any part thereof for
all purposes not inconsistent with the provisions of this Agreement, the Interim
Capital Assistance Agreement and any other Assistance Documents; provided,
---------
however, that in any event no vote shall be cast, and no consent shall be given
- -------
or action taken, which would have the effect of impairing the position or
interest of the Corporation with respect to the Pledged Collateral pledged by
such Pledgor which would authorize or effect (i) any action prohibited under the
terms of any Assistance Document, (ii) any change in the authorized number of
shares, the stated capital or the authorized capital of the Assuming Institution
or the issuance of any additional shares of stock of the Assuming Institution,
or (iii) the alteration of the voting rights with respect to the stock of the
Assuming Institution.
(b) Upon the occurrence and during the continuance of any Event of
Default:
(i) the Corporation shall have the right following prior written
notice to any Pledgor to vote the Pledged Collateral pledged by such Pledgor or
to give shareholder consent in respect of the Pledged Collateral pledged by such
Pledgor (including without limitation, the right to vote such Pledged Collateral
to elect a new board of directors of the Assuming Institution) and to exercise
all rights of conversion, exchange, subscription or any other rights,
privileges or options pertaining to the Pledged Collateral pledged by such
Pledgor as if the Corporation were the absolute owner thereof (and each such
Pledgor
12
<PAGE>
hereby irrevocably appoints the Corporation its proxy and attorney-in-fact with
full power of substitution to do so and agrees, if so requested, to execute or
cause to be executed appropriate proxies therefor); and
(ii) any or all of the Pledged Collateral held by the Corporation
hereunder may, at the option of the Corporation, be registered in the name of
the Corporation or its nominee.
c) Notwithstanding any provision contained herein, the Corporation
shall have no duty to exercise any of the aforesaid rights, privileges or
options and shall not be responsible to any Pledgor or any other Person for any
failure to do so or delay in doing so.
9. Corporation's Remedies.
----------------------
Should the Pledgors not cure any Event of Default, the Corporation shall have,
in addition to all rights and remedies specified elsewhere in this Agreement and
all rights and remedies of a secured party under the Uniform Commercial Code or
other applicable statutes or rules, the following rights and remedies:
(a) Any item of the Pledged Collateral of any Pledgor may be sold for
cash or other value in any number of lots at brokers' board, public auction or
private sale without demand, advertisement or notice (excepting only that the
Corporation shall give such Pledgor five (5) days' prior written notice of the
time and place of any public sale or the time after which a private sale may
take place, which notice each Pledgor and the Corporation hereby agree to be
reasonable) and such other demands, advertisements, or notices as may be
required by applicable law. At any sale or sales of the Pledged Collateral
(except a private sale) the Corporation or any Person acting on its behalf or
its assigns may bid for and purchase the whole or any part of the Pledged
Collateral so sold and upon compliance with the terms of
13
<PAGE>
such sale may hold and dispose of such Pledged Collateral without further
accountability to the Pledgor, except for the proceeds of such sale or sales.
(b) The proceeds of all sales and collections, and any other amounts
(including any cash contained in the Pledged Collateral) the application of
which is not otherwise provided for herein, shall be applied (i) first, to the
payment of the costs, expenses and disbursements incurred in connection with
such sale or sales and collections, including reasonable attorneys' fees and any
other amounts then due to the Corporation; (ii) second, to the payment of
accrued and unpaid interest on the Note comprising the Secured Obligations;
(iii) third, to the payment of the principal amount of the Note comprising the
Secured Obligations; and (iv) fourth, to the payment of any other amount of the
Secured Obligations. Any excess of proceeds which exists after such
disposition shall, subject to the rights of any junior lienholders, be paid over
to the Pledgors.
10. Notice.
------
Any notice, request, demand, consent, approval or other communication to any
party hereto shall be effective when received and shall be given in writing, and
delivered in person against receipt therefor, or sent by certified mail, postage
prepaid, or courier service at its address set forth below or at such other
address as it shall hereafter furnish in writing to the others. All such notices
and other communications shall be deemed given on the date received by the
addressee.
Secured Party Pledgors
- ------------- --------
Resolution Trust Corporation See Schedule 1
801 17th Street, N.W.
Washington, D.C. 20549
Attention: J. Paul Ramey
Vice President
Department or Resolutions
copies to: Assistant General Counsel
Resolution Trust Corporation
14
<PAGE>
4000 MacArthur Boulevard
Newport Beach, CA 92660
and
Vice President
Resolution Trust Corporation
4000 MacArthur Boulevard
Newport Beach, CA 92660
11. No Waiver; Cumulative Remedies.
------------------------------
No failure to exercise, and no delay in exercising, on the part of the
Corporation, any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any further exercise thereof or the exercise of any
other right, power or privilege. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law. Each Pledgor waives any
right to require the Corporation to proceed against any Person or to exhaust any
other collateral or security for the Secured Obligations or to pursue any remedy
in the Corporation's power.
12. Indemnity, Expenses and Liability.
---------------------------------
(a) The Pledgors jointly and severally agree to indemnify the Corporation
from and against any and all claims, losses and liabilities growing out Of or
resulting from this Agreement (including, without limitation, enforcement of
this Agreement), except claims, losses or liabilities resulting from the
Corporations's gross negligence or willful misconduct.
(b) The Pledgors jointly and severally agree upon demand to pay to the
Corporation the amount of any and all losses, costs and expenses (including,
without limitation, the reasonable fees and disbursements of its counsel and of
any experts and agents) which the Corporation may incur in connection with (i)
the perfection and protection of the security interest granted or purported to
be granted hereby, (ii) the exercise or enforcement of any of the rights or
remedies of the Corporation hereunder, including in any out-of-court workout or
in any bankruptcy case,
15
<PAGE>
and (iii) the preservation of or realization upon the Pledged Collateral,
including without limitation losses, costs and expenses sustained by the
Corporation as a result of any failure by any Pledgor to perform or observe its
obligations contained in this Agreement.
13. Assignment.
----------
All rights, powers and remedies of the Corporation under this Agreement shall
inure to the benefit of its respective successors and assigns, and all
obligations of each Pledgor hereunder shall bind such Pledgor's successors and
assigns.
14. Severability.
------------
Any provision of this Agreement which shall be held invalid or unenforceable
shall be ineffective without invalidating the remaining provisions hereof.
15. Governing Law.
-------------
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE FEDERAL LAW OF THE UNITED
STATES OF AMERICA, AND IN THE ABSENCE OF CONTROLLING FEDERAL LAW, IN ACCORDANCE
WITH THE LAWS OF THE STATE OF CALIFORNIA.
16. Termination
-----------
Upon payment in full of all amounts of principal, interest, expenses and all
other liquidated amounts payable with respect to the Secured Obligations, and
satisfaction of all other then known Secured Obligations, this Agreement shall
terminate (except to the extent explicitly provided for otherwise herein)
and the Corporation shall redeliver to each Pledgor any of the Pledged
Collateral of such Pledgor in the Corporation's possession and shall execute and
deliver to such Pledgor such documents as shall be necessary to evidence
termination of the security interests granted to the Corporation hereunder;
provided, however, that if at such time there shall exist, in the reasonable
- --------- -------
opinion of the Corporation, an unsatisfied Secured Obligation which is
contingent or unliquidated as to amount, this Agreement shall not terminate,
16
<PAGE>
and the Corporation shall not be obligated to redeliver to any Pledgor any of
the Pledged Collateral of such Pledgor in the Corporation's possession and shall
not be obligated to execute and deliver any release documents, until such
contingent or unliquidated Secured Obligation is liquidated by agreement between
the Corporation and each such Pledgor and is paid in full, or is adequately
secured by cash collateral.
17. Entire Agreement; Amendments.
----------------------------
This Agreement and the other Assistance Documents constitute the entire
agreement between the parties with respect to the matters set forth herein and
therein. This Agreement may not be amended or supplemented except by a writing
signed by the Corporation and each Pledgor.
18. Counterparts.
------------
This Agreement may be executed in any number of counterparts, and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed an original and all of which taken together shall
constitute but one and the same agreement.
19. Headings.
--------
The headings which are used in this Agreement are for the convenience of the
parties only and shall not affect the meaning of any provision of this
Agreement.
17
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Stock Pledge
Agreement to be duly executed as of the date first above written.
RESOLUTION TRUST CORPORATION
By: /s/ LEWIS W. FRALIN
---------------------------------
Printed Name: Lewis W. Fralin
Title: Director of Resolutions
PLEDGOR:
Pan American Financial, Inc.
By: /s/ WILLIAM BRON
----------------------------------
Printed Name: William (Guillermo) Bron
Title: Chairman of the Board
18
<PAGE>
Schedule l
to Stock Pledge Agreement dated as of
April 29, 1994
Pan American Financial, Inc.
1999 Avenue of the Stars, #2800
Los Angeles, California 90067
19
<PAGE>
Schedule 2
to Stock Pledge Agreement dated as of
April 29, 1994
PLEDGED SHARES
Common stock, $8.00 per share, of Pan American Bank, F.S.B. being
represented by stock certificates as follows:
<TABLE>
<CAPTION>
Name of Certificate Certificate No. of
Pledgor No. Date Shares
- ------- ----------- ----------- ------
<S> <C> <C> <C>
Pan American l April 29, 1994 1,135,000
Financial, Inc.
</TABLE>
20
<PAGE>
EXHIBIT 10.34
INTERIM OPERATING AGREEMENT
This Agreement is made effective as of July 1, 1997, by and between UNITED
PAN AM MORTGAGE CORP., a California corporation ("Mortgage Company") and PAN
AMERICAN BANK, FSB, a federal savings bank ("Bank") with reference to the
following:
R E C I T A L S
A. Effective July 1, 1997, Bank has distributed, by way of dividend to its
parent, all of the issued and outstanding shares of capital stock of the
Mortgage Company, as contemplated by that certain letter of January 28, 1997
submitted to the Office of Thrift Supervision ("OTS"), in connection with the
Bank's letter application, dated January 27, 1997, to establish the Mortgage
Company as an operating subsidiary on an interim basis (the "OTS Application").
The organization of the Mortgage Company and the transfer of its shares by
dividend were the subject of no objection or approval letters issued by the OTS
on February 20, 1997 and April 2, 1997. The Mortgage Company had been
incorporated by the Bank on January 10, 1997, to acquire certain lending
business currently conducted by the Bank at the offices listed on Schedule "A"
("Mortgage Company Offices") and to conduct such operations on an interim basis
pending the transfer of the Mortgage Company to its parent. To date it has not
commenced activities.
B. The foregoing transactions were undertaken as part of the transfer from
the Bank of its entire existing subprime single-family mortgage loan origination
and mortgage banking business (the "Subprime Business") to the Mortgage Company.
In addition to the Mortgage Company assets described above, following the
expiration of the Term of this Agreement (as defined below), such transfer will
include the assumption by the Mortgage Company of all obligations of the Bank
under office leases for the Mortgage Company Offices and the assignment of such
leases to the Mortgage Company, the transfer of all employees conducting the
Subprime Business and the assumption of certain maintenance and other service
contracts in so far as such service contracts relate to the Subprime Business.
C. Following completion of the transfer of the entire Subprime Business,
it is anticipated that the Bank will continue to underwrite loans originated by
the Mortgage Company for a fee and to purchase loans from the Mortgage Company
in the manner generally described in the OTS Application, on such terms and
procedures as are provided therein or as such terms and procedures may be
modified from time-to-time.
D. In order to complete the transfer of the Subprime Business by the Bank
to the Mortgage Company, the Mortgage Company and certain of its employees and
agents involved in the origination, production and/or servicing of mortgage
loans are required to be licensed or to obtain or confirm exemptions from
licensing under various laws in effect in the states in which the Mortgage
Company maintains Mortgage Company Offices or otherwise originates or acquires
mortgage loans ("State Licensing Requirements"). The Bank, as a federally-
chartered savings bank, and its employees, are generally exempt from State
<PAGE>
Licensing Requirements and can originate, produce and service mortgage loans
without the necessity of obtaining licenses or permits in the states in which
Subprime Business is currently conducted.
E. The Mortgage Company and the Bank wish to provide for the continued
origination and production of mortgage loans in connection with the Subprime
Business by the Bank and its employees and agents on an interim basis, pending
receipt by the Mortgage Company of all licenses, permits, authorizations and
exemptions required to satisfy State Licensing Requirements, in order to assure
the effective transition of the Subprime Business from the Bank to the Mortgage
Company.
NOW, THEREFORE, the Mortgage Company and the Bank agree as follows:
1. TERM. This Agreement shall remain in effect from July 1, 1997 until
----
the earlier of December 31, 1997 and the end of the month in which the Mortgage
Company satisfies all State Licensing Requirements (the "Term").
2. PRODUCTION EMPLOYEES. During the Term the Bank shall retain all loan
--------------------
origination and production employees and agents engaged in the Subprime Business
("Production Employees") under its direct employ. Production Employees shall be
transferred to the Mortgage Company upon the expiration of the Term. During the
Term, the Bank shall remain responsible for the payment of all wages and other
benefits due such employees.
3. ELIGIBLE LOANS. During the Term, the Bank shall continue to originate
--------------
and fund through the Production Employees subprime mortgage loans meeting its
underwriting guidelines and other requirements ("Eligible Loans"), which loan
programs and underwriting guidelines shall be specified jointly by the Mortgage
Company and the Bank. Such requirements shall include, among other things,
requirements relating to owner occupancy; loan-to-value ratios; lien priority;
title, hazard, flood and mortgage insurance; appraisal; borrower financial and
credit history; loan documentation, and compliance with state and federal laws
and regulations.
4. MORTGAGE COMPANY OFFICES. The parties recognize that certain State
------------------------
Licensing Requirements apply to the Mortgage Company Offices. To that end,
during the Term, the Bank shall continue to lease and remain obligated to
landlords under the office leases relating to the Mortgage Company Offices, and
shall pay all rent, utilities, insurance and other costs related to the
operation and maintenance of such offices, as well as to the loan production and
origination functions conducted at the Mortgage Company Offices, including all
personnel costs, telephones, and other Operating Expenses ("Office Expenses").
Such Office Expenses shall be paid during the Term by the Bank, and following
expiration of the Term by the Mortgage Company. To the extent the Bank retains
any liability to landlords for periods following the expiration of the Term
respecting the leases of the Mortgage Company Offices, the Mortgage Company
shall indemnify and hold the Bank
-2-
<PAGE>
harmless from any such liabilities. The Mortgage Company shall not charge the
Bank for use of the Mortgage Company Office assets, which have been sold to the
Mortgage Company and the Bank may after July 1 acquire the assets necessary to
originate and fund subprime mortgage loans. Such assets acquired by the Bank
after July 1 shall be sold to the Mortgage Company at net book value upon
satisfaction of State Licensing Requirements but not later than December 31,
1997.
5. ADMINISTRATIVE SERVICES. During the Term, Mortgage Company shall
-----------------------
administer and supervise all Subprime Business conducted at the Mortgage Company
Offices to the extent consistent with applicable law and regulations. Such
services shall be provided without separate charge to the Bank.
6. SECONDARY MARKETING. During the Term, the Mortgage Company shall be
-------------------
responsible for all activities and related overhead and other expenses related
to the marketing and sale of Eligible Loans originated and funded by the Bank
during the Term, including the securitization or other sale of loans,
solicitation of bids for loans, advising the Bank regarding sales pricing and
related matters ("Secondary Marketing Services"). This Agreement shall
constitute the written authorization of the Bank to the Mortgage Company to act
as the Bank's agent for such purposes, subject to applicable OTS regulations.
For such Secondary Marketing Services during the Term, the Mortgage Company
shall be entitled to receive a Marketing Fee as described in Section 7 below.
7. COMPENSATION OF THE PARTIES. As contemplated by the OTS Application,
---------------------------
upon satisfaction of all State Licensing Requirements and the complete
transition of the origination and production of Eligible Loans from the Bank to
the Mortgage Company, the Bank will purchase Eligible Loans which the Bank has
underwritten prior to their funding by the Mortgage Company, subject to an
option on the part of the Mortgage Company to repurchase such loans. The loans
will ultimately be resold by the Mortgage Company into the secondary market. In
that connection, the Bank will receive interest income on the Eligible Loans
during the period it retains ownership of the loans, an underwriting fee of $100
per loan for its underwriting each Eligible Loan, and a transaction fee equal to
0.50% of each Eligible Loan actually repurchased from the Bank by the Mortgage
Company ("Transaction Fee") upon the ultimate sale of such loans in the
secondary market. The parties hereto desire to preserve the foregoing
allocation of the relative economic benefits of the origination, production and
sale of Eligible Loans during the Term. The parties have reviewed the
historical operating expenses involved in connection with the origination and
production of Eligible Loans and the operation of the Mortgage Company Offices
and have concluded that such expenses, including all costs of Production
Employees and all other Office Expenses, do not exceed $____________ for each
Eligible Loan originated and sold. In order to cover such expenses, the parties
have agreed that the Bank shall be entitled to receive a payment of $___________
for each Eligible Loan originated and sold during the Term (the "Production
Operations Payment"). Accordingly, during the Term, and in addition to interest
received while such loans were owned by the Bank, from the net sales proceeds of
each Eligible Loan sold by the Mortgage Company on behalf of the Bank, the Bank
shall be entitled to retain: (a) the principal amount and all accrued interest
on the loan, (b) the Transaction Fee, and (c) the Production Operations Payment.
The Mortgage Company shall be entitled to receive from the Bank a Marketing Fee
equal to the net proceeds of each Eligible Loan sale less the amounts paid to
the Bank as described in the preceding sentence. Within 90 days following
expiration of the Term, the parties shall
-3-
<PAGE>
review the actual expenses incurred by the Bank in connection with the
production and origination of Eligible Loans sold, and the Mortgage Company
shall promptly pay to the Bank any excess of such expenses over the total
Production Operation Payments made to the Bank, and the Bank shall pay to the
Mortgage Company any amount by which the Production Operations Payments exceed
actual expenses.
8. AMENDMENTS TO AGREEMENT. The parties agree to negotiate in good faith
-----------------------
respecting the reallocation of expenses and income should it appear that the
allocation of expenses and income in Section 7 did not fairly reflect the terms
of the economic relationship contemplated by the parties.
9. INDEMNITY. The Mortgage Company shall indemnify and hold harmless the
---------
Bank from and against any obligations or liabilities that the Bank may have
arising out of (a) any claim by any investor who purchased Eligible Loans sold
by the Bank during the Term, respecting indemnification for losses or the
repurchase of loans from such investor; (b) the leases, sums due Production
Employees or other expenses connected with the operation of the Mortgage Company
Offices or the conduct of the Subprime Business following the term; and (c) any
assets transferred to or liabilities assumed by the Mortgage Company in
connection with the Subprime Business.
Executed this 1st day of July, 1997.
"Mortgage Company"
UNITED PAN AM MORTGAGE CORP.
By /s/ JOHN T. FRENCH
-------------------------------
Title: Chairman
"Bank"
PAN AMERICAN BANK, FSB
By /s/ LAWRENCE J. GRILL
-------------------------------
Title: President and CEO
-4-
<PAGE>
EXHIBIT 10.37
[LETTERHEAD OF PAN AMERICAN BANK, FSB]
May 7, 1996
Mr. Ray C. Thousand
30 Bridge Port Road
Newport Beach, CA 92657
Re: Employment Agreement
Dear Mr. Thousand:
This letter agreement and attachments hereto, (collectively the "Agreement") set
forth the terms and conditions of your employment with Pan American Bank, FSB
(the "Bank"). By signing this Agreement, you will be agreeing to these terms. It
is important that you understand clearly both what your benefits are and what is
expected of you by the Bank. The effective date of this Agreement (the
"Effective Date") shall be as of December 7, 1995.
1. Term. This Agreement shall have a term of three (3) years, commencing as of
the Effective Date (the "Term"). Where used herein, "Term" shall refer to the
entire period of your employment by the Bank from and after the Effective
Date, whether for the period provided above or as extended or terminated
earlier as hereinafter provided.
2. Duties. You initially shall hold the office of President of the Bank's
Automobile Finance Division. During the Term thereof and subject to obtaining
necessary corporate and regulatory approvals, the Bank may determine to spin
off the business conducted by the Automobile Finance Division into a newly
organized subsidiary corporation, in which case you would hold the office of
President of the new subsidiary. In either capacity, you shall perform the
duties customarily performed by individuals holding a similar title with
other financial institutions or as otherwise may be agreed upon by the Bank
and you from time to time. During the Term hereof, you shall perform the
services herein contemplated faithfully, diligently and to the best of your
ability in compliance with instructions and policies of the Bank's senior
management, the Board of Directors, the Bank's Federal Charter and Bylaws and
with all applicable laws and regulations.
3. Compensation.
a) Base Salary. For your service rendered to the Bank or any subsidiary
corporation hereunder, during the Term hereof, the Bank shall pay or
cause to be paid a base salary to you at the rate of One Hundred
Thirty Five Thousand Dollars ($135,000) per annum, payable in
conformity with the Bank's normal payroll periods and procedures.
<PAGE>
Ray C. Thousand
May 7, 1996
Page 2
b) Bonus. In addition to the base salary provided for under Section 3(a)
above, you shall be entitled to annual bonus compensation in accordance
with the incentive compensation formula set forth in Exhibit A to this
Agreement. Among other things, the incentive compensation formula
establishes certain performance criteria and sales objectives by which
the amount of your bonus compensation, if any, is to be determined.
c) Automobile Allowance. The Bank shall provide you during the Term of
this Agreement with an automobile allowance of Two Hundred Dollars
($200) per month.
d) Options. See Exhibit B.
4. OTHER BENEFITS. During the Term hereof and unless otherwise agreed to by the
Bank and you:
a) Vacation. You shall be entitled to a total of three (3) weeks paid
vacation, the amount and term of which shall be determined in accordance
with the policies of the Bank as in effect from time to time.
b) Group Medical, Life Insurance and Other Benefits. You will be eligible
for the medical, dental, vision, life insurance and long-term disability
plans that are generally applicable to your employment classification.
You will be issued summary plan descriptions regarding the Bank's
benefit plans when you become a participant in those plans.
5. BUSINESS EXPENSES. You shall be entitled to reimbursement by the Bank for
any and all ordinary and necessary business expenses reasonably incurred by
you in the performance of your duties and in acting for the Bank during the
Term of this Agreement, provided that you furnish to the Bank adequate
records and other documentation as may be required for the substantiation of
such expenditures as a business expense of the Bank.
6. PRIOR EMPLOYMENT. You and the Bank acknowledge and agree that you were
previously employed by one or more other financial institutions in
capacities similar to the capacities proposed herein. In connection with any
such prior employment, you hereby represent and warrant to the Bank as
follows:
a) No Breach of Prior Agreement. Your execution and delivery of this
Agreement and your performance of the obligations contemplated hereunder
will not result in a breach of any prior employment agreement, whether
written or oral, that you may have entered into with any former employer
or other third party.
b) No Use of Confidential or Proprietary Information. While in the employ
of the Bank, whether pursuant to this Agreement or otherwise, you will not make
use of any information, manuals, documents, files, reports, studies or other
materials that may have been used and/or developed while you were in the employ
of any prior employer(s), which information and/or materials are or may be
deemed of a confidential or proprietary nature by such other prior employer(s).
<PAGE>
Ray C. Thousand
May 7, 1996
Page 3
You further acknowledge and agree that any violation by you of this
Section 6 shall constitute grounds for termination of your employment
hereunder and that you may be held liable by the Bank for any losses
or damages suffered by the Bank as a result of any such violation.
7. Termination.
a) Termination for Cause. The Board may for cause terminate your
employment at any time during the Term of this Agreement. In such
event, all of your rights under this Agreement shall terminate and you
shall have no right to receive compensation, and other benefits shall
cease for any period after the effective date of such termination for
cause. Bonus compensation unpaid shall be forfeited. Termination for
cause shall be defined as your personal dishonesty, willful
misconduct, breach of fiduciary or duty of loyalty, continuing
intentional or habitual failure to perform stated duties, violation of
any law (other than minor traffic violations or similar misdemeanor
offenses), rule or regulation adopted by the Office of Thrift
Supervision, Federal Deposit Insurance Corporation or other regulatory
agency with jurisdiction over the Bank, any judgment, ruling or decree
by any court of competent jurisdiction or administrative body that
precludes or impairs your ability to perform the services contemplated
by this Agreement or any material breach by you of any provision of
this Agreement.
b) Termination Without Cause. The Bank may terminate your employment
without cause at any time during the Term of this Agreement. In the
event that the Bank terminates your employment without cause, you
shall be entitled to receive as severance compensation an amount as
provided in Exhibit C. The severance payment under this Section 7(b)
shall be provided in a lump sum or, at your election, in equal monthly
installments for a period not to exceed six (6) months from the date
of termination. This payment shall be in lieu of any and all other
compensation due under the agreement unless previously vested or
earned, except the amount of any bonus compensation payable to you
under Section 3(b) hereof, shall be prorated through the date of
termination.
c) Failure to Meet Performance Objectives. In the event that you fail to
achieve at least the performance objectives set forth in Exhibit D to
this Agreement within any applicable measuring period, the Bank may
terminate your employment under this Agreement. In such event (and
provided that your employment is not otherwise terminated for cause as
provided under Section 7(a)), you shall be entitled to receive as
severance compensation an amount equal to fifteen percent (15%) of the
remaining base salary to be provided to you under Section 3(a)
hereunder from the date of termination until the end of the Term. The
severance payment under this Section 7(c) shall be provided in a lump
sum or, at your election, in equal monthly installments for a period
not to exceed six (6) months from the date of termination. This
payment shall be in lieu of any and all other payments due under the
contract including bonus compensation.
<PAGE>
Ray C. Thousand
May 7, 1996
Page 4
d) Compliance with Law and Regulation. You and the Bank expressly
acknowledge and agree that any payments made to you pursuant to this
Agreement or otherwise are subject to and conditioned upon compliance
with 12 U.S.C. Section 1828(k) and any regulations promulgated
thereunder.
e) Suspension and Removal Orders. If you are suspended and/or temporarily
prohibited from participating in the conduct of the Bank's affairs by
notice served under Section 8(e)(3) or 8(g)(1) of the Federal Deposit
Insurance Act (12 U.S.C. Section 1818 (e)(3) and (g)(1)), the Bank's
obligations under this Agreement shall be suspended as of the date of
service, unless stayed by appropriate proceeding. If the charges in the
notice are dismissed, the Bank may in its discretion: (I) pay you all or
part of the compensation withheld while its obligations under this
Agreement were suspended; and (ii) reinstate (in whole or in part) any
of its obligations which were suspended. If you are removed and/or
permanently prohibited from participating in the conduct of the Bank's
affairs by an order issued under Section 8(e)(4) or 8(g)(1) of the
Federal Deposit Insurance Act (12 U.S.C. Section 1818(e)(4) or (g)(1)),
all obligations of the Bank under this Agreement shall terminate as of
the effective date of the order, but vested rights of the parties shall
not be affected.
f) Termination by Default. If the Bank is in default (as defined in Section
3(x)(1) of the Federal Deposit Insurance Action (12 U.S.C. Section
1813(x)(1)), all obligations under this Agreement shall terminate as of
the date of default, but vested rights of the parties shall not be
affected.
g) Supervisory Assistance or Merger. All obligations under this Agreement
shall be terminated, except to the extent that it is determined that
continuation of the Agreement is necessary for the continued operation
of the Bank: (I) by the Director of the Office of Thrift Supervision
(the "Director") or his or her designee, at the time that the Federal
Deposit Insurance Corporation enters into an agreement to provide
assistance to or on behalf of the Bank under the authority contained in
Section 13(c) of the Federal Deposit Insurance Act (12 U.S.C. Section
1823(c)); or (ii) by the Director or his or her designee, at the time
that the Director or his or her designee approves a supervisory merger
to resolve problems related to the operation of the Bank or when the
Bank is in an unsafe or unsound condition. All rights of the parties
that have already vested, however, shall not be affected by such action.
h) Disability. In the event that you shall fail, because of illness,
incapacity or injury, to render the services contemplated by this
Agreement for three (3) consecutive calendar months, or for shorter
periods aggregating four (4) months in any twelve (12) month period,
your employment hereunder may be terminated by written notice from the
Bank to you. In the event that your employment is terminated under this
Section 7(h), you shall receive the difference between any disability
payments provided through insurance plans offered by the Bank, if any,
provided you have enrolled in such plans and paid the cost thereof, and
your base salary as
<PAGE>
set forth in Section 3(a) hereof, for six months after notice from the
Bank, plus the amount of any bonus compensation payable to you under
Section 3(b) hereof, prorated through the date of termination. Such
termination shall not affect any rights which you may have pursuant to
any insurance or other death benefit, or any stock option plans or
options thereunder, which rights shall continue to be governed by the
provisions of such plans and arrangements.
i) Death. If your employment is terminated by reason of your death, this
Agreement shall terminate without further obligations of the Bank to you
(or your heirs or legal representatives) under this Agreement, other
than for payment of (i) your base salary (as set forth in Section 3(a)
hereof) through the date of termination; (ii) the amount of any bonus
compensation payable to you under Section 3(b) above, prorated through
the date of termination; (iii) any compensation previously deferred by
you; (iv) any accrued vacation and/or sick leave pay; and (v) any
amounts due pursuant to the terms of any applicable welfare benefit
plan. All of the foregoing amounts shall be paid to your estate or
beneficiary, as applicable, in a lump sum in cash within thirty (30)
days after the date of termination or earlier as required by applicable
law.
8. Disclosure or Use of the Bank's Trade Secrets. During the Term hereof, you
will have access to and become acquainted with what you and the Bank
acknowledge are trade secrets of the Bank. You shall not use or disclose
any trade secrets or, directly or indirectly, cause them to be used or
disclosed in any manner, except as may be required or requested by the
Bank, by court order or under applicable law or regulation. This paragraph
shall survive the termination of this agreement.
9. Return of Documents. You expressly agree that all manuals, documents, files,
reports, studies or other materials used and/or developed by you for the
Bank during the Term of this Agreement or prior thereto while you were
employed by the Bank are solely the property of the Bank, and that you have
no right, title or interest therein. Upon termination of this Agreement, you
or your representative shall promptly deliver possession of all such
materials (including any copies thereof) to the Bank.
10. Notices. All notices, demands or other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered in person,
or sent by United States mail, certified or registered, with return receipt
requested, if to you, addressed to you at your last residence address as
shown in the records of the Bank, and if to the Bank, addressed to
the President of the Bank at the Bank's principal office.
11. Governing Law and Jurisdiction. This Agreement shall be goverened by and
interpreted in accordance with the laws of the State of California. Each of
the parties hereto consents to the jurisdiction of the California state or
federal courts, as the case may be, for the enforcement of this Agreement
and matters pertaining to the transactions and activities contemplated
hereby.
12. Attorney's Fees. In the event that a dispute arises with respect to this
Agreement, or your employment or severance of your employment from the Bank,
the prevailing party in such dispute shall be entitled to recover all
expenses, including, without limitation, reasonable attorney's fees,
incurred in connection with such dispute.
<PAGE>
Ray C. Thousand
May 7, 1996
Page 6
13. BENEFIT OF AGREEMENT. This Agreement shall be binding upon and shall ensure
to the benefit of the parties hereto and their respective successors and
assigns; provided, however, that you may not assign any interest in this
Agreement without the prior written consent of the Bank.
14. CAPTIONS. Captions and paragraph heading used in this Agreement are for
convenience only and shall not be used in interpreting this Agreement.
15. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties with respect to your employment by the Bank, and it expressly
supersedes any and all other agreements, either oral or written, relating
thereto.
16. SEVERABILITY. Should any provision of this Agreement for any reason be
declared invalid, void or unenforceable by a court of competent
jurisdiction, the validity and binding effect of any remaining portions of
this Agreement shall remain in full force and effect as if this Agreement
had been executed with such invalid, void or unenforceable provisions
eliminated; provided, however, that the remaining provisions still reflect
the intent of the parties to this Agreement.
17. AMENDMENTS. This Agreement may not be amended or modified except by a
written agreement signed by you and the President of the Bank. This
Agreement and any amendment thereof may be executed in counterparts.
We look forward to your continued association with the Bank. In order to
confirm your agreement with and acceptance of the terms and conditions set forth
above, please sign and date one copy of this Agreement where indicated below and
return it to the Bank's Human Resources Department. The other copy is for your
records. If there is any matter in this Agreement that you wish to discuss
further, please do not hesitate to contact me.
Very truly yours,
/s/ Lawrence J. Grill
Lawrence J. Grill
President and
Chief Executive Officer
I agree to the terms of employment set forth in this Agreement subject to
approval of the Pan American Bank Board of Directors.
/s/ RAY C. THOUSAND 5/14/96
- -------------------------- -----------------
Employee Date
<PAGE>
EXHIBIT A
BONUS CALCULATIONS
GOALS
- -----
<TABLE>
<CAPTION>
December 31
----------------------------------------
1996 1997 1998
----------------------------------------
<S> <C> <C> <C>
Volume for a month $1,500,000 $4,000,000 $7,000,000
Pre-Tax Profit $ (529,000) $1,235,000 $5,283,000
Delinquency (30+ Contractual) 4.0% 4.0% 4.0%
Net Charge-off 3.5% 3.5% 3.5%
</TABLE>
These goals assume a cost of funds not to exceed prime +2 based on Wall Street
Journal prime, $1,000,000 in equity capital, and no corporate overhead
allocation.
BONUS
- -----
Bonus will be calculated as follows:
YEAR 1
- ------
25% of base salary if all goals are met.
YEAR 2
- ------
25% of base salary if pre-tax profit of $750,000 is achieved and all other goals
essentially met.
50% of base salary if pre-tax profit of $1,000,000 is achieved and all other
goals essentially met.
75% of base salary if pre-tax profit of $1,235,000 is achieved and all other
goals essentially met.
100% of base salary if pre-tax profit of $1,500,000 is achieved and all other
goals essentially met.
YEAR 3
- ------
25% of base salary if pre-tax profit of $3,000,000 is achieved and all other
goals essentially met.
50% of base salary if pre-tax profit of $3,750,000 is achieved and all other
goals essentially met.
75% of base salary if pre-tax profit of $4,500,000 is achieved and all other
goals essentially met.
100% of base salary if pre-tax profit of $5,283,000 is achieved and all other
goals essentially met.
"Pre-tax profit" shall be based upon the amount reflected in the Bank's internal
financial statements without any allocation for Bank Corporate overhead, but
including Cost of Funds charged by the Bank at prime +2.
Attainment of goals/bonus assumes that there are no material changes in policy
by the Bank that might materially affect or limit the Auto Finance Division
Business Plan. If any material changes in policy by the Bank, then goals and
bonus calculation will be adjusted accordingly upon mutual agreement of the
parties.
Employee must be on the payroll at the end of the calendar year to be eligible
for payment of a bonus regardless of length of service or reason for termination
or resignation unless provided for specifically in the Employment Agreement. If
the Employee is discharged by the Company for "Willful Misconduct" or any other
reasons set forth in paragraph 7(a) of the Employment Agreement, any right of
the Employee to a bonus shall be forfeited even if the employee is on the
payroll at the end of the calendar year.
Bonus payments will be made within 60 days after the end of the calendar year
allowing for the review of the results of operations.
<PAGE>
EXHIBIT B
Options
Options are to be granted totaling 7.5% of the Bank's Auto Finance Subsidiary
(during the term of this agreement the Auto Finance Division will be spun off
into a newly organized subsidiary corporation the current name of which is
anticipated to be United Auto Credit Corporation). By mutual agreement with
agreement not unreasonably withheld, "phantom stock plan" can be substituted for
an Option Plan provided it provides equivalent financial compensation and rights
as on Option Plan.
The exercise price of the options will be calculated at the end of each fiscal
year as follows:
Contributed Capital for each month will be defined as the additional capital
(over and above the Cumulative Capital Account at the end of the previous month)
needed in order to maintain a 5 to 1 debt to equity ratio at the end of such
month.
Adjusted Shareholder's Equity is defined as the sum of (i) Initial Capital plus
(ii) Contributed Capital plus (iii) Retained Earnings.
Liquidity event is either an Initial Public Offering or a sale of the auto
subsidiary.
Threshold Capital is defined as the sum of all Contributed Capital compounded at
a 30% per annum less the loan rate charged to the time it is computed.
1. The shares vested on each year will have an exercise price equal to the
Adjusted Shareholders' Equity at such time. (B)
2. The options will vest 20% per year based on attainment of 85% of net pre-tax
profit goal (except for year 1) for the Division or Subsidiary.
3. The shares could be exercised at a liquidity event only if the Bank or its
holding company receives consideration equal to or greater than the Threshold
Capital for the cumulative Contributed Capital at such time.
<TABLE>
<CAPTION>
Calendar Percentage of Total Option 85% of Pre-tax Profit Goal, except for year one
- -------- -------------------------- ---------------------------------------------------
<S> <C> <C>
YEAR 1 20% Start 3 Branches, generate $1.5 million in monthly
1996 volume by calendar year-end
YEAR 2 20% $ 1,050,000
1997
YEAR 3 20% $ 4,500,000
1998
YEAR 4 20% $ 8,000,000 (A)
1999
YEAR 5 20% $12,000,000 (A)
2000
</TABLE>
(A) If pre-tax profit growth not attained then the goal will be adjusted to
achieving a 5% ROA.
(B) If growth is faster than Plan, the Plan Adjusted Shareholder Equity as set
forth in Schedule 1 to this Exhibit B will be the maximum exercise price.
Page 1
<PAGE>
The "pre-tax profit goal" assumes a cost of funds equivalent prime rate plus 200
basis points (as provided in the business plan 8.5%+2%=10.5%), an initial
equivalent capitalization of $1,000,000 and no corporate overhead allocation
from the Bank. Should any year's goal not be met, the option amount for that
year will carry over to the next year. If the goal is met in the succeeding year
(including the cumulative profit goal for the previous year(s)), then the
previously unearned option(s) amount will vest. Unearned option(s) amounts will
carry over for five years and to the extent not vested will terminate and
therefore be null and void.
Should the Bank sell the Auto Finance Subsidiary to any other unaffiliated
entity, all options will immediately vest or in the case of a "phantom stock
plan" the equivalent will be provided for. If the Auto Finance Subsidiary is
transferred within the affiliated structure, the obligation and benefits of
the option or "phantom stock plan" shall continue in full force or effect.
Attainment of goals/bonus assumes that there are no material changes in policy
by the Bank that might materially affect or limit the Auto Finance Division
Business Plan. If any material changes in policy by the Bank then goals and
bonus calculation will be adjusted accordingly, upon mutual agreement of the
parties.
The terms and conditions for Options or "phantom stock plan" will be more fully
set forth in a Plan Document or the equivalent thereof to be finalized September
30, 1996.
The sale of shares acquired through exercise of options shall be subject to a
shareholders' agreement giving the Bank first right refusal.
<PAGE>
Schedule 1
Summary Financials
------------------
<TABLE>
<CAPTION>
1996 1997 1998 1999 2000
------ ------ ------ ------- -------
<S> <C> <C> <C> <C> <C>
Net Income (317) 741 3,170 6,160 9,286
Net Loans 10,266 38,555 75,637 119,248 166,918
Total Assets 10,177 37,675 73,727 116,237 162,703
Beginning Shareholders Equity 1,000 683 1,424 4,594 10,754
Retained Earnings (317) 741 3,170 6,160 9,286
Shareholders Equity/(1)/ 683 1,424 4,594 10,754 20,040
Prev. Contributed Capital - 1,370 6,287 10,533 13,096
Capital Contributed in period/(2)/ 1,370 4,917 4,246 2,562 248
Adj. Shareholders Equity 2,053 7,711 15,127 23,850 33,384
Loans/Adj. Shareholders Equity 5.0x 5.0x 5.0x 5.0x 5.0x
Cumulative Capital Contributed 2,370 7,287 11,533 14,096 14,344
<CAPTION>
1 2 3 4 5
------------------------------------------
Hurdle Rate 30.0% 2,370 2,832 3,385 4,045 4,833
Loan Rate 10.5% 4,917 5,876 7,021 8,390
Extra Yield 19.5% 4,246 5,074 6,064
2,562 3,062
248
Threshold Capital/(3)/ 2,370 7,749 13,507 18,703 22,598
</TABLE>
/(1)/ Per management projections
/(2)/ For illustrations purposes the Contributed Capital is computed at year end
versus monthly as agreed
/(3)/ Threshold Capital at the end of period if liquidity event occurs
Page 3
<PAGE>
EXHIBIT C
Severance Compensation
Upon Termination Without Cause
Pursuant to 7(b)
If termination occurs during the first two years of the term of this contract
the payment shall be equal to twelve (12) months salary at the then current
base salary.
If termination occurs in the third year, the amount paid shall be the actual
amount of total months base salary remaining to be paid to the end of the term
of the contract.
<PAGE>
EXHIBIT D
TERMINATION - FAILURE TO MEET PERFORMANCE OBJECTIVES
PURSUANT TO 7(c)
If Monthly Delinquencies in any year (30+ days past due) and Net Charge-Offs =
15+% - no termination payment.
Failure to meet any 2 of 4 objectives in any year will constitute Failure to
Meet Performance Objective:
<TABLE>
<S> <C> <C> <C>
1st Year Monthly Volume less than $1 million gross in December 1996
Profit less than ($700,000 Loss) pretax
Delinquency (30 days+) greater than 6%
Net % of Charge-Offs greater than 4%
2nd Year Monthly Volume less than $2 million gross in December 1997
Profit less than $600,000
Delinquency (30 days+) greater than 7%
Net % of Charge-Offs greater than 5%
3rd Year Monthly Volume less than $3.5 million gross in December 1998
Profit less than $2.5 million
Delinquency (30 days+) greater than 7%
Net % of Charge-Offs greater than 6%
</TABLE>
<PAGE>
EXHIBIT 10.39
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is entered into as of October 1,
1997 by and between Pan American Group, Inc. ("PAGI"), Pan American Bank, FSB, a
federally chartered savings bank (the "Bank"; the Bank and PAGI are individually
and collectively referred to as "Employer") and Lawrence J. Grill ("Employee").
WITNESSETH:
WHEREAS, Employer desires to obtain the services of Employee and Employee
desires to render services to Employer;
WHEREAS, the Boards of Directors of Employer (individually and collectively
referred to as the "Board") has determined that it is in Employer's best
interests and that of its stockholders to secure the services of Employee, to
secure certain additional commitments from Employee and to provide Employee
certain additional benefits; and
WHEREAS, Employer and Employee desire to set forth in this Agreement all
the terms and conditions of Employee's employment with Employer.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties agree as follows:
1. Term. Employer agrees to employ Employee and Employee agrees to serve
----
Employer in accordance with the terms of this Agreement, for (a) a
term of approximately three (3) years and two (2) months commencing on
the date of this Agreement and ending December 31, 2000 (the "Initial
Term"), and (b) at the option of Employer, which Employer may exercise
by giving written notice to Employee on or before December 31, 1999,
an additional one year period ending December 31, 2001 (the "Extended
Term") The Initial Term and the Extended Term are hereinafter referred
to as the "Term." Notwithstanding the foregoing, the Term may be
terminated before the expiration of the Initial Term or the Extended
Term in accordance with the provisions which follow.
2. Services and Exclusivity of Services.
------------------------------------
(a) Employee Time. So long as this Agreement shall continue in
-------------
effect, Employee shall devote his full business time, energy and
ability exclusively to the business, affairs and interests of
Employer and its subsidiaries and matters related thereto , shall
use Employee's best efforts and abilities to promote Employer's
interests, and shall perform the services contemplated by this
Agreement in
<PAGE>
accordance with policies established by and under
the direction of the Board.
(b) Service to Affiliates; Promoting Business. Employee agrees to
-----------------------------------------
serve without additional remuneration in such executive
capacities or as a Board member for one or more direct or
indirect subsidiaries of Employer as the Board may from time to
time request, subject to appropriate authorization by the
subsidiary or subsidiaries involved and any limitations under
applicable law. Employee agrees to faithfully and diligently
promote the business affairs and interests of Employer and its
subsidiaries.
(c) Exclusivity of Services. Employee may make and manage personal
-----------------------
business investments of his choice and serve in any capacity with
any civic, educational or charitable organization without seeking
or obtaining approval by the Board, provided that such activities
and services do not substantially interfere or conflict with the
performance of duties hereunder or create any conflict of
interest with such duties. An investment that exceeds 5% of the
equity securities or capitalization of a competitor, supplier or
customer of Employer shall be deemed to constitute such a
conflict. Employee shall not serve in any capacities for any
business enterprise unless such service is expressly authorized
by the Board in advance.
(d) No Conflicts. Employee represents to Employer that Employee has
------------
no other outstanding commitments inconsistent with any of the
terms of this Agreement or the services to be rendered hereunder.
3. Specific Position: Duties and Responsibilities.
-----------------------------------------------
(a) Positions, Duties and Authority. Employer and Employee agree
-------------------------------
that, subject to the provisions of this Agreement, the Bank will
employ Employee and Employee will serve the Bank as its
President, Chief Executive Officer and Secretary. Employee shall,
without any additional remuneration, serve as President, Chief
Executive Officer and Secretary of PAGI. Employee agrees to
observe and comply with the rules and regulations of the Bank as
adopted by the Board of Directors of the Bank (the "Bank Board")
respecting the performance of Employee's duties to the Bank, and
with the rules and regulations of PAGI as adopted by the Board of
Directors of PAGI (the "PAGI Board").
-2-
<PAGE>
Employee also agrees to carry out and perform orders, directions
and policies of the Bank Board and the PAGI Board as they may
from time to time direct. Employee shall have such corporate
power and authority as shall reasonably be required to enable the
discharge of duties commensurate with the offices he holds. It is
anticipated that approximately 75% of Employee's time will be
occupied with his services to the Bank, and that approximately
25% of his time will be occupied with his services to PAGI.
(b) Supervision of Employee. For the term of this Agreement, Employee
-----------------------
shall report (i) with respect to his duties to the Bank, to (A)
the Chairman of the Bank Board (the "Chairman"), and (B) the Bank
Board, and (ii) with respect to his duties to PAGI, to (I) the
Chairman of the Board of PAGI, and (II) the PAGI Board.
4. Compensation.
------------
(a) Base Compensation. During the term of this Agreement, Employer
-----------------
agrees to pay Employee a base salary at the rate of One Hundred
Ninety Thousand Dollars ($190,000) per year, payable in equal
installments consistent with Employer's normal payroll practices
applicable to salaried employees (the "Base Salary").
(b) Bonuses. At least annually, the Board shall meet with Employee to
-------
review with him his performance and the performance and prospects
of the business of Employer. Based on such review, and on such
other factors as the Board may deem to be relevant pursuant to
the annual Executive Incentive Plan similar to the plan in effect
for the year ending June 30, 1997, Employer shall pay Employee a
bonus of up to 50% of Employee's Base Salary upon attainment of
goals approved by the Board relating to pre-tax net income,
return on shareholders' equity an other similar factors.
(c) Additional Benefits. During the Term hereof, Employee shall
-------------------
participate in any bonus, pension, profit, incentive
compensation, medical, life insurance, disability or similar
plan, and shall receive all perquisites, available to executives
of Employer at or below Employee's level of responsibility (the
"Compensation Plans"), except to the extent Employee does not
meet the eligibility requirements generally applicable to
participants in such Compensation Plan.
-3-
<PAGE>
Employee shall also be entitled to receive the benefits specified
on Schedule 4(c) to this Agreement (the "Additional Benefits").
Employee shall not receive duplicative benefits if a Compensation
Plan is listed on Schedule 4(c) as an Additional Benefit.
Notwithstanding anything else contained in this Agreement to the
contrary, (i) all rights of Employer, PAGI and Employee with
respect to stock options granted to Employee pursuant to any
Employer or PAGI stock option plan shall be governed solely by
such plan, including all rights as to the vesting of options
thereunder, and (ii) this Agreement shall not be deemed to amend
or otherwise affect the provisions of any Compensation Plan.
(d) Vacation. Employee shall be entitled to twenty (20) days of paid
--------
vacation each twelve-month period, which shall accrue on a pro
rata basis from the date of this employment agreement; provided,
however, that vacation days shall cease to accrue whenever thirty
(30) vacation days have accrued, and the accrual of vacation days
shall resume only when Employee has used enough vacations days so
that additional vacation days can accrue without exceeding the
limit of thirty (30) accrued vacation days.
(e) Modification of Benefits. Except with respect to the Additional
------------------------
Benefits, Employer reserves the right at all times to modify,
suspend or discontinue any and all Compensation Plans and any
other benefits, plans, practices, policies and programs (whether
before or after termination of employment) without notice to or
recourse by Employee so long as such action is taken with respect
to Employer' employees generally and does not single out
Employee.
5. Termination.
-----------
(a) For Cause.
---------
i) Employer may terminate this Agreement and Employee's
employment hereunder at any time for cause without further
obligation or liability to Employee, including without
limitation, any obligation to pay Base Salary and Additional
Benefits following such termination, effective upon delivery
of notice of such termination to Employee or at such other
future time as may be specified in such notice. Employer and
Employee agree that the term "for cause" shall mean the
following:
-4-
<PAGE>
Employee's personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal
profit, intentional failure to perform stated duties,
willful violation of any law, rule or regulation (other than
traffic violations or similar offenses) or final cease and
desist order, or material breach of any provision of this
Agreement or any other grounds specified in Section
563.39(b)(1) of the Office of Thrift Supervision (the "OTS")
Rules and Regulations (and any subsequent regulations of OTS
and the Federal Deposit Insurance Corporation (the "FDIC")
governing employment agreements).
ii) If Employee is suspended and/or temporarily prohibited from
participating in the conduct of the Employer's affairs by
reason of a notice served under Section 8(e)(3) or (g)(1) of
the Federal Deposit Insurance Act (12 U.S.C. Section 1818
(e)(3) and (g)(1)), all obligations of Employer under this
Agreement shall be suspended as of the date of service of
the notice, unless stayed by appropriate proceedings. If the
charges in the notice are dismissed, Employer may in its
discretion (i) pay Employee all or part of the compensation
withheld while this Agreement was suspended, and (ii)
reinstate (in whole or in part) any of its obligations which
were suspended.
iii) If Employee is removed and/or permanently prohibited from
participating in the conduct of Employer's affairs by reason
of an order issued under Section 8(e)(4) or (g)(1) of the
Federal Deposit Insurance Act (12 U.S.C. Section 1818 (e)(4)
or (g)(1)), all obligations of Employer under this Agreement
shall terminate as of the effective date of that order, and
Employee shall receive the amount set forth in Section
5(e)(ii) of this Agreement.
iv) If Employer is in default (as defined in Section 3(x)(1) of
the Federal Deposit Insurance Act), all obligations under
this Agreement shall terminate as of the date of default,
and Employee shall receive the amount set forth in Section
5(e)(ii) of this Agreement.
v) All obligations of Employer under this
-5-
<PAGE>
Agreement shall be terminated (except to the extend
determined that continuation of this Agreement is
necessary for the continued operation of Employer) by
the OTS (i) at the time the FDIC or the Corporation
enters into an agreement to provide assistance to or on
behalf of Employer under the authority contained in
Section 13(c) of the Federal Deposit Insurance Act, or
(ii) at the time the OTS approved a supervisory merger
to resolve problems related to the operation of
Employer, or when Employer are determined by the OTS to
be in an unsafe or unsound condition; provided,
however, that Employee shall receive the amount set
forth in Section 5(e)(ii) of this Agreement .
(b) Without Cause. Notwithstanding any other provision of this
-------------
Section 5, Employee hereby agrees that Employer may
terminate Employee's employment hereunder at will for any
reason without any liability or obligation to Employee
whatsoever, except for termination payment expressly
provided for in this Agreement, at any time upon written
notice of termination to Employee, such termination to
become effective upon such future date as may be specified
in such notice of termination. Such termination may be only
by a vote of a majority of the Board and the PAGI Board. As
consideration for Employee's agreement to this subparagraph
(b), Employer agrees that in the event Employer elects to
terminate the employment of Employee pursuant to the
provisions of this subparagraph (b) prior to the completion
of the Term, Employer shall provide a formal written notice
of such termination and Employee shall be entitled to a
termination payment equal to (i) a lump sum payment of the
Base Salary equal to (A) if the termination of employment
occurs before December 31, 1999, the Base Salary Employee
would have received from the date of such termination
through December 31, 1999, (B) if the termination of
employment occurs on or after January 1, 2000 but before
December 31, 2000, the Base Salary Employee would have
received from the date of such termination through December
31, 2000, or (C) if the termination occurs during the
Extended Term, the Base Salary Employee would have received
during the balance of the Extended Term; provided, however,
that in no event shall Employee receive a lump sum payment
of Base Salary for a period of less than six (6)
-6-
<PAGE>
months; (ii) a lump sum payment of any accrued vacation pay;
(iii) any and all Additional Benefits accrued through the
date of termination, including any compensation previously
deferred by Employee (together with any accrued interest and
earnings thereon); (iv) a lump sum payment of the "Prorated
Incentive Compensation" (as defined below); (v) continuation
of group medical disability and life insurance coverage
under such Compensation Plans in which Employee participated
as of his termination of employment, or the equivalent,
until the earliest to occur of (A) the expiration of the
Initial Term, or the Extended Term, in which Employee's
termination of employment occurred, (B) Employee's
commencement of full-time employment with a new employer,
(C) Employee's sixty-fifth (65th) birthday, or (D)
Employee's failure to pay any portion of any premium or cost
required under the terms of such Compensation Plan to be
paid by participants generally. For purposes of this
Agreement, the term "Prorated Incentive Compensation" means,
for Employer's fiscal year in which Employee's termination
of employment occurs (the "Termination Year"), the incentive
compensation received by Employee in Employer's fiscal year
immediately before the Termination Year (the "Prior Year"),
(I) multiplied by a fraction, the numerator of which is the
number of days from the beginning of the Termination Year to
the date of Employee's termination of employment, and the
denominator of which is three hundred sixty five (365), and
(II) except for purposes of Section 5(d), decreased in an
amount which, as determined by the Board, based on
Employer's customary and consistent calculation of earnings,
is proportional to any decrease in earnings of Employer from
the Prior Year to the Termination Year.
(c) Disability. In the event Employee shall fail, because of
----------
illness, incapacity or injury which is determined, within
the applicable definitions under the Employer's group
disability insurance, to be total and permanent by a
physician selected b y Employer or its insurers and
acceptable to Employee or Employee's legal representative
(such agreement as to acceptability not to be withheld
unreasonably) to render for three consecutive months or for
shorter periods aggregating 75 or more business days in any
twelve month period, the services contemplated by this
Agreement, Employee's employment hereunder may be
-7-
<PAGE>
terminated by written notice of termination from Employer to
Employee. Thereafter, Employer shall continue to pay Base
Salary to Employee at a rate and time and in a manner equal
to 100% of the Base Salary payable immediately prior to the
termination, until the earliest to occur of the following:
(i) Employee dies, (ii) Employee recovers from such
disability and returns to full-time service, (iii) six (6)
months after the date of such notice, or (iv) the waiting
period, if any, under Employer's long term disability
insurance or other disability plan purchased for Employee is
satisfied and payments by the insurance company to Employee
commence. Thereafter, no further salary or benefits shall be
paid.
(d) Death. If Employee's employment is terminated by reason of
-----
Employee's death, this Agreement shall terminate without
further obligations to Employee (or Employee's heirs or
legal representatives) under this Agreement, other than for
(i) payment of the sum of (A) Employee's Base Salary through
the end of the month during which death occurs and for 30
days thereafter to the extent not theretofore paid, (B) any
compensation previously deferred by Employee (together with
any accrued interest or earnings thereon) plus the Prorated
Incentive Compensation in an amount determined under Section
5(b), (C) any accrued vacation pay, in each case to the
extend not theretofore paid (the sum of the amounts
described in clauses (A), (B) and (C) shall be hereinafter
referred to as the "Accrued Obligations"), which shall be
paid to Employee or Employee's estate or beneficiary, as
applicable in a lump sum in cash within thirty (30) days
after the date of termination or any earlier time required
by applicable law; and (ii) payment to Employee or
Employee's estate or beneficiary, as applicable, any amount
due pursuant to the terms of any applicable Compensation
Plan.
(e) Termination by Employee.
-----------------------
i) Employee may terminate his employment for a "Reduction
in Authority" (as defined below) at any time two (2)
months after a notice of intent to terminate pursuant
to this Section 5(e) has been delivered to the Board
and Chairman, provided such condition continues for the
duration of a one month period after written notice to
the Board and Chairman. Upon such
-8-
<PAGE>
termination, Employee shall receive the payments and
benefits set forth in subparagraph (b) above.
The term "Reduction in Authority" shall mean the
occurrence of one of the following events, other than
as a result of grounds for termination of employment
for cause under Section 5(a) or for disability under
Section 5(c): (A) the continuing assignments to
Employee by the Chairman and Board of duties materially
and adversely inconsistent with Employee's position as
President and Chief Executive Officer of the Bank or
PAGI; (B) a material, adverse and continuing change in
the nature of Employee's responsibilities; (C) the
requirement that Employee must regularly report to
persons other than the Chairman and the Board; (D) the
removal of Employee from, or failure to re-elect
Employee as, the President and Chief Executive Officer
of the Bank or PAGI or as a member of the Bank or PAGI
Board, or (E) a change in the Employer's corporate
headquarters outside of the San Francisco Bay Area.
Provided, however failure to reelect Employee to, or
the ceasing of Employee to occupy the position of,
President or Chief Executive Officer of PAGI after
October 15, 1998 will not constitute a "Reduction in
Authority."
ii) Employee may terminate his employment hereunder at any
time upon not less than thirty (30) days written notice
to Employer. In such event, Employee shall be entitled
to all Accrued Obligations under this Agreement, except
payment of the Prorated Incentive Bonus, through the
effective date of such termination.
(f) No Limitation. Employer's exercise of its right to terminate
-------------
shall be without prejudice to any other right or remedy to
which it or any of its affiliates may be entitled at law or
in equity to enforce its rights under this Agreement.
(g) Exclusive Remedy. Employee agrees that the payments
----------------
expressly provided and contemplated by this Agreement shall
constitute the sole and exclusive obligation of Employer in
respect to Employee's employment with and relationship to
Employer and that the payment thereof shall be the sole and
exclusive remedy for any termination of Employee's
employment. Employee
-9-
<PAGE>
covenants not to assert or pursue any other remedies, at law or
in equity, with respect to any termination of employment.
(h) Expiration of Term. No payment shall be due to Employee under
------------------
this Agreement by reason of the expiration of the Initial Term
and the failure by Employer to exercise its option for the
Extended Term.
(i) No Mitigation. In the event this Agreement is terminated for any
-------------
reason, Employee shall not be obligated to mitigate any damages
Employee might otherwise suffer. Employer's obligation to make
payments to Employee pursuant to this Agreement shall not be
affected by any other employers or sources or any setoff,
counterclaim, recoupment, defense or other right which Employer
or its subsidiaries may have against Employee.
6 Change in Control. Employee shall be entitled to receive the amounts
-----------------
set forth in Section 5(b) of this Agreement if Employer terminates his
employment without cause, or he terminates his employment with
Employer for a Reduction in Authority, within the "Applicable Period"
(as defined below) after a "Change in Control" (as defined below). A
"Change in Control" means a merger, consolidation, transfer of all or
substantially all in the assets of the Bank and PAGI, or any other
corporate reorganization or transaction or series of transactions,
which results in any person, group of related persons, or any other
organization or entity acquiring 50% or more of the outstanding voting
securities or partnership interests of PAGI and the Bank. The
"Applicable Period" begins on the date of a Change in Control and ends
on the later of the expiration of the Initial Term or Extended Term
(as the case may be) in which the Change in Control occurs, or twelve
(12) months after the Change in Control occurs.
7 Business Expenses. During the term of this Agreement, to the extent
-----------------
that such expenditures satisfy the criteria under the Internal Revenue
Code for deductibility by Employer (whether or not fully deductible by
Employer) for federal income tax purposes as ordinary and necessary
business expenses, Employer shall reimburse Employee promptly for
reasonable business expenditures, including travel, entertainment,
parking, business meetings, and professional dues but not the costs of
(or dues associated with) maintaining club memberships, made and
substantiated in accordance with policies, practices and procedures
established from time to
-10-
<PAGE>
time by Employer generally and incurred in pursuit and furtherance of
Employer's business and good will.
8. Indemnification.
---------------
(a) Indemnification by Employer. Pursuant to the terms of Section
---------------------------
545.121 of the OTS Rules and Regulations ("Section 545.121").
Employer agrees to indemnify, defend and hold harmless, Employee,
from and against (a) the amount of any judgment for which
Employee becomes liable as a result of any Action (as defined in
Section 545.121) brought against Employee in his capacity as an
officer or director of Employer, and (b) if he attains a
favorable judgment in such Action, reasonable costs and expenses,
including reasonable attorneys' fees, actually paid or incurred
by Employee in defending or settling such Action, or in enforcing
his rights under Section 545.121; provided however, that Employer
shall have no obligation to indemnify Employee hereunder unless
(a) Final Judgment (as defined in Section 545.121) on the merits
is in Employee's favor; or (b) in the case of Settlement (as
defined in Section 545.121), Final Judgment against him, or Final
Judgment in his favor other than on the merits, the disinterested
directors of Employer determine that Employee was acting in good
faith within the scope of his employment or authority as he could
reasonably have perceived it under the circumstances and for a
purpose he could reasonably have believed under the circumstances
was in the best interests of Employer. If the disinterested
directors of Employer reasonably conclude that, in connection
with an Action, Employee may be entitled to indemnification, the
directors shall authorize Employer to advance to Employee
reasonable costs and expenses, including reasonable attorneys'
fees, arising from the defense or settlement of such Action,
subject to an undertaking by Employee to repay such amounts in
the event of a final nonappealable determination that Employee is
not entitled to indemnification, and the provisions of this
Section 8.
(b) Notification of Claims. After receipt of notice of commencement
----------------------
of any Action giving rise to a right of indemnification
hereunder, Employee shall promptly notify Employer in writing of
such Action and, when known, the facts constituting the basis for
such Action
-11-
<PAGE>
(in reasonable detail). Failure by Employee to so notify Employer
shall not relieve Employer of any liability hereunder unless such
failure materially prejudices Employer.
(c) Indemnification Procedure. Employer shall be entitled, if it so
-------------------------
elects, to take control of the defense and investigation with
respect to an Action and to employ and engage attorneys of its
own choice to handle and defend the same, upon written notice to
Employee of such election which notice acknowledges Employer's
obligation to provide indemnification hereunder. Employer shall
not settle any Action that is the subject of indemnification
without the written consent of Employee, which consent shall not
be unreasonably withheld; provided, however, that Employer may
-------- -------
settle an Action without Employee's consent if such Settlement
(i) makes no admission or acknowledgment of liability or
culpability with respect to Employee, (ii) includes a complete
release of Employee, and (iii) does not require Employee to make
any payment or forego, relinquish or take any action or right.
Employee shall cooperate in all reasonable respects with Employer
and its attorneys in the investigation, trial and defense of any
Action (including the filing in Employee's name of appropriate
cross claims and counterclaims). Employee may, at his own cost,
participate in any investigation, trial and defense of such
Action controlled by Employer. If, after receipt of a claim
notice pursuant to Section 8(b), Employer does not undertake to
defend any such Action, Employee may, but shall have no
obligation to, contest such Action and Employer shall be bound by
the result obtained with respect thereto by Employee (including,
but not limited to, any Settlement thereof); provided, however,
that Employee shall not settle such Action without the written
consent of Employer, which Employer shall not unreasonably
withhold. Employer may, at its own cost, participate in any
investigation, trial and defense of any Action controlled by
Employee. If Employee reasonably believes that there may be a
conflict of interest between himself and Employer in the conduct
of the defense of any Action, Employee shall have the right, at
the expense of Employer, to select his own counsel and assume the
defense of the Action; provided, however, that Employee may not
-------- -------
settle such Action without the consent of Employer which consent
shall not be unreasonably withheld; provided, further, that
-------- -------
Employee may settle an
-12-
<PAGE>
Action without Employer's consent if such Settlement (i) makes no
admission or acknowledgment of liability or culpability, (ii)
includes a complete release of Employer and (iii) does not
require Employer to make any payment or forego, relinquish or
take any action or right. At any time after the commencement of
defense of any Action, Employer may request Employee to agree in
writing to the abandonment of such contest or to the payment or
compromise by Employer of such claim, whereupon such action shall
be taken unless Employee determines that the contest should be
continued and so notifies Employer in writing within 15 days of
such request from Employer. If Employee determines that the
contest should be continued, Employer shall be liable hereunder
only to the extent of the lesser of (i) the amount which the
other party(ies) to the contested claim have agreed to accept in
payment or compromise as of the time Employer made its request
therefor to Employee less any additional expenses incurred by
Employer subsequent to such event or (ii) such amount for which
Employer would otherwise be liable with respect to such Action by
reason of the provisions hereof.
9. Miscellaneous.
-------------
(a) Succession; Survival. This Agreement shall inure to the benefit
--------------------
of and shall be binding upon Employer, its successors and
assigns, but without the prior written consent of Employee, this
Agreement may not be assigned other than in connection with a
merger or sale of substantially of all the assets of Employer or
a similar transaction in which the successor or assignee assumes
(whether by operation of law or express assumption) all the
obligations of Employer hereunder. The obligations and duties of
Employee hereunder are personal and otherwise not assignable.
(b) Notices. Any notice or other communication provided for in this
-------
Agreement shall be in writing and sent if to Employer to its
office at:
Pan American Bank, FSB
c/o Bastion Capital Corporation
1999 Avenue of the Stars, Suite 2960
Los Angeles, California 90067
Facsimile: (310) 277-7582
Attention: Mr. William Bron, Chairman of the
Board
-13-
<PAGE>
or at such other address as Employer may from time to time in writing
designate, and if to Employee to such address as Employee may from
time to time in writing designate (or Employee's business address of
record in the absence of such designation). Each such notice or other
communication shall be effective (i) if given by mail, three days
after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (ii) if given by any other
means, when actually delivered at such address.
(e) Entire Agreement; Amendments. This Agreement contains the entire
----------------------------
agreement of the parties relating to the subject matter hereof
and it supersedes any prior agreements, undertakings, commitments
and practices relating to Employee's employment by Employer or
its affiliates. No amendment or modification of the terms of
this Agreement shall be valid unless made in writing and signed
by Employee and, on behalf of Employer, by the Chairman.
(d) Waiver. No failure on the part of any party to exercise or delay
------
in exercising any right hereunder shall be deemed a waiver
thereof or of any other right, nor shall any single or partial
exercise preclude any further or other exercise of such right or
any other right.
(e) Choice of Law. This Agreement, the legal relations between the
-------------
parties and any action, whether contractual or non-contractual,
instituted by any party with respect to matters arising under or
growing out of or in connection with or in respect of this
Agreement, the relationship of the parties or the subject matter
hereof shall be governed by and construed in accordance with the
laws of the State of California applicable to contracts made and
performed in such State and without regard to conflicts of law
doctrines, to the extent permitted by law and applicable
regulations.
(f) Arbitration. Any dispute, controversy or claim arising out of or
-----------
in respect of this Agreement (or its validity, interpretation or
enforcement), the employment relationship or the subject matter
hereof shall at the request of either party be submitted to and
settled by arbitration conducted at a mutually convenient office
of the Judicial Arbitration and Mediation Services, Inc.
("JAMS"). Employer and Employee may agree on a retired judge
from
-14-
<PAGE>
the JAMS panel. If they are unable to agree upon a retired judge,
JAMS will provide a list of three available judges and each party
may strike one. If two of the three judges are stricken, the
remaining judge will serve as arbitrator. If two arbitrators
remain, the first judge listed shall serve as arbitrator.
Employer and Employee agree that arbitration must be initiated
within two years after the claimed breach occurred and that the
failure to initiate arbitration within the two-year period
constitutes an absolute bar to the institution of any new
proceedings related to such alleged breach. The aggrieved party
can initiate arbitration by sending written notice of any
intention to arbitrate by registered or certified mail to all
parties and to JAMS. The notice must contain a description of the
dispute, the amount involved and the remedy sought. Exhibit A
sets forth the rights of Employer and Employee if the dispute is
arbitrated and the rules and procedures to be followed at the
arbitration hearing; provided, however, that the party or parties
prevailing in such proceeding will be entitled to the reasonable
attorneys' fees and expenses of counsel and costs incurred by
reason of such arbitration.
(g) Confidentiality; Proprietary Information. Employee agrees to not
----------------------------------------
make use of, divulge or otherwise disclose, directly or
indirectly confidential or proprietary information concerning the
business (including but not limited to its products, employees,
services, practices or policies) of Employer or any of its
affiliates of which Employee may learn or be aware as a result of
Employee's employment during the Term or prior thereto as
stockholder, employee, officer or director of or consultant to
Employer or any of its affiliates, except to the extent such use
or disclosure is (i) required by applicable law, (ii) lawfully
obtainable from other sources, (iii) generally available to the
public, or (iv) authorized in writing by Employer. The provision
of this subsection (g) shall survive the expiration, suspension
or termination, for any reason, of this Agreement.
(h) Severability. If any provision of this Agreement is held invalid
------------
or unenforceable, the remainder of this Agreement shall
nevertheless remain in full force and effect, and if any
provision is held invalid or unenforceable with respect to
particular circumstances, it shall
-15-
<PAGE>
nevertheless remain in full force and effect in all other
circumstances, to the fullest extent permitted by law.
(i) Withholding: Deductions. All compensation payable hereunder
-----------------------
including salary and other benefits, shall be subject to
applicable taxes, withholding and other required, normal or
elected employee deductions.
(j) Section Headings. Section and other headings contained in this
----------------
Agreement are for convenience of reference only and shall not
affect in any way the meaning or interpretation of this
Agreement.
(k) Non-Solicitation. Employee agrees that for a period of one (1)
----------------
year after the termination of employment, Employee will not, on
behalf of Employee or on behalf of any other individual,
association or entity, call on any of the customers of Employer
for the purpose of soliciting or inducing any of such customers
to acquire (or providing to any of such customers) any product or
service provided by Employer nor will Employee in any way,
directly or indirectly , as agent or otherwise, in any other
manner solicit, influence or encourage such customers to take
away or to divert or direct their business to Employee or any
other person or entity by or with which Employee is employed,
associated, affiliated or otherwise related ("Employee Related
----------------
Entity"); provided, however, that during the one (1) year period
------
referred to above, Employee will be permitted to be involved in
advertising and marketing deposit products and loans in
communities served by Employer in its residential loan and
deposit business.
(l) Employees. Employee agrees that for a period of two (2) years
---------
after the termination of Employee's employment, Employee will
not, directly or indirectly, disrupt, damage, impair, or
interfere with Employer's business by soliciting, influencing,
encouraging or recruiting any employee of Employer to work for
Employee or any Employee Related Entity.
(m) Counterparts. This Agreement and any amendment hereto may be
------------
executed in one or more counterparts. All of such counterparts
shall constitute one and the same agreement and shall become
effective when a copy signed by each party has been delivered to
the other party.
-16-
<PAGE>
(n) Representation By Counsel; Interpretation. Employer and Employee
-----------------------------------------
each acknowledge that each party to this Agreement has been
represented by counsel in connection with this Agreement and the
matters contemplated by this Agreement. Accordingly, any rule of
law, including but not limited to Section 1654 of the California
Civil Code, or any legal decision that would require
interpretation of any claimed ambiguities in this Agreement
against the party that drafted it has no application and is
expressly waived. The provisions of this Agreement shall be
interpreted in a reasonable manner of effect the intent of the
parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
"Employer"
PAN AMERICAN BANK, FSB
By: /s/ WILLIAM BRON
-----------------------------
William Bron
Its: Chairman
PAN AMERICAN GROUP, INC.
By: /s/ WILLIAM BRON
-----------------------------
William Bron
Its:
"EMPLOYEE"
/s/ LAWRENCE J. GRILL
--------------------------------
Lawrence J. Grill
Pan American Bank, FSB
1300 S. El Camino Real
Suite 320
San Mateo, California 94402
Facsimile: (650) 349-8504
-17-
<PAGE>
SCHEDULE TO
PARAGRAPH 4(C)
ADDITIONAL BENEFITS
STOCK OPTION PLAN
Concurrently upon execution of the Agreement, PAGI and Employee shall enter
into a Stock Option Agreement pursuant to PAGI's most current Stock Option
Plan. PAGI shall grant Employee additional stock options to purchase 30
shares upon the terms and conditions described in such Plan and Agreement,
and at a price to be determined by the PAGI Board or its compensation
committee.
PERQUISITES
See the schedule of additional benefits attached to this schedule.
-18-
<PAGE>
EXHIBIT TO
SCHEDULE
TO
PARAGRAPH 4(C)
PERQUISITES PAID BY EMPLOYER
- --------------------------------------------------------------------------------
a. $500,000 of term life insurance in excess of the amount
provided by Employer under the Employer's group term life insurance plan in
which its employees generally participate.
b. Monthly car allowance of $500
c. Long-term Disability Insurance providing 60% of annual Base
Salary up to $10,000 per month coverage as provided under the Employer's
long-term disability plan in which its employees generally participate, or
through individual coverage if such plan does not provide such coverage.
d. Accidental Death and Dismemberment Insurance up to the
maximum amount that can be purchased under the Employer's accidental death
and dismemberment plan in which its employees generally participate.
e. Monthly premium cost under the Employer's plan for family
Medical, Dental and Vision Insurance, except that Employee shall pay family
deductibles and co-payments.
-19-
<PAGE>
EXHIBIT 10.40
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is entered into as of October 1,
1997 by and between Pan American Group, Inc. ("PAGI"), Pan American Bank, FSB, a
federally chartered savings bank (the "Bank"; the Bank and PAGI are individually
and collectively referred to as "Employer") and Guillermo Bron ("Employee").
WITNESSETH:
WHEREAS, Employer desires to obtain the services of Employee and Employee
desires to render services to Employer;
WHEREAS, the Boards of Directors of Employer (individually and collectively
referred to as the "Board") has determined that it is in Employer's best
interests and that of its stockholders to secure the services of Employee, to
secure certain additional commitments from Employee and to provide Employee
certain additional benefits; and
WHEREAS, Employer and Employee desire to set forth in this Agreement all
the terms and conditions of Employee's employment with Employer.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties agree as follows:
1. Term. Employer agrees to employ Employee and Employee agrees to serve
----
Employer in accordance with the terms of this Agreement, for (a) a
term of approximately three (3) years and two (2) months commencing on
the date of this Agreement and ending December 31, 2000 (the "Initial
Term"), and (b) at the option of Employer, which Employer may exercise
by giving written notice to Employee on or before December 31, 1999,
an additional one year period ending December 31, 2001 (the "Extended
Term") The Initial Term and the Extended Term are hereinafter referred
to as the "Term." Notwithstanding the foregoing, the Term may be
terminated before the expiration of the Initial Term or the Extended
Term in accordance with the provisions which follow.
2. Services and Exclusivity of Services.
------------------------------------
(a) Employee Time. So long as this Agreement shall continue in
-------------
effect, Employee shall devote his energy and ability to the
business, affairs and interests of Employer and its subsidiaries
and matters related thereto, as reasonably necessary to perform
his services hereunder, and shall use Employee's best efforts and
abilities to promote Employer's interests, and shall perform the
services contemplated by this
<PAGE>
Agreement in accordance with policies established by and under
the direction of the Board.
(b) Service to Affiliates; Promoting Business. Employee agrees to
-----------------------------------------
serve without additional remuneration in such executive
capacities or as a Board member for one or more direct or
indirect subsidiaries of Employer as the Board may from time to
time request, subject to appropriate authorization by the
subsidiary or subsidiaries involved and any limitations under
applicable law. Employee agrees to faithfully and diligently
promote the business affairs and interests of Employer and its
subsidiaries.
(c) Exclusivity of Services. Employee may make and manage personal
-----------------------
business investments of his choice and serve in any capacity with
Bastion Capital Corporation or any of its affiliates, or any
similar or analogous investment banking or merchant banking
firms, or any civic, educational or charitable organization
without seeking or obtaining approval by the Board, provided that
Employee shall not engage in any such activities and services
which substantially interfere or conflict with the performance of
duties hereunder, or which constitute a line of business related
to that of the Bank without the prior approval of the Board,
which the Board shall not unreasonably withhold. An investment
that exceeds 5% of the equity securities or capitalization of a
competitor, supplier or customer of Employer shall be deemed to
constitute such a conflict.
(d) No Conflicts. Employee represents to Employer that Employee has
------------
no other outstanding commitments inconsistent with any of the
terms of this Agreement or the services to be rendered hereunder.
3. Specific Position: Duties and Responsibilities.
-----------------------------------------------
(a) Positions, Duties and Authority. Employer and Employee agree
-------------------------------
that, subject to the provisions of this Agreement, the Bank will
employ Employee and Employee will serve the Bank and/or PAGI as
its Chairman of the Board. Employee agrees to observe and comply
with the rules and regulations of the Bank as adopted by the
Board of Directors of the Bank (the "Bank Board") respecting the
performance of Employee's duties to the Bank, and with the rules
and regulations of PAGI as adopted by the Board of Directors of
PAGI (the "PAGI Board").
-2-
<PAGE>
Employee also agrees to carry out and perform orders, directions
and policies of the Bank Board and the PAGI Board as they may
from time to time direct. Employee shall have such corporate
power and authority as shall reasonably be required to enable the
discharge of duties commensurate with the offices he holds. It is
anticipated that Employee's services to Employer shall be
particularly focused on strategic planning and implementation of
the expansion of Employer's existing businesses, the exploration
of, and entry into, new lines of business, and the obtaining of
favorable financing for new and existing businesses of the
Employer. It is anticipated that approximately 66-2/3% of
Employee's time will be occupied with his services to the Bank,
and that approximately 33-1/3% of his time will be occupied with
his services to PAGI. Any bonus paid pursuant to Section 4(b)
will be fairly allocated between the Bank and PAGI based on the
respective services Employee performs for them.
(b) Supervision of Employee. For the term of this Agreement,
-----------------------
Employee shall report (i) with respect to his duties to the Bank,
to the Bank Board, and (ii) with respect to his duties to PAGI,
to the PAGI Board.
4. Compensation.
------------
(a) Base Compensation. During the term of this Agreement, Employer
-----------------
agrees to pay Employee a base salary at the rate of One Hundred
Fifty Thousand Dollars ($150,000) per year, payable in equal
installments consistent with Employer's normal payroll practices
applicable to salaried employees (the "Base Salary").
(b) Bonuses. At least annually, the Board shall meet with Employee
-------
to review with him his performance of services hereunder and the
performance and prospects of the business of Employer. Based on
such review, and on such other factors as the Board may deem to
be relevant, which may include pre-tax net income, return on
shareholders' equity and other similar factors, Employer shall
pay Employee a bonus of up to 100% of Employee's Base Salary.
(c) Additional Benefits. During the Term hereof, Employee shall
-------------------
participate in any bonus, pension, profit, incentive
compensation, medical, life insurance, disability or similar
plan, and shall receive all perquisites,
-3-
<PAGE>
available to executives of Employer at or below Employee's level
of responsibility (the "Compensation Plans"), except to the
extent Employee does not meet the eligibility requirements
generally applicable to participants in such Compensation Plan.
Employee shall also be entitled to receive the benefits specified
on Schedule 4(c) to this Agreement (the "Additional Benefits").
Employee shall not receive duplicative benefits if a Compensation
Plan is listed on Schedule 4(c) as an Additional Benefit.
Notwithstanding anything else contained in this Agreement to the
contrary, (i) all rights of Employer, PAGI and Employee with
respect to stock options granted to Employee pursuant to any
Employer or PAGI stock option plan shall be governed solely by
such plan, including all rights as to the vesting of options
thereunder, and (ii) this Agreement shall not be deemed to amend
or otherwise affect the provisions of any Compensation Plan.
(d) Vacation. Employee shall be entitled to twenty (20) days of paid
--------
vacation each twelve-month period, which shall accrue on a pro
---
rata basis from the date of this employment agreement; provided,
----
however, that vacation days shall cease to accrue whenever thirty
(30) vacation days have accrued, and the accrual of vacation days
shall resume only when Employee has used enough vacations days so
that additional vacation days can accrue without exceeding the
limit of thirty (30) accrued vacation days.
(e) Modification of Benefits. Except with respect to the Additional
------------------------
Benefits, Employer reserves the right at all times to modify,
suspend or discontinue any and all Compensation Plans and any
other benefits, plans, practices, policies and programs (whether
before or after termination of employment) without notice to or
recourse by Employee so long as such action is taken with respect
to Employer' employees generally and does not single out
Employee.
5. Termination.
-----------
(a) For Cause.
---------
i) Employer may terminate this Agreement and Employee's
employment hereunder at any time for cause without further
obligation or liability to Employee, including without
limitation, any obligation to pay Base Salary and Additional
Benefits
-4-
<PAGE>
following such termination, effective upon delivery of
notice of such termination to Employee or at such other
future time as may be specified in such notice. Employer and
Employee agree that the term "for cause" shall mean the
following: Employee's personal dishonesty, incompetence,
willful misconduct, breach of fiduciary duty involving
personal profit, intentional failure to perform stated
duties, willful violation of any law, rule or regulation
(other than traffic violations or similar offenses) or final
cease and desist order, or material breach of any provision
of this Agreement or any other grounds specified in Section
563.39(b)(1) of the Office of Thrift Supervision (the "OTS")
Rules and Regulations (and any subsequent regulations of OTS
and the Federal Deposit Insurance Corporation (the "FDIC")
governing employment agreements).
ii) If Employee is suspended and/or temporarily prohibited from
participating in the conduct of the Employer's affairs by
reason of a notice served under Section 8(e)(3) or (g)(1) of
the Federal Deposit Insurance Act (12 U.S.C. Section 1818
(e)(3) and (g)(1)), all obligations of Employer under this
Agreement shall be suspended as of the date of service of
the notice, unless stayed by appropriate proceedings. If the
charges in the notice are dismissed, Employer may in its
discretion (i) pay Employee all or part of the compensation
withheld while this Agreement was suspended, and (ii)
reinstate (in whole or in part) any of its obligations which
were suspended.
iii) If Employee is removed and/or permanently prohibited from
participating in the conduct of Employer's affairs by reason
of an order issued under Section 8(e)(4) or (g)(1) of the
Federal Deposit Insurance Act (12 U.S.C. Section 1818 (e)(4)
or (g)(1)), all obligations of Employer under this Agreement
shall terminate as of the effective date of that order, and
Employee shall receive the amount set forth in Section
5(e)(ii) of this Agreement.
iv) If Employer is in default (as defined in Section 3(x)(1) of
the Federal Deposit Insurance Act), all obligations under
this
-5-
<PAGE>
Agreement shall terminate as of the date of default, and
Employee shall receive the amount set forth in Section
5(e)(ii) of this Agreement.
v) All obligations of Employer under this Agreement shall be
terminated (except to the extend determined that
continuation of this Agreement is necessary for the
continued operation of Employer) by the OTS (i) at the time
the FDIC or the Corporation enters into an agreement to
provide assistance to or on behalf of Employer under the
authority contained in Section 13(c) of the Federal Deposit
Insurance Act, or (ii) at the time the OTS approved a
supervisory merger to resolve problems related to the
operation of Employer, or when Employer are determined by
the OTS to be in an unsafe or unsound condition; provided,
however, that Employee shall receive the amount set forth in
Section 5(e)(ii) of this Agreement.
(b) Without Cause. Notwithstanding any other provision of this
-------------
Section 5, Employee hereby agrees that Employer may terminate
Employee's employment hereunder at will for any reason without
any liability or obligation to Employee whatsoever, except for
termination payment expressly provided for in this Agreement, at
any time upon written notice of termination to Employee, such
termination to become effective upon such future date as may be
specified in such notice of termination. Such termination may be
only by a vote of a majority of the Board and the PAGI Board. As
consideration for Employee's agreement to this subparagraph (b),
Employer agrees that in the event Employer elects to terminate
the employment of Employee pursuant to the provisions of this
subparagraph (b) prior to the completion of the Term, Employer
shall provide a formal written notice of such termination and
Employee shall be entitled to a termination payment equal to (i)
a lump sum payment of the Base Salary equal to (A) if the
termination of employment occurs before December 31, 1999, the
Base Salary Employee would have received from the date of such
termination through December 31, 1999, (B) if the termination of
employment occurs on or after January 1, 2000 but before December
31, 2000, the Base Salary Employee would have received from the
date of such termination through December 31, 2000, or (C) if the
-6-
<PAGE>
termination occurs during the Extended Term, the Base Salary
Employee would have received during the balance of the Extended
Term; provided, however, that in no event shall Employee receive
a lump sum payment of Base Salary for a period of less than six
(6) months; (ii) a lump sum payment of any accrued vacation pay;
(iii) any and all Additional Benefits accrued through the date of
termination, including any compensation previously deferred by
Employee (together with any accrued interest and earnings
thereon); and (iv) a lump sum payment of the "Prorated Incentive
Compensation" (as defined below). For purposes of this Agreement,
the term "Prorated Incentive Compensation" means, for Employer's
fiscal year in which Employee's termination of employment occurs
(the "Termination Year"), the incentive compensation received by
Employee in Employer's fiscal year immediately before the
Termination Year (the "Prior Year"), (I) multiplied by a
fraction, the numerator of which is the number of days from the
beginning of the Termination Year to the date of Employee's
termination of employment, and the denominator of which is three
hundred sixty five (365), and (II) except for purposes of Section
5(d), decreased in an amount which, as determined by the Board,
based on Employer's customary and consistent calculation of
earnings, is proportional to any decrease in earnings of Employer
from the Prior Year to the Termination Year.
(c) Disability. In the event Employee shall fail, because of
----------
illness, incapacity or injury which is determined, within the
applicable definitions under the Employer's group disability
insurance, to be total and permanent by a physician selected by
Employer or its insurers and acceptable to Employee or Employee's
legal representative (such agreement as to acceptability not to
be withheld unreasonably) to render for three consecutive months
or for shorter periods aggregating 75 or more business days in
any twelve month period, the services contemplated by this
Agreement, Employee's employment hereunder may be terminated by
written notice of termination from Employer to Employee.
Thereafter, Employer shall continue to pay Base Salary to
Employee at a rate and time and in a manner equal to 100% of the
Base Salary payable immediately prior to the termination, until
the earliest to occur of the following: (i) Employee dies, (ii)
Employee recovers from
-7-
<PAGE>
such disability and returns to full-time service, (iii) six (6)
months after the date of such notice, or (iv) the waiting period,
if any, under Employer's long term disability insurance or other
disability plan purchased for Employee is satisfied and payments
by the insurance company to Employee commence. Thereafter, no
further salary or benefits shall be paid.
(d) Death. If Employee's employment is terminated by reason of
-----
Employee's death, this Agreement shall terminate without further
obligations to Employee (or Employee's heirs or legal
representatives) under this Agreement, other than for (i) payment
of the sum of (A) Employee's Base Salary through the end of the
month during which death occurs and for 30 days thereafter to the
extent not theretofore paid, (B) any compensation previously
deferred by Employee (together with any accrued interest or
earnings thereon) plus the Prorated Incentive Compensation in an
amount determined under Section 5(b), (C) any accrued vacation
pay, in each case to the extend not theretofore paid (the sum of
the amounts described in clauses (A), (B) and (C) shall be
hereinafter referred to as the "Accrued Obligations"), which
shall be paid to Employee or Employee's estate or beneficiary, as
applicable in a lump sum in cash within thirty (30) days after
the date of termination or any earlier time required by
applicable law; and (ii) payment to Employee or Employee's estate
or beneficiary, as applicable, any amount due pursuant to the
terms of any applicable Compensation Plan.
(e) Termination by Employee.
-----------------------
i) Employee may terminate his employment for a "Reduction in
Authority" (as defined below) at any time two (2) months
after a notice of intent to terminate pursuant to this
Section 5(e) has been delivered to the Board, provided such
condition continues for the duration of a one month period
after written notice to the Board. Upon such termination,
Employee shall receive the payments and benefits set forth
in subparagraph (b) above.
The term "Reduction in Authority" shall mean the occurrence
of one of the following events, other than as a result of
grounds for termination of employment for cause under
Section 5(a) or for
-8-
<PAGE>
disability under Section 5(c): (A) the continuing
assignments to Employee by the Board of duties materially
and adversely inconsistent with the duties specified to be
performed by Employee under this Agreement or with
Employee's position as Chairman of the Board of the Bank
and/or Chairman of the Board of PAGI; (B) a material,
adverse and continuing change in the nature of Employee's
responsibilities; (C) the requirement that Employee must
regularly report to persons other than the Board and the
PAGI Board; or (D) the removal of Employee from, or failure
to re-elect Employee as, the Chairman of the Bank Board or
the PAGI Board.
ii) Other than as set forth in Section 5(e)(i), Employee may
terminate his employment hereunder at any time upon not less
than thirty (30) days written notice to Employer. In such
event, Employee shall be entitled to all Accrued Obligations
under this Agreement, except payment of the Prorated
Incentive Bonus, through the effective date of such
termination.
(f) No Limitation. Employer's exercise of its right to terminate
-------------
shall be without prejudice to any other right or remedy to which
it or any of its affiliates may be entitled at law or in equity
to enforce its rights under this Agreement.
(g) Exclusive Remedy. Employee agrees that the payments expressly
----------------
provided and contemplated by this Agreement shall constitute the
sole and exclusive obligation of Employer in respect to
Employee's employment with and relationship to Employer and that
the payment thereof shall be the sole and exclusive remedy for
any termination of Employee's employment. Employee covenants not
to assert or pursue any other remedies, at law or in equity, with
respect to any termination of employment.
(h) Expiration of Term. No payment shall be due to Employee under
------------------
this Agreement by reason of the expiration of the Initial Term
and the failure by Employer to exercise its option for the
Extended Term.
(i) No Mitigation. In the event this Agreement is terminated for any
-------------
reason, Employee shall not be obligated to mitigate any damages
Employee
-9-
<PAGE>
might otherwise suffer. Employer's obligation to make payments to
Employee pursuant to this Agreement shall not be affected by any
other employers or sources or any setoff, counterclaim,
recoupment, defense or other right which Employer or its
subsidiaries may have against Employee.
6. Change in Control. Employee shall be entitled to receive the amounts
-----------------
set forth in Section 5(b) of this Agreement if Employer terminates his
employment without cause, or he terminates his employment with
Employer for a Reduction in Authority, within the "Applicable Period"
(as defined below) after a "Change in Control" (as defined below). A
"Change in Control" means a merger, consolidation, transfer of all or
substantially all in the assets of the Bank and PAGI, or any other
corporate reorganization or transaction or series of transactions,
which results in any person, group of related persons, or any other
organization or entity acquiring 50% or more of the outstanding voting
securities or partnership interests of PAGI and the Bank. The
"Applicable Period" begins on the date of a Change in Control and ends
on the later of the expiration of the Initial Term or Extended Term
(as the case may be) in which the Change in Control occurs, or twelve
(12) months after the Change in Control occurs.
7. Business Expenses. During the term of this Agreement, to the extent
-----------------
that such expenditures satisfy the criteria under the Internal Revenue
Code for deductibility by Employer (whether or not fully deductible by
Employer) for federal income tax purposes as ordinary and necessary
business expenses, Employer shall reimburse Employee promptly for
reasonable business expenditures, including travel, entertainment,
parking, business meetings, and professional dues but not the costs of
(or dues associated with) maintaining club memberships, made and
substantiated in accordance with policies, practices and procedures
established from time to time by Employer generally and incurred in
pursuit and furtherance of Employer's business and good will.
8. Indemnification.
---------------
(a) Indemnification by Employer. Pursuant to the terms of Section
---------------------------
545.121 of the OTS Rules and Regulations ("Section 545.121").
Employer agrees to indemnify, defend and hold harmless, Employee,
from and against (a) the amount of any judgment for which
Employee becomes liable as a result of any Action (as defined in
-10-
<PAGE>
Section 545.121) brought against Employee in his capacity as an
officer or director of Employer, and (b) if he attains a
favorable judgment in such Action, reasonable costs and expenses,
including reasonable attorneys' fees, actually paid or incurred
by Employee in defending or settling such Action, or in enforcing
his rights under Section 545.121; provided however, that Employer
shall have no obligation to indemnify Employee hereunder unless
(a) Final Judgment (as defined in Section 545.121) on the merits
is in Employee's favor; or (b) in the case of Settlement (as
defined in Section 545.121), Final Judgment against him, or Final
Judgment in his favor other than on the merits, the disinterested
directors of Employer determine that Employee was acting in good
faith within the scope of his employment or authority as he could
reasonably have perceived it under the circumstances and for a
purpose he could reasonably have believed under the circumstances
was in the best interests of Employer. If the disinterested
directors of Employer reasonably conclude that, in connection
with an Action, Employee may be entitled to indemnification, the
directors shall authorize Employer to advance to Employee
reasonable costs and expenses, including reasonable attorneys'
fees, arising from the defense or settlement of such Action,
subject to an undertaking by Employee to repay such amounts in
the event of a final nonappealable determination that Employee is
not entitled to indemnification, and the provisions of this
Section 8.
(b) Notification of Claims. After receipt of notice of commencement
----------------------
of any Action giving rise to a right of indemnification
hereunder, Employee shall promptly notify Employer in writing of
such Action and, when known, the facts constituting the basis for
such Action (in reasonable detail). Failure by Employee to so
notify Employer shall not relieve Employer of any liability
hereunder unless such failure materially prejudices Employer.
(c) Indemnification Procedure. Employer shall be entitled, if it so
-------------------------
elects, to take control of the defense and investigation with
respect to an Action and to employ and engage attorneys of its
own choice to handle and defend the same, upon written notice to
Employee of such election which notice acknowledges Employer's
obligation to provide indemnification
-11-
<PAGE>
hereunder. Employer shall not settle any Action that is the
subject of indemnification without the written consent of
Employee, which consent shall not be unreasonably withheld;
provided, however, that Employer may settle an Action without
-------- -------
Employee's consent if such Settlement (i) makes no admission or
acknowledgment of liability or culpability with respect to
Employee, (ii) includes a complete release of Employee, and (iii)
does not require Employee to make any payment or forego,
relinquish or take any action or right. Employee shall cooperate
in all reasonable respects with Employer and its attorneys in the
investigation, trial and defense of any Action (including the
filing in Employee's name of appropriate cross claims and
counterclaims). Employee may, at his own cost, participate in any
investigation, trial and defense of such Action controlled by
Employer. If, after receipt of a claim notice pursuant to Section
8(b), Employer does not undertake to defend any such Action,
Employee may, but shall have no obligation to, contest such
Action and Employer shall be bound by the result obtained with
respect thereto by Employee (including, but not limited to, any
Settlement thereof); provided, however, that Employee shall not
settle such Action without the written consent of Employer, which
Employer shall not unreasonably withhold. Employer may, at its
own cost, participate in any investigation, trial and defense of
any Action controlled by Employee. If Employee reasonably
believes that there may be a conflict of interest between himself
and Employer in the conduct of the defense of any Action,
Employee shall have the right, at the expense of Employer, to
select his own counsel and assume the defense of the Action;
provided, however, that Employee may not settle such Action
-------- -------
without the consent of Employer which consent shall not be
unreasonably withheld; provided, further, that Employee may
-------- -------
settle an Action without Employer's consent if such Settlement
(i) makes no admission or acknowledgment of liability or
culpability, (ii) includes a complete release of Employer and
(iii) does not require Employer to make any payment or forego,
relinquish or take any action or right. At any time after the
commencement of defense of any Action, Employer may request
Employee to agree in writing to the abandonment of such contest
or to the payment or compromise by Employer of such claim,
whereupon such action shall be taken unless Employee determines
that the contest should be
-12-
<PAGE>
continued and so notifies Employer in writing within 15 days of
such request from Employer. If Employee determines that the
contest should be continued, Employer shall be liable hereunder
only to the extent of the lesser of (i) the amount which the
other party(ies) to the contested claim have agreed to accept in
payment or compromise as of the time Employer made its request
therefor to Employee less any additional expenses incurred by
Employer subsequent to such event or (ii) such amount for which
Employer would otherwise be liable with respect to such Action by
reason of the provisions hereof.
9. Miscellaneous.
-------------
(a) Succession; Survival. This Agreement shall inure to the benefit
--------------------
of and shall be binding upon Employer, its successors and
assigns, but without the prior written consent of Employee, this
Agreement may not be assigned other than in connection with a
merger or sale of substantially of all the assets of Employer or
a similar transaction in which the successor or assignee assumes
(whether by operation of law or express assumption) all the
obligations of Employer hereunder. The obligations and duties of
Employee hereunder are personal and otherwise not assignable.
(b) Notices. Any notice or other communication provided for in this
-------
Agreement shall be in writing and sent if to Employer to its
office at:
Pan American Bank, FSB
1300 South El Camino Real
Suite 320
San Mateo, California 94402-2962
Facsimile: (650) 349-8504
Attention: Mr. Lawrence J. Grill, President
or at such other address as Employer may from time to time in writing
designate, and if to Employee to such address as Employee may from
time to time in writing designate (or Employee's business address of
record in the absence of such designation). Each such notice or other
communication shall be effective (i) if given by mail, three days
after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (ii) if given by any other
means, when actually delivered at such address.
(c) Entire Agreement; Amendments. This Agreement
----------------------------
-13-
<PAGE>
contains the entire agreement of the parties relating to the
subject matter hereof and it supersedes any prior agreements,
undertakings, commitments and practices relating to Employee's
employment by Employer or its affiliates. No amendment or
modification of the terms of this Agreement shall be valid unless
made in writing and signed by Employee and, on behalf of
Employer, by its President.
(d) Waiver. No failure on the part of any party to exercise or delay
------
in exercising any right hereunder shall be deemed a waiver
thereof or of any other right, nor shall any single or partial
exercise preclude any further or other exercise of such right or
any other right.
(e) Choice of Law. This Agreement, the legal relations between the
-------------
parties and any action, whether contractual or non-contractual,
instituted by any party with respect to matters arising under or
growing out of or in connection with or in respect of this
Agreement, the relationship of the parties or the subject matter
hereof shall be governed by and construed in accordance with the
laws of the State of California applicable to contracts made and
performed in such State and without regard to conflicts of law
doctrines, to the extent permitted by law and applicable
regulations.
(f) Arbitration. Any dispute, controversy or claim arising out of or
-----------
in respect of this Agreement (or its validity, interpretation or
enforcement), the employment relationship or the subject matter
hereof shall at the request of either party be submitted to and
settled by arbitration conducted at a mutually convenient office
of the Judicial Arbitration and Mediation Services, Inc.
("JAMS"). Employer and Employee may agree on a retired judge
from the JAMS panel. If they are unable to agree upon a retired
judge, JAMS will provide a list of three available judges and
each party may strike one. If two of the three judges are
stricken, the remaining judge will serve as arbitrator. If two
arbitrators remain, the first judge listed shall serve as
arbitrator. Employer and Employee agree that arbitration must be
initiated within two years after the claimed breach occurred and
that the failure to initiate arbitration within the two-year
period constitutes an absolute bar to the institution of any new
proceedings related to such alleged breach. The aggrieved party
can initiate
-14-
<PAGE>
arbitration by sending written notice of any intention to
arbitrate by registered or certified mail to all parties and to
JAMS. The notice must contain a description of the dispute, the
amount involved and the remedy sought. Exhibit A sets forth the
rights of Employer and Employee if the dispute is arbitrated and
the rules and procedures to be followed at the arbitration
hearing; provided, however, that the party or parties prevailing
in such proceeding will be entitled to the reasonable attorneys'
fees and expenses of counsel and costs incurred by reason of such
arbitration.
(g) Confidentiality; Proprietary Information. Employee agrees to not
----------------------------------------
make use of, divulge or otherwise disclose, directly or
indirectly confidential or proprietary information concerning the
business (including but not limited to its products, employees,
services, practices or policies) of Employer or any of its
affiliates of which Employee may learn or be aware as a result of
Employee's employment during the Term or prior thereto as
stockholder, employee, officer or director of or consultant to
Employer or any of its affiliates, except to the extent such use
or disclosure is (i) required by applicable law, (ii) lawfully
obtainable from other sources, (iii) generally available to the
public, or (iv) authorized in writing by Employer. The provision
of this subsection (g) shall survive the expiration, suspension
or termination, for any reason, of this Agreement.
(h) Severability. If any provision of this Agreement is held invalid
------------
or unenforceable, the remainder of this Agreement shall
nevertheless remain in full force and effect, and if any
provision is held invalid or unenforceable with respect to
particular circumstances, it shall nevertheless remain in full
force and effect in all other circumstances, to the fullest
extent permitted by law.
(i) Withholding: Deductions. All compensation payable hereunder
-----------------------
including salary and other benefits, shall be subject to
applicable taxes, withholding and other required, normal or
elected employee deductions.
(j) Section Headings. Section and other headings contained in this
----------------
Agreement are for convenience of reference only and shall not
affect in any way the meaning or interpretation of this
-15-
<PAGE>
Agreement.
(k) Non-Solicitation. Employee agrees that for a period of one (1)
----------------
year after the termination of employment, Employee will not, on
behalf of Employee or on behalf of any other individual,
association or entity, call on any of the customers of Employer
for the purpose of soliciting or inducing any of such customers
to acquire (or providing to any of such customers) any product or
service provided by Employer nor will Employee in any way,
directly or indirectly , as agent or otherwise, in any other
manner solicit, influence or encourage such customers to take
away or to divert or direct their business to Employee or any
other person or entity by or with which Employee is employed,
associated, affiliated or otherwise related ("Employee Related
----------------
Entity"); provided, however, that during the one (1) year period
------
referred to above, Employee will be permitted to be involved in
advertising and marketing deposit products and loans in
communities served by Employer in its residential loan and
deposit business.
(l) Employees. Employee agrees that for a period of two (2) years
---------
after the termination of Employee's employment, Employee will
not, directly or indirectly, disrupt, damage, impair, or
interfere with Employer's business by soliciting, influencing,
encouraging or recruiting any employee of Employer to work for
Employee or any Employee Related Entity.
(m) Counterparts. This Agreement and any amendment hereto may be
------------
executed in one or more counterparts. All of such counterparts
shall constitute one and the same agreement and shall become
effective when a copy signed by each party has been delivered to
the other party.
(n) Representation By Counsel; Interpretation. Employer and Employee
-----------------------------------------
each acknowledge that each party to this Agreement has been
represented by counsel in connection with this Agreement and the
matters contemplated by this Agreement. Accordingly, any rule of
law, including but not limited to Section 1654 of the California
Civil Code, or any legal decision that would require
interpretation of any claimed ambiguities in this Agreement
against the party that drafted it has no application and is
expressly waived. The provisions of this Agreement shall be
interpreted in a reasonable manner of effect
-16-
<PAGE>
the intent of the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
"Employer"
PAN AMERICAN BANK, FSB
By: /s/ LAWRENCE J. GRILL
----------------------------
Its: President
PAN AMERICAN GROUP, INC.
By: /s/ LAWRENCE J. GRILL
----------------------------
Its: President
"EMPLOYEE"
/s/ GUILLERMO BRON
-------------------------------
Guillermo Bron
Pan American Bank, FSB
c/o Bastion Capital Corporation
1999 Avenue of the Stars
Suite 2960
Los Angeles, California 90067
Facsimile: (310) 277-7582
-17-
<PAGE>
SCHEDULE TO
PARAGRAPH 4(C)
ADDITIONAL BENEFITS
STOCK OPTION PLAN
Concurrently upon execution of the Agreement, PAGI and Employee shall enter
into a Stock Option Agreement pursuant to PAGI's most current Stock Option
Plan. PAGI shall grant Employee additional stock options to purchase 30
shares upon the terms and conditions described in such Plan and Agreement,
and at a price to be determined by the PAGI Board or its compensation
committee.
PERQUISITES
See the schedule of additional benefits attached to this schedule.
-18-
<PAGE>
EXHIBIT TO
SCHEDULE
TO
PARAGRAPH 4(C)
PERQUISITES PAID BY EMPLOYER
________________________________________________________________________________
a. $500,000 of term life insurance in excess of the amount provided by
Employer under the Employer's group term life insurance plan in which
its employees generally participate.
b. Monthly car allowance of $500
c. Long-term Disability Insurance providing 60% of annual Base Salary up to
$10,000 per month coverage as provided under the Employer's long-term
disability plan in which its employees generally participate, or through
individual coverage if such plan does not provide such coverage.
d. Accidental Death and Dismemberment Insurance up to the maximum amount that
can be purchased under the Employer's accidental death and dismemberment
plan in which its employees generally participate.
e. Monthly premium cost under the Employer's plan for family Medical, Dental
and Vision Insurance, except that Employee shall pay family deductibles
and co-payments.
-19-
<PAGE>
Exhibit 10.41
EMPLOYMENT AGREEMENT
--------------------
This Employment Agreement (this "Agreement"), dated as of October 1, 1997
is by and between United PanAm Mortgage Corp., a California corporation (the
"Company"), and John T. French ("Employee"), with reference to the following
facts:
A. Due to Employee's high degree of business acumen and experience in the
mortgage banking field, the Company desires to Employee as its Chairman,
President, and Chief Executive Officer on the terms set forth below.
B. Employee is willing to enter into this Employment Agreement on the
terms and conditions set forth below.
NOW, THEREFORE, the Company and Employee hereby agree as follows:
1. Position. During the term of his employment with the Company
--------
hereunder, Employee shall serve as Chairman, President, and Chief Executive
Officer of the Company. Employee shall, subject to the direction and policies of
the Board of Directors of the Company, perform those duties customarily
performed by officers with the same or similar titles of companies comparable to
the Company, and Employee shall not be required to perform any work not commonly
performed by officers with the same or similar titles of companies comparable to
the Company. While he is employed by the Company, Employee shall diligently
devote his entire business skill, time and effort to his employment hereunder.
Notwithstanding the foregoing, and provided that such activities do not
interfere with the fulfillment of Employee's obligations hereunder, Employee may
(a) serve as a director or trustee of any charitable or non-profit entity; (b)
acquire solely as an investment any securities of an entity so long as he
remains a passive investor in such entity and so long as such investment in any
entity directly or indirectly in competition with the Company does not exceed 2%
of such entity's outstanding voting securities; and (c) serve as a director of
any corporation so long as such entity is not, directly or indirectly, in
competition with the Company. Unless the Company and Employee agree to the
contrary, Employee's primary place of employment shall be at the Company's
offices in Orange, California. Employee shall travel to such other locations as
may be necessary in order to discharge his duties hereunder. In the event of the
termination of the employment of Employee before September 30, 1999 by the
Company without "Cause" or by Employee with "Good Reason" (as such terms are
defined in Section 6), Employee shall make himself available, during the
Consulting Term (as defined below) to perform consulting services to the Company
as the Company deems reasonable; provided, however, that Employee shall not be
required to be available outside of regular business hours without reasonable
advance notice.
<PAGE>
2. Term of Employment. Employee's term of employment by the Company
------------------
under this Agreement (the "Employment Term") shall begin on the date hereof and
shall continue until September 30, 1999, unless sooner terminated by either
party. The "Consulting Term" shall begin on the termination of this Agreement
before September 30, 1999 by the Company without "Cause" or by the Employee with
"Good Reason" (as such terms are defined in Section 6), and shall continue until
the later of the first anniversary of such termination or September 30, 1999.
By giving written notice to Employee at least 15 days before the expiration of
the Consulting Term, the Company may renew the Consulting Term for one
additional year. Employee hereby acknowledges that the Company shall not be in
breach of this Agreement by terminating this Agreement at any time without
"Cause," or by giving Employee "Good Reason" to terminate this Agreement,
provided that, after such termination, the Company pays the consulting fee set
forth in Section 3(c) in accordance with the terms of this Agreement.
3. Compensation. As compensation for the services contemplated hereby,
------------
Employee shall receive the following:
(a) A monthly base salary (the "Base Salary") of $16,667 during the
Employment Term.
(b) For each 12 month period during the Employment Term, Employee
shall receive a bonus in an amount determined in the discretion of the Board of
Directors of the Company; provided, however, that, assuming reasonable
performance by Employee of his obligations under this Agreement, such bonus
shall not be less than $100,000 payable on September 30, 1998 and September 30,
1999.
(c) Employee shall receive a consulting fee of $10,000 per month
during the Consulting Term. Payment of such consulting fee during the
Consulting Term, however, shall be conditioned upon Employee's observance of the
Covenant Not to Compete set forth in Section 8, consulting obligations set forth
in Section 1, and covenant of confidentiality set forth in Section 7.
In the event this Agreement is terminated for any reason, Employee shall not be
obligated to mitigate any damages Employee might otherwise suffer. The
Company's obligation to make payments to Employee pursuant to this Agreement
shall not be affected by any other employers or sources or any setoff,
counterclaim, recoupment, defense or other right which the Company or its
subsidiaries may have against Employee.
4. Employee Benefits. Employee shall be entitled to participate while
-----------------
employed by the Company in all employee benefit plans and programs and
perquisites of the Company which are made generally available from time to time
by the Company to its executive management employees. Employee shall
-2-
<PAGE>
be entitled annually to a minimum of two weeks of vacation per year and sick
leave in accordance with the Company's normal policies for its executive
employees. The Company shall offer to employ an assistant designated by Employee
on reasonable terms. Upon the execution of this Agreement, the Company shall
assume Employee's obligations under that certain lease of the premises commonly
known as One Civic Plaza, Suite 360, Newport Beach, California 92660, which
Employee represents to be rent of $1,500 per month for a term expiring on
October 31, 1998. Upon such assumption, the Company shall have the right to
occupy or sublet such premises, and, if it elects to sublet such premises, to
retain the proceeds. On the execution hereof, Employee shall receive options to
purchase 30 shares of the common stock of Pan American Group, Inc., the parent
corporation of the Company, which such options shall (a) have an exercise price
per share equal to the price per share at which such shares are offered to the
public in an initial public offering of the stock of Pan American Group, Inc.,
(b) vest and become exercisable 25% on the date of this Agreement, and 25% on
each anniversary of the date of this Agreement; provided, however, that such
options shall become fully vested and exercisable on September 30, 1999 if
Employee is an employee of the Company on that date and the Company and Employee
neither renew this Agreement nor enter into a new employment agreement, and (c)
be in addition to any other options to purchase shares of the common stock of
Pan American Group, Inc. which Employee has received before the date of this
Agreement.
5. Expenses. The Company shall pay or reimburse Employee for any
--------
expenses reasonably incurred by him in furtherance of his duties hereunder,
including expenses for entertainment, traveling, meals and hotel accommodations,
upon submission by him of vouchers or itemized lists thereof prepared in
compliance with such reasonable rules and policies relating thereto as the
Company may from time to time adopt and as may be required in order to
facilitate the treatment of such payments as proper deductions to the Company
under the Internal Revenue Code and the rules and regulations adopted pursuant
thereto now or hereafter in effect.
6. Death, Disability, and Termination for Cause.
--------------------------------------------
(a) The payment of compensation under this Agreement shall terminate
upon the termination of the employment of Employee by reason of death or
"Disability," by the Company for "Cause," or voluntary termination by Employee
without "Good Reason," as such terms are defined in this Section 6. In the event
of termination in one of the circumstances described in this Section 6, Employee
shall be entitled to receive all Base Salary earned to the date of termination,
but shall forfeit all rights to subsequent Minimum Bonuses and other bonuses
that would have accrued during or would have been payable with respect to the
year in which such termination occurs to the extent that such
-3-
<PAGE>
termination occurs before the date on which they are payable.
(b) As used herein, "Cause" shall mean (i) any action of Employee or
any failure to act on the part of Employee which constitutes fraud, embezzlement
or any felony in connection with Employee's duties as a principal officer or
other employee of the Company or any subsidiary of the Company, or willful
misconduct which causes substantial economic or reputational injury to the
Company, (ii) willful breach of a material provision of this Agreement by
Employee, and the failure of Employee to begin to cure such breach within ten
(10) days after receiving written notice from the Company specifying such
breach, provided that such ten (10) day period shall be extended during any
period of Employee's disability or other physical or mental illness, or (iii) a
material neglect or refusal (other than by reason of a mental or physical
illness or disability) by Employee to follow the reasonable instructions of the
Board of Directors of the Company and Employee's failure to begin to follow such
instructions within ten (10) days after receiving written notice from the
Company to do so, provided that such ten (10) day period shall be extended
during any period of Employee's disability or other physical or mental illness.
Termination for Cause shall be by written notice from the Company to Employee,
and such notice shall identify with reasonable (under the circumstances)
specificity the damage caused.
(c) As used herein, "Good Reason" shall mean (i) the assignment to
Employee of any duties inconsistent with Employee's position (including status,
offices, titles and reporting requirements), authority, duties or
responsibilities as contemplated by Section 1 of this Agreement, or any other
action by the Company which results in a diminution in such position, authority,
duties or responsibilities, excluding for this purpose an isolated and
insubstantial action not taken in bad faith and not intended to be inconsistent
with this Agreement and which is remedied by the Company promptly after receipt
of notice thereof given by Employee, (ii) any failure by the Company to comply
with its obligations under this Agreement, other than an isolated, insubstantial
and inadvertent failure not occurring in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by Employee, (iii) any
purported termination of Employee's employment by the Company otherwise than as
expressly permitted in this Agreement, or (iv) any failure by any successor to
the Company to assume the obligations of the Company under this Agreement.
(d) As used herein, "Disability" means the failure of Employee to
render the services contemplated by this Agreement for three consecutive months,
or for shorter periods aggregating 75 or more business days in any 12 month
period, because of illness, incapacity or injury which is determined, within the
applicable definitions under Employer's group disability insurance, to be total
and permanent by a physician
-4-
<PAGE>
selected by Employer or its insurers and acceptable to Employee or Employee's
legal representative (with such agreement as to acceptability not to be
unreasonably withheld).
(e) In the event of Employee's death, his compensation shall be
payable to any beneficiary which he has designated in writing to the Company,
or, if he has not designated any such beneficiary, to his estate. In the event
this Agreement is terminated for any reason, Employee shall not be obligated to
mitigate any damages Employee might otherwise suffer.
7. Nondisclosure of Confidential Material.
--------------------------------------
-5-
<PAGE>
In the performance of Employee's duties, Employee has previously had,
and will have, access to confidential records and information, including, but
not limited to, development, marketing, purchasing, organizational, strategic,
financial, managerial, administrative, distribution and sales information, data,
and specifications presently owned or at any time hereafter developed by the
Company or its agents or consultants or used presently or at any time hereafter
in the course of its business, that are not otherwise part of the public domain
(collectively, the "Confidential Material"). All such Confidential Material is
considered secret and has been and/or will be disclosed to Employee in
confidence. Employee acknowledges that the Confidential Material constitutes
proprietary information of the Company which draws independent economic value,
actual or potential, from not being generally known to the public or to other
persons who could obtain economic value from its disclosure or use, and that the
Company has taken efforts reasonable under the circumstances, of which this
Section 7 is an example, to maintain its secrecy. Except in the performance of
Employee's duties to the Company, Employee shall not, directly or indirectly for
any reason whatsoever, disclose or use any such Confidential Material, except
that the foregoing disclosure prohibition shall not apply as to Confidential
Material that (a) has been publicly disclosed or was within Employee's
possession prior to its being furnished to Employee by Company or becomes
available to Employee on a nonconfidential basis from a third party (in any of
such cases, not due to a breach by Employee of Employee's obligations to the
Company or by breach of any other person of a confidential or fiduciary
obligation), (b) is required to be disclosed by Employee pursuant to applicable
law, and Employee provides notice to Company of such requirement as promptly as
possible, or (c) was independently acquired or developed by Employee without
violating any of the obligations under this Agreement and without relying on
Confidential Material of the Company. All records, files, drawings, documents,
equipment and other tangible items, wherever located, relating in any way to the
Confidential Material or otherwise to the Company's business, which Employee has
prepared, used or encountered or shall in the future prepare, use or encounter,
shall be and remain the Company's sole and exclusive property and shall be
included in the Confidential Material. Upon Employee's termination of
employment with the Company, or whenever requested by the Company, Employee
shall promptly deliver to the Company any and all of the Confidential Material
and copies thereof, not previously delivered to the Company, that may be, or at
any previous time has been, in Employee's possession or under Employee's
control.
8. Covenant Not to Compete.
-----------------------
Employee acknowledges that the Company's business is highly innovative
and competitive, and that the Confidential
-6-
<PAGE>
Material involves valuable and proprietary information. Employee further
acknowledges that this Confidential Material would necessarily be compromised
were Employee to use this information for himself after his employment, or were
Employee to become an employee or consultant or otherwise become associated with
any competitor of the Company during the life-cycle of the development of the
Company's products and services and the strategy associated with the marketing
of such products and services. Although the lengths of such cycles vary
depending upon the product or service, the Company and Employee agree that, in
light of Employee's knowledge and position with the Company, a period ending on
the later of September 30, 1999 or one year after the termination of Employee's
employment with the Company (the "Applicable Period") is a reasonable and
necessary period in order to protect the Company's Confidential Material.
Employee hereby acknowledges that the Company's business is national in scope.
Accordingly, Employee and the Company agree that, for the Applicable Period,
Employee will not himself use any of the Confidential Material, and will not
directly or indirectly become an employee of, consult with, render services for,
own, manage, control, participate in, or in any manner engage in any business
which competes with the business of the Company in any state in which the
Company does business. Employee further agrees that for the Applicable Period,
Employee will not induce or attempt to induce any employee of the Company to
leave the employ of the Company or hire, directly or through another person or
entity, any person who is an employee of the Company at any time during the last
year of Employee's employment at the Company. Employee further agrees that he
will not induce or attempt to induce any customer, supplier, licensee or other
person or entity with a business relationship with the Company to cease doing
business with the Company, or in any way interfere with the relationships
between such customer, supplier, licensee or business relation and the Company.
Nothing in this Section 8 shall prohibit Employee from being a passive owner of
not more than two percent (2%) of the outstanding shares of any class of stock
of a corporation which is publicly traded, so long as Employee does not serve
such company in any capacity whether as a board member or otherwise, and
Employee has no active participation in the business of such corporation or any
of its subsidiaries or affiliates. If, at the time of enforcement of this
Section 8, an arbitrator (or court) should hold that the duration or scope of
the restrictions stated herein are unreasonable under the circumstances then
existing, the parties agree that the maximum duration or scope which is
reasonable under such circumstances shall be substituted for the stated duration
or scope. Similarly, if, at the time of enforcement, an arbitrator (or court)
should hold that the area of the restriction stated herein is unreasonable under
the circumstances then existing, the parties agree that the maximum area which
is reasonable under such circumstances shall be substituted for the stated area.
-7-
<PAGE>
9. Equitable Relief.
----------------
Employee acknowledges that violation of Sections 7 and 8 would cause
the Company irreparable damage for which the Company cannot be reasonably
compensated in damages in an action at law, and that therefore in the event of
any breach by Employee of Sections 7 or 8, the Company shall be entitled to
apply to a court of competent jurisdiction for equitable relief by way of
injunction or otherwise, without being required to post a bond. This provision
shall not, however, be construed as a waiver of any of the rights which the
Company may have for damages under this Agreement or otherwise, and, except as
limited in Section 12, all of the Company's rights and remedies shall be
unrestricted.
10. Notices.
-------
For purposes of this Agreement, notices and all other communications
provided for herein shall be in writing and shall be deemed to have been duly
given when personally delivered, telecopied, or sent by certified or overnight
mail, return receipt requested, postage prepaid, addressed to the respective
addressees, or sent to the respective telecopier numbers, last given by each
party to the other. All notices and communications shall be deemed to have been
received on the date of delivery thereof if personally delivered, upon return
confirmation if telecopied, on the third business day after the mailing thereof,
or on the date after sending by overnight mail, except that notice of change of
address shall be effective only upon actual receipt. No objection to the method
of delivery may be made if the written notice or other communication is actually
received.
11. General.
-------
(a) Governing Law. This Agreement shall be governed by and construed
-------------
and enforced in accordance with the laws of the State of California, without
giving effect to conflicts of laws principles thereof which might refer such
interpretations to the laws of a different state or jurisdiction; provided,
however, that the construction and enforcement of the Covenant Not To Compete
set forth in Section 8 in each state in which the Company does business shall be
governed by the laws of such state, without giving effect to conflicts of laws
principles thereof which might refer such interpretations to the laws of a
different state or jurisdiction.
(b) Captions. The section headings contained herein are for
--------
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
(c) Entire Agreement. This Agreement sets forth the entire agreement
----------------
and understanding of the parties relating to the subject matter hereof, and
supersedes all prior
-8-
<PAGE>
agreements, arrangements and understandings, written or oral, between the
parties.
(d) No Other Representations. No representation, promise or
------------------------
inducement has been made by any party hereto that is not embodied in this
Agreement, and no party shall be bound by or liable for any alleged
representation, promise or inducement not so set forth.
(e) Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of and shall be binding upon the Company and Employee and their
respective heirs, executors, personal representatives, successors and assigns,
including any resulting or surviving corporation or other entity with or into
which the Company may merge or consolidate.
(f) Amendments; Waivers. This Agreement may be amended, modified,
-------------------
superseded, cancelled, renewed or extended, and the terms or covenants hereof
may be waived, only by a written instrument executed by all of the parties
hereto, or in the case of a waiver, by the party waiving compliance. The
failure of any party at any time or times to require performance of any
provision hereof shall in no manner affect the right at a later time to enforce
the same. No waiver by any party of the breach of any term or covenant
contained in this Agreement, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be, or construed as, a further or continuing
waiver of any such breach, or a waiver of the breach of any other term or
covenant contained in this Agreement.
(g) Representation By Counsel; Interpretation. Employee acknowledges
-----------------------------------------
that (i) this Agreement has been drafted by counsel for the Company, (ii) the
Company has advised him to obtain the advice of his own counsel in reviewing
this Agreement and deciding whether to sign it, and (iii) he has either signed
this Agreement after consulting with his own counsel, or intentionally deciding
not to seek the advice of his own counsel. Accordingly, any rule of law,
including but not limited to Section 1654 of the California Civil Code, or any
legal decision that would require interpretation of any alleged ambiguities in
this Agreement against the party that drafted it has no application and is
expressly waived.
12. Arbitration of Disputes.
-----------------------
Except for equitable relief as provided in Section 9, arbitration
shall be the exclusive remedy for resolving any dispute or controversy between
Employee and the Company, including, but not limited to, any dispute regarding
Employee's employment or the termination of Employee's employment or any dispute
regarding the application, interpretation or validity of this Agreement. Such
arbitration shall be conducted in accordance with the then most applicable rules
of the American Arbitration Association.
-9-
<PAGE>
The arbitrator shall be empowered to grant only such relief as would be
available in a court of law. In the event of any conflict between this Agreement
and the rules of the American Arbitration Association, the provisions of this
Agreement shall be determinative. If the parties are unable to agree upon an
arbitrator, they shall select a single arbitrator from a list designated by the
office of the American Arbitration Association having responsibility for the
city in which Employee last resided while employed by the Company of seven
arbitrators, all of whom shall be retired judges who are actively involved in
hearing private cases or members of the National Academy of Arbitrators. If the
parties are unable to agree upon an arbitrator from such list, they shall each
strike names alternatively from the list, with the first to strike being
determined by lot. After each party has used three strikes, the remaining name
on the list shall be the arbitrator. The fees and expenses of the arbitrator
shall initially be borne equally by the parties; provided, however, that each
party shall initially be responsible for the fees and expenses of its own
representatives and witnesses. If the parties cannot agree upon a location for
the arbitration, the arbitrator shall determine the location. Judgment may be
entered on the award of the arbitrator in any court having jurisdiction. The
prevailing party in the arbitration proceeding, as determined by the arbitrator,
in any enforcement or other court proceedings, or in any proceedings to obtain
equitable relief under Section 9, shall be entitled to the extent provided by
law to reimbursement from the other party for all of the prevailing party's
costs (including but not limited to the arbitrator's compensation), expenses and
reasonable attorney's fees.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement as
of the date first above written.
"Employee"
/s/ JOHN T. FRENCH
-------------------------------
John T. French
the "Company"
UNITED PANAM MORTGAGE CORP.
By: /s/ WILLIAM BRON
-----------------------------
Title:
-10-
<PAGE>
Exhibit 10.42
PAN AMERICAN BANK, FSB
SALARY CONTINUATION AGREEMENT
THIS AGREEMENT is made as of this 1st day of October, 1997, by and between
PAN AMERICAN BANK, FSB, a Federal Stock Savings Bank located in San Mateo,
California (the "Company") and LAWRENCE J. GRILL (the "Executive").
INTRODUCTION
To encourage the Executive to remain an employee of the Company, the
Company is willing to provide salary continuation benefits to the Executive.
The Company will pay the benefits from its general assets.
AGREEMENT
The Executive and the Company agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. Whenever used in this Agreement, the following words and
-----------
phrases shall have the meanings specified:
1.1.1 "Change of Control" means a "Change of Control" as defined in
Section 6 of the Employment Agreement.
1.1.2 "Code" means the Internal Revenue Code of 1986, as amended.
<PAGE>
1.1.3 "Designated Investment" means the investment vehicle or
vehicles set forth on Exhibit "A".
1.1.4 "Designated Amount" means, for any Plan Year, the amount of
cash the Company could have withdrawn or realized from the Designated Investment
in such Plan Year (net of any charges or penalties), assuming that the Company
held the Designated Investment during the Plan Year, whether or not it actually
did so, and assuming that the Company never withdrew or realized any cash from
the Designated Investment for any purposes other than the payment of benefits
under this Agreement, whether or not it actually did so.
1.1.5 "Disability" means an event giving rise to the termination of
Executive's employment with the Company under Section 5(c) of the Employment
Agreement.
1.1.6 "Early Termination" means the Termination of Employment before
Normal Retirement Age for reasons other than death, Disability, Termination for
Cause or Change of Control.
1.1.7 "Early Termination Date" means the month, day and year in which
Early Termination occurs.
1.1.8 "Employment Agreement" means that certain Employment Agreement
of even date herewith by and among the Executive, the Company, and Pan American
Group, Inc.
1.1.9 "ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
1.1.10 "Normal Retirement Age" means the Executive's 67th birthday.
1.1.11 "Normal Retirement Date" means the later of the Normal
Retirement
-2-
<PAGE>
Age or Termination of Employment.
1.1.12 "Plan Year" means the calendar year except that the first plan
year shall be a short plan year commencing on the effective date of this
Agreement and ending on December 31, 1997.
1.1.13 "Termination for Cause" means the termination of the
Executive's employment with the Company by the Company for fraud or dishonesty
against the Company which materially adversely affects the business of the
Company, or upon conviction of a felony which materially adversely affects the
business of the Company.
1.1.14 "Termination of Employment" means that the Executive ceases to
be employed by the Company for any reason whatsoever other than by reason of a
leave of absence which is approved by the Company. The date of Termination of
Employment shall be the actual date on which the Executive is no longer in the
employ of the Company; provided, however, that the date of Termination of
Employment shall be deemed to be (a) December 31, 1998 if the actual date on
which the Executive is no longer in the employ of the Company occurs in 1997 or
1998, or (b) December 31, 1999 if the actual date on which the Executive is no
longer in the employ of the Company occurs in 1999.
1.1.15 "Voluntary Termination" means that the Executive, prior to his
Normal Retirement Age, has terminated his employment with the Company for
reasons other than Termination for Cause, Disability, death, Change of Control
or Involuntary Termination.
1.1.16 "Involuntary Termination" means that the Executive, prior to
his Normal Retirement Age, has been notified in writing, pursuant to the
Executive's Employment Agreement, that his employment with the Company is
terminated for reasons
-3-
<PAGE>
other than an approved leave of absence, Termination for Cause, Disability, or
death. "Involuntary Termination" shall also mean the termination of the
Executive's employment with the Company by the Executive upon a "Reduction in
Authority" as set forth in Section 5(e) of the Employment Agreement.
ARTICLE 2
BENEFITS OTHER THAN UPON DEATH
2.1 Normal Retirement Benefit. Upon Termination of Employment on or after
-------------------------
the Normal Retirement Age for reasons other than Termination for Cause, the
Company shall pay to the Executive the benefit described in this Section 2.1 in
lieu of any other benefit under this Agreement.
2.1.1 Amount of Benefit. The benefit under this Section 2.1 is
-----------------
$100,000 per year, payable for 15 years.
2.1.2 Payment of Benefit. The Company shall pay the annual benefit to
------------------
the Executive in 12 equal monthly installments payable on the first day of each
month commencing with the month following the Executive's Termination of
Employment under this Section 2.1 and continuing for 179 additional months.
2.2 Early Termination Benefit. Upon Early Termination, the Company shall
-------------------------
pay to the Executive the benefit described in this Section 2.2 in lieu of any
other benefit under this Agreement.
2.2.1 Amount of Benefit. The benefit Under this Section 2.2 is either
-----------------
the benefit amount set forth in (a) or (b) below:
(a) Involuntary Early Termination. The benefit under this
-----------------------------
Section 2.2.1(a) is an annual benefit payable for 15 years equal to
the "Weighted Average" (determined as set forth in Section 2.2.1(c)
below) of
-4-
<PAGE>
the Early Termination Annual Benefit/Involuntary Termination amount
set forth in Schedule "A" for the Plan Year immediately before the
year in which the Termination of Employment occurs (the "Prior Year")
and the Early Termination Annual Benefit/Involuntary Termination
amount set forth in Schedule "A" for the Plan Year in which the
Termination of Employment occurs (the "Termination Year"); or
(b) Voluntary Early Termination. The benefit under this
---------------------------
Section 2.2.l(b) is an annual benefit payable for 15 years equal to
the Weighted Average of the Early Termination Annual Benefit/Voluntary
Termination amount set forth in Schedule "A" for the Prior Year and
the Early Termination Annual Benefit/Voluntary Termination amount set
forth in Schedule "A" for the Termination Year.
(c) Weighted Average. The Weighted Average of the amount set
----------------
forth in Schedule "A" for the Prior Year (the "Prior Year Amount") and
the amount set forth in Schedule "A" for the Termination Year (the
"Termination Year Amount") shall be the sum of (1) the Termination
Year Amount multiplied by the quotient obtained by dividing the number
of days from January 1 of the Termination Year through and including
the date of the Termination of Employment by 365, and (2) the Prior
Year Amount multiplied by the quotient obtained by dividing the number
of days from the day after the date of the Termination of Employment
through and including December 31 of the Termination Year by 365.
2.2.2 Payment of Benefit. The Company shall pay the annual benefit to
------------------
the Executive in 12 equal monthly installments payable on the first day of each
month
-5-
<PAGE>
commencing with the month following the later of the Executive's Termination of
Employment or the Executive's Normal Retirement Age and continuing for 179
additional months.
2.3 Disability Benefit. If the Executive terminates employment due to
------------------
Disability prior to Normal Retirement Age, the Company shall pay to the
Executive the benefit described in this Section 2.3 in lieu of any other benefit
under this Agreement.
2.3.1 Amount of Benefit. The benefit under this Section 2.3 is the
-----------------
Weighted Average of the Disability Annual Benefit amount set forth in Schedule
"A" for the Prior Year (as defined in Section 2.2.1(a)) and the Disability
Annual Benefit amount set forth in Schedule "A" for the Termination Year (as
defined in Section 2.2.1(a)), payable for 15 years.
2.3.2 Payment of Benefit. The Company shall pay the annual benefit
------------------
amount to the Executive in 12 equal monthly installments payable on the first
day of each month commencing with the month following Termination of Employment
and continuing for 179 additional months.
2.4 Change of Control Benefit. If the Executive is in the active service
-------------------------
of the Company at the time of a Change of Control, and the Executive's
employment with the Company terminates within the "Applicable Period" (as
defined in Section 6 of the Employment Agreement) for any reason other than
death, Disability, retirement, or Termination for Cause, the Company shall pay
to the Executive the benefit described in this Section 2.4 in lieu of any other
benefit under this Agreement.
2.4.1 Amount of Benefit. The annual benefit under this Section 2.4 is
-----------------
the Change of Control Benefit amount set forth in Schedule "A" for the Plan Year
in which Termination of Employment occurs, payable for 15 years.
-6-
<PAGE>
2.4.2 Payment of Benefit. The Company shall pay the annual benefit
------------------
amount to the Executive in 12 equal monthly installments payable on the first
day of each month commencing with the month following the Termination of
Employment and continuing for 179 additional months.
ARTICLE 3
DEATH BENEFITS
3.1 Death During Active Service. If the Executive dies while in the
---------------------------
active service of the Company, the Company shall pay to the Executive's
beneficiary the benefit described in this Section 3.1. This benefit shall be
paid in lieu of the Benefits described in Article 2.
3.1.1 Amount of Benefit. The annual benefit under this Section 3.1 is
-----------------
the Normal Retirement Benefit amount described in Section 2.1.1, payable for 15
years.
3.1.2 Payment of Benefit. The Company shall pay the annual benefit to
------------------
the beneficiary in 12 equal monthly installments payable on the first day of
each month commencing with the first day of the second month following the
Executive's death and continuing for 179 additional months.
3.2 Death During Benefit Period. If the Executive dies after the benefit
---------------------------
payments have commenced under this Agreement but before receiving all such
payments, the Company shall pay the remaining benefits to the Executive's
beneficiary at the same time and in the same amounts that would have been paid
to the Executive had the Executive survived.
3.3 Death Following Termination of Employment But Before Benefits
-------------------------------------------------------------
Commence. If the Executive is entitled to benefits under this Agreement, but
- --------
dies prior to receiving said benefits, the Company shall pay to the Executive's
beneficiary the same
-7-
<PAGE>
benefits, in the same manner, that would have been paid to the Executive had the
Executive survived, however, said benefit payments will commence as soon as
practicable after the Executive's death.
ARTICLE 4
BENEFICIARIES
4.1 Beneficiary Designations. The Executive shall designate a beneficiary
------------------------
by filing a written designation with the Company. The Executive may designate
more than one beneficiary, and may designate primary and secondary
beneficiaries. The Executive may revoke or modify the designation at any time by
filing a new designation. However, designations will only be effective if signed
by the Executive and accepted by the Company during the Executive's lifetime;
the Company shall be entitled to rely on the last beneficiary designation
executed by the Executive and accepted by the Company before his death. If the
Executive is married and names someone other than his spouse as a beneficiary,
such beneficiary designation will not be effective unless his spouse executes
and delivers to the Company a spousal consent, in a form designated by the
Company. The Executive's beneficiary designation shall be deemed automatically
revoked if the Executive names a spouse as beneficiary and the marriage is
subsequently dissolved. Without limiting the generality of the preceding
sentence, the interest in benefits of a spouse of the Executive who has
predeceased the Executive or whose marriage has been dissolved shall
automatically pass to the Executive, and shall not be transferrable by such
spouse in any manner, including but not limited to such spouse's will, nor shall
such interest pass under the laws of intestate succession. If the Executive dies
without a valid beneficiary designation, or if all beneficiaries have
predeceased the Executive, all payments shall be made to the Executive's
surviving spouse, or, if there is no surviving
-8-
<PAGE>
spouse, to his estate.
4.2 Facility of Payment. If the benefit is payable to a minor, to a
-------------------
person declared incapacitated, or to a person incapable of handling the
disposition of his or her property, the Company may pay such benefit to the
guardian, legal representative or person having the care or custody of such
minor, incapacitated person or incapable person. The Company may require proof
of incapacity, minority or guardianship as it may deem appropriate prior to
distribution of the benefit. Such distribution shall completely discharge the
Company from all liability with respect to such benefit.
ARTICLE 5
GENERAL LIMITATIONS
The provisions of this Article 5 shall apply notwithstanding any other
provision of this Agreement to the contrary.
5.1 No Payments in Excess of Designated Amount. In no event shall the
------------------------------------------
benefits payable to the Executive or to a beneficiary in any Plan Year exceed
the Designated Amount for such Plan Year.
5.2 Termination for Cause. No benefits shall be payable under this
---------------------
Agreement in the event of a Termination for Cause. Furthermore, if, after the
Executive's Termination of Employment other than a Termination for Cause, the
Company discovers facts which existed during the Executive's employment and
which would have given the Company the right to Terminate the Executive's
Employment for Cause, the Company may cease the payment of benefits hereunder
and recover any payments theretofore made to the extent of the Company's loss
from the Executive's misconduct. The provisions of this Section 5.2 shall not
prejudice or limit any rights the Company may have for legal or equitable relief
for any misconduct by the Executive.
-9-
<PAGE>
5.3 Suicide or Misstatement. No benefits shall be payable if the
-----------------------
Executive commits suicide within two years after the date of this Agreement, or
if the Executive has made any material misstatement of fact on any application
for life insurance purchased by the Company.
5.4 Benefits Conditioned On Release. Payment of benefits under this
-------------------------------
Agreement shall be conditioned on the prior execution by the Executive or his
beneficiary of a release of claims against the Company (other than claims under
this Agreement, but including, but not limited to, discrimination claims based
on age, gender, race, and similar factors), in form and substance satisfactory
to the Company.
ARTICLE 6
CLAIMS AND REVIEW PROCEDURES
6.1 Claim Procedure. The Company shall notify any person or entity that
---------------
makes a claim against the Agreement (the "Claimant") in writing, within ninety
(90) days of Claimant's written application for benefits, of his or her
eligibility or noneligibility for benefits under the Agreement. If the Company
determines that the Claimant is not eligible for benefits or full benefits, the
notice shall set forth (1) the specific reasons for such denial, (2) a specific
reference to the provisions of the Agreement on which the denial is based, (3) a
description of any additional information or material necessary for the Claimant
to perfect his or her claim, and a description of why it is needed, and (4) an
explanation of the Agreement's claims review procedure and other appropriate
information as to the steps to be taken if the claimant wishes to have the claim
reviewed. If the Company determines that there are special circumstances
requiring additional time to make a decision, the Company shall notify the
Claimant of the special circumstances and the date by which a decision is
expected to be made, and may extend the time for up to an
-10-
<PAGE>
additional ninety-day period.
6.2 Review Procedure. If the Claimant is determined by the Company not to
----------------
be eligible for benefits, or if the Claimant believes that he or she is entitled
to greater or different benefits, the Claimant shall have the opportunity to
have such claim reviewed by the Company by filing a petition for review with the
Company within sixty (60) days after receipt of the notice issued by the
Company. Said petition shall state the specific reasons which the Claimant
believes entitle him or her to benefits or to greater or different benefits.
Within sixty (60) days after receipt by the Company of the petition, the Company
shall afford the Claimant (and counsel, if any) an opportunity to present his or
her position to the Company orally or in writing, and the Claimant (or counsel)
shall have the right to review the pertinent documents. The Company shall
notify the Claimant of its decision in writing within the sixty-day period,
stating specifically the basis of its decision, written in a manner calculated
to be understood by the Claimant and the specific provisions of the Agreement on
which the decision is based. If, because of the need for a hearing, the sixty-
day period is not sufficient, the decision may be deferred for up to another
sixty-day period at the election of the Company, but notice of this deferral
shall be given to the Claimant.
6.3 Arbitration. A Claimant's compliance with the foregoing provisions of
-----------
this Article 6 is a mandatory prerequisite to a Claimant's right to commence any
arbitration proceeding with respect to any claim for benefits under this
Agreement.
ARTICLE 7
AMENDMENT AND TERMINATION
This Agreement may be amended or terminated only by a written agreement
signed by the Company and the Executive. Notwithstanding the previous sentence,
the Company
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<PAGE>
may unilaterally terminate this Agreement at any time if, pursuant to
legislative, judicial or regulatory action, continuation of the Agreement would
(i) cause benefits to be taxable to the Executive prior to actual receipt, or
(ii) result in significant financial penalties or other significantly
detrimental ramifications to the Company (other than the financial impact of
paying the benefits). In the event of any such unilateral termination of this
Agreement by the Company, the Executive shall be receive, in lieu of all other
benefits under this Agreement, a lump sum payment equal to the lesser of (a) the
Designated Amount for the Plan Year in which such termination occurs, or (b) the
present value of all unpaid benefits under this Agreement discounted to present
value at a discount rate equal to the rate of interest being earned by the
Designated Investment as of the date of such termination. If the Executive has
not yet begun to receive benefits as of the date of such unilateral termination
of this Agreement by the Company, the unpaid benefits under this Agreement shall
be deemed for purposes of the preceding sentence to be the Executive's Normal
Retirement Benefits under Section 2 beginning on the first day of the month
following such termination of the Agreement, or the first day of the month
following the month in which the Executive reaches his Normal Retirement Age,
whichever is later.
ARTICLE 8
MISCELLANEOUS
8.1 Binding Effect. This Agreement shall bind the Executive and the
--------------
Company, and their beneficiaries, survivors, executors, successors,
administrators and transferees.
8.2 No Guarantee of Employment. This Agreement is not an employment
--------------------------
policy or contract. It does not give the Executive the right to remain an
employee of the Company, nor does it interfere with the Company's right to
discharge the Executive. It also does not require the Executive to remain an
employee nor interfere with the
-12-
<PAGE>
Executive's right to terminate employment at any time.
8.3 Non-Transferability. Benefits under this Agreement cannot be sold,
-------------------
transferred, assigned, pledged, attached or encumbered in any manner, except to
or by the Company for any obligations owed by the Executive to the Company. The
rights to benefits are not subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance, attachment, or garnishment by
creditors, except by the Company for any obligations evidenced by a promissory
note or other written instrument or contract evidencing a stated sum owed by the
Executive to the Company.
8.4 Tax withholding. The Company shall withhold from any and all benefits
---------------
paid under this Agreement, or, in the discretion of the Company, from any
compensation or other amounts owing to the Executive or his beneficiary, all
federal, state and local income, employment and other taxes required to be
withheld by the Company in connection with the benefits hereunder, in amounts to
be determined in the sole discretion of the Company.
8.5 Applicable Law. The Agreement and all rights hereunder shall be
--------------
governed by the laws of the State of California, except to the extent preempted
by the laws of the United States of America.
8.6 Unfunded Arrangement. The Executive and his beneficiaries, heirs,
--------------------
successors, and assigns shall have no legal or equitable rights, claims, or
interests in any specific property or assets of the Company. No assets of the
Company shall be held under any trust, or held in any way as collateral security
for the fulfilling of the obligations of the Company under this Agreement. This
Agreement shall not cause the Company's assets to be pledged or restricted. The
Company's obligation under this Agreement shall be merely that of an unfunded
and unsecured promise of the Company to pay money in the
-13-
<PAGE>
future, and the rights of the Executive and his beneficiaries shall be no
greater than those of unsecured general creditors of the Company. The Company
may, but need not, acquire the Designated Investment or any other investment,
and it is not under any obligation to maintain any investment it may make. Any
such investments, if made, shall be in the name of the Company, and shall be its
sole property in which the Executive and his beneficiaries shall have no
interest. This Agreement is intended to be an unfunded plan for purposes of
Title I of ERISA. The benefits represent the mere promise by the Company to pay
such benefits. Any insurance on the Executive's life is a general asset of the
Company to which the Executive and beneficiary have no preferred or secured
claim.
8.7 Administration. This Agreement constitutes a pension benefit plan
--------------
within the meaning of Section 3(2) of ERISA. The "Administrator" of such plan,
within the meaning of Section 3(16) of ERISA, and the "Named Fiduciary" thereof,
within the meaning of Section 402 of ERISA, is the Board of Directors of the
Company. In its capacity as the Administrator, the Company shall have the full
and sole discretion, power, and authority (which it shall exercise in good faith
and not in an arbitrary or capricious manner) to (a) construe and interpret the
provisions of this Agreement, (b) compute the amounts payable hereunder and
determine the persons entitled thereto, and (c) make all decisions regarding the
implementation and operation of this Agreement. Attached hereto as Exhibit "B"
is a statement of Employee's rights under ERISA.
8.8 Severability. If any provision of this Agreement is held invalid or
------------
unenforceable, the remainder of this Agreement shall nevertheless remain in full
force and effect, and if any provision is held invalid or unenforceable with
respect to particular circumstances, it shall nevertheless remain in full force
and effect in all other
-14-
<PAGE>
circumstances, to the fullest extent permitted by law.
ARTICLE 9
ARBITRATION
Any dispute, controversy or claim arising out of or in respect of this
Agreement, or its validity, interpretation or enforcement, or the subject matter
hereof, which is not resolved under Article 6 hereof, shall at the request of
either party be submitted to and settled by arbitration conducted at a mutually
convenient office of the Judicial Arbitration and Mediation Services, Inc.
("JAMS"). The Company and the Executive or his beneficiary may agree on a
retired judge from the JAMS panel. If they are unable to agree upon a retired
judge, JAMS will provide a list of three available judges and each party may
strike one. If two of the three judges are stricken, the remaining judge will
serve as arbitrator. If two arbitrators remain, the first judge listed shall
serve as arbitrator. The Company and the Executive agree that arbitration must
be initiated within two years after the claimed breach occurred and that the
failure to initiate arbitration within the two-year period constitutes an
absolute bar to the institution of any new proceedings related to such alleged
breach. The aggrieved party can initiate arbitration by sending written notice
of any intention to arbitrate by registered or certified mail to all parties and
to JAMS. The notice must contain a description of the dispute, the amount
involved and the remedy sought. Exhibit "C" sets forth the rights of Company and
the Executive or his beneficiaries if the dispute is arbitrated and the rules
and procedures to be followed at the arbitration hearing; provided, however,
that the party or parties prevailing in such proceeding will be entitled to the
reasonable attorneys' fees and expenses of counsel and costs incurred by reason
of such arbitration.
-15-
<PAGE>
IN WITNESS WHEREOF, the Executive and a duly authorized Company officer
have signed this Agreement.
EXECUTIVE: COMPANY:
PAN AMERICAN BANK, FSB
/s/ LAWRENCE J. GRILL By: /s/ LAWRENCE J. GRILL
- ---------------------------- ---------------------
Lawrence J. Grill Title: President
------------------
-16-
<PAGE>
Exhibit 10.43
PAN AMERICAN BANK, FSB
SALARY CONTINUATION AGREEMENT
THIS AGREEMENT is made as of this 1st day of October, 1997, by and between
PAN AMERICAN BANK, FSB, a Federal Stock Savings Bank located in San Mateo,
California (the "Company") and GUILLERMO BRON (the "Executive").
INTRODUCTION
To encourage the Executive to remain an employee of the Company, the
Company is willing to provide salary continuation benefits to the Executive. The
Company will pay the benefits from its general assets.
AGREEMENT
The Executive and the Company agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Definitions. Whenever used in this Agreement, the following words and
-----------
phrases shall have the meanings specified:
1.1.1 "Change of Control" means a "Change of Control" as defined
in Section 6 of the Employment Agreement.
1.1.2 "Code" means the Internal Revenue Code of 1986, as amended.
<PAGE>
1.1.3 "Designated Investment" means the investment vehicle or
vehicles set forth on Exhibit "A".
1.1.4 "Designated Amount" means, for any Plan Year, the amount of
cash the Company could have withdrawn or realized from the Designated Investment
in such Plan Year (net of any charges or penalties), assuming that the Company
held the Designated Investment during the Plan Year, whether or not it actually
did so, and assuming that the Company never withdrew or realized any cash from
the Designated Investment for any purposes other than the payment of benefits
under this Agreement, whether or not it actually did so.
1.1.5 "Disability" means an event giving rise to the termination
of Executive's employment with the Company under Section 5(c) of the Employment
Agreement.
1.1.6 "Early Termination" means the Termination of Employment
before Normal Retirement Age for reasons other than death, Disability,
Termination for Cause or Change of Control.
1.1.7 "Early Termination Date" means the month, day and year in
which Early Termination occurs.
1.1.8 "Employment Agreement" means that certain Employment
Agreement of even date herewith by and among the Executive, the Company, and Pan
American Group, Inc.
1.1.9 "ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
1.1.10 "Normal Retirement Age" means the Executive's 65th birthday.
1.1.11 "Normal Retirement Date" means the later of the Normal
Retirement
-2-
<PAGE>
Age or Termination of Employment.
1.1.12 "Plan Year" means the calendar year except that the first
plan year shall be a short plan year commencing on the effective date of this
Agreement and ending on December 31, 1997.
1.1.13 "Termination for Cause" means the termination of the
Executive's employment with the Company by the Company for fraud or dishonesty
against the Company which materially adversely affects the business of the
Company, or upon conviction of a felony which materially adversely affects the
business of the Company.
1.1.14 "Termination of Employment" means that the Executive ceases
to be employed by the Company for any reason whatsoever other than by reason of
a leave of absence which is approved by the Company. The date of Termination of
Employment shall be the actual date on which the Executive is no longer in the
employ of the Company; provided, however, that the date of Termination of
Employment shall be deemed to be (a) December 31, 1998 if the actual date on
which the Executive is no longer in the employ of the Company occurs in 1997 or
1998, or (b) December 31, 1999 if the actual date on which the Executive is no
longer in the employ of the Company occurs in 1999.
1.1.15 "Voluntary Termination" means that the Executive, prior to
his Normal Retirement Age, has terminated his employment with the Company for
reasons other than Termination for Cause, Disability, death, Change of Control
or Involuntary Termination.
1.1.16 "Involuntary Termination" means that the Executive, prior to
his Normal Retirement Age, has been notified in writing, pursuant to the
Executive's Employment Agreement, that his employment with the Company is
terminated for reasons
-3-
<PAGE>
other than an approved leave of absence, Termination for Cause, Disability, or
death. "Involuntary Termination" shall also mean the termination of the
Executive's employment with the Company by the Executive upon a "Reduction in
Authority" as set forth in Section 5(e) of the Employment Agreement.
ARTICLE 2
BENEFITS OTHER THAN UPON DEATH
2.1 Normal Retirement Benefit. Upon Termination of Employment on or after
-------------------------
the Normal Retirement Age for reasons other than Termination for Cause, the
Company shall pay to the Executive the benefit described in this Section 2.1 in
lieu of any other benefit under this Agreement.
2.1.1 Amount of Benefit. The benefit under this Section 2.1 is
-----------------
$100,000 per year, payable for 15 years.
2.1.2 Payment of Benefit. The Company shall pay the annual
------------------
benefit to the Executive in 12 equal monthly installments payable on the first
day of each month commencing with the month following the Executive's
Termination of Employment under this Section 2.1 and continuing for 179
additional months.
2.2 Early Termination Benefit. Upon Early Termination, the Company shall
-------------------------
pay to the Executive the benefit described in this Section 2.2 in lieu of any
other benefit under this Agreement.
2.2.1 Amount of Benefit. The benefit Under this Section 2.2 is
-----------------
either the benefit amount set forth in (a) or (b) below:
(a) Involuntary Early Termination. The benefit under this
-----------------------------
Section 2.2.1(a) is an annual benefit payable for 15 years equal to
the "Weighted Average" (determined as set forth in Section 2.2.1(c)
below) of
-4-
<PAGE>
the Early Termination Annual Benefit/Involuntary Termination amount
set forth in Schedule "A" for the Plan Year immediately before the
year in which the Termination of Employment occurs (the "Prior Year")
and the Early Termination Annual Benefit/Involuntary Termination
amount set forth in Schedule "A" for the Plan Year in which the
Termination of Employment occurs (the "Termination Year"); or
(b) Voluntary Early Termination. The benefit under this
---------------------------
Section 2.2.l(b) is an annual benefit payable for 15 years equal to
the Weighted Average of the Early Termination Annual Benefit/Voluntary
Termination amount set forth in Schedule "A" for the Prior Year and
the Early Termination Annual Benefit/Voluntary Termination amount set
forth in Schedule "A" for the Termination Year.
(c) Weighted Average. The Weighted Average of the amount
----------------
set forth in Schedule "A" for the Prior Year (the "Prior Year Amount")
and the amount set forth in Schedule "A" for the Termination Year (the
"Termination Year Amount") shall be the sum of (1) the Termination
Year Amount multiplied by the quotient obtained by dividing the number
of days from January 1 of the Termination Year through and including
the date of the Termination of Employment by 365, and (2) the Prior
Year Amount multiplied by the quotient obtained by dividing the number
of days from the day after the date of the Termination of Employment
through and including December 31 of the Termination Year by 365.
2.2.2 Payment of Benefit. The Company shall pay the annual
------------------
benefit to the Executive in 12 equal monthly installments payable on the first
day of each month
-5-
<PAGE>
commencing with the month following the later of the Executive's Termination of
Employment or the Executive's Normal Retirement Age and continuing for 179
additional months.
2.3 Disability Benefit. If the Executive terminates employment due to
------------------
Disability prior to Normal Retirement Age, the Company shall pay to the
Executive the benefit described in this Section 2.3 in lieu of any other benefit
under this Agreement.
2.3.1 Amount of Benefit. The benefit under this Section 2.3 is
-----------------
the Weighted Average of the Disability Annual Benefit amount set forth in
Schedule "A" for the Prior Year (as defined in Section 2.2.1(a)) and the
Disability Annual Benefit amount set forth in Schedule "A" for the Termination
Year (as defined in Section 2.2.1(a)), payable for 15 years.
2.3.2 Payment of Benefit. The Company shall pay the annual
------------------
benefit amount to the Executive in 12 equal monthly installments payable on the
first day of each month commencing with the month following Termination of
Employment and continuing for 179 additional months.
2.4 Change of Control Benefit. If the Executive is in the active service
-------------------------
of the Company at the time of a Change of Control, and the Executive's
employment with the Company terminates within the "Applicable Period" (as
defined in Section 6 of the Employment Agreement) for any reason other than
death, Disability, retirement, or Termination for Cause, the Company shall pay
to the Executive the benefit described in this Section 2.4 in lieu of any other
benefit under this Agreement.
2.4.1 Amount of Benefit. The annual benefit under this Section
-----------------
2.4 is the Change of Control Benefit amount set forth in Schedule "A" for the
Plan Year in which Termination of Employment occurs, payable for 15 years.
-6-
<PAGE>
2.4.2 Payment of Benefit. The Company shall pay the annual
------------------
benefit amount to the Executive in 12 equal monthly installments payable on the
first day of each month commencing with the month following the Termination of
Employment and continuing for 179 additional months.
ARTICLE 3
DEATH BENEFITS
3.1 Death During Active Service. If the Executive dies while in the
---------------------------
active service of the Company, the Company shall pay to the Executive's
beneficiary the benefit described in this Section 3.1. This benefit shall be
paid in lieu of the Benefits described in Article 2.
3.1.1 Amount of Benefit. The annual benefit under this Section
-----------------
3.1 is the Normal Retirement Benefit amount described in Section 2.1.1, payable
for 15 years.
3.1.2 Payment of Benefit. The Company shall pay the annual
------------------
benefit to the beneficiary in 12 equal monthly installments payable on the first
day of each month commencing with the first day of the second month following
the Executive's death and continuing for 179 additional months.
3.2 Death During Benefit Period. If the Executive dies after the benefit
---------------------------
payments have commenced under this Agreement but before receiving all such
payments, the Company shall pay the remaining benefits to the Executive's
beneficiary at the same time and in the same amounts that would have been paid
to the Executive had the Executive survived.
3.3 Death Following Termination of Employment But Before Benefits
-------------------------------------------------------------
Commence. If the Executive is entitled to benefits under this Agreement, but
- --------
dies prior to receiving said benefits, the Company shall pay to the Executive's
beneficiary the same
-7-
<PAGE>
benefits, in the same manner, that would have been paid to the Executive had the
Executive survived, however, said benefit payments will commence as soon as
practicable after the Executive's death.
ARTICLE 4
BENEFICIARIES
4.1 Beneficiary Designations. The Executive shall designate a beneficiary
------------------------
by filing a written designation with the Company. The Executive may designate
more than one beneficiary, and may designate primary and secondary
beneficiaries. The Executive may revoke or modify the designation at any time
by filing a new designation. However, designations will only be effective if
signed by the Executive and accepted by the Company during the Executive's
lifetime; the Company shall be entitled to rely on the last beneficiary
designation executed by the Executive and accepted by the Company before his
death. If the Executive is married and names someone other than his spouse as a
beneficiary, such beneficiary designation will not be effective unless his
spouse executes and delivers to the Company a spousal consent, in a form
designated by the Company. The Executive's beneficiary designation shall be
deemed automatically revoked if the Executive names a spouse as beneficiary and
the marriage is subsequently dissolved. Without limiting the generality of the
preceding sentence, the interest in benefits of a spouse of the Executive who
has predeceased the Executive or whose marriage has been dissolved shall
automatically pass to the Executive, and shall not be transferrable by such
spouse in any manner, including but not limited to such spouse's will, nor shall
such interest pass under the laws of intestate succession. If the Executive
dies without a valid beneficiary designation, or if all beneficiaries have
predeceased the Executive, all payments shall be made to the Executive's
surviving spouse, or, if there is no surviving
-8-
<PAGE>
spouse, to his estate.
4.2 Facility of Payment. If the benefit is payable to a minor, to a
-------------------
person declared incapacitated, or to a person incapable of handling the
disposition of his or her property, the Company may pay such benefit to the
guardian, legal representative or person having the care or custody of such
minor, incapacitated person or incapable person. The Company may require proof
of incapacity, minority or guardianship as it may deem appropriate prior to
distribution of the benefit. Such distribution shall completely discharge the
Company from all liability with respect to such benefit.
ARTICLE 5
GENERAL LIMITATIONS
The provisions of this Article 5 shall apply notwithstanding any other
provision of this Agreement to the contrary.
5.1 No Payments in Excess of Designated Amount. In no event shall the
------------------------------------------
benefits payable to the Executive or to a beneficiary in any Plan Year exceed
the Designated Amount for such Plan Year.
5.2 Termination for Cause. No benefits shall be payable under this
---------------------
Agreement in the event of a Termination for Cause. Furthermore, if, after the
Executive's Termination of Employment other than a Termination for Cause, the
Company discovers facts which existed during the Executive's employment and
which would have given the Company the right to Terminate the Executive's
Employment for Cause, the Company may cease the payment of benefits hereunder
and recover any payments theretofore made to the extent of the Company's loss
from the Executive's misconduct. The provisions of this Section 5.2 shall not
prejudice or limit any rights the Company may have for legal or equitable relief
for any misconduct by the Executive.
-9-
<PAGE>
5.3 Suicide or Misstatement. No benefits shall be payable if the
-----------------------
Executive commits suicide within two years after the date of this Agreement, or
if the Executive has made any material misstatement of fact on any application
for life insurance purchased by the Company.
5.4 Benefits Conditioned On Release. Payment of benefits under this
-------------------------------
Agreement shall be conditioned on the prior execution by the Executive or his
beneficiary of a release of claims against the Company (other than claims under
this Agreement, but including, but not limited to, discrimination claims based
on age, gender, race, and similar factors), in form and substance satisfactory
to the Company.
ARTICLE 6
CLAIMS AND REVIEW PROCEDURES
6.1 Claim Procedure. The Company shall notify any person or entity that
---------------
makes a claim against the Agreement (the "Claimant") in writing, within ninety
(90) days of Claimant's written application for benefits, of his or her
eligibility or noneligibility for benefits under the Agreement. If the Company
determines that the Claimant is not eligible for benefits or full benefits, the
notice shall set forth (1) the specific reasons for such denial, (2) a specific
reference to the provisions of the Agreement on which the denial is based, (3) a
description of any additional information or material necessary for the Claimant
to perfect his or her claim, and a description of why it is needed, and (4) an
explanation of the Agreement's claims review procedure and other appropriate
information as to the steps to be taken if the claimant wishes to have the claim
reviewed. If the Company determines that there are special circumstances
requiring additional time to make a decision, the Company shall notify the
Claimant of the special circumstances and the date by which a decision is
expected to be made, and may extend the time for up to an
-10-
<PAGE>
additional ninety-day period.
6.2 Review Procedure. If the Claimant is determined by the Company not to
----------------
be eligible for benefits, or if the Claimant believes that he or she is entitled
to greater or different benefits, the Claimant shall have the opportunity to
have such claim reviewed by the Company by filing a petition for review with the
Company within sixty (60) days after receipt of the notice issued by the
Company. Said petition shall state the specific reasons which the Claimant
believes entitle him or her to benefits or to greater or different benefits.
Within sixty (60) days after receipt by the Company of the petition, the Company
shall afford the Claimant (and counsel, if any) an opportunity to present his or
her position to the Company orally or in writing, and the Claimant (or counsel)
shall have the right to review the pertinent documents. The Company shall
notify the Claimant of its decision in writing within the sixty-day period,
stating specifically the basis of its decision, written in a manner calculated
to be understood by the Claimant and the specific provisions of the Agreement on
which the decision is based. If, because of the need for a hearing, the sixty-
day period is not sufficient, the decision may be deferred for up to another
sixty-day period at the election of the Company, but notice of this deferral
shall be given to the Claimant.
6.3 Arbitration. A Claimant's compliance with the foregoing provisions of
-----------
this Article 6 is a mandatory prerequisite to a Claimant's right to commence any
arbitration proceeding with respect to any claim for benefits under this
Agreement.
ARTICLE 7
AMENDMENT AND TERMINATION
This Agreement may be amended or terminated only by a written agreement
signed by the Company and the Executive. Notwithstanding the previous sentence,
the Company
-11-
<PAGE>
may unilaterally terminate this Agreement at any time if, pursuant to
legislative, judicial or regulatory action, continuation of the Agreement would
(i) cause benefits to be taxable to the Executive prior to actual receipt, or
(ii) result in significant financial penalties or other significantly
detrimental ramifications to the Company (other than the financial impact of
paying the benefits). In the event of any such unilateral termination of this
Agreement by the Company, the Executive shall be receive, in lieu of all other
benefits under this Agreement, a lump sum payment equal to the lesser of (a) the
Designated Amount for the Plan Year in which such termination occurs, or (b) the
present value of all unpaid benefits under this Agreement discounted to present
value at a discount rate equal to the rate of interest being earned by the
Designated Investment as of the date of such termination. If the Executive has
not yet begun to receive benefits as of the date of such unilateral termination
of this Agreement by the Company, the unpaid benefits under this Agreement shall
be deemed for purposes of the preceding sentence to be the Executive's Normal
Retirement Benefits under Section 2 beginning on the first day of the month
following such termination of the Agreement, or the first day of the month
following the month in which the Executive reaches his Normal Retirement Age,
whichever is later.
ARTICLE 8
MISCELLANEOUS
8.1 Binding Effect. This Agreement shall bind the Executive and the
--------------
Company, and their beneficiaries, survivors, executors, successors,
administrators and transferees.
8.2 No Guarantee of Employment. This Agreement is not an employment
--------------------------
policy or contract. It does not give the Executive the right to remain an
employee of the Company, nor does it interfere with the Company's right to
discharge the Executive. It also does not require the Executive to remain an
employee nor interfere with the
-12-
<PAGE>
Executive's right to terminate employment at any time.
8.3 Non-Transferability. Benefits under this Agreement cannot be sold,
-------------------
transferred, assigned, pledged, attached or encumbered in any manner, except to
or by the Company for any obligations owed by the Executive to the Company. The
rights to benefits are not subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance, attachment, or garnishment by
creditors, except by the Company for any obligations evidenced by a promissory
note or other written instrument or contract evidencing a stated sum owed by the
Executive to the Company.
8.4 Tax withholding. The Company shall withhold from any and all benefits
---------------
paid under this Agreement, or, in the discretion of the Company, from any
compensation or other amounts owing to the Executive or his beneficiary, all
federal, state and local income, employment and other taxes required to be
withheld by the Company in connection with the benefits hereunder, in amounts to
be determined in the sole discretion of the Company.
8.5 Applicable Law. The Agreement and all rights hereunder shall be
--------------
governed by the laws of the State of California, except to the extent preempted
by the laws of the United States of America.
8.6 Unfunded Arrangement. The Executive and his beneficiaries, heirs,
--------------------
successors, and assigns shall have no legal or equitable rights, claims, or
interests in any specific property or assets of the Company. No assets of the
Company shall be held under any trust, or held in any way as collateral security
for the fulfilling of the obligations of the Company under this Agreement. This
Agreement shall not cause the Company's assets to be pledged or restricted. The
Company's obligation under this Agreement shall be merely that of an unfunded
and unsecured promise of the Company to pay money in the
-13-
<PAGE>
future, and the rights of the Executive and his beneficiaries shall be no
greater than those of unsecured general creditors of the Company. The Company
may, but need not, acquire the Designated Investment or any other investment,
and it is not under any obligation to maintain any investment it may make. Any
such investments, if made, shall be in the name of the Company, and shall be its
sole property in which the Executive and his beneficiaries shall have no
interest. This Agreement is intended to be an unfunded plan for purposes of
Title I of ERISA. The benefits represent the mere promise by the Company to pay
such benefits. Any insurance on the Executive's life is a general asset of the
Company to which the Executive and beneficiary have no preferred or secured
claim.
8.7 Administration. This Agreement constitutes a pension benefit plan
--------------
within the meaning of Section 3(2) of ERISA. The "Administrator" of such plan,
within the meaning of Section 3(16) of ERISA, and the "Named Fiduciary" thereof,
within the meaning of Section 402 of ERISA, is the Board of Directors of the
Company. In its capacity as the Administrator, the Company shall have the full
and sole discretion, power, and authority (which it shall exercise in good faith
and not in an arbitrary or capricious manner) to (a) construe and interpret the
provisions of this Agreement, (b) compute the amounts payable hereunder and
determine the persons entitled thereto, and (c) make all decisions regarding the
implementation and operation of this Agreement. Attached hereto as Exhibit "B"
is a statement of Employee's rights under ERISA.
8.8 Severability. If any provision of this Agreement is held invalid or
------------
unenforceable, the remainder of this Agreement shall nevertheless remain in full
force and effect, and if any provision is held invalid or unenforceable with
respect to particular circumstances, it shall nevertheless remain in full force
and effect in all other
-14-
<PAGE>
circumstances, to the fullest extent permitted by law.
ARTICLE 9
ARBITRATION
Any dispute, controversy or claim arising out of or in respect of this
Agreement, or its validity, interpretation or enforcement, or the subject matter
hereof, which is not resolved under Article 6 hereof, shall at the request of
either party be submitted to and settled by arbitration conducted at a mutually
convenient office of the Judicial Arbitration and Mediation Services, Inc.
("JAMS"). The Company and the Executive or his beneficiary may agree on a
retired judge from the JAMS panel. If they are unable to agree upon a retired
judge, JAMS will provide a list of three available judges and each party may
strike one. If two of the three judges are stricken, the remaining judge will
serve as arbitrator. If two arbitrators remain, the first judge listed shall
serve as arbitrator. The Company and the Executive agree that arbitration must
be initiated within two years after the claimed breach occurred and that the
failure to initiate arbitration within the two-year period constitutes an
absolute bar to the institution of any new proceedings related to such alleged
breach. The aggrieved party can initiate arbitration by sending written notice
of any intention to arbitrate by registered or certified mail to all parties and
to JAMS. The notice must contain a description of the dispute, the amount
involved and the remedy sought. Exhibit "C" sets forth the rights of Company
and the Executive or his beneficiaries if the dispute is arbitrated and the
rules and procedures to be followed at the arbitration hearing; provided,
however, that the party or parties prevailing in such proceeding will be
entitled to the reasonable attorneys' fees and expenses of counsel and costs
incurred by reason of such arbitration.
-15-
<PAGE>
IN WITNESS WHEREOF, the Executive and a duly authorized Company officer
have signed this Agreement.
EXECUTIVE: COMPANY:
PAN AMERICAN BANK, FSB
/s/ GUILLERMO BRON By: /s/ LAWRENCE J. GRILL
- --------------------------- --------------------------------
Guillermo Bron
Title: President
-----------------------------
-16-
<PAGE>
EXHIBIT 10.44
UNITED PANAM FINANCIAL CORP.
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "Agreement"), dated as of
__________, 1997, is made and effective as of the date set forth in Section 15
of the Agreement, by and between United PanAm Financial Corp., a Delaware
corporation and holding company of a federally insured depository institution
(the "Corporation"), and ______________, a director and/or officer of the
Corporation (the "Indemnitee").
RECITALS
A. The Corporation and the Indemnitee recognize that the Federal
Deposit Insurance Corporation has promulgated regulations governing
indemnification agreements between federally insured depository institutions or
affiliated depository institution holding companies and their directors and
officers (the "Regulations") set forth at 12 CFR Part 359, which Regulations
prohibit the making of certain indemnification agreements and the payment of
funds subject to such agreements. The Corporation and the Indemnitee intend
this Agreement to comply with the Regulations [and that this Indemnification
Agreement replace any and all agreements between the Corporation and the
Indemnitee which provide for the payment of any indemnification payments which
were entered into before the promulgation of the Regulations.]
B. The Corporation and the Indemnitee recognize that the present
state of the law relating to director and officer liability is too uncertain to
provide the Corporation's directors and officers with adequate and reliable
advance knowledge or guidance with respect to the legal risks and potential
liabilities to which they may become personally exposed as a result of
performing their duties for the Corporation;
C. The Corporation and the Indemnitee are aware of the substantial
growth in the number of lawsuits filed against corporate directors and officers
in connection with their activities in such capacities and by reason of their
status as such;
D. The Corporation and the Indemnitee recognize that the cost of
defending against such lawsuits, whether or not meritorious, is typically beyond
the financial resources of most directors and officers of the Corporation;
E. The Corporation and the Indemnitee recognize that the legal risks
and potential liabilities, and the threat thereof, associated with proceedings
filed against the directors and officers of the Corporation bear no reasonable
relationship to the amount of compensation received by the Corporation's
directors and officers;
F. The Corporation, after reasonable investigation prior to the date
hereof, has determined that the liability insurance coverage available to the
Corporation as of the date hereof is
1
<PAGE>
inadequate, unreasonably expensive or both. The Corporation believes,
therefore, that the interest of the Corporation's stockholders would be best
served by a combination of (i) such insurance as the Corporation may elect to
obtain pursuant to the Corporation's obligations hereunder and (ii) a contract
with its directors and officers, including the Indemnitee, to indemnify them to
the fullest extent permitted by law (as in effect on the date hereof, or, to the
extent any amendment may expand such permitted indemnification, as hereafter in
effect) against personal liability for actions taken in the performance of their
duties to the Corporation;
G. Section 145 of the General Corporation Law of the State of
Delaware empowers Delaware corporations to indemnify their directors and
officers and further states that the indemnification and advancement of expenses
provided by Section 145 "shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled
under any bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his or her official capacity and as to action in
another capacity while holding such office;" thus, Section 145 does not by
itself limit the extent to which the Corporation may indemnify persons serving
as its directors and officers;
[H. The Corporation's Certificate of Incorporation and Bylaws
authorize the indemnification of the directors and officers of the Corporation
in excess of that expressly permitted by Section 145, subject to the limitations
set forth in Section 102(b)(7) of the General Corporation Law of the State of
Delaware;]
I. The Board of Directors of the Corporation has concluded that, to
retain and attract talented and experienced individuals to serve as directors
and officers of the Corporation and to encourage such individuals to take the
business risks necessary for the success of the Corporation, it is necessary for
the Corporation to contractually indemnify its directors and officers, and to
assume for itself liability for expenses and damages in connection with certain
claims against such directors and officers in connection with their service to
the Corporation, and has further concluded that the failure to provide such
contractual indemnification could result in great harm to the Corporation and
its stockholders;
J. The Corporation desires and has requested the Indemnitee to serve
or continue to serve as a [director/officer] of the Corporation, free from undue
concern for the risks and potential liabilities associated with such services to
the Corporation; and
K. The Indemnitee is willing to serve, or continue to serve, the
Corporation, provided, and on the expressed condition, that he is furnished with
the indemnification provided for herein.
2
<PAGE>
AGREEMENT
NOW, THEREFORE, the Corporation and Indemnitee agree as follows:
1. Definitions.
-----------
a. "Expenses" means, for the purposes of this Agreement, all direct
and indirect costs of any type or nature whatsoever (including, without
limitation, any fees and disbursements of Indemnitee's counsel, accountants
and other experts and other out-of-pocket costs) actually and reasonably
incurred by the Indemnitee in connection with the investigation, preparation,
defense or appeal of a Proceeding; provided, however, that Expenses shall not
include judgments, fines, penalties or amounts paid in settlement of a
Proceeding.
b. "Other enterprise" includes, for the purposes of this Agreement,
employee benefit plans; references to "fines" includes any excise taxes assessed
on Indemnitee with respect to an employee benefit plan; and references to
"serving at the request of the Corporation" includes any service as a director,
officer, employee or agent of the Corporation which imposes duties on, or
involves services by, such director, officer, employee or agent with respect to
an employee benefit plan, its participants or its beneficiaries; and if
Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to
be in the interest of the participants and beneficiaries of an employee benefit
plan, Indemnitee shall be deemed to have acted in a manner "not opposed to the
best interests of the Corporation" as referred to in this Agreement.
c. "Proceeding" means, for the purposes of this Agreement, any
threatened, pending, or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (including an action brought by or in
the right of the Corporation) in which Indemnitee may be or may have been
involved as a party or otherwise, by reason of the fact that Indemnitee is or
was a [director/officer] of the Corporation, by reason of any action taken by
Indemnitee or of any inaction on Indemnitee's part while acting as such
[director/officer] or by reason of the fact that Indemnitee is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another foreign or domestic corporation, partnership, joint venture, trust or
other enterprise, or was a director and/or officer of the foreign or domestic
corporation which was a predecessor corporation to the Corporation or of another
enterprise at the request of such predecessor corporation, whether or not
Indemnitee is serving in such capacity at the time any liability or expense is
incurred for which indemnification or reimbursement can be provided under this
Agreement.
2. Agreement to Serve. In consideration of the protection afforded
------------------
by this Agreement, if Indemnitee is a director of the Corporation, Indemnitee
agrees to serve at least for the balance of the current term as a director and
not to resign voluntarily during such period without the written consent of a
majority of the Board of Directors. If Indemnitee is an officer of the
corporation not serving under an employment contract, Indemnitee agrees to serve
in such capacity at least for
3
<PAGE>
the balance of the current fiscal year of the Corporation and not to resign
voluntarily during such period without the written consent of a majority of the
Board of Directors. Following the applicable period set forth above, Indemnitee
agrees to serve or continue to serve in such capacity as a director or officer
of the Corporation to the best of his or her abilities at the will of the
Corporation or under separate contract, if such contract exists, for so long as
Indemnitee is duly elected or appointed and qualified or until such time as
Indemnitee tenders his or her resignation in writing. Nothing contained in this
Agreement is intended to create in Indemnitee any right to continued employment.
3. Indemnification.
---------------
a. Third Party Proceedings. The Corporation shall, except to the
-----------------------
extent prohibited by the Regulations, indemnify Indemnitee against Expenses,
judgments, fines, penalties or amounts paid in settlement (if the settlement is
approved in advance by the Corporation) actually and reasonably incurred by
Indemnitee in connection with a Proceeding (other than a Proceeding by or in the
right of the Corporation) if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe Indemnitee's conduct was unlawful. The termination
of any Proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a presumption
- ---------------
that Indemnitee did not act in good faith and in a manner which Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal Proceeding, had no reasonable
cause to believe that Indemnitee's conduct was unlawful.
b. Proceedings by or in the Right of the Corporation. To the fullest
-------------------------------------------------
extent permitted by law, the Corporation shall, except to the extent prohibited
by the Regulations, indemnify Indemnitee against Expenses and amounts paid in
settlement, actually and reasonably incurred by Indemnitee in connection with a
Proceeding by or in the right of the Corporation to procure a judgment in its
favor if Indemnitee acted in good faith and in a manner Indemnitee reasonably
believed to be in or not opposed to the best interests of the Corporation.
Notwithstanding the foregoing, no indemnification shall be made in respect of
any claim, issue or matter as to which Indemnitee shall have been adjudged
liable to the Corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
deems proper.
c. Scope. Notwithstanding any other provision of this Agreement but
-----
subject to Section 14(b), the Corporation shall, except to the extent prohibited
by the Regulations, indemnify the Indemnitee to the fullest extent permitted by
law, notwithstanding that such indemnification is not specifically authorized by
other provisions of this Agreement, the Corporation's Certificate of
Incorporation, the Corporation's Bylaws or by statute.
4
<PAGE>
4. Limitations on Indemnification. Any other provision herein to the
------------------------------
contrary notwithstanding, the Corporation shall not be obligated pursuant to the
terms of this Agreement:
a. Excluded Acts. To indemnify Indemnitee for any acts or omissions
-------------
or transactions from which a director may not be relieved of liability under
Section 102(b)(7)of the General Corporation Law of the State of Delaware; or
b. Claims Initiated by Indemnitee. To indemnify or advance Expenses
------------------------------
to Indemnitee with respect to Proceedings or claims initiated or brought
voluntarily by Indemnitee and not by way of defense, except with respect to
proceedings brought to establish or enforce a right to indemnification under
this Agreement or any other statute or law or otherwise as required under
Section 145 of the General Corporation Law of the State of Delaware, but such
indemnification or advancement of Expenses may be provided by the Corporation in
specific cases if the Board of Directors has approved the initiation or bringing
of such suit; or
c. Lack of Good Faith. To indemnify Indemnitee for any Expenses
------------------
incurred by the Indemnitee with respect to any proceeding instituted by
Indemnitee to enforce or interpret this Agreement, if a court of competent
jurisdiction determines that each of the material assertions made by the
Indemnitee in such proceeding was not made in good faith or was frivolous; or
d. Insured Claims. To indemnify Indemnitee for Expenses or
--------------
liabilities of any type whatsoever (including, but not limited to, judgments,
fines, ERISA excise taxes or penalties, and amounts paid in settlement) which
have been paid directly to or on behalf of Indemnitee by an insurance carrier
under a policy of directors' and officers' liability insurance maintained by the
Corporation or any other policy of insurance maintained by the Corporation, or a
subsidiary of the Corporation, or Indemnitee; or
e. Claims Under Section 16(b). To indemnify Indemnitee for Expenses
--------------------------
and the payment of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 16(b) of the Securities Exchange Act of 1934,
as amended, or any similar successor statute; or
f. Claims Affected by the Regulations. To indemnify Indemnitee for
----------------------------------
any Expenses, fines, monetary penalties or amounts paid in settlement prohibited
by the Regulations.
5. Determination of Right to Indemnification. Upon receipt of a
-----------------------------------------
written claim addressed to the Board of Directors for indemnification pursuant
to Section 3, the Corporation shall determine by any of the methods set forth in
Section 145(d) of the General Corporation Law of the State of Delaware and the
Regulations whether Indemnitee has met the applicable standards of conduct which
make it permissible under applicable law to indemnify Indemnitee. If a claim
under Section 3 is not paid in full by the Corporation within thirty (30) days
after such written claim has been received by the Corporation or if applicable,
whatever time is reasonably necessary for the
5
<PAGE>
Corporation to complete the investigation contemplated in Section 3 of this
Agreement, the Indemnitee may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim. The Indemnitee's
Expenses incurred in connection with successfully establishing his or her right
to indemnification or advances, in whole or in part, in any such Proceeding
shall also be indemnified by the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to make a determination prior to the commencement of such action
that indemnification of the Indemnitee is proper in the circumstances because
Indemnitee has met the applicable standard of conduct under applicable law, nor
an actual determination by the Corporation (including its Board of Directors,
independent legal counsel or its stockholders) that the Indemnitee has not met
such applicable standard of conduct, shall create a presumption that Indemnitee
has not met the applicable standard of conduct. The Corporation shall have the
burden of proof concerning whether the Indemnitee has or has not met the
applicable standard of conduct.
6. Advancement and Repayment of Expense.
-------------------------------------
a. Proceedings. The Expenses incurred by Indemnitee in defending and
-----------
investigating any Proceeding shall, except to the extent prohibited by the
Regulations, be paid by the Corporation in advance of the final disposition of
such Proceeding within thirty (30) days after receiving from Indemnitee the
copies of invoices presented to Indemnitee for such Expenses, if Indemnitee
shall provide an undertaking to the Corporation to repay such amount to the
extent it is ultimately determined that Indemnitee is not entitled to
indemnification. In determining whether or not to make an advance hereunder,
the ability of Indemnitee to repay shall not be a factor. Notwithstanding the
foregoing, in a proceeding brought by the Corporation directly, in its own right
(as distinguished from an action bought derivatively or by Any receiver or
trustee), the Corporation shall not be required to make the advances called for
hereby if the Board of Directors determines, in its sole discretion, that it
does not appear that Indemnitee has met the standards of conduct which make it
permissible under applicable law to indemnify Indemnitee and the advancement of
Expenses would not be in the best interests of the Corporation and its
stockholders.
b. Mandatory Payment of Expenses. To the extent that Indemnitee has
-----------------------------
been successful on the merits, in defense of any action, suit, or proceeding
referred to in Section (3) hereof or in defense of any claim, issue or matter
therein, Indemnitee shall, except to the extent prohibited by the Regulations,
be indemnified against all Expenses incurred by Indemnitee in connection
therewith.
7. Partial Indemnification. If the Indemnitee is entitled under the
-----------------------
Regulations and any provision of this Agreement to indemnification or
advancement by the Corporation of some or a portion of any Expenses or
liabilities of any type whatsoever (including, but not limited to, judgments,
fines, penalties, and amounts paid in settlement) incurred by Indemnitee in the
investigation, defense, settlement or appeal of a Proceeding, but is not
entitled to indemnification or advancement of the total amount thereof, the
Corporation shall, except to the extent prohibited by
6
<PAGE>
the Regulations, nevertheless indemnify or pay advancements to the Indemnitee
for the portion of such Expenses or liabilities to which the Indemnitee is
entitled.
8. Notice to Corporation by Indemnitee. Indemnitee shall notify the
-----------------------------------
Corporation in writing of any matter with respect to which Indemnitee intends to
seek indemnification hereunder as soon as reasonably practicable following the
receipt by Indemnitee of written notice thereof; provided that any delay in so
notifying Corporation shall not constitute a waiver by Indemnitee of his or her
rights hereunder. The written notification to the Corporation shall be
addressed to the Board of Directors and shall include a description of the
nature of the Proceeding and the facts underlying the Proceeding and be
accompanied by copies of any documents filed by any state or federal regulatory
agency or with the court in which the Proceeding is pending. In addition,
Indemnitee shall give the Corporation such information and cooperation as it may
reasonably require and as shall be within Indemnitee's power.
9. Maintenance of Liability Insurance.
----------------------------------
a. The Corporation hereby agrees that so long as Indemnitee shall
continue to serve as a [director/officer] of the Corporation and thereafter so
long as Indemnitee shall be subject to any possible Proceeding, the Corporation,
subject to Section 9(b), it shall use its best efforts to obtain and maintain in
full force and effect directors' and officers' liability insurance ("D&O
Insurance") which complies with the Regulations and which provides Indemnitee
the same rights and benefits as are accorded to the most favorably insured of
the Corporation's directors, if Indemnitee is a director; or of the
Corporation's officers, if Indemnitee is not a director of the Corporation but
is an officer.
b. Notwithstanding the foregoing, the Corporation shall have no
obligation to obtain or maintain D&O Insurance if the Corporation determines in
good faith that such insurance is not reasonably available, the premium costs
for such insurance are disproportionate to the amount of coverage provided, the
coverage provided by such insurance is limited by exclusions so as to provide an
insufficient benefit, or the Indemnitee is covered by similar insurance
maintained by a subsidiary or parent of the Corporation.
c. Notice to Insurers. If, at the time of the receipt of a notice of
------------------
a claim pursuant to Section 8 hereof, the Corporation has D&O Insurance in
effect, the Corporation shall give prompt notice of the commencement of such
claim to the insurers in accordance with the procedures set forth in the
respective policies. The Corporation shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of the Indemnitee, all
amounts payable as a result of such Proceeding in accordance with the terms of
such policies.
10. Defense of Claim. In the event that the Corporation shall be
----------------
obligated under Section 6 hereof to pay any Expenses of any Proceeding against
Indemnitee, the Corporation, if appropriate, shall be entitled to assume the
defense of such Proceeding, with counsel approved by Indemnitee, which approval
shall not be unreasonably withheld, upon the delivery to Indemnitee of
7
<PAGE>
written notice of its election to do so. After delivery of such notice,
approval of such counsel by Indemnitee and the retention of such counsel by the
Corporation, the Corporation will not be liable to Indemnitee under this
Agreement for any fees of counsel subsequently incurred by Indemnitee with
respect to the same Proceeding, provided that (i) Indemnitee shall have the
right to employ his or her counsel in any such Proceeding, at Indemnitee's
expense; and (ii) if (A) the employment of counsel by Indemnitee has been
previously authorized by the Corporation, or (B) Indemnitee shall have
reasonably concluded that there may be a conflict of interest between the
Corporation and the Indemnitee in the conduct of such defense or (C) the
Corporation shall not, in fact, have employed counsel to assume the defense of
such Proceeding, then the fees and expenses of Indemnitee's counsel shall be at
the expense of the Corporation.
11. Attorneys' Fees. In the event that Indemnitee or the Corporation
---------------
institutes an action to enforce or interpret any terms of this Agreement, the
Corporation shall reimburse Indemnitee for all of the Indemnitee's reasonable
fees and expenses in bringing and pursuing such action or defense, unless as
part of such action or defense, a court of competent jurisdiction determines
that the material assertions made by Indemnitee as a basis for such action or
defense were not made in good faith or were frivolous.
12. Continuation of Obligations. All agreements and obligations of
---------------------------
the Corporation contained herein shall continue during the period the Indemnitee
is a [director/officer] of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, and shall
continue thereafter so long as the Indemnitee shall be subject to any possible
proceeding by reason of the fact that Indemnitee served in any capacity referred
to herein.
13. Successors and Assigns. This Agreement establishes contract
----------------------
rights that shall be binding upon, and shall inure to the benefit of, the
successors, assigns, heirs and legal representatives of the parties hereto.
14. Non-exclusivity.
---------------
a. The provisions for indemnification and advancement of expenses set
forth in this Agreement shall not be deemed to be exclusive of any other rights
that the Indemnitee may have under any provision of law, the Corporation's
Certificate of Incorporation or Bylaws, the vote of the Corporation's
stockholders or disinterested directors, other agreements or otherwise, both as
to action in his or her official capacity and action in another capacity while
occupying his or her position as a [director/officer] of the Corporation. The
indemnification provided under this Agreement shall continue as to Indemnitee
for any action taken or not taken while serving in an indemnified capacity even
though Indemnitee may have ceased to serve in such capacity.
b. In the event of any changes, after the date of this Agreement, in
any applicable law, statute, or rule which expand the right of a Delaware
corporation or a depository institution holding company to indemnify its
officers and directors, the Indemnitee's rights and the
8
<PAGE>
Corporation's obligations under this Agreement shall be expanded to the full
extent permitted by such changes. In the event of any changes in any applicable
law, statute or rule, which narrow the right of a Delaware corporation or a
depository institution holding company to indemnify a director or officer, such
changes, to the extent not otherwise required by such law, statute or rule to be
applied to this Agreement, shall have no effect on this Agreement or the
parties' rights and obligations hereunder.
15. Effectiveness of Agreement. [To the extent that the
--------------------------
indemnification permitted under the terms of certain provisions of this
Agreement exceeds the scope of the indemnification provided for in the General
Corporation Law of the State of Delaware, such provisions shall not be effective
unless and until the Corporation's Certificate of Incorporation authorize such
additional rights of indemnification. In all other respects, the balance of]
This Agreement shall be effective as of the date set forth on the first page and
may apply to acts or omissions of Indemnitee which occurred prior to such date
if Indemnitee was an officer, director, employee or other agent of the
Corporation, or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, at the time such act or omission occurred.
[The Agreement shall be made and effective simultaneously with the
effectiveness (the "Effective Date") of the sale of the Common Stock of the
Corporation contemplated by that certain Registration Statement on Form S-1
(File No. ________) filed by the Corporation with the Securities and Exchange
Commission on ________, 1997. The Agreement shall to the extent permitted by
law, apply to acts of omissions of the Indemnitee which occurred prior to such
date if the Indemnitee was an officer, director, employee or other agent of the
Corporation, or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, at the time such act or omission occurred.]
16. Severability. Nothing in this Agreement is intended to require or
------------
shall be construed as requiring the Corporation to do or fail to do any act in
violation of applicable law. The Corporation's inability, pursuant to court
order, to perform its obligations under this Agreement shall not constitute a
breach of this Agreement. The provisions of this Agreement shall be severable
as provided in this Section 16. If this Agreement or any portion hereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify Indemnitee to the full extent permitted
by any applicable portion of this Agreement that shall not have been
invalidated, and the balance of this Agreement not so invalidated shall be
enforceable in accordance with its terms.
17. Governing Law. This Agreement shall be interpreted and enforced
-------------
in accordance with the laws of the State of Delaware, except to the extent
federal law is applicable. To the extent permitted by applicable law, the
parties hereby waive any provisions of law which render any provision of this
Agreement unenforceable in any respect.
9
<PAGE>
18. Notice. All notices, requests, demands and other communications
------
under this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand and receipted for by the party addressee or (ii) if mailed by
certified or registered mail with postage prepaid, on the third business day
after the mailing date. Addresses for notice to either party are as shown on
the signature page of this Agreement, or as subsequently modified by written
notice.
19. Mutual Acknowledgment. Both the Corporation and Indemnitee
---------------------
acknowledge that in certain instances, federal law or applicable public policy
may prohibit the Corporation from indemnifying its directors and officers under
this Agreement or otherwise. Indemnitee understands and acknowledges that the
Corporation has undertaken or may be required in the future to undertake with
the Securities and Exchange Commission to submit the question of indemnification
to a court in certain circumstances for a determination of the Corporation's
right under public policy to indemnify Indemnitee.
20. Subrogation. In the event of payment under this Agreement, the
-----------
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of Indemnitee, who shall execute all documents required and
shall do all acts that may be necessary to secure such rights and to enable the
Corporation effectively to bring suit to enforce such rights.
21. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall constitute an original.
22. Amendment and Termination. No amendment, modification,
-------------------------
termination or cancellation of this Agreement shall be effective unless in
writing signed by both parties hereto.
10
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year set forth above.
UNITED PANAM FINANCIAL CORP.
By:____________________________
[Title]
Address:
INDEMNITEE:
_________________________
(Type Name)
_________________________
(Signature)
_________________________
(Address)
11
<PAGE>
UNITED PANAM FINANCIAL CORP.
1997 EMPLOYEE STOCK INCENTIVE PLAN Exhibit 10.47
----------------------------------
Adopted as of November 5, 1997
Section 1. PURPOSE OF PLAN
(a) The purpose of this 1997 Employee Stock Incentive Plan ("Plan") of
United PanAm Financial Corp., a Delaware corporation (the "Company"), is to
enable the Company and its subsidiaries to attract, retain and motivate their
employees and consultants by providing for or increasing the proprietary
interests of such employees and consultants in the Company, and to enable the
Company and its subsidiaries to attract, retain and motivate nonemployee
directors and further align their interests with those of the stockholders of
the Company by providing for or increasing the proprietary interest of such
directors in the Company.
(b) This Plan shall constitute an amendment and restatement of the
1994 Stock Option Plan (the "Prior Plan") of Pan American Bank, FSB, and on the
effective date of this Plan each option granted under the Prior Plan shall be
reconstituted as an option under this Plan on the same terms and conditions as
set forth in the Prior Plan or any form of stock option agreement evidencing
such option under the Prior Plan.
Section 2. PERSONS ELIGIBLE UNDER PLAN
Each of the following persons (each, a "Participant") shall be
eligible to be considered for the grant of Awards (as hereinafter defined)
hereunder: (1) any employee of the Company or any of its subsidiaries,
including any director who is also such an employee, (2) any director of the
Company or any of its subsidiaries who is not also an employee of the Company or
any of its subsidiaries (a "Nonemployee Director") and (3) any consultant of the
Company or any of its subsidiaries.
Section 3. AWARDS
(a) The Committee (as hereinafter defined), on behalf of the Company,
is authorized under this Plan to enter into any type of arrangement with a
Participant that is not inconsistent with the provisions of this Plan and that,
by its terms, involves or might involve the issuance of (i) shares of common
stock of the Company ("Common Shares") or (ii) a Derivative Security (as such
term is defined in Rule 16a-1 promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), as such rule may be amended from time to
time) with an exercise or conversion privilege at a price related to the Common
Shares or with a value derived from the value of the Common Shares. The
entering into of any such arrangement is referred to herein as the "grant" of an
"Award."
(b) Awards are not restricted to any specified form or structure and
may include, without limitation, sales or bonuses of stock, restricted stock,
stock options, reload
1
<PAGE>
stock options, stock purchase warrants, other rights to acquire stock,
securities convertible into or redeemable for stock, stock appreciation rights,
phantom stock, dividend equivalents, performance units or performance shares,
and an Award may consist of one such security or benefit, or two or more of them
in tandem or in the alternative.
(c) Awards may be issued, and Common Shares may be issued pursuant to
an Award, for any lawful consideration as determined by the Committee,
including, without limitation, services rendered by the recipient of such Award.
(d) Subject to the provisions of this Plan, the Committee, in its sole
and absolute discretion, shall determine all of the terms and conditions of each
Award granted under this Plan, which terms and conditions may include, among
other things:
(i) a provision permitting the recipient of such Award,
including any recipient who is a director or officer of the Company, to
pay the purchase price of the Common Shares or other property issuable
pursuant to such Award, in whole or in part, by any one or more of the
following:
(A) the delivery of cash;
(B) the delivery of other property deemed acceptable by the
Committee;
(C) the delivery of previously owned shares of capital stock of
the Company (including "pyramiding") or other property; or
(D) a reduction in the amount of Common Shares or other property
otherwise issuable pursuant to such Award;
(ii) a provision conditioning or accelerating the receipt of
benefits pursuant to such Award, either automatically or in the discretion
of the Committee, upon the occurrence of specified events, including,
without limitation, a change of control of the Company (as defined by the
Committee), an acquisition of a specified percentage of the voting power of
the Company, the dissolution or liquidation of the Company, a sale of
substantially all of the property and assets of the Company or an event of
the type described in Section 7 hereof; or
(iii) a provision required in order for such Award to qualify as
an incentive stock option under Section 422 of the Internal Revenue Code
(an "Incentive Stock Option"); provided, however, that no Award issued to
-------- -------
any consultant or any Nonemployee Director may qualify as an Incentive
Stock Option.
(e) Notwithstanding anything to the contrary contained in this
Section 3, neither an Award nor any interest therein may be sold, assigned,
transferred, conveyed, gifted, pledged, hypothecated or otherwise transferred in
any manner other than by will or the laws of descent and distribution.
2
<PAGE>
(f) All certificates evidencing Awards or Common Shares issued
pursuant thereto should bear any legend determined by the Board or the
Committee (as defined below) to be necessary or appropriate.
Section 4. STOCK SUBJECT TO PLAN
(a) At any time, the aggregate number of Common Shares issued and
issuable pursuant to all Awards (including all Incentive Stock Options) granted
under this Plan shall not exceed 2,287,500 subject to adjustment as provided in
Section 7 hereof. In the case of stock options and stock appreciation rights,
the maximum number of Common Shares with respect to which options or rights may
be granted to any person during a calendar year shall be 200,000 shares.
(b) For purposes of Section 4(a) hereof, the aggregate number of
Common Shares issued and issuable pursuant to Awards granted under this Plan
shall at any time be deemed to be equal to the sum of the following:
(i) the number of Common Shares that were issued prior to such
time pursuant to Awards granted under this Plan, other than Common Shares
that were subsequently reacquired by the Company pursuant to the terms and
conditions of such Awards and with respect to which the holder thereof
received no benefits of ownership such as dividends; plus
(ii) the number of Common Shares that were otherwise issuable
prior to such time pursuant to Awards granted under this Plan, but that
were withheld by the Company as payment of the purchase price of the Common
Shares issued pursuant to such Awards; plus
(iii) the maximum number of Common Shares that are or may be
issuable at or after such time pursuant to Awards granted under this Plan
prior to such time.
Section 5. DURATION OF PLAN
No Awards shall be made under this Plan after November 5, 2007.
Although Common Shares may be issued after November 5, 2007 pursuant to Awards
made prior to such date, no Common Shares shall be issued under this Plan after
November 5, 2017.
Section 6. ADMINISTRATION OF PLAN
(a) This Plan shall be administered by a committee (the "Committee")
of the Board of Directors of the Company (the "Board") consisting of two or more
directors, each of whom is an "outside director" within the meaning of Section
162(m) of the Internal Revenue Code of 1986, as amended, and who otherwise
comply with the requirements of Rule 16b-3; provided, however, that before the
-------- -------
registration of the Common Shares under Section 12 of the Exchange Act, grants
of Awards may, in the absence of action of the Committee, be made by the entire
Board.
3
<PAGE>
(b) Subject to the provisions of this Plan, the Committee shall be
authorized and empowered to do all things necessary or desirable in connection
with the administration of this Plan, including, without limitation, the
following:
(i) adopt, amend and rescind rules and regulations relating to
this Plan;
(ii) determine which persons are Participants and to which of
such Participants, if any, Awards shall be granted hereunder;
(iii) grant Awards to Participants and determine the terms and
conditions thereof, including the number of Common Shares issuable pursuant
thereto;
(iv) determine whether, and the extent to which adjustments are
required pursuant to Section 7 hereof;
(v) interpret and construe this Plan and the terms and
conditions of any Award granted hereunder; and
(vi) certify in writing prior to payment of compensation that
the performance goals and any other material terms of an Award were in fact
satisfied. For this purpose, approved minutes of the Committee meeting in
which the certification is made are treated as a written certification.
Section 7. ADJUSTMENTS
If the outstanding securities of the class then subject to this Plan
are increased, decreased or exchanged for or converted into cash, property or a
different number or kind of securities, or if cash, property or securities are
distributed in respect of such outstanding securities, in either case as a
result of a reorganization, merger, consolidation, recapitalization,
restructuring, reclassification, dividend (other than a regular cash dividend)
or other distribution, stock split, reverse stock split or the like, or if
substantially all of the property and assets of the Company are sold, then,
unless the terms of such transaction shall provide otherwise, the Committee
shall make appropriate and proportionate adjustments in (i) the number and type
of shares or other securities or cash or other property that may be acquired
pursuant to Awards theretofore granted under this Plan and (ii) the maximum
number and type of shares or other securities that may be issued pursuant to
Awards thereafter granted under this Plan.
Section 8. AMENDMENT AND TERMINATION OF PLAN
The Board may amend or terminate this Plan at any time and in any
manner, provided that no such amendment or termination shall deprive the
recipient of any Award theretofore granted under this Plan, without the consent
of such recipient, of any of his or her rights thereunder or with respect
thereto.
4
<PAGE>
Section 9. EFFECTIVE DATE OF PLAN
This Plan shall be effective as of November 5, 1997, the date upon
which it was approved by the Board; provided, however, that no Common Shares may
-------- -------
be issued under this Plan until it has been approved, directly or indirectly, by
the affirmative votes of the holders of a majority of the securities of the
Company present, or represented, and entitled to vote at a meeting duly held in
accordance with the laws of the State of Delaware.
Section 10. GOVERNING LAW
This Plan and any Award granted hereunder shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware
without reference to choice or conflict of law principles.
5
<PAGE>
UNITED PANAM FINANCIAL CORP.
1997 EMPLOYEE STOCK INCENTIVE PLAN
INCENTIVE STOCK OPTION AGREEMENT
--------------------------------
This Stock Option Agreement ("Agreement") is made and entered into as
of the Date of Grant indicated below by and between United PanAm Financial
Corp., a Delaware corporation (the "Company"), and the person named below
("Employee").
WHEREAS, Employee is an employee of the Company or one or more of its
subsidiaries; and
WHEREAS, pursuant to the Company's 1997 Employee Stock Incentive Plan
(the "Plan"), the committee of the Board of Directors of the Company
administering the Plan (the "Committee") has approved the grant to Employee of
an option to purchase shares of the common stock of the Company (the "Common
Stock"), on the terms and conditions set forth herein; and
WHEREAS, the amount of compensation the recipient of the Option (as
defined below) could receive hereunder is based solely on an increase in the
value of the stock of the Company after the date of the grant;
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants set forth herein, the parties hereto hereby agree as follows:
1. Grant of Option; Certain Terms and Conditions. The Company
---------------------------------------------
hereby grants to Employee, and Employee hereby accepts, as of the Date of Grant,
an option to purchase the number of shares of Common Stock indicated below (the
"Option Shares") at the Exercise Price per share indicated below, which option
shall expire at 5:00 p.m., California time, on the Expiration Date indicated
below and shall be subject to all of the terms and conditions set forth in this
Agreement (the "Option"). On each anniversary of the Date of Grant, the Option
shall become exercisable to purchase, and shall vest with respect to, that
number of Option Shares (rounded to the nearest whole share) equal to the total
number of Option Shares multiplied by the Annual Vesting Rate indicated below.
Employee:
--------------------------
Date of Grant:
----------
Number of shares purchasable:
----------
Exercise Price per share:
----------
Expiration Date:
----------
1
<PAGE>
Annual Vesting Rate: %
----------
The Option is intended to qualify as an incentive stock option under Section 422
of the Internal Revenue Code of 1986, as amended (an "Incentive Stock Option"),
and consequently:
(i) the Expiration Date shall not be more than ten years after
the Date of Grant and the Exercise Price per share shall not be less than
the Fair Market Value (as defined in the Plan) per share on the Date of
Grant; provided, however, that if, on the Date of Grant, Employee owns
-------- -------
(after application of the family and other attribution rules of Section
425(d) of the Internal Revenue Code of 1986, as amended) more than 10% of
the total combined voting power of all classes of stock of the Company or
of its parent or subsidiary corporations, then the Expiration Date shall
not be more than five years after the Date of Grant and the Exercise Price
per share shall not be less than 110% of the Fair Market Value per share on
the Date of Grant; and
(ii) the aggregate Fair Market Value (determined as of the date
such options are granted) of the shares of Common Stock with respect to
which Incentive Stock Options are exercisable for the first time by
Employee during any calendar year (under the Plan and all other stock
option plans of the Company and its parent and subsidiary corporations)
shall not exceed $100,000.
2. Acceleration and Termination of Option.
--------------------------------------
(a) Termination of Employment.
(i) Termination Within One Year After Change of Control. In
---------------------------------------------------
the event that Employee shall cease to be an employee of the Company or any
of its subsidiaries (such event shall be referred to herein as the
"Termination" of Employee's "Employment") for any reason, or for no reason,
within one year after a Change of Control (as hereinafter defined), then
(A) the portion of the Option that has not vested on or prior to the date
of such Termination of Employment shall fully vest on such date and (B) the
Option shall terminate upon the earlier of the Expiration Date or three
months after the date of such Termination of Employment. "Change of
Control" shall mean the first to occur of the following events:
(A) any date upon which the directors of the Company who were
last nominated by the Board of Directors (the "Board") for election as
directors cease to constitute a majority of the directors of the
Company;
(B) the date of the first public announcement that any person
or entity, together with all Affiliates and Associates (as such
capitalized terms are defined in Rule 12b-2 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
such person or entity, shall have become the Beneficial Owner (as
defined in Rule 13d-3 promulgated under the Exchange Act) of voting
securities of the Company representing 25% or more of the voting power
of the
2
<PAGE>
Company (a "25% Stockholder"); provided, however, that the terms
-------- -------
"person" and "entity," as used in this clause (B), shall not include
(1) the Company or any of its subsidiaries, (2) any employee benefit
plan of the Company or any of its subsidiaries, (3) any entity holding
voting securities of the Company for or pursuant to the terms of any
such plan, (4) any person or entity if the transaction that resulted
in such person or entity becoming a 25% Stockholder was approved in
advance by the Board or (5) any person or entity who was a 25%
Stockholder on the date of adoption of the Plan by the Board; or
(C) a reorganization, merger or consolidation of the Company
(other than a reorganization, merger or consolidation the sole purpose
of which is to change the Company's domicile solely within the United
States) the consummation of which results in the outstanding
securities of any class then subject to the Option being exchanged for
or converted into cash, property or a different kind of securities.
(ii) Retirement. If Employee's Employment is Terminated by
----------
reason of Employee's retirement in accordance with the Company's then-
current retirement policy ("Retirement"), and a Change of Control shall not
have occurred within one year prior thereto, then (A) the portion of the
Option that has not vested on or prior to the date of such Retirement shall
terminate on such date and (B) the remaining vested portion of the Option
shall terminate on the date three (3) months after the date of such
Termination of Employment.
(iii) Death or Permanent Disability. If Employee's Employment
-----------------------------
is Terminated by reason of the death or Permanent Disability (as
hereinafter defined) of Employee, and a Change of Control shall not have
occurred within one year prior thereto, then (A) the portion of the Option
that has not vested on or prior to the date of such Termination of
Employment shall terminate on such date and (B) the remaining vested
portion of the Option shall terminate upon the earlier of the Expiration
Date or the first anniversary of the date of such Termination of
Employment. "Permanent Disability" shall mean the inability to engage in
any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or
that has lasted or can be expected to last for a continuous period of not
less than 12 months. Employee shall not be deemed to have a Permanent
Disability until proof of the existence thereof shall have been furnished
to the Board in such form and manner, and at such times, as the Board may
require. Any determination by the Board that Employee does or does not have
a Permanent Disability shall be final and binding upon the Company and
Employee.
(iv) Other Termination. If Employee's Employment is
-----------------
Terminated for no reason, or for any reason other than Retirement, death or
Permanent Disability, and a Change of Control shall not have occurred
within one year prior thereto, then the Option shall terminate upon the
date of such Termination of Employment.
3
<PAGE>
(b) Death Following Termination of Employment. Notwithstanding
-----------------------------------------
anything to the contrary contained in this Agreement, if Employee shall die at
any time after the Termination of his or her Employment and prior to the
Expiration Date, then (i) the portion of the Option that has not vested on or
prior to the date of such death shall terminate on such date and (ii) the
remaining vested portion of the Option shall terminate on the earlier of the
Expiration Date or the first anniversary of the date of such death.
(c) Other Events Causing Acceleration of Option. The Committee, in
-------------------------------------------
its sole discretion, may accelerate the exercisability of the Option at any time
and for any reason.
(d) Other Events Causing Termination of Option. Notwithstanding
------------------------------------------
anything to the contrary contained in this Agreement, the Option shall terminate
upon the consummation of any of the following events, or, if later, the
thirtieth day following the first date upon which such event shall have been
approved by both the Board and the shareholders of the Company:
(i) the dissolution or liquidation of the Company; or
(ii) a sale of substantially all of the property and assets of
the Company, unless the terms of such sale shall provide otherwise.
3. Adjustments. In the event that the outstanding securities of the
-----------
class then subject to the Option are increased, decreased or exchanged for or
converted into cash, property or a different number or kind of securities, or
cash, property or securities are distributed in respect of such outstanding
securities, in either case as a result of a reorganization, merger,
consolidation, recapitalization, reclassification, dividend (other than a
regular cash dividend) or other distribution, stock split, reverse stock split
or the like, or in the event that substantially all of the property and assets
of the Company are sold, then, unless such event shall cause the Option to
terminate pursuant to Section 2(d) hereof, the Committee shall make appropriate
and proportionate adjustments in the number and type of shares or other
securities or cash or other property that may thereafter be acquired upon the
exercise of the Option; provided, however, that any such adjustments in the
-------- -------
Option shall be made without changing the aggregate Exercise Price of the then
unexercised portion of the Option.
4. Exercise.
--------
(a) The Option shall be exercisable during Employee's lifetime only by
Employee or by his or her guardian or legal representative, and after Employee's
death only by the person or entity entitled to do so under Employee's last will
and testament or applicable intestate law. The Option may only be exercised by
the delivery to the Company of a written notice of such exercise, which notice
shall specify the number of Option Shares to be purchased (the "Purchased
Shares") and the aggregate Exercise Price for such shares (the "Exercise
Notice"), together with payment in full of such aggregate Exercise Price in cash
or by check payable to the Company; provided, however, that payment of such
-------- -------
aggregate Exercise Price may instead be made, in whole or in part, by the
delivery to the Company of a certificate or certificates representing shares of
Common Stock, duly endorsed or accompanied by a duly executed stock powers,
which delivery effectively transfers to the Company good and valid title to such
shares, free and clear of any pledge, commitment, lien, claim or other
encumbrance
4
<PAGE>
(such shares to be valued on the basis of the aggregate Fair Market Value (as
defined below) thereof on the date of such exercise), provided that the Company
is not then prohibited from purchasing or acquiring such shares of Common Stock.
(b) The "Fair Market Value" of a Common Share on any date (the
"Determination Date") shall be equal to the closing price per Common Share on
the business day immediately preceding the Determination Date, as reported in
The Wall Street Journal, Western Edition, or, if no closing price was so
reported for such immediately preceding business day, the closing price for the
next preceding business day for which a closing price was so reported, or, if no
closing price was so reported for any of the 30 business days immediately
preceding the Determination Date, the average of the high bid and low asked
prices per Common Share on the business day immediately preceding the
Determination Date in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotations System ("NASDAQ")
or such other system then in use, or, if the Common Shares were not quoted by
any such organization on such immediately preceding business day, the average of
the closing bid and asked prices on such day as furnished by a professional
market maker making a market in the Common Shares selected by the Board.
5. Payment of Withholding Taxes. If the Company becomes obligated
----------------------------
to withhold an amount on account of any tax imposed as a result of the exercise
of the Option, including, without limitation, any federal, state, local or other
income tax, or any F.I.C.A., state disability insurance tax or other employment
tax, then Employee shall, on the first day upon which the Company becomes
obligated to pay such amount to the appropriate taxing authority, pay such
amount to the Company in cash or by check payable to the Company.
6. Notices. All notices and other communications required or
-------
permitted to be given pursuant to this Agreement shall be in writing and shall
be deemed given if delivered personally or five days after mailing by certified
or registered mail, postage prepaid, return receipt requested, to the Company at
1300 South El Camino Real, San Mateo, California 94402, Attention: Chief
Financial Officer, or to Employee at the address set forth beneath his or her
signature on the signature page hereto, or at such other addresses as they may
designate by written notice in the manner aforesaid.
7. Stock Exchange Requirements; Applicable Laws. Notwithstanding
--------------------------------------------
anything to the contrary in this Agreement, no shares of stock purchased upon
exercise of the Option, and no certificate representing all or any part of such
shares, shall be issued or delivered if (i) such shares have not been admitted
to listing upon official notice of issuance on each stock exchange upon which
shares of that class are then listed or (ii) in the opinion of counsel to the
Company, such issuance or delivery would cause the Company to be in violation of
or to incur liability under any federal, state or other securities law, or any
requirement of any stock exchange listing agreement to which the Company is a
party, or any other requirement of law or of any administrative or regulatory
body having jurisdiction over the Company.
8. Nontransferability. Neither the Option nor any interest therein
------------------
may be sold, assigned, conveyed, gifted, pledged, hypothecated or otherwise
transferred in any manner other than by will or the laws of descent and
distribution.
5
<PAGE>
UNITED PANAM FINANCIAL CORP.
1997 EMPLOYEE STOCK INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
------------------------------------
This Stock option Agreement ("Agreement") is made and entered into as
of the Date of Grant indicated below by and between United PanAm Financial
Corp., a Delaware corporation (the "Company"), and the person named below
("Participant").
WHEREAS, Participant is an employee, director or independent
contractor of the Company or one or more of its subsidiaries; and
WHEREAS, pursuant to the Company's 1997 Employee Stock Incentive Plan
(the "Plan"), the committee of the Board of Directors of the Company
administering the Plan (the "Committee") has approved the grant to Participant
of an option to purchase shares of the common stock of the Company (the "Common
Stock"), on the terms and conditions set forth herein; and
WHEREAS, the amount of compensation the recipient of the Option (as
defined below) could receive hereunder is based solely on an increase in the
value of the stock of the Company after the date of the grant;
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants set forth herein, the parties hereto hereby agree as follows:
1. Grant Of Option; Certain Terms and Conditions. The Company
---------------------------------------------
hereby grants to Participant, and Participant hereby accepts, as of the Date of
Grant, an option to purchase the number of shares of Common Stock indicated
below (the "Option Shares") at the Exercise Price per share indicated below,
which option shall expire at 5:00 p.m., California time, on the Expiration Date
indicated below and shall be subject to all of the terms and conditions set
forth in this Agreement (the "Option"). On each anniversary of the Date of
Grant, the option shall become exercisable to purchase, and shall vest with
respect to, that number of Option Shares (rounded to the nearest whole share)
equal to the total number of Option Shares multiplied by the Annual Vesting Rate
indicated below.
Participant: ______________________
Date of Grant: __________
Number of shares purchasable: __________
Exercise Price per share: __________
Expiration Date: __________
1
<PAGE>
Annual Vesting Rate: __________%
The Option is not intended to qualify as an incentive stock option under Section
422 of the Internal Revenue Code of 1986, as amended (an "Incentive Stock
Option").
2. Acceleration and Termination of Option.
--------------------------------------
(a) Termination of Employment.
(i) Termination Within One Year After Change of Control. In the
---------------------------------------------------
event that Participant shall cease to be an employee, director or independent
contractor of the Company or any of its subsidiaries (such event shall be
referred to herein as the "Termination" of Participant's "Employment") for any
reason, or for no reason, within one year after a Change of Control (as
hereinafter defined), then (A) the portion of the Option that has not vested on
or prior to the date of such Termination of Employment shall fully vest on such
date and (B) the Option shall terminate upon the earlier of the Expiration Date
or the first anniversary of the date of such Termination of Employment. "Change
of Control" shall mean the first to occur of the following events:
(A) any date upon which the directors of the Company who were
last nominated by the Board of Directors (the "Board") for election as
directors cease to constitute a majority of the directors of the
Company;
(B) the date of the first public announcement that any person or
entity, together with all Affiliates and Associates (as such
capitalized terms are defined in Rule 12b-2 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
such person or entity, shall have become the Beneficial Owner (as
defined in Rule 13d-3 promulgated under the Exchange Act) of voting
securities of the Company representing 25% or more of the voting power
of the Company (a "25% Stockholder"); provided, however, that the
-------- -------
terms "person" and "entity," as used in this clause (B), shall not
include (1) the Company or any of its subsidiaries, (2) any employee
benefit plan of the Company or any of its subsidiaries, (3) any entity
holding voting securities of the Company for or pursuant to the terms
of any such plan, (4) any person or entity if the transaction that
resulted in such person or entity becoming a 25% Stockholder was
approved in advance by the Board or (5) any person or entity who was a
25% Stockholder on the date of adoption of the Plan by the Board; or
(C) a reorganization, merger or consolidation of the Company
(other than a reorganization, merger or consolidation the sole purpose
of which is to change the Company's domicile solely within the United
States) the consummation of which results in the outstanding
securities of any class then subject to the Option being exchanged for
or converted into cash, property or a different kind of securities;
provided, however, that
-------- -------
2
<PAGE>
a Change of Control shall not be deemed to occur if, as a result of
such reorganization, merger or consolidation of the Company, the
securities of any class then subject to the Option (the "Option
Securities") are exchanged for or converted into securities that
represent the same beneficial ownership of the Company and possess the
same voting, liquidation and other rights to which the Option
Securities were entitled immediately prior to such reorganization,
merger or consolidation.
(ii) Retirement. If Participant's Employment is Terminated by
-----------
reason of Participant's retirement in accordance with the Company's then current
retirement policy ("Retirement"), and a Change of Control shall not have
occurred within one year prior thereto, then (A) the portion of the Option that
has not vested on or prior to the date of such Retirement shall terminate on
such date and (B) the remaining vested portion of the Option shall terminate
upon the Expiration Date.
(iii) Death or Permanent Disability. If Participant's
------------------------------
Employment is Terminated by reason of the death or Permanent Disability (as
hereinafter defined) of Participant, and a Change of Control shall not have
occurred within one year prior thereto, then (A) the portion of the Option that
has not vested on or prior to the date of such Termination of Employment shall
terminate on such date and (B) the remaining vested portion of the Option shall
terminate upon the earlier of the Expiration Date or the first anniversary of
the date of such Termination of Employment. "Permanent Disability" shall mean
the inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment that can be expected to
result in death or that has lasted or can be expected to last for a continuous
period of not less than 12 months. Participant shall not be deemed to have a
Permanent Disability until proof of the existence thereof shall have been
furnished to the Board in such form and manner, and at such times, as the Board
may require. Any determination by the Board that Participant does or does not
have a Permanent Disability shall be final and binding upon the Company and
Participant.
(iv) Other Termination. If Participant's Employment is
------------------
Terminated for no reason, or for any reason other than Retirement, death or
Permanent Disability, and a Change of Control shall not have occurred within one
year prior thereto, then the Option shall terminate upon the date of such
Termination of Employment.
(b) Death Following Termination of Employment. Notwithstanding
-----------------------------------------
anything to the contrary contained in this Agreement, if Participant shall die
at any time after the Termination of his or her Employment and prior to the
Expiration Date, then (i) the portion of the Option that has not vested on or
prior to the date of such death shall terminate on such date and (ii) the
remaining vested portion of the Option shall terminate on the earlier of the
Expiration Date or the first anniversary of the date of such death.
(c) Other Events Causing Acceleration of Option. The Committee, in
-------------------------------------------
its sole discretion, may accelerate the exercisability of the Option at any time
and for any reason.
(d) Other Events Causing Termination of Option. Notwithstanding
------------------------------------------
anything to the contrary contained in this Agreement, the Option shall terminate
upon the consummation
3
<PAGE>
of any of the following events, or, if later, the thirtieth day following the
first date upon which such event shall have been approved by both the Board and
the shareholders of the Company:
(i) the dissolution or liquidation of the Company; or
(ii) a sale of substantially all of the property and assets
of the Company, unless the terms of such sale shall provide otherwise.
3. Adjustments. In the event that the outstanding securities of the
-----------
class then subject to the Option are increased, decreased or exchanged for or
converted into cash, property or a different number or kind of securities, or
cash, property or securities are distributed in respect of such outstanding
securities, in either case as a result of a reorganization, merger,
consolidation, recapitalization, reclassification, dividend (other than a
regular cash dividend) or other distribution, stock split, reverse stock split
or the like, or in the event that substantially all of the property and assets
of the Company are sold, then, unless such event shall cause the Option to
terminate pursuant to Section 2(d) hereof, the Committee shall make appropriate
and proportionate adjustments in the number and type of shares or other
securities or cash or other property that may thereafter be acquired upon the
exercise of the Option; provided, however, that any such adjustments in the
-------- -------
Option shall be made without changing the aggregate Exercise Price of the then
unexercised portion of the Option.
4. Exercise.
--------
(a) The Option shall be exercisable during Participant's lifetime
only by Participant or by his or her guardian or legal representative, and after
Participant's death only by the person or entity entitled to do so under
Participant's last will and testament or applicable intestate law. The Option
may only be exercised by the delivery to the Company of a written notice of such
exercise, which notice shall specify the number of Option Shares to be purchased
(the "Purchased Shares") and the aggregate Exercise Price for such shares (the
"Exercise Notice"), together with payment in full of such aggregate Exercise
Price in cash or by check payable to the Company; provided, however, that
-------- -------
payment of such aggregate Exercise Price may instead be made, in whole or in
part, by the delivery to the Company of a certificate or certificates
representing shares of Common Stock, duly endorsed or accompanied by a duly
executed stock powers, which delivery effectively transfers to the Company good
and valid title to such shares, free and clear of any pledge, commitment, lien,
claim or other encumbrance (such shares to be valued on the basis of the
aggregate Fair Market Value (as defined below) thereof on the date of such
exercise), provided that the Company is not then prohibited from purchasing or
acquiring such shares of Common Stock.
(b) The "Fair Market Value" of a Common Share on any date (the
"Determination Date") shall be equal to the closing price per Common Share on
the business day immediately preceding the Determination Date, as reported in
The Wall Street Journal, Western Edition, or, if no closing price was so
reported for such immediately preceding business day, the closing price for the
next preceding business day for which a closing price was so reported, or, if no
closing price was so reported for any of the 30 business days immediately
preceding the Determination Date, the average of the high bid and low asked
prices per Common Share on the business day immediately preceding the
Determination Date in the over-the-counter
4
<PAGE>
market, as reported by the National Association of Securities Dealers, Inc.
Automated Quotations System ("NASDAQ") or such other system then in use, or, if
the Common Shares were not quoted by any such organization on such immediately
preceding business day, the average of the closing bid and asked prices on such
day as furnished by a professional market maker making a market in the Common
Shares selected by the Board.
5. Payment of Withholding Taxes. If the Company becomes obligated
----------------------------
to withhold an amount on account of any tax imposed as a result of the exercise
of the Option, including, without limitation, any federal, state, local or other
income tax, or any F.I.C.A., state disability insurance tax or other employment
tax, then Participant shall, on the first day upon which the Company becomes
obligated to pay such amount to the appropriate taxing authority, pay such
amount to the Company in cash or by check payable to the Company.
6. Notices. All notices and other communications required or
-------
permitted to be given pursuant to this Agreement shall be in writing and shall
be deemed given if delivered personally or five days after mailing by certified
or registered mail, postage prepaid, return receipt requested, to the Company at
1300 South El Camino Real, San Mateo, California 94402, Attention: Chief
Financial Officer, or to Participant at the address set forth beneath his or her
signature on the signature page hereto, or at such other addresses as they may
designate by written notice in the manner aforesaid.
7. Stock Exchange Requirements; Applicable Laws. Notwithstanding
--------------------------------------------
anything to the contrary in this Agreement, no shares of stock purchased upon
exercise of the Option, and no certificate representing all or any part of such
shares, shall be issued or delivered if (i) such shares have not been admitted
to listing upon official notice of issuance on each stock exchange upon which
shares of that class are then listed or (ii) in the opinion of counsel to the
Company, such issuance or delivery would cause the Company to be in violation of
or to incur liability under any federal, state or other securities law, or any
requirement of any stock exchange listing agreement to which the Company is a
party, or any other requirement of law or of any administrative or regulatory
body having jurisdiction over the Company.
8. Nontransferability. Neither the Option nor any interest therein
------------------
may be sold, assigned, conveyed, gifted, pledged, hypothecated or otherwise
transferred in any manner other than by will or the laws of descent and
distribution.
9. Plan. The Option is granted pursuant to the Plan, as in effect
----
on the Date of Grant, and is subject to all the terms and conditions of the
Plan, as the same may be amended from time to time; provided, however, that no
-------- -------
such amendment shall deprive Participant, without his or her consent, of the
Option or of any of Participant's rights under this Agreement. The
interpretation and construction by the Committee of the Plan, this Agreement,
the Option and such rules and regulations as may be adopted by the Committee for
the purpose of administering the Plan shall be final and binding upon
Participant. Until the Option shall expire, terminate or be exercised in full,
the Company shall, upon written request therefor, send a copy of the Plan, in
its then-current form, to Participant or any other person or entity then
entitled to exercise the Option.
5
<PAGE>
10. Shareholder Rights. No person or entity shall be entitled to
------------------
vote, receive dividends or be deemed for any purpose the holder of any Option
Shares until the Option shall have been duly exercised to purchase such Option
Shares in accordance with the provisions of this Agreement.
11. Employment or Contract Rights. No provision of this Agreement or
-----------------------------
of the Option granted hereunder shall (i) confer upon Participant any right to
continue in the employ of or contract with the Company or any of its
subsidiaries, (ii) affect the right of the Company and each of its subsidiaries
to terminate the employment or contract of Participant, with or without cause,
or (iii) confer upon Participant any right to participate in any employee
welfare or benefit plan or other program of the Company or any of its
subsidiaries other than the plan. Participant hereby acknowledges and agrees
that the Company and each of its subsidiaries may terminate the employment or
contract of Participant at any time and for any reason, or for no reason, unless
Participant and the Company or such subsidiary are parties to a written
employment or independent contractor agreement that expressly provides
otherwise.
6
<PAGE>
12. Governing Law. This Agreement and the Option granted hereunder
-------------
shall be governed by and construed and enforced in accordance with the laws of
the State of Delaware without reference to choice or conflict of law principles.
IN WITNESS WHEREOF, the Company and Participant have duly executed
this Agreement as of the Date of Grant.
UNITED PANAM FINANCIAL CORP.
By
----------------------------
Authorized Representative
PARTICIPANT
------------------------------
Signature
------------------------------
Printed Name
------------------------------
Street Address
------------------------------
City, State and Zip Code
------------------------------
Social Security Number
7
<PAGE>
UNITED PANAM FINANCIAL CORP.
1997 EMPLOYEE STOCK INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
--------------------------
This Restricted Stock Agreement ("Agreement") is made and entered into
as of the Date of Award indicated below by and between United PanAm Financial
Corp., a Delaware corporation (the "Company"), and the person named below
("Participant").
WHEREAS, Participant is an employee, director or independent
contractor of the Company or one or more of its subsidiaries; and
WHEREAS, pursuant to the Company's 1997 Employee Stock Incentive Plan
(the "Plan"), the committee of the Board of Directors of the Company
administering the Plan (the "Committee") has approved the award to Participant
of the right to purchase shares of the common stock of the Company (the "Common
Stock"), on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants set forth herein, the parties hereto hereby agree as follows:
1. Award; Certain Terms and Conditions. The Company hereby awards
-----------------------------------
to Participant, and Participant hereby accepts, as of the Date of Award, the
right to purchase the number of shares of Common Stock indicated below (the
"Restricted Shares") for the Cash Purchase Price per share indicated below. THE
AGGREGATE CASH PURCHASE PRICE MUST BE PAID TO THE COMPANY ON OR PRIOR TO 5:00
P.M. (LOCAL TIME AT THE COMPANY'S PRINCIPAL EXECUTIVE OFFICE) UPON THE SIXTIETH
DAY FOLLOWING THE DATE OF AWARD. The Restricted Shares shall be subject to all
of the terms and conditions set forth in this Agreement, including the
restrictions imposed pursuant to Section 3 hereof; provided, however, that on
-------- -------
each anniversary of the Date of Award, such restrictions shall terminate with
respect to that number of Restricted Shares (rounded to the nearest whole share)
equal to the total number of Restricted Shares multiplied by the Annual Vesting
Rate indicated below (the termination of such restrictions with respect to any
Restricted Share, for any reason, shall be referred to herein as the "vesting"
of such share).
Participant:
--------------------------
Date of Award:
---------------
Number of shares purchasable:
---------------
Cash Purchase Price per share: $
---------------
Annual Vesting Rate: %
---------------
1
<PAGE>
2. Consideration for Shares; Method of Payment.
-------------------------------------------
(a) The consideration for the issuance and sale of Restricted Shares
contemplated hereby may include, in addition to the Cash Purchase Price per
share indicated in Section 1 hereof, consideration in the form of past services
to the Company or one or more of its subsidiaries. If the Cash Purchase Price
per share is $0, then (i) the total consideration for the issuance and sale of
the Restricted Shares shall be deemed to be equal to $0.01 per share and (ii)
such consideration shall be deemed to have been received by the Company, on or
prior to the Date of Award, in the form of past services.
(b) The aggregate Cash Purchase Price must be paid to the Company in
cash or by check payable to the Company. Upon payment to the Company in full of
the aggregate Cash Purchase Price as provided herein on or prior to 5:00 p.m.
(local time at the Company's principal executive office) on the sixtieth day
following the Date of Award, Participant shall be deemed to have purchased the
Restricted Shares effective as of the Date of Award.
3. Restrictions. Until a Restricted Share vests, it may not be
------------
sold, assigned, conveyed, gifted, pledged, hypothecated, or otherwise
transferred in any manner.
4. Acceleration of Vesting.
-----------------------
(a) Notwithstanding anything to the contrary contained in this
Agreement, in the event that Participant shall cease to be an employee or
independent contractor of the Company or any of its subsidiaries for any reason,
or for no reason, within one year after a Change of Control (as hereinafter
defined), all of the then unvested Restricted Shares shall vest upon the date of
such event.
(b) "Change of Control" shall mean the first to occur of the
following events:
(i) any date upon which the directors of the Company who were
nominated by the Board of Directors (the "Board") for election as directors
cease to constitute a majority of the directors of the Company;
(ii) the date of the first public announcement that any person
or entity, together with all Affiliates and Associates (as such
capitalized terms are defined in Rule 12b-2 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of such
person or entity, shall have become the Beneficial Owner (as defined in
Rule 13d-3 promulgated under the Exchange Act) of voting securities of the
Company representing 25% or more of the voting power of the Company (a "25%
Stockholder"); provided, however, that the terms "person" and "entity," as
-------- -------
used in this clause (ii) shall not include (A) the Company or any of its
subsidiaries, (B) any employee benefit plan of the Company or any of its
subsidiaries, (C) any entity holding voting securities of the Company for
or pursuant to the terms of any such plan, (D) any person or entity if the
transaction that resulted in such person or entity becoming a 25%
Stockholder was approved in advance by the Board or (E) any person or
entity who was a 25% Stockholder on the date of adoption of the Plan by the
Board; or
2
<PAGE>
(iii) a reorganization, merger or consolidation of the Company
(other than a reorganization, merger or consolidation the sole purpose of
which is to change the Company's domicile solely within the United States)
the consummation of which results in the outstanding securities of any
class then comprising the Restricted Shares being exchanged for or
converted into cash, property or a different kind of securities; provided,
--------
however, that a Change of Control shall not be deemed to occur if, as a
-------
result of such reorganization, merger or consolidation of the Company, the
securities of any class then subject to the Option (the "Option
Securities") are exchanged for or converted into securities that represent
the same beneficial ownership of the Company and possess the same voting,
liquidation and other rights to which the Option Securities were entitled
immediately prior to such reorganization, merger or consolidation.
(c) In addition, the Committee, in its sole discretion, may
accelerate the vesting of any or all of the Restricted Shares at any time.
5. Repurchase of Restricted Shares. Notwithstanding anything to the
-------------------------------
contrary contained in this Agreement, if Participant shall cease to be an
employee, director or independent contractor of the Company or any of its
subsidiaries for any reason, or for no reason, then, unless the Committee shall
determine otherwise, the Company shall repurchase each then unvested Restricted
Share at a purchase price equal to the Cash Purchase Price per share.
6. Payment of Withholding Taxes. If the Company becomes obligated
----------------------------
to withhold an amount on account of any federal, state or local tax imposed as a
result of the sale of the Restricted Shares to Participant pursuant to this
Agreement or the termination of the restrictions imposed upon the Restricted
Shares hereunder, including, without limitation, any federal, state or other
income tax, or any F.I.C.A., state disability insurance tax or other employment
tax (the date upon which the Company becomes so obligated shall be referred to
herein as the "Withholding Date"), then Participant shall pay such amount (the
"Withholding Liability") to the Company on the Withholding Date in cash or by
check payable to the Company.
7. Escrow.
------
(a) Until a Restricted Share vests, (i) the record address of the
holder of record of such Restricted Share shall be c/o the Secretary of the
Company at the address of the Company's principal executive office, (ii) the
stock certificate representing such Restricted Share (together with any cash,
property or securities comprising all or any part of such Restricted Share as
provided in Section 8 hereof) shall be held in escrow in the custody of the
Secretary of the Company, duly endorsed in blank or accompanied by a duly
executed stock power, and (iii) such stock certificate shall contain the
following legend:
"The transfer and registration of transfer of the securities
represented by this certificate are subject to certain restrictions as
provided in a Restricted Stock Agreement dated as of [Date of Award to
be inserted] by and between the Corporation and [name of Participant
to be inserted]."
3
<PAGE>
(b) From and after the date upon which a Restricted Share vests, the
holder of record of such Restricted Share shall be entitled (provided that
Participant shall have paid the Withholding Liability to the Company pursuant to
Section 6 hereof) to receive the stock certificate representing such Restricted
Share (together with any cash, property or securities comprising all or any part
of such Restricted Share as provided in Section 8 hereof), which stock
certificate shall not contain the legend set forth in subsection (a)(iii) above.
8. Voting; Dividends; Certain Corporate Transactions. The holder of
-------------------------------------------------
record of any Restricted Share shall be entitled to exercise all voting rights
with respect to such share and to receive all regular cash dividends paid with
respect thereto. In the event that the outstanding securities of any class then
comprising the Restricted Shares are increased, decreased or exchanged for or
converted into cash, property or a different number or kind of securities, or
cash, property or securities are distributed in respect of such outstanding
securities, in either case as a result of a reorganization, merger,
consolidation, recapitalization, reclassification, dividend (other than a
regular cash dividend) or other distribution, stock split, reverse stock split
or the like, then, unless the Committee shall determine otherwise, the term
"Restricted Shares" shall, from and after the date of such event, include such
cash, property or securities so distributed in respect of the Restricted Shares,
or into or for which the Restricted Shares are so increased, decreased,
exchanged or converted.
9. Plan. The Restricted Shares are being sold pursuant to the Plan,
----
as in effect on the Date of Award, and are subject to all the terms and
conditions of the Plan, as the same may be amended from time to time; provided,
--------
however, that no such amendment shall deprive Participant, without his or her
- -------
consent, of the Restricted Shares or of any of Participant's rights under this
Agreement. The interpretation and construction by the Committee of the Plan,
this Agreement and such rules and regulations as may be adopted by the Committee
for the purpose of administering the Plan shall be final and binding upon
Participant. Until the Restricted Shares shall vest or be forfeited, the
Company shall, upon written request therefor, send a copy of the Plan, in its
then current form, to the holder of record of the Restricted Shares.
10. Employment or Contract Rights. No provision of this Agreement
-----------------------------
shall (i) confer upon Participant any right to continue in the employ of or
contract with the Company or any of its subsidiaries, (ii) affect the right of
the Company and each of its subsidiaries to terminate the employment or contract
of Participant, with or without cause, or (iii) confer upon Participant any
right to participate in any employee welfare or benefit plan or other program of
the Company or any of its subsidiaries other than the Plan. Participant hereby
acknowledges and agrees that the Company and each of its subsidiaries may
terminate the employment or contract of Participant at any time and for any
reason, or for no reason, unless Participant and the Company or such subsidiary
are parties to a written employment or independent contractor agreement that
expressly provides otherwise.
11. Governing Law. This Agreement shall be governed by and construed
-------------
and enforced in accordance with the laws of the State of Delaware without
reference to choice or conflict of law principles.
4
<PAGE>
IN WITNESS WHEREOF, the Company and Participant have duly executed
this Agreement as of the Date of Award.
UNITED PANAM FINANCIAL CORP.
By
-------------------------------
Authorized Representative
PARTICIPANT
---------------------------------
Signature
---------------------------------
Printed Name
---------------------------------
Street Address
---------------------------------
City, State and Zip Code
---------------------------------
Social Security Number
5
<PAGE>
Exhibit 10.61
PROMISSORY NOTE
---------------
$225,000.00 Los Angeles, California
October 15, 1997
FOR VALUE RECEIVED, LAWRENCE J. GRILL (the "Borrower"), promises to
pay to the order of UNITED PANAM FINANCIAL CORP., its successors and assigns
(the "Lender") at 1999 Avenue of the Stars, Suite 2960, Los Angeles, California
90067 or at such other place as might be designated in writing by the Lender,
the principal sum of Three Hundred Thousand Dollars ($225,000.00) or so much
thereof as remains unpaid, together with interest thereon at a fixed rate equal
to Five and Eighty-One One Hundredths Percent (5.81%) per annum. Interest will
be calculated on the basis of the actual days elapsed based on a per diem charge
computed over a year composed of three hundred sixty (360) days.
Principal and interest will be payable as follows: Interest from the
date hereof on the outstanding amount of the Note will be payable annually on
October 15 of each year beginning with October 15, 1998. On October 15, 2000,
the entire unpaid principal balance and all accrued but unpaid interest thereon
will be due and payable.
The Borrower will have the right at any time and from time to time to
prepay the unpaid principal balance of this Note, in whole or in part, without
penalty, but with interest on the unpaid principal balance accrued to the date
of prepayment.
The Borrower agrees that if, and as often as, this Note is placed in
the hands of an attorney for collection or to defend or enforce any of the
Lender's rights under this Note or otherwise relating to the indebtedness hereby
evidenced, the Borrower will pay the Lender's reasonable attorneys' fees, all
court costs and all other expenses incurred by the Lender in connection
therewith. At the option of the Lender, after the failure of the Borrower to
pay any such sum hereunder within thirty (30) days of the date due, the unpaid
balance of this Note will bear interest at Ten Percent (10.0%) per annum.
During the existence of any default, the Lender may apply payments received on
any amount due hereunder or under the terms of any instrument now or hereafter
evidencing or securing payment of this indebtedness as the Lender determines
from time to time.
This Note is issued pursuant to a Loan and Stock Pledge Agreement of
even date herewith (the "LOAN AGREEMENT") and is secured by the security
interests described therein. Upon the breach by the Borrower of any provision
of this Note or of the Loan Agreement, or upon termination of Borrower's
employment by Lender as provided in the Loan Agreement, or occurrence of any
other default or event of default respecting this Note, the Loan Agreement or
any other instrument now or hereafter evidencing or securing the indebtedness
represented
<PAGE>
hereby, at the option of the Lender the entire indebtedness evidenced by this
Note shall become immediately due, payable and collectible as the Lender may
elect, regardless of the date of maturity of this Note.
This Note is issued by the Borrower and accepted by the Lender
pursuant to a lending transaction negotiated, consummated and to be performed in
California. This Note is to be construed according to the internal laws of the
State of California.
The makers, endorsers, sureties, guarantors and all other persons who
might become liable for all or any part of this obligation severally waive
presentment for payment, protest and notice of nonpayment. Such parties consent
to any extension of time (whether one or more) of payment hereof, release of all
or any part of the collateral securing payment hereof or release of any party
liable for the payment of this obligation. Any such extension or release may be
made without notice to any such party and without discharging such party's
liability hereunder.
This Note is intended to strictly conform with all usury laws to the
extent applicable to the transactions contemplated hereby. The provisions of
this Note and of all agreements between the Borrower and the Lender are hereby
expressly limited so that in no contingency or event whatsoever, shall the
amount contracted for, charged, paid or agreed to be paid to the Lender for the
use, forbearance or retention of money or credit hereunder or otherwise exceed
the maximum rate permitted by law therefor. If, from any circumstance
whatsoever, performance or fulfillment of any provision hereof or of any
agreement between the Borrower and the Lender shall, at the time of the
execution and delivery thereof, or at the time or performance of such provision
shall be due, involve or purport to require any payment in excess of the limits
prescribed by law, the obligation to be performed or fulfilled shall be reduced
automatically to the limit prescribed by law without the necessity of the
execution of any amendment or new document.
IN WITNESS WHEREOF, the Borrower has executed this instrument
effective the date first above written.
/s/ LAWRENCE J. GRILL
__________________________________
LAWRENCE J. GRILL
2
<PAGE>
Exhibit 10.62
LOAN AND STOCK PLEDGE AGREEMENT
-------------------------------
THIS LOAN AND STOCK PLEDGE AGREEMENT (the "LOAN AGREEMENT" or
"AGREEMENT") is made and executed as of October 15, 1997, by and among LAWRENCE
J. GRILL ("PLEDGOR") and UNITED PANAM FINANCIAL CORP., a Delaware corporation
("LENDER") in connection with a loan or loans of up to $300,000.00 to be made by
Lender to Pledgor ("LOAN") pursuant to a Promissory Note or Notes (each a
"NOTE") of Borrower of even date herewith, the proceeds of which have been used
by Pledgor to purchase 200 shares of the common stock of Lender (the "SHARES")
acquired by exercise of a Stock Option (the "OPTION") pursuant to a Stock Option
Agreement between Lender and Pledgor originally dated as of October 18, 1994.
The Option was granted under and subject to the terms of Lender's 1994 Stock
Option Plan.
1. Purchase of Shares. Pledgor hereby exercises the Option and
------------------
agrees, in connection therewith, to (i) the pledge of the Shares pursuant to
this Agreement as security for the Loan; (ii) the terms and restrictions of the
May 16, 1994 Stockholders Agreement governing ownership and transfer of the
Shares; (iii) the acceptance of a certificate for the Shares subject to the
legend conditions required by the May 16, 1994 Stockholders Agreement and
applicable securities laws; and (iv) repay the Loan in full thirty days after
termination of Pledgor's employment by Lender or its affiliates as provided in
the 1994 Stock Option Plan of Lender. Pledgor represents he is acquiring Shares
for his own account and not with a view toward the resale or other distribution
thereof, and agrees that the Shares are "restricted securities" for purposes of
the Securities Act of 1933 and Rule 144 thereunder. Lender hereby agrees that
all installments of the Option shall be immediately vested and exercisable
notwithstanding any contrary provision in the Stock Option Agreement between
Lender and Pledgor.
2. Obligations; Security Interest. This Loan Agreement and the
------------------------------
security interest created hereby are given for the purpose of securing the
payment and performance of any and all of Pledgor's presently existing or
hereafter arising obligations and liabilities owing to Lender ("Obligations"),
including, without implied limitation (i) payment of all indebtedn
ess evidenced
by the Note; (ii) all present and future obligations of Pledgor under this
Agreement; and (iii) any and all amendments, modifications, renewals and/or
extensions of any of the foregoing, including, but not limited to amendments,
modifications, renewals or extensions which are evidenced by new or additional
instruments, documents or agreements or which change the rate of interest on any
indebtedness or obligations secured hereby. The term "Obligations" as used
herein is intended to mean Obligations in its most comprehensive sense and
includes all present and future indebtedness, liabilities, undertakings,
covenants and other obligations of Pledgor, whether voluntary or involuntary,
absolute or contingent, liquidated or unliquidated, determined or undetermined,
earned or unearned, and due or not due.
3. PLEDGE. Pledgor hereby assigns, grants, pledges and transfers to
------
Lender, as security for the payment and performance of the Obligations described
in Paragraph 1 above,
<PAGE>
a security interest in, and lien upon all of Pledgor's right, title and interest
in and to the following:
(a) the Shares;
(b) stock powers ("POWERS") duly executed in blank, with such
signatures properly guaranteed covering all of the Shares; and
(c) the proceeds of each of the foregoing including, without
limitation any and all dividends, cash, instruments and other property from time
to time received, receivable, or otherwise distributed in respect of or in
exchange for any of the Shares or Options (the "PROCEEDS"). The Shares, the
Powers, and the Proceeds shall be collectively referred to as the "COLLATERAL".
4. DELIVERIES. Concurrent with the execution hereof, Pledgor has
----------
delivered Certificate(s) No(s). ____________________, representing all of the
Shares, to Lender together with related Powers or endorsements, to be held
pursuant to the terms hereof for the benefit of Lender.
5. LENDER'S DUTIES. Lender shall have no duty with respect to the
---------------
Collateral other than the duty to use reasonable care if it is in its
possession. Without limiting the generality of the foregoing, Lender shall be
under no obligation to take any steps necessary to preserve rights in the
Collateral against any other parties, to sell same if it threatens to decline in
value, or to exercise any rights represented thereby; provided, however, that
Lender may, at its option, do so, and any and all expenses incurred in
connection therewith shall be for the sole account of Pledgor.
6. VOTING RIGHTS; DIVIDENDS; ETC. During the term of this Agreement
-----------------------------
and as long as no breach of agreement, representation, warranty or obligation of
Pledgor or other event of default, under this Loan Agreement or the Note (an
"EVENT OF DEFAULT"), shall have occurred and be continuing beyond any applicable
cure period:
(a) Pledgor shall be entitled to exercise any and all voting and
other consensual rights pertaining to the Shares or any part thereof for any
purpose not inconsistent with the terms of this Agreement.
(b) Pledgor shall be entitled to receive and retain any and all
dividends and distributions paid in respect of the Shares provided, however,
that any and all
(i) dividends and distributions paid or payable other than
in cash in respect of, and instruments and other property received, receivable
or otherwise distributed in respect of, or in exchange for, any Shares,
<PAGE>
(ii) dividends and distributions paid or payable in cash in
respect of any Shares in connection with a partial or total liquidation or
dissolution or in connection with a reduction of capital, capital surplus or
paid-in surplus, and
(iii) cash paid with respect to, payable or otherwise
distributed on redemption of, or in exchange for, any Shares, shall be forthwith
delivered to Lender to hold as Collateral and shall, if received by Pledgor, be
received in trust for the benefit of Lender, be segregated from the other
property or funds of Pledgor, and be forthwith delivered to Lender as Collateral
in the same form as so received (with any necessary endorsement).
(c) Lender shall execute and deliver (or cause to be executed
and delivered) to Pledgor all such proxies and other instruments as Pledgor may
reasonably request for the purpose of enabling Pledgor to exercise those voting
and other rights which it is entitled to exercise pursuant to paragraph 6(a)
above and to receive those dividends or distributions which it is authorized to
receive and retain pursuant to paragraph 6(b) above.
(d) If an Event of Default shall have occurred and be continuing
and any amounts shall be due and payable (whether by acceleration, maturity, or
otherwise) under any of the Obligations, all rights of Pledgor to exercise the
voting and other consensual rights which it would otherwise be entitled to
exercise pursuant to this paragraph 6 and to receive the dividends and
distributions which it would otherwise be authorized to receive and retain
pursuant to this paragraph shall, at Lender's option, cease, and all such rights
shall, at Lender's option, thereupon become vested in Lender so long as an Event
of Default shall continue, and Lender shall, at its option, thereupon have the
sole right to exercise such voting and other consensual rights and to receive
and hold as Collateral such dividends and interest payments.
7. REPRESENTATIONS. Pledgor warrants, represents and covenants that:
---------------
(a) except as set forth in the Securities Act of 1933, as
amended (the "Act") and the May 16, 1994 Shareholders Agreement, there are no
restrictions upon the transfer of any of the Collateral and Pledgor has the
right to pledge and grant a security interest in or otherwise transfer such
Collateral free of any encumbrances or rights of third parties;
(b) all of the Collateral is and shall remain free from all
liens, claims, encumbrances, and purchase money or other security interests, and
Pledgor shall not, without Lender's prior written consent, sell, transfer or
otherwise dispose of any or all of the Collateral;
(c) this Agreement, and the delivery to Lender of the
certificates representing the Shares creates a valid and perfected security
interest in the Collateral in favor of Lender, and all actions necessary or
desirable to such perfection have been duly taken;
(d) no authorization or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required either
(i) for the grant by Pledgor of the security interest granted hereby or for the
execution, delivery or performance of this
-3-
<PAGE>
Agreement by Pledgor; (ii) for the perfection of or exercise by Lender of its
rights and remedies hereunder; or (iii) for the exercise by Lender of the voting
or other rights provided for in this Agreement or the remedies in respect of the
Shares pursuant to this Agreement (except as may be required in connection with
a disposition of the Shares by laws affecting the offering and sale of
securities generally);
(e) Pledgor has made its own arrangements for keeping informed
of changes or potential changes affecting the Collateral (including, but not
limited to, rights to convert, rights to subscribe, payment of dividends,
reorganization or other exchanges, tender offers and voting rights) and Pledgor
agrees that Lender shall have no responsibility or liability for informing
Pledgor of any such changes or potential changes or for taking any action or
omitting to take any action with respect thereto; and
(f) All of the outstanding Shares have been duly and validly
issued by Remediation and they are fully paid and nonassessable.
8. SHARE ADJUSTMENT. In the event that during the term of this
----------------
Agreement, any reclassification, readjustment or other change is declared or
made in the capital structure of Borrower, or any Option is exercised, all new
substituted and additional shares, options, or other securities, issued, or
issuable, to Pledgor by reason of any such change or exercise shall be delivered
to and held by Lender under the terms of this Agreement in the same manner as
the Collateral originally pledged hereunder.
9. WARRANTS. In the event that during the term of this Agreement,
--------
subscription warrants or any other rights or options shall be issued or
exercised in connection with the Collateral, such warrants, rights and options
acquired by Pledgor shall be immediately assigned by Pledgor to Lender and all
new stock or other securities so acquired by Pledgor shall also be immediately
assigned to Lender to be held under the terms of this Agreement in the same
manner as the Collateral originally pledged hereunder.
10. CONSENT. Pledgor hereby consents that, from time-to-time, before
-------
or after the occurrence or existence of any Event of Default, with or without
notice to or assent from Pledgor, any other security at any time held by or
available to Lender for any of the Obligations or any other security at any time
held by or available to Lender of any other person, firm or corporation
secondarily or otherwise liable for any of the Obligations, may be exchanged,
surrendered, or released and any of the Obligations may be changed, altered,
renewed, extended, continued, surrendered, compromised, waived or released, in
whole or in part, as Lender may see fit, and Pledgor shall remain bound under
this Agreement notwithstanding any such exchange, surrender, release,
alteration, renewal, extension, continuance, compromise, waiver or inaction, or
extension of further credit.
11. REMEDIES UPON DEFAULT. Upon the occurrence of an Event of
---------------------
Default, Lender shall have, in addition to any other rights given by law or the
rights hereunder, all of
-4-
<PAGE>
the rights and remedies with respect to the Collateral of a secured party under
the California Uniform Commercial Code ("CODE").
In addition, with respect to the Collateral, or any part thereof, upon
ten (10) business days' notice to Pledgor following the occurrence of an Event
of Default and Pledgor's failure to cause such Event of Default to be cured
within such period, Lender may sell or cause the same to be sold at any public
or private sale, in one or more sales or lots, at such price as Lender may deem
best, and for cash or on credit or for future delivery, without assumption of
any credit risk, and the purchaser of any or all of the Collateral so sold shall
thereafter hold the same absolutely, free from any claim, encumbrance or right
of any kind whatsoever.
Any sale of the Collateral conducted in conformity with reasonable
commercial practices of banks, insurance companies or other financial
institutions disposing of property similar to the Collateral and any sale made
through NASDAQ, any securities exchange or any NASD member shall be conclusively
deemed to be commercially reasonable. Any requirements of reasonable notice
shall be met if such notice is mailed to Pledgor, at the address set forth in
the Loan Agreement, at least ten (10) calendar days before the time of the sale
or disposition. Any other retirement of notice, demand or advertisement for
sale, is, to the extent permitted by law, waived.
Lender may, in its own name, or in the name of a designee or nominee,
buy at any public sale of the Collateral, or to the extent permitted by the
Code, at any private sale. Lender shall have the right to execute any document
or form, in its name or in the name of the Pledgor, which may be necessary or
desirable in connection with such sale of Collateral.
In addition to specific rights provided herein with respect to sales
of the Shares, and subject to applicable law, sales of the Collateral may be
conducted with or without demand and with or without notice or advertisement,
for cash, credit or for future delivery, all as the Lender shall deem
appropriate. Without limiting the foregoing, the Lender may (i) approach and
negotiate with potential purchasers, and (ii) restrict the prospective bidders
or purchasers to persons who will represent and agree that they are purchasing
such Collateral for their own account for investment and not with a view to the
distribution or resale thereof. In the event any such Collateral is sold at
private sale, Pledgor agrees that such sale shall not, by reason merely that it
is a private sale subject to the potential restrictions described herein, or
that there is a possibility that a substantially higher price might have been
realized at a public sale, be deemed to have not been made in a commercially
reasonable manner. Pledgor recognizes that no ready market may exist for such
Collateral and that a sale by Lender of any such Collateral for an amount
substantially less than the value of the Shares may be commercially reasonable
in view of the difficulties that may be encountered in attempting to sell a
large block of the securities of Remediation. Upon consummation of any such
sale, Lender shall have the right to assign, transfer and deliver to the
purchaser or purchasers thereof, the Collateral so sold. Each such Purchaser of
any such sale shall hold the Property sold absolutely free from any claim or
right on the part of the Pledgor, and Pledgor hereby waives (to the extent
permitted by law) all rights of redemption, stay and/or appraisal which Pledgor
now has or may at any time in the future
-5-
<PAGE>
have under any rule of law or statute now existing or hereafter enacted. If any
consent, approval or authorization of any state, municipal or other governmental
agency or authority shall be necessary to effectuate any sale or disposition of
the Collateral, Pledgor shall execute all such applications and other
instruments as may be required in connection with securing any such consent,
approval or authorization and, will otherwise use its best efforts to secure the
same. Under no circumstances will Lender be obligated to register any
securities under the Securities Act of 1933 or any similar qualification or
registration law of any state, unless, in its sole discretion, it shall elect to
do so, in which case the cost of such registration and qualification shall
become part of the Obligations secured hereby.
12. LENDER AS PLEDGOR'S ATTORNEY-IN-FACT. Pledgor hereby irrevocably
------------------------------------
appoints Lender as its attorney-in-fact to arrange for the transfer at any time
of the Collateral on the books of Pledgor to the name of Lender or to the name
of Lender's nominee.
13. FURTHER ASSURANCES. Pledgor agrees that it will cooperate with
------------------
Lender and will execute and deliver, or cause to be executed and delivered, all
such other stock powers, proxies, instruments, and documents and will take all
such other action, as Lender may reasonably request from time to time in order
to carry out the provisions and purposes hereof.
14. ATTORNEYS' FEES AND COSTS. Pledgor hereby agrees to pay all
-------------------------
reasonable attorneys' fees and all other costs and expenses which may be
incurred by Lender in the enforcement of this Agreement, whether or not suit is
brought.
15. NOTICES. All notices or demands by any party hereto to the other
-------
party and relating to this Agreement shall be made in the manner and to the
addresses set forth in the Loan Modification Agreement.
16. CALIFORNIA LAW APPLICABLE. This Agreement shall be governed by,
-------------------------
and construed in accordance with, the laws of the State of California.
17. GENERAL PROVISIONS.
------------------
(a) This Agreement shall be binding and deemed effective when
executed by Pledgor and accepted and executed by Lender.
(b) This Agreement shall bind and inure to the benefit of the
respective successors and assigns of Pledgor and Lender; provided, however, that
Pledgor may not assign this Agreement or any rights hereunder without Lender's
prior written consent and any prohibited assignment shall be absolutely void. No
consent to an assignment by Lender shall release Pledgor from its obligations to
Lender hereunder. Lender may assign its rights and duties hereunder. Lender
reserves the right to sell, assign, transfer, negotiate, or grant participations
in all or any part of, or any interest in rights and benefits hereunder. In
connection therewith, Lender may disclose all documents and information which
Lender now or hereafter may have relating to Pledgor or Pledgor's business.
-6-
<PAGE>
(c) Section headings and numbers have been set forth herein for
convenience only. Unless the contrary is compelled by the context, everything
contained in each Section hereof applies equally to this entire Agreement.
(d) Neither this Agreement nor any uncertainty or ambiguity
herein shall be construed or resolved against Lender or Pledgor, whether under
any rule of construction or otherwise, by virtue of such party's having prepared
the same. On the contrary, this Agreement has been reviewed by each of the
parties and their counsel and shall be construed and interpreted according to
the ordinary meaning of the words used so as to fairly accomplish the purposes
and intentions of all parties hereto.
(e) Each provision of this Agreement shall be severable from
every other provision of this Agreement for the purpose of determining the legal
enforceability of any specific provision.
(f) This Agreement cannot be changed or terminated orally. All
prior agreements, understandings, representations, warranties, and negotiations,
if any, are merged into this Agreement and the other documents and written
agreements entered into in connection herewith and therewith.
(g) THE PARTIES HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (1) ARISING UNDER THIS
AGREEMENT, ANY OF THE LOAN DOCUMENTS OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (2) IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT TO THIS AGREEMENT, THE LOAN DOCUMENTS, OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH,
OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND
THE PARTIES HEREBY AGREE AND CONSENT THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY
PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO
TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first written.
UNITED PANAM FINANCIAL CORP.
A DELAWARE CORPORATION
/s/ LAWRENCE J. GRILL BY: /s/ GUILLERMO BRON
- --------------------------- ----------------------------
LAWRENCE J. GRILL ITS: Chairman
---------------------------
-7-
<PAGE>
EXHIBIT 10.63
PROMISSORY NOTE
---------------
$1,628,000.00 (Unsecured Loan) Los Angeles, California
July 1, 1997
FOR VALUE RECEIVED, PAN AMERICAN GROUP, INC., a Delaware corporation (the
"Borrower"), promises to pay to the order of PAN AMERICAN FINANCIAL, L.P., a
Delaware limited partnership, its successors and assigns (the "Lender") at 1999
Avenue of the Stars, Suite 2960, Los Angeles, California 90067 or at such other
place as might be designated in writing by the Lender, the principal sum of One
Million Six Hundred Twenty-Eight Thousand Dollars ($1,628,000.00) or so much
thereof as has been disbursed by the Lender and remains unpaid, together with
interest thereon at a fixed rate equal to Eight Percent (8.0%) per annum.
Interest will be calculated on the basis of the actual days elapsed based on a
per diem charge computed over a year composed of three hundred sixty (360) days.
Principal and interest will be paid as follows: Interest on the amounts
disbursed, accrued from the date of disbursement through the last day of each
semi annual period ending June 30 and December 31, will be paid by the 15th day
of each succeeding month, commencing on October 15, 1997. On June 30, 1999, the
entire unpaid principal balance and all accrued but unpaid interest thereon will
be due and payable.
The Borrower will have the right at any time and from time to time to
prepay the unpaid principal balance of this Note, in whole or in part, without
penalty, but with interest on the unpaid principal balance accrued to the date
of prepayment.
The Borrower agrees that if, and as often as, this Note is placed in the
hands of an attorney for collection or to defend or enforce any of the Lender's
rights under this Note or otherwise relating to the indebtedness hereby
evidenced, the Borrower will pay the Lender's reasonable attorneys' fees, all
court costs and all other expenses incurred by the Lender in connection
therewith. At the option of the Lender, after the failure of the Borrower to
pay any such sum hereunder within ten (10) days of the date due, the unpaid
balance of this Note will bear interest at Ten percent (10.0%) per annum. During
the existence of any default, the Lender may apply payments received on any
amount due hereunder or under the terms of any instrument now or hereafter
evidencing or securing payment of this indebtedness as the Lender determines
from time to time.
This Note is issued by the Borrower and accepted by the Lender pursuant to
a lending transaction negotiated, consummated and to be performed in California.
This Note is to be construed according to the internal laws of the State of
California.
<PAGE>
The makers, endorsers, sureties, guarantors and all other persons who
might become liable for all or any part of this obligation severally waive
presentment for payment, protest and notice of nonpayment. Such parties consent
to any extension of time (whether one or more) of payment hereof, release of all
or any part of the collateral securing payment hereof or release of any party
liable for the payment of this obligation. Any such extension or release may be
made without notice to any such party and without discharging such party's
liability hereunder.
This Note is intended to strictly conform with all usury laws to the
extent applicable to the transactions contemplated hereby. The provisions of
this Note and of all agreements between the Borrower and the Lender are hereby
expressly limited so that in no contingency or event whatsoever, shall the
amount contracted for, charged, paid or agreed to be paid to the Lender for the
use, forbearance or retention of money or credit hereunder or otherwise exceed
the maximum rate permitted by law therefor. If, from any circumstance
whatsoever, performance or fulfillment of any provision hereof or of any
agreement between the Borrower and the Lender shall, at the time of the
execution and delivery thereof, or at the time or performance of such provision
shall be due, involve or purport to require any payment in excess of the limits
prescribed by law, the obligation to be performed or fulfilled shall be reduced
automatically to the limit prescribed by law without the necessity of the
execution of any amendment or new document.
IN WITNESS WHEREOF, the Borrower has executed this instrument
effective the date first above written.
PAN AMERICAN GROUP, INC.
a Delaware corporation
By: /s/ GUILLERMO BRON
--------------------------------
Its: Chairman
----------------------------
2
<PAGE>
Exhibit 10.64
PROMISSORY NOTE
---------------
$258,000.00 (Unsecured Loan) Los Angeles, California
July 1, 1997
FOR VALUE RECEIVED, PAN AMERICAN GROUP, INC., a Delaware corporation
(the "Borrower"), promises to pay to the order of BVG WEST CORP., its successors
and assigns (the "Lender") at 1999 Avenue of the Stars, Suite 2960, Los Angeles,
California 90067 or at such other place as might be designated in writing by the
Lender, the principal sum of Two Hundred Fifty-Eight Thousand Dollars
($258,000.00) or so much thereof as has been disbursed by the Lender and remains
unpaid, together with interest thereon at a fixed rate equal to Eight Percent
(8.0%) per annum. Interest will be calculated on the basis of the actual days
elapsed based on a per diem charge computed over a year composed of three
hundred sixty (360) days.
Principal and interest will be paid as follows: Interest on the
amounts disbursed, accrued from the date of disbursement through the last day of
each semi annual period ending June 30 and December 31, will be paid by the 15th
day of each January and July, commencing with January 15, 1998. On June 30,
1999, the entire unpaid principal balance and all accrued but unpaid interest
thereon will be due and payable.
The Borrower will have the right at any time and from time to time to
prepay the unpaid principal balance of this Note, in whole or in part, without
penalty, but with interest on the unpaid principal balance accrued to the date
of prepayment.
The Borrower agrees that if, and as often as, this Note is placed in
the hands of an attorney for collection or to defend or enforce any of the
Lender's rights under this Note or otherwise relating to the indebtedness hereby
evidenced, the Borrower will pay the Lender's reasonable attorneys' fees, all
court costs and all other expenses incurred by the Lender in connection
therewith. At the option of the Lender, after the failure of the Borrower to pay
any such sum hereunder within ten (10) days of the date due, the unpaid balance
of this Note will bear interest at Ten Percent (10.0%) per annum. During the
existence of any default, the Lender may apply payments received on any amount
due hereunder or under the terms of any instrument now or hereafter evidencing
or securing payment of this indebtedness as the Lender determines from time to
time.
This Note is issued by the Borrower and accepted by the Lender
pursuant to a lending transaction negotiated, consummated and to be performed in
California. This Note is to be construed according to the internal laws of the
State of California.
<PAGE>
The makers, endorsers, sureties, guarantors and all other persons who
might become liable for all or any part of this obligation severally waive
presentment for payment, protest and notice of nonpayment. Such parties consent
to any extension of time (whether one or more) of payment hereof, release of all
or any part of the collateral securing payment hereof or release of any party
liable for the payment of this obligation. Any such extension or release may be
made without notice to any such party and without discharging such party's
liability hereunder.
This Note is intended to strictly conform with all usury laws to the
extent applicable to the transactions contemplated hereby. The provisions of
this Note and of all agreements between the Borrower and the Lender are hereby
expressly limited so that in no contingency or event whatsoever, shall the
amount contracted for, charged, paid or agreed to be paid to the Lender for the
use, forbearance or retention of money or credit hereunder or otherwise exceed
the maximum rate permitted by law therefor. If, from any circumstance
whatsoever, performance or fulfillment of any provision hereof or of any
agreement between the Borrower and the Lender shall, at the time of the
execution and delivery thereof, or at the time or performance of such provision
shall be due, involve or purport to require any payment in excess of the limits
prescribed by law, the obligation to be performed or fulfilled shall be reduced
automatically to the limit prescribed by law without the necessity of the
execution of any amendment or new document.
IN WITNESS WHEREOF, the Borrower has executed this instrument
effective the date first above written.
PAN AMERICAN GROUP, INC.
a Delaware corporation
By: /s/ GUILLERMO BRON
-----------------------------------
Its: Chairman
-----------------------------
2
<PAGE>
Exhibit 10.65
PROMISSORY NOTE
---------------
$52,500.00 (Unsecured Loan) Los Angeles, California
July 1, 1997
FOR VALUE RECEIVED, PAN AMERICAN GROUP, INC., a Delaware corporation
(the "Borrower"), promises to pay to the order of LAWRENCE J. GRILL, his
successors and assigns (the "Lender") at 1999 Avenue of the Stars, Suite 2960,
Los Angeles, California 90067 or at such other place as might be designated in
writing by the Lender, the principal sum of Fifty-Two Thousand Five Hundred
Dollars ($52,500.00) or so much thereof as has been disbursed by the Lender and
remains unpaid, together with interest thereon at a fixed rate equal to Eight
Percent (8.0%) per annum. Interest will be calculated on the basis of the actual
days elapsed based on a per diem charge computed over a year composed of three
hundred sixty (360) days.
Principal and interest will be paid as follows: Interest on the
amounts disbursed, accrued from the date of disbursement through the last day of
each semi annual period ending June 30 and December 31, will be paid by the 15th
day of each January and July, commencing with January 15, 1998. On June 30,
1999, the entire unpaid principal balance and all accrued but unpaid interest
thereon will be due and payable.
The Borrower will have the right at any time and from time to time to
prepay the unpaid principal balance of this Note, in whole or in part, without
penalty, but with interest on the unpaid principal balance accrued to the date
of prepayment.
The Borrower agrees that if, and as often as, this Note is placed in
the hands of an attorney for collection or to defend or enforce any of the
Lender's rights under this Note or otherwise relating to the indebtedness hereby
evidenced, the Borrower will pay the Lender's reasonable attorneys' fees, all
court costs and all other expenses incurred by the Lender in connection
therewith. At the option of the Lender, after the failure of the Borrower to
pay any such sum hereunder within ten (10) days of the date due, the unpaid
balance of this Note will bear interest at Ten Percent (10.0%) per annum.
During the existence of any default, the Lender may apply payments received on
any amount due hereunder or under the terms of any instrument now or hereafter
evidencing or securing payment of this indebtedness as the Lender determines
from time to time.
This Note is issued by the Borrower and accepted by the Lender
pursuant to a lending transaction negotiated, consummated and to be performed in
California. This Note is to be construed according to the internal laws of the
State of California.
<PAGE>
The makers, endorsers, sureties, guarantors and all other persons who
might become liable for all or any part of this obligation severally waive
presentment for payment, protest and notice of nonpayment. Such parties consent
to any extension of time (whether one or more) of payment hereof, release of all
or any part of the collateral securing payment hereof or release of any party
liable for the payment of this obligation. Any such extension or release may be
made without notice to any such party and without discharging such party's
liability hereunder.
This Note is intended to strictly conform with all usury laws to the
extent applicable to the transactions contemplated hereby. The provisions of
this Note and of all agreements between the Borrower and the Lender are hereby
expressly limited so that in no contingency or event whatsoever, shall the
amount contracted for, charged, paid or agreed to be paid to the Lender for the
use, forbearance or retention of money or credit hereunder or otherwise exceed
the maximum rate permitted by law therefor. If, from any circumstance
whatsoever, performance or fulfillment of any provision hereof or of any
agreement between the Borrower and the Lender shall, at the time of the
execution and delivery thereof, or at the time or performance of such provision
shall be due, involve or purport to require any payment in excess of the limits
prescribed by law, the obligation to be performed or fulfilled shall be reduced
automatically to the limit prescribed by law without the necessity of the
execution of any amendment or new document.
IN WITNESS WHEREOF, the Borrower has executed this instrument effective the
date first above written.
PAN AMERICAN GROUP, INC.
a Delaware corporation
By: /s/ GUILLERMO BRON
--------------------------------
Its: Chairman
--------------------------
2
<PAGE>
Exhibit 10.66
PROMISSORY NOTE
---------------
$33,000.00 (Unsecured Loan) Los Angeles, California
July 1, 1997
FOR VALUE RECEIVED, PAN AMERICAN GROUP, INC., a Delaware corporation
(the "Borrower"), promises to pay to the order of ROBERT WILSON, his successors
and assigns (the "Lender") at 1999 Avenue of the Stars, Suite 2960, Los Angeles,
California 90067 or at such other place as might be designated in writing by the
Lender, the principal sum of Thirty-Three Thousand Dollars ($33,000.00) or so
much thereof as has been disbursed by the Lender and remains unpaid, together
with interest thereon at a fixed rate equal to Eight Percent (8.0%) per annum.
Interest will be calculated on the basis of the actual days elapsed based on a
per diem charge computed over a year composed of three hundred sixty (360) days.
Principal and interest will be paid as follows: Interest on the
amounts disbursed, accrued from the date of disbursement through the last day of
each semi annual period ending June 30 and December 31, will be paid by the 15th
day of each January and July, commencing with January 15, 1998. On June 30,
1999, the entire unpaid principal balance and all accrued but unpaid interest
thereon will be due and payable.
The Borrower will have the right at any time and from time to time to
prepay the unpaid principal balance of this Note, in whole or in part, without
penalty, but with interest on the unpaid principal balance accrued to the date
of prepayment.
The Borrower agrees that if, and as often as, this Note is placed in
the hands of an attorney for collection or to defend or enforce any of the
Lender's rights under this Note or otherwise relating to the indebtedness hereby
evidenced, the Borrower will pay the Lender's reasonable attorneys' fees, all
court costs and all other expenses incurred by the Lender in connection
therewith. At the option of the Lender, after the failure of the Borrower to
pay any such sum hereunder within ten (10) days of the date due, the unpaid
balance of this Note will bear interest at Ten Percent (10.0%) per annum.
During the existence of any default, the Lender may apply payments received on
any amount due hereunder or under the terms of any instrument now or hereafter
evidencing or securing payment of this indebtedness as the Lender determines
from time to time.
This Note is issued by the Borrower and accepted by the Lender
pursuant to a lending transaction negotiated, consummated and to be performed in
California. This Note is to be construed according to the internal laws of the
State of California.
<PAGE>
The makers, endorsers, sureties, guarantors and all other persons who
might become liable for all or any part of this obligation severally waive
presentment for payment, protest and notice of nonpayment. Such parties consent
to any extension of time (whether one or more) of payment hereof, release of all
or any part of the collateral securing payment hereof or release of any party
liable for the payment of this obligation. Any such extension or release may be
made without notice to any such party and without discharging such party's
liability hereunder.
This Note is intended to strictly conform with all usury laws to the
extent applicable to the transactions contemplated hereby. The provisions of
this Note and of all agreements between the Borrower and the Lender are hereby
expressly limited so that in no contingency or event whatsoever, shall the
amount contracted for, charged, paid or agreed to be paid to the Lender for the
use, forbearance or retention of money or credit hereunder or otherwise exceed
the maximum rate permitted by law therefor. If, from any circumstance
whatsoever, performance or fulfillment of any provision hereof or of any
agreement between the Borrower and the Lender shall, at the time of the
execution and delivery thereof, or at the time or performance of such provision
shall be due, involve or purport to require any payment in excess of the limits
prescribed by law, the obligation to be performed or fulfilled shall be reduced
automatically to the limit prescribed by law without the necessity of the
execution of any amendment or new document.
IN WITNESS WHEREOF, the Borrower has executed this instrument
effective the date first above written.
PAN AMERICAN GROUP, INC.
a Delaware corporation
By: /s/ GUILLERMO BRON
-----------------------------
Its: Chairman
----------------------
2
<PAGE>
Exhibit 10.67
PROMISSORY NOTE
---------------
$28,500.00 (Unsecured Loan) Los Angeles, California
July 1, 1997
FOR VALUE RECEIVED, PAN AMERICAN GROUP, INC., a Delaware corporation
(the "Borrower"), promises to pay to the order of VILLANEUVA MANAGEMENT, INC.,
its successors and assigns (the "Lender") at 1999 Avenue of the Stars, Suite
2960, Los Angeles, California 90067 or at such other place as might be
designated in writing by the Lender, the principal sum of Twenty-Eight Thousand
Five Hundred Dollars ($28,500.00) or so much thereof as has been disbursed by
the Lender and remains unpaid, together with interest thereon at a fixed rate
equal to Eight Percent (8.0%) per annum. Interest will be calculated on the
basis of the actual days elapsed based on a per diem charge computed over a year
composed of three hundred sixty (360) days.
Principal and interest will be paid as follows: Interest on the
amounts disbursed, accrued from the date of disbursement through the last day of
each semi annual period ending June 30 and December 31, will be paid by the 15th
day of each January and July, commencing with January 15, 1998. On June 30,
1999, the entire unpaid principal balance and all accrued but unpaid interest
thereon will be due and payable.
The Borrower will have the right at any time and from time to time to
prepay the unpaid principal balance of this Note, in whole or in part, without
penalty, but with interest on the unpaid principal balance accrued to the date
of prepayment.
The Borrower agrees that if, and as often as, this Note is placed in
the hands of an attorney for collection or to defend or enforce any of the
Lender's rights under this Note or otherwise relating to the indebtedness hereby
evidenced, the Borrower will pay the Lender's reasonable attorneys' fees, all
court costs and all other expenses incurred by the Lender in connection
therewith. At the option of the Lender, after the failure of the Borrower to
pay any such sum hereunder within ten (10) days of the date due, the unpaid
balance of this Note will bear interest at Ten Percent (10.0%) per annum.
During the existence of any default, the Lender may apply payments received on
any amount due hereunder or under the terms of any instrument now or hereafter
evidencing or securing payment of this indebtedness as the Lender determines
from time to time.
This Note is issued by the Borrower and accepted by the Lender
pursuant to a lending transaction negotiated, consummated and to be performed in
California. This Note is to be construed according to the internal laws of the
State of California.
<PAGE>
The makers, endorsers, sureties, guarantors and all other persons who
might become liable for all or any part of this obligation severally waive
presentment for payment, protest and notice of nonpayment. Such parties consent
to any extension of time (whether one or more) of payment hereof, release of all
or any part of the collateral securing payment hereof or release of any party
liable for the payment of this obligation. Any such extension or release may be
made without notice to any such party and without discharging such party's
liability hereunder.
This Note is intended to strictly conform with all usury laws to the
extent applicable to the transactions contemplated hereby. The provisions of
this Note and of all agreements between the Borrower and the Lender are hereby
expressly limited so that in no contingency or event whatsoever, shall the
amount contracted for, charged, paid or agreed to be paid to the Lender for the
use, forbearance or retention of money or credit hereunder or otherwise exceed
the maximum rate permitted by law therefor. If, from any circumstance
whatsoever, performance or fulfillment of any provision hereof or of any
agreement between the Borrower and the Lender shall, at the time of the
execution and delivery thereof, or at the time or performance of such provision
shall be due, involve or purport to require any payment in excess of the limits
prescribed by law, the obligation to be performed or fulfilled shall be reduced
automatically to the limit prescribed by law without the necessity of the
execution of any amendment or new document.
IN WITNESS WHEREOF, the Borrower has executed this instrument
effective the date first above written.
PAN AMERICAN GROUP, INC.
a Delaware corporation
By: /s/ GUILLERMO BRON
--------------------------
Its: Chairman
----------------------
2
<PAGE>
EXHIBIT 10.68
MASTER REPURCHASE AGREEMENT GOVERNING
PURCHASES AND SALES OF MORTGAGE LOANS
Dated as of October 31, 1997
Between
LEHMAN COMMERCIAL PAPER INC.,
as Buyer
and
PAN AMERICAN BANK, FSB,
as Seller
1. APPLICABILITY
From time to time, the parties hereto may, subject to the terms hereof, enter
into transactions in which Pan American Bank, FSB ("Seller") agrees to transfer
------
to Lehman Commercial Paper Inc. ("Buyer") Mortgage Loans against the transfer of
-----
funds by Buyer, with a simultaneous agreement by Buyer to transfer to Seller
such Mortgage Loans at a date certain not later than the date of transfer
specified in the Confirmation, against the transfer of funds by Seller. Each
such transaction shall be referred to herein as a "Transaction" and shall be
-----------
governed by this Agreement and the related Confirmation, unless otherwise agreed
in writing. This Agreement does not constitute a commitment of Buyer or Seller
to enter into Transactions but rather sets forth the procedures to be followed
in connection with requests to enter into Transactions by the Seller to Buyer.
Seller hereby acknowledges that Buyer is under no obligation to agree to enter
into Transactions under this Agreement.
2. DEFINITIONS
"Act of Insolvency" means, with respect to Buyer or Seller, Seller's corporate
-----------------
parent or United PanAm Mortgage Corporation, (i) the filing of a petition,
commencing, or authorizing the commencement of any case or proceeding under any
bankruptcy, insolvency, reorganization, liquidation, dissolution or similar law
relating to the protection of creditors, or suffering any such petition or
proceeding to be commenced by another which is consented to, not timely
contested or results in entry of an order for relief; (ii) the seeking the
appointment of a receiver, trustee, custodian or similar official for such party
or any substantial part of the property of either, (iii) the appointment of a
receiver, conservator, or manager for such party by any governmental
<PAGE>
agency or authority having the jurisdiction to do so; (iv) the making or
offering by such party of a composition with its creditors or a general
assignment for the benefit of creditors, (v) the admission by such party of its
inability to pay its debts or discharge its obligations as they become due or
mature; or (vi) that any governmental authority or agency or any person, agency
or entity acting or purporting to act under governmental authority shall have
taken any action to condemn, seize or appropriate, or to assume custody or
control of, all or any substantial part of the property of such party, or shall
have taken any action to displace the management of such party or to curtail its
authority in the conduct of the business of such party.
"Additional Loans" means Mortgage Loans or cash provided by Seller to Buyer or
----------------
its designee pursuant to Section 4(a).
"Affiliate" means an affiliate of a party as such term is defined in the United
---------
States Bankruptcy Code in effect from time to time.
"Agency" means FNMA, FHLMC or GNMA.
------
"Agreement" means this Master Repurchase Agreement Governing Purchases and Sales
---------
of Mortgage Loans between Buyer and Seller, as amended from time to time.
"Balloon Loan" means any Mortgage Loan with a remaining term of less than 15
------------
years that provided on the date of origination for scheduled payments by the
Mortgagor based upon an amortization schedule extending beyond its maturity
date.
"Business Day" means a day other than (i) a Saturday or Sunday, or (ii) a day in
------------
which the New York Stock Exchange is authorized or obligated by law or executive
order to be closed.
"Buyer" has the meaning specified in Section 1.
-----
"`C' Loan" means a Mortgage Loan made by Seller to a Mortgagor with a `C+', `C'
--------
or `C-' credit history which is underwritten in accordance with Seller's
underwriting guidelines for `C+', `C' or `C-' credit Mortgage Loans, a copy of
which is attached as Exhibit VI hereto.
----------
"Collateral" has the meaning specified in Section 6.
----------
"Collateral Amount" means, with respect to any Transaction, the amount obtained
-----------------
by application of the applicable Collateral Amount Percentage to the related
Repurchase Price for such Transaction.
"Collateral Amount Percentage" means the amount set forth in the Confirmation
----------------------------
which, in any event, (i) shall not be less than 103% with respect to all
Mortgage Loans in determining whether a Market Value Collateral Deficit exists
pursuant to the first sentence of Section 4(a) hereof and (ii) shall not be less
than 105% with respect to all Mortgage Loans in determining whether a
2
<PAGE>
Securitization Value Collateral Deficit exists pursuant to the second sentence
of Section 4(a) hereof.
"Collateral Deficit" means either a Market Value Collateral Deficit or a
------------------
Securitization Value Collateral Deficit.
"Collateral Information" means the following information with respect to each
----------------------
Mortgage Loan: (i) Seller's loan number , (ii) the Mortgagor's name, (iii) the
address of the Mortgaged Property, (iv) the current interest rate, (v) the
original balance, (vi) current balance as of the last day of the immediately
preceding month, (vii) the paid to date, (viii) the appraisal value of the
Mortgaged Property, (ix) whether interest rate is fixed or adjustable (and if
adjustable, the ARM terms, including the index, spread, adjustment frequency,
next adjustment date, caps and floors), (x) whether the Mortgage Loan is
convertible from ARM to fixed, (xi) the lien position of the Mortgage Loan on
the Mortgaged Property (and if a second lien, the outstanding principal balance
of the first lien), (xii) the occupancy status of the Mortgaged Property
(including whether owner occupied), (xiii) whether the Mortgage Loan is a
Balloon Loan, (xiv) the first payment date, (xv) the maturity date, (xvi) the
principal and interest payment , (xvii) the property type of the Mortgaged
Property, (xviii) the applicable credit grade, (xix) the note date, (xx) whether
the Mortgage Loan is a Wet Ink Mortgage Loan and (xxi) whether the Mortgage Loan
is originated by Seller (i.e. a retail loan) or by a correspondent lender (i.e.
a correspondent loan).
"Confirmation" has the meaning specified in Section 3(a).
------------
"Custodial Agreement" means that custodial agreement, dated as of November 31,
-------------------
1997, by and among Buyer, Seller and the Custodian.
"Custodial Delivery" means the form executed by the Seller in order to deliver
------------------
the Mortgage Loan Schedule and/or the Mortgage File to Buyer or its designee
(including the Custodian) pursuant to Section 7, a form of which is attached
hereto as Exhibit II.
"Custodian" means the custodian under the Custodial Agreement. The initial
---------
custodian is Bankers Trust Company.
"`D' Loan" means a Mortgage Loan made by Seller to a Mortgagor with a `D+', `D'
--------
or `D-' credit history which is underwritten in accordance with Seller's
underwriting guidelines for `D+', `D' or `D-' credit Mortgage Loans, a copy of
which is attached as Exhibit VI hereto.
----------
"Delinquent" means, with respect to any Mortgage Loan, the period of time from
----------
the date on which a Mortgagor fails to pay an obligation under the terms of such
Mortgage Loan (without regard to any applicable grace periods) to the date on
which such payment is made.
"Event of Default" has the meaning specified in Section 13.
----------------
"FHA" means the Federal Housing Administration, an agency within HUD.
---
3
<PAGE>
"FHLMC" means the Federal Home Loan Mortgage Corporation.
-----
"FHLMC Guide" means the FHLMC Sellers/Servicers Guide, as amended from time to
-----------
time.
"First Mortgage" means the Mortgage that is the first lien on the Mortgaged
--------------
Property.
"FNMA" means the Federal National Mortgage Association.
----
"FNMA Guide" means the FNMA Selling, Servicing and MBS Guides, as amended from
----------
time to time.
"GNMA" means the Government National Mortgage Association.
----
"GNMA Guide" means the GNMA Mortgage-Backed Securities Guide, as amended from
----------
time to time.
"Hedge" means, with respect to any or all of the Purchased Mortgage Loans, any
-----
interest rate swap, cap or collar agreement or similar arrangements providing
for protection against fluctuations in interest rates or the exchange of nominal
interest obligations, either generally or under specific contingencies, entered
into by Seller with Buyer or its Affiliates, and reasonably acceptable to the
Buyer.
"HUD" means the United States Department of Housing and Urban Development.
---
"Income" means, with respect to any Purchased Mortgage Loan at any time, any
------
principal thereof then payable and all interest, dividends or other
distributions payable thereon less any related servicing fee(s) charged by a
subservicer.
"LIBOR" means the London Interbank Offered Rate for one-month United States
-----
dollar deposits as set forth on page 3750 of Telerate as of 11:00 a.m., London
time, on the date of determination.
"Loan-to-Value Ratio" means with respect to any Mortgage Loan as of any date,
-------------------
the fraction, expressed as a percentage, the numerator of which is the principal
balance of such Mortgage Loan at the date of determination and the denominator
of which is the value of the related Mortgaged Property as set forth in the
appraisal of such Mortgaged Property obtained in connection with the origination
of such Mortgage Loan. For purposes of calculating a Mortgage Loan secured by a
Second Mortgage, the principal balance of the related First Mortgage as well as
the Second Mortgage shall be included in the numerator.
"Market Value" means as of any date with respect to any Mortgage Loan, the price
------------
at which such Mortgage Loan could readily be sold as determined by Buyer in its
sole discretion; provided, however, that Buyer shall not take into account, for
purposes of calculating Market Value, any Mortgage Loan (i) which has been
subject to Transactions for more than 180 days, (ii) which,
4
<PAGE>
together with the other Mortgage Loans subject to then outstanding Transactions,
would cause the 30+ Delinquency Percentage to exceed 3%, (iii) which are more
than 59 days Delinquent, (iv) which is a Wet Ink Mortgage Loan for more than 5
Business Days, or (v) with respect to which there is a breach of a
representation, warranty or covenant made by Seller in this Agreement.
"Market Value Collateral Deficit" has the meaning specified in Section 4(a).
-------------------------------
"Mortgage" means a mortgage, deed of trust, deed to secure debt or other
--------
instrument, creating a valid and enforceable first or second lien on or a first
or second priority ownership interest in an estate in fee simple in real
property and the improvements thereon, securing a mortgage note or similar
evidence of indebtedness.
"Mortgage File" means the documents specified as the "Mortgage File" in Section
-------------
7(d), together with any additional documents and information required to be
delivered to Buyer or its designee (including the Custodian) pursuant to this
Agreement.
"Mortgage Loan" means (i) a non-securitized whole loan, namely a conventional
-------------
mortgage loan secured by a first or second lien on a one to four family
residential property which conform to Seller's underwriting guidelines
(including, without limitation, Wet-Ink Mortgage Loans) or (ii) another type of
non-securitized whole loan as may be agreed upon in writing by the parties
hereto from time to time.
"Mortgage Loan Schedule" means a schedule of Mortgage Loans attached to each
----------------------
Trust Receipt, Confirmation and Custodial Delivery.
"Mortgage Note" means a note or other evidence of indebtedness of a Mortgagor
-------------
secured by a Mortgage.
"Mortgaged Property" means the real property securing repayment of the debt
------------------
evidenced by a Mortgage Note.
"Mortgagee" means the record holder of a Mortgage Note secured by a Mortgage.
---------
"Mortgagor" means the obligor on a Mortgage Note and the grantor of the related
---------
Mortgage.
"Periodic Payment" has the meaning specified in Section 5(b).
----------------
"Person" means an individual, partnership, corporation, joint stock company,
------
trust or unincorporated organization or a governmental agency or political
subdivision thereof.
"Price Differential" means, with respect to any Transaction hereunder as of any
------------------
date, the aggregate amount obtained by daily application of the Pricing Rate for
such Transaction to the Purchase Price for such Transaction on a 360 day per
year basis for the actual number of days during the period commencing on (and
including) the Purchase Date for such Transaction and
5
<PAGE>
ending on (but excluding) the Repurchase Date (reduced by any amount of such
Price Differential previously paid by Seller to Buyer with respect to such
Transaction).
"Pricing Rate" means the per annum percentage rate specified in the Confirmation
------------
for determination of the Price Differential which shall not exceed LIBOR plus
the applicable Pricing Spread.
"Pricing Spread" means [Material ommitted pursuant to a request for confidential
--------------
treatment and filed separately with the Securities and Exchange Commission.]%;
provided that during any period for which any such Mortgage Loans are Wet Ink
Mortgage Loans, the applicable Pricing Spread shall be [Material ommitted
pursuant to a request for confidential treatment and filed separately with the
Securities and Exchange Commission.]% with respect to such Mortgage Loans.
"Prime Rate" means the rate of interest published by The Wall Street Journal,
----------
northeast edition, as the "prime rate".
"Purchase Date" means the date on which Purchased Mortgage Loans are transferred
-------------
by Seller to Buyer or its designee (including the Custodian) as specified in the
Confirmation.
"Purchase Price" means on each Purchase Date, the price at which Purchased
--------------
Mortgage Loans are transferred by Seller to Buyer or its designee (including the
Custodian), which, subject to compliance with the collateral maintenance
requirements of Section 4, shall equal the outstanding principal amount of such
Purchased Mortgage Loans; provided, however, that the Purchase Price of any
Mortgage Loan shall not in any event exceed the outstanding principal amount
thereof.
"Purchased Mortgage Loans" means the Mortgage Loans sold by Seller to Buyer in a
------------------------
Transaction, any Additional Loans and any Substituted Mortgage Loans.
"Replacement Loans" has the meaning specified in Section 14(b)(ii).
-----------------
"Repurchase Date" means the date on which Seller is to repurchase the Purchased
---------------
Mortgage Loans from Buyer, including any date determined by application of the
provisions of Sections 3 or 14, as specified in the Confirmation.
"Repurchase Price" means the price at which Purchased Mortgage Loans are to be
----------------
transferred from Buyer or its designee (including the Custodian) to Seller upon
termination of a Transaction, which will be determined in each case (including
Transactions terminable upon demand) as the sum of the Purchase Price and the
Price Differential as of the date of such determination decreased by all cash,
Income and Periodic Payments actually received by Buyer pursuant to Sections
4(a), 5(a) and 5(b), respectively.
"Second Mortgage" means a Mortgage that is a second lien on the Mortgaged
---------------
Property.
"Securitization Value" means, as of any date with respect to any Mortgage Loans,
--------------------
the price at
6
<PAGE>
which such Mortgage Loans could be securitized and sold in a securitization as
determined by Buyer in its sole discretion; provided, however, that Buyer shall
not take into account, for purposes of calculating Securitization Value, any
Mortgage Loan (i) which has been subject to Transactions for more than 180 days,
(ii) which, together with the other Mortgage Loans subject to then outstanding
Transactions, would cause the 30+ Delinquency Percentage to exceed 2%, (iii)
which are more than 59 days Delinquent, (iv) which is a Wet Ink Mortgage Loan
for more than 5 Business Days or (v) with respect to which there is a breach of
a representation, warranty or covenant made by Seller in this Agreement.
"Securitization Value Collateral Deficit" has the meaning specified in
---------------------------------------
Section 4(a).
"Seller" has the meaning specified in Section 1.
------
"Servicing Agreement" has the meaning specified in Section 25.
-------------------
"Servicing Records" has the meaning specified in Section 25.
-----------------
"Substituted Mortgage Loans" means any Mortgage Loans substituted for Purchased
--------------------------
Mortgage Loans in accordance with Section 9 hereof.
"30+ Delinquency Percentage" means the fraction, expressed as a percentage, the
--------------------------
numerator of which is the aggregate Purchase Price of Purchased Mortgage Loans
subject to then outstanding Transactions which are more than 30 days Delinquent
and the denominator of which is the aggregate Purchase Price of all Purchased
Mortgage Loans subject to then outstanding Transactions.
"Transaction" has the meaning specified in Section 1.
-----------
"Trust Receipt" means a trust receipt issued by Custodian to Buyer confirming
-------------
the Custodian's possession of certain mortgage loan files which are the property
of and held by Custodian for the benefit of the Buyer or the registered holder
of such trust receipt.
"Wet Ink Mortgage Loan" means a non-securitized whole loan, namely a
---------------------
conventional mortgage loans secured by a first lien on a one to four family
residential property for which a Mortgage File has not been delivered to the
Custodian.
3. INITIATION; CONFIRMATION; TERMINATION;
MAXIMUM TRANSACTION AMOUNTS
(a) An agreement to enter into a Transaction may be entered into orally or in
writing at the initiation of either Buyer or Seller. In any event, Buyer shall
confirm the terms of each
7
<PAGE>
Transaction by issuing a written confirmation to Seller promptly after the
parties enter into such Transaction in the form of Exhibit I attached hereto (a
"Confirmation"). Such Confirmation shall describe the Purchased Mortgage Loans,
------------
identify Buyer and Seller and set forth (i) the Purchase Date, (ii) the Purchase
Price, (iii) the Repurchase Date, unless the Transaction is to be terminable on
demand, (iv) the Pricing Rate applicable to the Transaction, (v) the applicable
Collateral Amount Percentages and (vi) additional terms or conditions not
inconsistent with this Agreement. After receipt of the Confirmation, Seller
shall, subject to the provisions of subsection (c) below, sign the Confirmation
and promptly return it to Buyer. The Purchase Price for any Transaction shall
exceed $1,000,000.
(b) Any Confirmation by Buyer shall be deemed to have been received by Seller
on the date actually received by Seller.
(c) Each Confirmation, together with this Agreement, shall be conclusive
evidence of the terms of the Transaction(s) covered thereby unless objected to
in writing by Seller no more than two (2) Business Days after the date the
Confirmation was received by Seller or unless a corrected Confirmation is sent
by Buyer. An objection sent by Seller must state specifically that writing
which is an objection, must specify the provision(s) being objected to by
Seller, must set forth such provision(s) in the manner that the Seller believes
they should be stated, and must be received by Buyer no more than two (2)
Business Days after the Confirmation was received by Seller.
(d) In the case of Transactions terminable upon demand, such demand shall be
made by Seller by telephone or otherwise, no later than 1:00 p.m. (New York
Time) on the Business Day prior to the day on which such termination will be
effective.
(e) On the Repurchase Date, termination of the Transaction will be effected by
transfer to Seller or its designee of the Purchased Mortgage Loans (and any
Income in respect thereof received by Buyer not previously credited or
transferred to, or applied to the obligations of, Seller pursuant to Section 5)
against the simultaneous transfer of the Repurchase Price to an account of
Buyer. Seller is obligated to obtain the Mortgage Files from Buyer or its
designee at Seller's expense on the Repurchase Date.
(f) With respect to all Transactions hereunder, the aggregate Purchase Price
for all Purchased Mortgage Loans at any one time subject to then outstanding
Transactions shall not exceed $100,000,000.
(g) The aggregate Purchase Price of all Purchased Mortgage Loans which are Wet
Ink Mortgage Loans subject to then outstanding Transactions shall not exceed the
lesser of $15,000,000 or 15% of the aggregate Purchase Price of all Purchased
Mortgage Loans subject to Transactions.
4. COLLATERAL AMOUNT MAINTENANCE
(a) If at any time the aggregate Market Value of all Purchased Mortgage Loans
subject to all Transactions is less than the aggregate Collateral Amount for all
such Transactions (a "Market Value Collateral Deficit"), then Buyer may by
-------------------------------
notice to Seller require Seller to transfer to Buyer or its designee (including
the Custodian) Mortgage Loans ("Additional Loans") or cash, so that the cash and
----------------
aggregate Market Value of the Purchased Mortgage Loans, including any such
Additional Loans, will thereupon equal or exceed the aggregate Collateral
Amount. If at any
8
<PAGE>
time the aggregate Securitization Value of all Mortgage Loans subject to
Transactions is less than the aggregate Collateral Amount for all such
Transactions (a "Securitization Value Collateral Deficit"), then Buyer may by
---------------------------------------
notice to Seller require Seller to transfer to Buyer or its designee (including
the Custodian) Additional Loans or cash, so that the cash and aggregate
Securitization Value of such Mortgage Loans, including any such Additional
Loans, will thereupon equal or exceed the aggregate Collateral Amount.
(b) Notice required pursuant to subsection (a) above may be given by any means
of telecopier or telegraphic transmission. A notice for the payment or delivery
in respect of a Collateral Deficit received before 9:00 a.m. on a Business Day,
local time of the party receiving the notice, must be met not later than 5:00
p.m. on the Business Day on which the notice was given, local time of the party
receiving the notice. Any notice given on a Business Day after 9:00 a.m., local
time of the party receiving the notice, shall be met not later than 2:00 p.m.
(New York time) on the following Business Day. The failure of Buyer, on any one
or more occasions, to exercise its rights under subsection (a) of this Section
shall not change or alter the terms and conditions to which this Agreement is
subject or limit the right of the Buyer to do so at a later date. Buyer and
Seller agree that a failure or delay to exercise its rights under subsections
(a) of this Section shall not limit Buyer's rights under this Agreement or
otherwise existing by law or in any way create additional rights for Seller.
(c) In the event that Seller fails to comply with the provisions of this
Section 4, Buyer shall not enter into any additional Transactions hereunder
after the date of such failure.
5. INCOME PAYMENTS
(a) Where a particular Transaction's term extends over an Income payment date
on the Purchased Mortgage Loans subject to that Transaction such Income shall be
the property of Buyer. Notwithstanding the foregoing, so long as no Event of
Default shall have occurred and be continuing, Seller shall be entitled to all
Income with respect to Purchased Mortgage Loans subject to Transactions. Upon
the occurrence and continuance of an Event of Default, all Income with respect
to Purchased Mortgage Loans subject to Transactions shall be held in a
segregated account established by the Custodian for the benefit of Buyer and
distributed under the Custodial Agreement.
(b) Notwithstanding that Buyer and Seller intend that the Transactions
hereunder be sales to Buyer of the Purchased Mortgage Loans, Seller shall pay by
wire transfer to Buyer the accreted value of the Price Differential (less any
amount of such Price Differential previously paid by Seller to Buyer)(each such
payment, a "Periodic Payment") on the first Business Day of each month.
----------------
(c) Buyer shall offset against the Repurchase Price of each such Transaction
all Income and Periodic Payments actually received by Buyer pursuant to Sections
5(a) and (b), respectively.
6. SECURITY INTEREST
(a) Buyer and the Seller intend that the Transactions hereunder be sales to
Buyer of the Purchased Mortgage Loans and not loans from Buyer to Seller secured
by the Purchased Mortgage Loans. However, in order to preserve Buyer's rights
under this Agreement in the event that a court or other forum recharacterizes
the Transactions hereunder as loans and as security for the performance by
Seller of all of Seller's obligations to Buyer under this Agreement and the
Transactions entered into pursuant to this Agreement, Seller grants Buyer a
first priority security interest in the Purchased Mortgage Loans, Servicing
Records, insurance relating to the Purchased Mortgage Loans, Income, any and all
Hedges, any and all custodial accounts and escrow
9
<PAGE>
accounts relating to the Purchased Mortgage Loans and any other contract rights,
general intangibles and other assets relating to the Purchased Mortgage Loans or
any interest in the Purchased Mortgage Loans and the servicing of the Purchased
Mortgage Loans and any and all replacements, substitutions, distributions on or
proceeds of any and all of the foregoing (collectively, the "Collateral").
----------
(b) Seller shall pay all fees and expenses associated with perfecting Buyer's
security interest in the Collateral, including, without limitation, the cost of
filing financing statements under the Uniform Commercial Code and recording
assignments of Mortgage, as and when required by Buyer in its sole discretion.
(c) Seller covenants to take such further actions as are necessary in order to
perfect Buyer's first priority security interest in the Hedges.
7. PAYMENT, TRANSFER AND CUSTODY
(a) Unless otherwise mutually agreed in writing, all transfers of funds
hereunder shall be in immediately available funds.
(b) On or before each Purchase Date, Seller shall deliver or cause to be
delivered to Buyer or its designee the Custodial Delivery in the form attached
hereto as Exhibit II.
(c) On the Purchase Date for each Transaction, ownership of the Purchased
Mortgage Loans shall be transferred to the Buyer or its designee (including the
Custodian) against the simultaneous transfer of the Purchase Price to an account
of Seller specified in the Confirmation. Seller, simultaneously with the
delivery to Buyer or its designee (including the Custodian) of the Purchased
Mortgage Loans relating to each Transaction hereby sells, transfers, conveys and
assigns to Buyer or its designee (including the Custodian) without recourse, but
subject to the terms of this Agreement, all the right, title and interest of
Seller in and to the Purchased Mortgage Loans together with all right, title and
interest in and to the proceeds of any related insurance policies.
(d) In connection with each sale, transfer, conveyance and assignment, on or
prior to each Purchase Date with respect to each Mortgage Loan which is not a
Wet Ink Mortgage Loan (or with respect to item (vii) below within five Business
Days after the Purchase Date), the Seller shall deliver or cause to be delivered
and released to the Custodian the following original documents (collectively the
"Mortgage File"), pertaining to each of the Purchased Mortgage Loans identified
-------------
in the Custodial Delivery delivered therewith:
(i) the original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of ________ without recourse, and without
representation or warranty, express or implied" and signed in the name of
the last endorsee (the "Last Endorsee") by an authorized officer (in the
-------------
event that the Mortgage Loan was acquired by the Last Endorsee in a merger,
the signature must be in the following form: "[the Last Endorsee],
successor by merger to [name of predecessor]"; in the event that the
Mortgage Loan was acquired or originated while doing business under another
name, the signature must be in the following form: "[the Last Endorsee],
formerly known as [previous name]");
(ii) the original of any guarantee executed in connection with the
Mortgage Note (if any);
(iii) the original Mortgage with evidence of recording thereon or copies
certified by Seller to have been sent for recording;
10
<PAGE>
(iv) the originals of all assumption, modification, consolidation or
extension agreements, with evidence of recording thereon or copies
certified by Seller to have been sent for recording;
(v) the original assignment of Mortgage in blank for each Mortgage Loan,
in form and substance acceptable for recording and signed in the name of
the Last Endorsee (in the event that the Mortgage Loan was acquired by the
Last Endorsee in a merger, the signature must be in the following form:
"[the Last Endorsee], successor by merger to [name of predecessor]"; in the
event that the Mortgage Loan was acquired or originated while doing
business under another name, the signature must be in the following form:
"[the Last Endorsee], formerly known as [previous name]");
(vi) the originals of all intervening assignments of mortgage with
evidence of recording thereon or copies certified by Seller to have been
sent for recording;
(vii) the original policy of title insurance or a true copy thereof or,
if such policy has not yet been delivered by the insurer, the commitment or
binder to issue the same; and
(viii) the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage (if any).
(e) In connection with each sale, transfer, conveyance and assignment with
respect to each Mortgage Loan which is a Wet Ink Mortgage Loan, on or prior to
the fifth Business Day following each Purchase Date, Seller shall deliver or
cause to be delivered to the Custodian a complete Mortgage File. Further, if
requested by Buyer, on the Purchase Date with respect to each Mortgage Loan
which is a Wet Ink Mortgage Loan, Seller shall fax an executed copy of the
respective Mortgage Note to the Custodian. On the date on which the Buyer
receives a Trust Receipt from the Custodian certifying that a complete Mortgage
File with respect to a Wet Ink Mortgage Loan is in the possession of the
Custodian, such Wet Ink Mortgage Loan be deemed a standard Mortgage Loan (and
no longer a Wet Ink Mortgage Loan) for all purposes hereunder including, without
limitation, determination of the Pricing Spread and compliance with subsection
(aaa) of Exhibit V.
(f) With respect to all of the Mortgage Loans delivered by Seller to Buyer or
its designee (including the Custodian), Seller shall execute an omnibus power of
attorney substantially in the form of Exhibit III attached hereto irrevocably
appointing Buyer its attorney-in-fact with full power to complete and record the
assignment of Mortgage, complete the endorsement of the Mortgage Note and take
such other steps as may be necessary or desirable to enforce Buyer's rights
against such Mortgage Loans, the related Mortgage Files and the Servicing
Records.
(g) Buyer shall deposit the Mortgage Files representing the Purchased Mortgage
Loans, or direct that the Mortgage Files be deposited directly, with the
Custodian. The Mortgage Files shall be maintained in accordance with the
Custodial Agreement.
(h) Any Mortgage Files not delivered to Buyer or its designee (including the
Custodian) are and shall be held in trust by Seller or its designee for the
benefit of Buyer as the owner thereof. Seller or its designee shall maintain a
copy of the Mortgage File and the originals of the Mortgage File not delivered
to Buyer or its designee. The possession of the Mortgage File by Seller or its
designee is at the will of the Buyer for the sole purpose of servicing the
related Purchased Mortgage Loan, and such retention and possession by the Seller
or its designee is in a custodial capacity only. The books and records
(including, without limitation, any computer records or tapes) of Seller or its
designee shall be marked appropriately to reflect clearly the sale of the
related Purchased Mortgage Loan to Buyer. Seller or its designee (including the
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Custodian) shall release its custody of the Mortgage File only in accordance
with written instructions from Buyer, unless such release is required as
incidental to the servicing of the Purchased Mortgage Loans or is in connection
with a repurchase of any Purchased Mortgage Loan by Seller.
8. REHYPOTHECATION OR PLEDGE OF PURCHASED MORTGAGE LOANS
Title to all Purchased Mortgage Loans shall pass to Buyer and Buyer shall have
free and unrestricted use of all Purchased Mortgage Loans. Nothing in this
Agreement shall preclude Buyer from engaging in repurchase transactions with the
Purchased Mortgage Loans or otherwise pledging, repledging, hypothecating, or
rehypothecating the Purchased Mortgage Loans, but no such transaction shall
relieve Buyer of its obligations to transfer Purchased Mortgage Loans to Seller
pursuant to Section 3. Nothing contained in this Agreement shall obligate Buyer
to segregate any Purchased Mortgage Loans delivered to Buyer by Seller.
9. SUBSTITUTION
(a) Subject to Section 9(b), Seller may, upon one (1) Business Days' written
notice to Buyer, with a copy to Custodian, substitute other Mortgage Loans for
any Purchased Mortgage Loans. Such substitution shall be made by transfer to
Buyer or its designee (including the Custodian) of the Mortgage Files of such
other Mortgage Loans together with a Custodial Delivery and transfer to Seller
or its designee of the Purchased Mortgage Loans requested for release. After
substitution, the substituted Mortgage Loans, shall be deemed to be Purchased
Mortgage Loans subject to the same Transaction as the released Mortgage Loans.
(b) Notwithstanding anything to the contrary in this Agreement, Seller may not
substitute other Mortgage Loans for any Purchased Mortgage Loans (i) if after
taking into account such substitution, a Collateral Deficit would occur or (ii)
such substitution would cause a breach of any provision of this Agreement.
10. REPRESENTATIONS AND WARRANTIES
(a) Each of Buyer and Seller represents and warrants to the other that (i) it
is duly authorized to execute and deliver this Agreement, to enter into the
Transactions contemplated hereunder and to perform its obligations hereunder and
has taken all necessary action to authorize such execution, delivery and
performance; (ii) it will engage in such Transactions as principal; (iii) the
person signing this Agreement on its behalf is duly authorized to do so on its
behalf; (iv) this Agreement is legal, valid and binding obligation of it,
enforceable against it in accordance with its terms, (v) no approval, consent or
authorization of the Transactions contemplated by this Agreement from any
federal, state, or local regulatory authority having jurisdiction over it is
required or, if required, such approval, consent or authorization has been or
will, prior to the Purchase Date, be obtained; (vi) the execution, delivery, and
performance of this Agreement and the Transactions hereunder will not violate
any law, regulation, order, judgment, decree, ordinance, charter, by-law, or
rule applicable to it or its property or constitute a default (or an event
which, with notice or lapse of time, or both would constitute a default) under
or result in a breach of any agreement or other instrument by which it is bound
or by which any of its assets are affected; (vii) it has received approval and
authorization to enter into this Agreement and each and every Transaction
actually entered into hereunder pursuant to its internal policies and
procedures; and
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(viii) neither this Agreement nor any Transaction pursuant hereto are entered
into in contemplation of insolvency or with intent to hinder, delay or defraud
any creditor.
(b) Seller represents and warrants to Buyer that as of the Purchase Date for
the purchase of any Purchased Mortgage Loans by Buyer from Seller and as of the
date of this Agreement and any Transaction hereunder and at all times while this
Agreement and any Transaction hereunder is in full force and effect:
(i) Organization. Seller is duly organized, validly existing and in good
------------
standing under the federal laws of the United States and is duly
licensed, qualified, and in good standing in every state where Seller
transacts business and in any state where any Mortgaged Property is
located if the laws of such state require licensing or qualification in
order to conduct business of the type conducted by Seller therein.
(ii) No Litigation. There is no action, suit, proceeding, arbitration or
-------------
investigation pending or threatened against Seller which, either in any
one instance or in the aggregate, may result in any material adverse
change in the business, operations, financial condition, properties or
assets of Seller, or in any material impairment of the right or ability
of Seller to carry on its business substantially as now conducted, or in
any material liability on the part of Seller, or which if adversely
determined would affect the validity of this Agreement or any of the
Purchased Mortgage Loans or of any action taken or to be taken in
connection with the obligations of Seller contemplated herein, or which
would be likely to impair materially the ability of Seller to perform
under the terms of this Agreement;
(iii) No Broker. Seller has not dealt with any broker, investment banker,
---------
agent, or other person, except for Buyer, who may be entitled to any
commission or compensation in connection with the sale of Purchased
Mortgage Loans pursuant to this Agreement;
(iv) Good Title to Collateral. Purchased Mortgage Loans shall be free and
------------------------
clear of any lien, encumbrance or impediment to transfer (other than the
lien of the related First Mortgage with respect to any Purchased Mortgage
Loans secured by a Second Mortgage), and Seller has good, valid and
marketable title and the right to sell and transfer such Purchased
Mortgage Loans to Buyer.
(v) Delivery of Mortgage File. With respect to each Purchased Mortgage Loans
-------------------------
which is not a Wet Ink Mortgage Loan, the Mortgage Note, the Mortgage,
the assignment of Mortgage and any other documents required to be
delivered under this Agreement and the Custodial Agreement for such
Mortgage Loan has been delivered to the Custodian. Seller or its designee
is in possession of a complete, true and accurate Mortgage File with
respect to each Mortgage Loan, except for such documents the originals of
which have been delivered to the Custodian.
(vi) [Reserved].
(vii) [Reserved].
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(viii) No Untrue Statements. Neither this Agreement nor any written statement
--------------------
made, or any report or other document issued or delivered or to be
issued or delivered by Seller pursuant to this Agreement or in
connection with the transactions contemplated hereby contains any untrue
statement of fact or omits to state a fact necessary to make the
statements contained herein or therein not misleading;
(ix) Origination Practices. The origination practices used by Seller with
---------------------
respect to each Mortgage Loan (i) have been and are in all respects
legal and proper in the mortgage origination business and (ii) are in
accordance with the underwriting guidelines attached hereto as
Exhibit VI;
----------
(x) Performance of Agreement. Seller does not believe, nor does it have any
------------------------
reason or cause to believe, that it cannot perform each and every
covenant contained in this Agreement on its part to be performed;
(xi) Seller Not Insolvent. Seller is not, and with the passage of time does
--------------------
not expect to become, insolvent; and
(xii) No Event of Default. No Event of Default has occurred and is continuing
-------------------
hereunder.
(c) Seller represents and warrants to the Buyer that each Purchased Mortgage
Loan sold hereunder and each pool of Purchased Mortgage Loans sold in a
Transaction hereunder, as of the related Purchase Date conform to the
representations and warranties set forth in Exhibit V attached hereto and that
each Mortgage Loan delivered hereunder as Additional Loans or Substituted
Mortgage Loans, as of the date of such delivery, conforms to the representations
and warranties set forth in Exhibit V hereto. Seller further represents and
warrants to the Buyer that, as of the date of its delivery, the Collateral
Information with respect to each Purchased Mortgage Loan is complete, true and
correct. It is understood and agreed that the representations and warranties
set forth in Exhibit V hereto, if any, shall survive delivery of the respective
Mortgage File to Buyer or its designee (including the Custodian).
(d) On the Purchase Date for any Transaction, Buyer and Seller shall each be
deemed to have made all the foregoing representations with respect to itself as
of such Purchase Date.
11. NEGATIVE COVENANTS OF THE SELLER
On and as of the date of this Agreement and each Purchase Date and until this
Agreement is no longer in force with respect to any Transaction, Seller
covenants that it will not:
(a) take any action which would directly or indirectly impair or adversely
affect Buyer's title to or the value of the Purchased Mortgage Loans;
(b) pledge, assign, convey, grant, bargain, sell, set over, deliver or
otherwise transfer any interest in the Purchased Mortgage Loans to any person
not a party to this Agreement nor will the Seller create, incur or permit to
exist any lien, encumbrance or security interest in or on the Purchased Mortgage
Loans except as described in Section 6 of this Agreement; or
(c) create, incur or permit to exist any lien, encumbrance or security interest
in or on any of the Collateral without the prior express written consent of
Buyer.
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12. AFFIRMATIVE COVENANTS OF THE SELLER
For so long as this Agreement is in effect:
(a) Seller covenants that it will promptly notify Buyer of any material adverse
change in its business operations and/or financial condition;
(b) Seller shall provide Buyer with copies of such documentation as Buyer may
reasonably request evidencing the truthfulness of the representations set forth
in Section 10, including but not limited to resolutions evidencing the approval
of this Agreement by Seller's board of directors or loan committee, copies of
the minutes of the meetings of Seller's board of directors or loan committee at
which this Agreement and the Transactions contemplated by this Agreement were
approved;
(c) Seller shall, at Buyer's request, take all action necessary to ensure that
Buyer will have a first priority security interest in the Collateral, including,
among other things, filing such Uniform Commercial Code financing statements as
Buyer may reasonably request;
(d) Seller shall notify Buyer no later than one (1) Business Day after
obtaining actual knowledge thereof, if any event has occurred that constitutes
an Event of Default with respect to Seller or any event that with the giving of
notice or lapse of time, or both, would become an Event of Default with respect
to Seller;
(e) Seller covenants to deliver Buyer, at the beginning of each month, a report
listing all present commitments obtained by Seller from credit worthy third-
party investors to purchase the Mortgage Loans within the following sixty days.
Seller must demonstrate based upon such report that it has a whole loan sale
take-out capability to repurchase the Mortgage Loans on the applicable
Repurchase Date;
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(f) Seller covenants to provide Buyer with a copy of any material changes to
Seller's underwriting guidelines prior to the effectiveness of any such change;
(g) Seller covenants, upon request of Buyer after the occurrence of a
Collateral Deficit, to enter into hedging transactions with respect to fixed
rate Purchased Mortgage Loans in order to protect adequately, in the reasonable
judgment against interest rate risks;
(h) Seller covenants to provide Buyer on the first Business Day of each
month, either by direct modem electronic transmission or via a computer
diskette, the Collateral Information in computer readable format with respect to
all Purchased Mortgage Loans then subject to Transactions;
(i) Seller covenants to provide Buyer or its designee with the option and
right (but not the obligation) of acting as a lead managing underwriter or
placement agent for any securities of the Seller or its subsidiaries
collateralized by, or representing interests in, the Purchased Mortgage Loans
(each such transaction, a "Securitization"). Each Securitization shall contain
--------------
terms mutually acceptable to Buyer and Seller (including, without limitation,
customary provisions regarding representations and warranties, covenants,
delivery terms, conditions, indemnification, contribution and termination). If
Buyer or its affiliate declines to participate in any Securitization, Seller or
its subsidiaries may cause such transaction to be executed by others without
prejudice to Buyer's rights as to future transactions; and
(j) Seller covenants to provide Buyer with the following financial and
reporting information:
(i) Within 90 days after the last day of its fiscal year, Seller's
audited combined and combining statements of income and statements of
changes in cash flow for such year and balance sheets as of the end of
such year in each case presented fairly in accordance with GAAP, and
accompanied, in all cases, by an unqualified report of a "Big Six"
nationally recognized independent certified public accounting firm
consented to by Buyer (which consent shall not be unreasonably
withheld).
(ii) Within 60 days after the last day of the first three fiscal
quarters in any fiscal year, Seller's combined and combining statements
of income and statements of changes in cash flow for such quarter and
balance sheets as of the end of such quarter presented fairly in
accordance with GAAP.
(iii) Within 30 days after the last day of each calendar month an
officer's certificate from a senior officer of the Seller addressed to
Buyer certifying that, as of such calendar month, (x) Seller is in
compliance with all of the terms, conditions and requirements of this
Agreement, and (y) no Event of Default exists.
13. EVENTS OF DEFAULT
(a) If any of the following events (each an "Event of Default") occur, Seller
----------------
and Buyer shall have the rights set forth in Section 14, as applicable:
(i) Seller or Buyer fails to satisfy or perform any material obligation or
covenant under this Agreement;
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(ii) an Act of Insolvency occurs with respect to Buyer or Seller, Seller's
corporate parent or United PanAm Mortgage Corporation;
(iii) any representation made by Seller shall have been incorrect or untrue
in any material respect when made or repeated or deemed to have been
made or repeated;
(iv) Seller or Buyer shall admit its inability to, or its intention not to,
perform any of its obligations hereunder;
(v) any governmental, regulatory, or self-regulatory authority, including,
but not limited to, the Agencies, takes any action to remove, limit,
restrict, suspend or terminate the rights, privileges, or operations
of the Seller or any of its Affiliates, including suspension as an
issuer, lender or seller/servicer of mortgage loans, which suspension
has a material adverse effect on the ordinary business operations of
Seller or Seller's Affiliate, and which continues for more than 24
hours;
(vi) Seller dissolves, merges or consolidates with another entity (unless
(A) it is the surviving party or (B) the entity into which it mergers
has equity and a market value of at least that of the Seller
immediately prior to such merger and such entity expressly assumes the
obligations of the Seller at the time of such merger), or sells,
transfers, or otherwise disposes of a material portion of its business
or assets;
(vii) Buyer, in its good faith judgment, believes that there has been a
material adverse change in the business, operations, corporate
structure or financial condition of Seller or that Seller will not
meet any of its obligations under any Transaction pursuant to this
Agreement, this Agreement or any other agreement between the parties;
(viii)Seller is in default under any other agreement to which it is a party,
provided, however, such a default shall not constitute an Event of
Default if the exercise of such remedies as are available to Seller's
counterparty with respect to such default would not result in a
material adverse change in the business operations or financial
condition of the Seller;
(ix) A final judgment by any competent court in the United States of
America for the payment of money in an amount of at least $25,000 is
rendered against the Seller, and the same remains undischarged or
unpaid for a period of sixty (60) days during which execution of such
judgment is not effectively stayed;
(x) This Agreement shall for any reason cease to create a valid, first
priority security interest in any of the Purchased Mortgage Loans
purported to be covered hereby;
(xi) A Market Value Collateral Deficit or Securitization Value Collateral
Deficit occurs with respect to Seller or Buyer, as applicable, and is
not eliminated within the time period specified in Section 4(b); or
(xii) An "event of default" has occurred pursuant to a Hedge.
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(b) In making a determination as to whether an Event of Default has occurred,
the parties hereto shall be entitled to rely on reports published or broadcast
by media sources believed by such party to be generally reliable and on
information provided to it by any other sources believed by it to be generally
reliable, provided that such party reasonably and in good faith believes such
information to be accurate and has taken such steps as may be reasonable in the
circumstances to attempt to verify such information.
14. REMEDIES
(a) If an Event of Default occurs with respect to Seller, the following rights
and remedies are available to Buyer:
(i) At the option of Buyer, exercised by written notice to Seller (which
option shall be deemed to have been exercised, even if no notice is
given, immediately upon the occurrence of an Act of Insolvency), the
Repurchase Date for each Transaction hereunder shall be deemed
immediately to occur,
(ii) If Buyer exercises or is deemed to have exercised the option referred
to in subsection (a)(i) of this Section,
(A) Seller's obligations hereunder to repurchase all Purchased
Mortgage Loans in such Transactions shall thereupon become
immediately due and payable,
(B) to the extent permitted by applicable law, the Repurchase Price
with respect to each such Transaction shall be increased by the
aggregate amount obtained by daily application of, on a 360 day per
year basis for the actual number of days during the period from and
including the date of the exercise or deemed exercise of such option
to but excluding the date of payment of the Repurchase Price as so
increased, (x) the greater of the Prime Rate or the Pricing Rate for
each such Transaction to (y) the Repurchase Price for such
Transaction as of the Repurchase Date as determined pursuant to
subsection (a)(i) of this Section (decreased as of any day by (I) any
amounts actually in the possession of Buyer pursuant to clause (C) of
this subsection, (II) any proceeds from the sale of Purchased
Mortgage Loans applied to the Repurchase Price pursuant to subsection
(a)(xii) of this Section, and (III) any amounts applied to the
Repurchase Price pursuant to subsection (a)(iii) of this Section),
and
(C) all Income actually received by the Buyer or its designee
(including the Custodian) pursuant to Section 5 shall be applied to
the aggregate unpaid Repurchase Price owed by Seller.
(iii) After one Business Day's notice to Seller (which notice need not be
given if an Act of Insolvency shall have occurred, and which may be
the notice given under subsection (a)(i) of this Section), Buyer may
(A) immediately sell, without notice or demand of any kind, at a
public or private sale and at such price or prices Buyer may
reasonably deem satisfactory any or all Purchased Mortgage Loans
subject to a Transaction hereunder or (B) in its sole discretion
elect, in lieu of selling all or a portion of such Purchased Mortgage
Loans, to give Seller credit for such Purchased Mortgage Loans in an
amount equal to the Market Value of the Purchased Mortgage Loans
against the aggregate unpaid Repurchase Price and any other amounts
owing by Seller hereunder. The proceeds of any disposition of
Purchased Mortgage Loans shall be
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applied first to the costs and expenses incurred by Buyer in
connection with Seller's default; second to consequential damages,
including but not limited to costs of cover and/or related hedging
transactions; third to the Repurchase Price; and fourth to any other
outstanding obligation of Seller to Buyer or its Affiliates.
(iv) The parties recognize that it may not be possible to purchase or sell
all of the Purchased Mortgage Loans on a particular Business Day, or
in a transaction with the same purchaser, or in the same manner
because the market for such Purchased Mortgage Loans may not be
liquid. In view of the nature of the Purchased Mortgage Loans, the
parties agree that liquidation of a Transaction or the underlying
Purchased Mortgage Loans does not require a public purchase or sale
and that a good faith private purchase or sale shall be deemed to
have been made in a commercially reasonable manner. Accordingly,
Buyer may elect, in its sole discretion, the time and manner of
liquidating any Purchased Mortgage Loan and nothing contained herein
shall (A) obligate Buyer to liquidate any Purchased Mortgage Loan on
the occurrence of an Event of Default or to liquidate all Purchased
Mortgage Loans in the same manner or on the same Business Day or (B)
constitute a waiver of any right or remedy of Buyer. However, in
recognition of the parties' agreement that the Transactions hereunder
have been entered into in consideration of and in reliance upon the
fact that all Transactions hereunder constitute a single business and
contractual relationship and that each Transaction has been entered
into in consideration of the other Transactions, the parties further
agree that Buyer shall use its best efforts to liquidate all
Transactions hereunder upon the occurrence of an Event of Default as
quickly as is prudently possible in the reasonable judgment of Buyer.
(v) Buyer shall, without regard to the adequacy of the security for the
Seller's obligations under this Agreement, be entitled to the
appointment of a receiver by any court having jurisdiction, without
notice, to take possession of and protect, collect, manage,
liquidate, and sell the Collateral or any portion thereof, and
collect the payments due with respect to the Collateral or any
portion thereof. Seller shall pay all costs and expenses incurred by
Buyer in connection with the appointment and activities of such
receiver.
(vi) Seller agrees that Buyer may obtain an injunction or an order of
specific performance to compel Seller to fulfill its obligations as
set forth in Section 25, if Seller fails or refuses to perform its
obligations as set forth therein.
(vii) Seller shall be liable to Buyer for the amount of all expenses,
reasonably incurred by Buyer in connection with or as a consequence
of an Event of Default, including, without limitation, reasonable
legal fees and expenses and reasonable costs incurred in connection
with hedging or covering transactions.
(viii)Buyer shall have all the rights and remedies provided herein,
provided by applicable federal, state, foreign, and local laws
(including, without limitation, the rights and remedies of a secured
party under the Uniform Commercial Code of the State of New York, to
the extent that the
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Uniform Commercial Code is applicable, and the right to offset any
mutual debt and claim), in equity, and under any other agreement
between Buyer and Seller.
(ix) Buyer may exercise one or more of the remedies available to Buyer
immediately upon the occurrence of an Event of Default and, except to
the extent provided in subsections (a)(i) and (iii) of this Section,
at any time thereafter without notice to Seller. All rights and
remedies arising under this Agreement as amended from time-to-time
hereunder are cumulative and not exclusive of any other rights or
remedies which Buyer may have.
(x) In addition to its rights hereunder, Buyer shall have the right to
proceed against any assets of Seller which may be in the possession
of Buyer or its designee (including the Custodian) including the
right to liquidate such assets and to set off the proceeds against
monies owed by Seller to Buyer pursuant to this Agreement. Buyer may
set off cash, the proceeds of the liquidation of the Purchased
Mortgage Loans, any Collateral or its proceeds, and all other sums or
obligations owed by Seller to Buyer against all of Seller's
obligations to Buyer, whether under this Agreement, under a
Transaction, or under any other agreement between the parties, or
otherwise, whether or not such obligations are then due, without
prejudice to Buyer's right to recover any deficiency. Any cash,
proceeds, or property in excess of any amounts due, or which Buyer
reasonably believes may become due, to it from Seller shall be
returned to Seller after satisfaction of all obligations of Seller to
Buyer.
(xi) Buyer may enforce its rights and remedies hereunder without prior
judicial process or hearing, and Seller hereby expressly waives any
defenses Seller might otherwise have to require Buyer to enforce its
rights by judicial process. Seller also waives any defense Seller
might otherwise have arising from the use of nonjudicial process,
enforcement and sale of all or any portion of the Collateral, or from
any other election of remedies. Seller recognizes that nonjudicial
remedies are consistent with the usages of the trade, are responsive
to commercial necessity and are the result of a bargain at arm's
length.
(xii) Buyer and Seller hereby agree that sales of the Purchased Mortgage
Loans shall be deemed to include and permit the sales of Purchased
Mortgaged Loans pursuant to a securities offering.
(xiii)Notwithstanding the foregoing remedies, if the Event of Default
(other than an Event of Default under Section 13(a)(xi)) arises from
a breach of any representation or warranty set forth in Sections
10(b)(iii), (v) or (ix) or in Exhibit V attached hereto with respect
to a Purchased Mortgage Loan, then Seller may elect, subject to
Buyer's written consent (which consent shall not be unreasonably
withheld or delayed), to cure such default by repurchasing such
Mortgage Loan or substituting for such Mortgage Loan within two (2)
Business Days of such Event of Default, provided, however, that
Seller shall not have the right to make the foregoing election if
such breach causes a default with respect to Mortgage Loans that in
the aggregate represent ten percent (10%) or more of the aggregate
Purchase Price of all Purchased Mortgage Loans subject
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to then outstanding Transactions. The repurchase price for any such
repurchase shall be the outstanding Repurchase Price of such Mortgage
Loan, as the case may be. Any such substitution shall be performed in
accordance with Section 9 of this Agreement.
(b) If an Event of Default occurs with respect to Buyer, the following rights
and remedies are available to Seller:
(i) Upon tender by Seller of payment of the aggregate Repurchase Price
for all such Transactions, Buyer's right, title and interest in all
Purchased Mortgage Loans subject to such Transactions shall be deemed
transferred to Seller, and Buyer shall deliver or cause to be
transferred all such Purchased Mortgage Loans to Seller or its
designee at Buyer's expense.
(ii) If Seller exercises the option referred to in subsection (b)(i) of
this Section and Buyer fails to deliver or cause to be delivered the
Purchased Mortgage Loans to Seller or its designee, after one
Business Day's notice to Buyer, Seller may (A) purchase Mortgage
Loans ("Replacement Loans") that are as similar as is reasonably
-----------------
practicable in characteristics, outstanding principal amounts (as a
pool) and interest rate to any Purchased Mortgage Loans that are not
delivered by Buyer to Seller or its designee as required hereunder or
(B) in its sole discretion elect, in lieu of purchasing Replacement
Loans, to be deemed to have purchased Replacement Loans at a price
therefor on such date, equal to the Market Value of the Purchased
Mortgage Loans.
(iii) Buyer shall be liable to the Seller, and Buyer shall pay to the
Seller on demand, (A) with respect to Purchased Mortgage Loans (other
than Additional Loans), for any excess of the price paid (or deemed
paid) by Seller for Replacement Loans therefor over the Repurchase
Price for such Purchased Mortgage Loans and (B) with respect to
Additional Loans, for the price paid (or deemed paid) by Seller for
the Replacement Loans therefor. In addition, Buyer shall be liable to
Seller for interest on such remaining liability with respect to each
such purchase (or deemed purchase) of Replacement Loans calculated on
a 360-day year basis for the actual number of days during the period
from and including the date of such purchase (or deemed purchase)
until paid in full by Buyer. Such interest shall be at the greater of
the Pricing Rate or the Prime Rate.
(iv) Buyer shall be liable to Seller for the amount of all expenses
reasonably incurred by Seller in connection with or as a consequence
of an Event of Default, including, without limitation, reasonable
legal expenses and reasonable expenses incurred in connection with
covering existing hedging transactions with respect to the Purchased
Mortgage Loans.
(v) Seller shall have all the rights and remedies provided herein,
provided by applicable federal, state, foreign, and local laws, in
equity, and under any other agreement between Buyer and Seller,
including, without limitation, the right to offset any debt or claim.
(vi) Seller may exercise one or more of the remedies available to Seller
immediately upon the occurrence of an Event of Default and at any
time thereafter without notice to Buyer. All rights and remedies
arising under
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this Agreement as amended from time-to-time hereunder are cumulative
and not exclusive of any other rights or remedies which Seller may
have.
15. ADDITIONAL CONDITION
Seller shall, on the date of the initial Transaction hereunder and, upon the
request of Buyer, on the date of any subsequent Transaction, cause to be
delivered to Buyer, with reliance thereon permitted as to any Person that
purchases the Purchased Mortgage Loan from Buyer in a repurchase transaction, a
favorable opinion or opinions of counsel with respect to the matters set forth
in Exhibit IV attached hereto.
16. SINGLE AGREEMENT
Buyer and Seller acknowledge that, and have entered hereinto and will enter into
each Transaction hereunder in consideration of and in reliance upon the fact
that, all Transactions hereunder constitute a single business and contractual
relationship and that each has been entered into in consideration of the other
Transactions. Accordingly, each of Buyer and Seller agrees (i) to perform all
of its obligations in respect of each Transaction hereunder, and that a default
in the performance of any such obligations shall constitute a default by it in
respect of all Transactions hereunder, (ii) that each of them shall be entitled
to set off claims and apply property held by them in respect of any Transaction
against obligations owing to them in respect of any other Transactions hereunder
and (iii) that payments, deliveries, and other transfers made by either of them
in respect of any Transaction shall be deemed to have been made in consideration
of payments, deliveries, and other transfers in respect of any other
Transactions hereunder, and the obligations to make any such payments,
deliveries, and other transfers may be applied against each other and netted;
provided, however, that the parties hereto acknowledge and agree that each
Purchased Mortgage Loan is identified and unique and nothing in this Agreement
should limit or reduce Buyer's obligation to deliver the Purchased Mortgage
Loans to Seller as and when provided herein.
17. NOTICES AND OTHER COMMUNICATIONS
Unless another address is specified in writing by the respective party to whom
any written notice or other communication is to be given hereunder, all such
notices or communications shall be in writing or confirmed in writing and
delivered at the respective addresses set forth in the Confirmation.
18. ENTIRE AGREEMENT; SEVERABILITY
This Agreement together with the applicable Confirmation constitutes the entire
understanding between Buyer and Seller with respect to the subject matter it
covers and shall supersede any existing agreements between the parties
containing general terms and conditions for repurchase transactions involving
Purchased Mortgage Loans. By acceptance of this Agreement, Buyer and Seller
acknowledge that they have not made, and are not relying upon, any statements,
representations, promises or undertakings not contained in this Agreement. Each
provision and agreement herein shall be treated as separate and independent from
any other provision or agreement herein and shall be enforceable notwithstanding
the unenforceability of any such other provision or agreement.
19. NON-ASSIGNABILITY
The rights and obligations of the parties under this Agreement and under any
Transaction shall not be assigned by Seller without the prior written consent of
Buyer. Subject to the foregoing,
22
<PAGE>
this Agreement and any Transactions shall be binding upon and shall inure to the
benefit of the parties and their respective successors and assigns. Nothing in
this Agreement express or implied, shall give to any person, other than the
parties to this Agreement and their successors hereunder, any benefit or any
legal or equitable right, power, remedy or claim under this Agreement.
20. TERMINABILITY
This Agreement shall terminate upon the written notice from Seller to Buyer to
such effect, except that this Agreement shall, notwithstanding the clause above,
remain applicable to any Transaction then outstanding. Notwithstanding any such
termination or the occurrence of an Event of Default, (i) all of the
representations and warranties hereunder (including those made in Exhibit V) and
the covenant of Seller made in subsection (i) of Section 12 shall each continue
and survive.
21. GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF
LAW PRINCIPLES THEREOF.
22. CONSENT TO JURISDICTION AND ARBITRATION
The parties irrevocably agree to submit to the personal jurisdiction of the
United States District Court for the Southern District of New York, the parties
irrevocably waiving any objection thereto. If, for any reason, federal
jurisdiction is not available, and only if federal jurisdiction is not
available, the parties irrevocably agree to submit to the personal jurisdiction
of the Supreme Court of the State of New York, the parties irrevocably waiving
any objection thereto. Notwithstanding the foregoing two sentences, at either
party's sole option exercisable at any time not later than thirty (30) days
after an action or proceeding has been commenced, the parties agree that the
matter may be submitted to binding arbitration in accordance with the commercial
rules of the American Arbitration Association then in effect in the State of New
York and judgment upon any award rendered by the arbitrator may be entered in
any court having jurisdiction thereof within the City, County and State of New
York; provided, however, that the arbitrator shall not amend, supplement, or
reform in any regard this Agreement or the terms of any Confirmation, the rights
or obligations of any party hereunder or thereunder, or the enforceability of
any of the terms hereof or thereof. Any arbitration shall be conducted before a
single arbitrator who shall be reasonably familiar with repurchase transactions
and the secondary mortgage market in the City, County, and State of New York.
23. NO WAIVERS, ETC.
No express or implied waiver of any Event of Default by either party shall
constitute a waiver of any other Event of Default and no exercise of any remedy
hereunder by any party shall constitute a waiver of its right to exercise any
other remedy hereunder. No modification or waiver of any provision of this
Agreement and no consent by any party to a departure herefrom shall be effective
unless and until such shall be in writing and duly executed by both of the
parties hereto. Any such waiver or modification shall be effective only in the
specific instance and for the specific purpose for which it was given.
24. INTENT
23
<PAGE>
The parties understand and intend that this Agreement and each Transaction
hereunder constitute a "repurchase agreement" and a "securities contract" as
those terms are defined under the relevant provisions of Title 11 of the United
States Code, as amended.
25. SERVICING
(a) Notwithstanding the purchase and sale of the Purchased Mortgage Loans
hereby, Seller shall continue to service the Purchased Mortgage Loans for the
benefit of Buyer and, if Buyer shall exercise its rights to pledge or
hypothecate the Purchased Mortgage Loan prior to the related Repurchase Date
pursuant to Section 8, Buyer's assigns; provided, however, that the obligations
of Seller to service the Purchased Mortgage Loans shall cease, at Seller's
option, upon the payment by Seller to Buyer of the Repurchase Price therefor.
Seller shall service the Purchased Mortgage Loans in accordance with the
servicing standards maintained by other prudent mortgage lenders with respect to
mortgage loans similar to the Purchased Mortgage Loans.
(b) Seller agrees that Buyer is the owner of all servicing records, including
but not limited to any and all servicing agreements, files, documents, records,
data bases, computer tapes, copies of computer tapes, proof of insurance
coverage, insurance policies, appraisals, other closing documentation, payment
history records, and any other records relating to or evidencing the servicing
of Purchased Mortgage Loans (the "Servicing Records"). Seller grants Buyer a
-----------------
security interest in all servicing fees and rights relating to the Purchased
Mortgage Loans and all Servicing Records to secure the obligation of the Seller
or its designee to service in conformity with this Section and any other
obligation of Seller to Buyer. Seller covenants to safeguard such Servicing
Records and to deliver them promptly to Buyer or its designee (including the
Custodian) at Buyer's request.
(c) Upon the occurrence and continuance of an Event of Default, Buyer may, in
its sole discretion, (i) sell its right to the Purchased Mortgage Loans on a
servicing released basis or (ii) terminate the Seller as servicer of the
Purchased Mortgage Loans with or without cause, in each case without payment of
any termination fee.
(d) Seller shall not employ sub-servicers to service the Purchased Mortgage
Loans without the prior written approval of Buyer, which approval shall not be
unreasonably withheld.
(e) Seller shall cause any sub-servicers engaged by Seller to execute a letter
agreement with Buyer acknowledging Buyer's security interest and agreeing that,
upon notice from Buyer (or the Custodian on its behalf) that an Event of Default
has occurred and in continuing hereunder, it shall deposit all Income with
respect to the Purchased Mortgage Loans in the account specified in the third
sentence of Section 5(a).
26. DISCLOSURE RELATING TO CERTAIN FEDERAL PROTECTIONS
The parties acknowledge that they have been advised that in the case of
Transactions in which one of the parties is an "insured depository institution"
as that term is defined in Section 1831(a) of Title 12 of the United States
Code, as amended, funds held by the financial institution pursuant to a
Transaction hereunder are not a deposit and therefore are not insured by the
Federal Deposit Insurance Corporation, the Savings Association Insurance Fund or
the Bank Insurance Fund, as applicable.
24
<PAGE>
27. NETTING
If Buyer and Seller are "financial institutions" as now or hereinafter defined
in Section 4402 of Title 12 of the United States Code ("Section 4402") and any
------------
rules or regulations promulgated thereunder:
(a) All amounts to be paid or advanced by one party to or on behalf of the
other under this Agreement or any Transaction hereunder shall be deemed to be
"payment obligations" and all amounts to be received by or on behalf of one
party from the other under this Agreement or any Transaction hereunder shall be
deemed to be "payment entitlements" within the meaning of Section 4402, and this
Agreement shall be deemed to be a "netting contract" as defined in Section 4402.
(b) The payment obligations and the payment entitlements of the parties hereto
pursuant to this Agreement and any Transaction hereunder shall be netted as
follows. In the event that either party (the "Defaulting Party") shall fail to
----------------
honor any payment obligation under this Agreement or any Transaction hereunder,
the other party (the "Nondefaulting Party") shall be entitled to reduce the
-------------------
amount of any payment to be made by the Nondefaulting Party to the Defaulting
Party by the amount of the payment obligation that the Defaulting Party failed
to honor.
28. MISCELLANEOUS
(a) Time is of the essence under this agreement and all Transactions and all
references to a time shall mean New York time in effect on the date of the
action unless otherwise expressly stated in this Agreement.
(b) Buyer shall be authorized to accept orders and take any other action
affecting any accounts of the Seller in response to instructions given in
writing or orally by telephone or otherwise by any person with apparent
authority to act on behalf of the Seller, and the Seller shall indemnify Buyer,
defend, and hold Buyer harmless from and against any and all liabilities,
losses, damages, costs, and expenses of any nature arising out of or in
connection with any action taken by Buyer in response to such instructions
received or reasonably believed to have been received from the Seller.
(c) If there is any conflict between the terms of this Agreement or any
Transaction entered into hereunder and the Custodial Agreement, this Agreement
shall prevail.
(d) If there is any conflict between the terms of a Confirmation or a corrected
Confirmation issued by the Buyer and this Agreement, the Confirmation shall
prevail.
(e) This Agreement may be executed in counterparts, each of which so executed
shall be deemed to be an original, but all of such counterparts shall together
constitute but one and the same instrument.
(f) The headings in this Agreement are for convenience of reference only and
shall not affect the interpretation or construction of this Agreement.
[Signature page follows.]
25
<PAGE>
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
date set forth above.
LEHMAN COMMERCIAL PAPER INC.,
Buyer
By: /s/ [SIGNATURE ILLEGIBLE]
----------------------------------
Title: Authorized Signatory
-------------------------------
Date: October 31, 1997
--------------------------------
PAN AMERICAN BANK, FSB,
Seller
By: /s/ LAWRENCE J. GRILL
----------------------------------
Title: President
-------------------------------
Date: October 31, 1997
--------------------------------
26
<PAGE>
EXHIBITS
--------
EXHIBIT I Confirmation
EXHIBIT II Form of Custodial Delivery
EXHIBIT III Form of Power of Attorney
EXHIBIT IV Opinion of Counsel to Seller
EXHIBIT V Representations and Warranties
Regarding Mortgage Loan
EXHIBIT VI Seller's Underwriting Guidelines
27
<PAGE>
EXHIBIT I
Form of Confirmation Letter
(date)
Pan American Bank, FSB
1300 South El Camino Real
P.O. Box 2079
San Mateo, California 94401
Attention:
Confirmation No.:
------------------------------
Ladies/Gentlemen:
This letter confirms our oral agreement to purchase from you the Mortgage Loans
listed in Appendix I hereto, pursuant to the Master Repurchase Agreement
Governing Purchases and Sales of Mortgage Loans between us, dated as of October
31, 1997 (the "Agreement"), as follows:
Purchase Date:
Mortgage Loans to be Purchased: See Appendix I hereto.
[Appendix I to Confirmation Letter will list Mortgage Loans]
Aggregate Principal Amount of Purchased Mortgage Loans:
Purchase Price:
Pricing Rate:
Repurchase Date:
Repurchase Price:
Collateral Amount Percentage with respect
to Market Value:
Collateral Amount Percentage with respect
to Securitization Value:
28
<PAGE>
Names and addresses for communications:
Buyer:
Lehman Commercial Paper Inc.
200 Vesey Street
9th Floor
New York, New York 10285-0900
Attention: Central Funding Department
Seller:
Pan American Bank, FSB
1300 South El Camino Real
P.O. Box 2079
San Mateo, California 94401
Attention:
LEHMAN COMMERCIAL PAPER INC.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Agreed and Acknowledged:
PAN AMERICAN BANK, FSB,
Seller
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
29
<PAGE>
EXHIBIT II
Form of Custodial Delivery
On this ___ day of ______, 199__, Pan American Bank, FSB ("Seller"), as the
Seller under that certain Master Repurchase Agreement Governing Purchases and
Sales of Mortgage Loans, dated as of October 31, 1997 (the "Repurchase
Agreement") between the Seller and Lehman Commercial Paper Inc. ("Buyer"), does
hereby deliver to ______ ("Custodian"), as custodian under that certain
Custodial Agreement, dated as of November 6, 1997, among Buyer, Seller and
Custodian the Mortgage Files with respect to the Mortgage Loans to be purchased
by Buyer pursuant to the Repurchase Agreement, which Mortgage Loans are listed
on the Mortgage Loan Schedule attached hereto and which Mortgage Loans shall be
subject to the terms of the Custodial Agreement on the date hereof.
With respect to the Mortgage Files delivered hereby, for the purposes of issuing
the Trust Receipt, the Custodian shall review the Mortgage Files to ascertain
delivery of the documents listed in Annex A attached to the Custodial Agreement.
[The Mortgage Loans delivered hereby constitute Additional Collateral delivered
pursuant to Section 7 of the Custodial Agreement].][The Mortgage Loans delivered
hereby constitute Substituted Collateral pursuant to Section 6 of the Custodial
Agreement and are intended to be substituted for the Purchased Mortgage Loans
listed on the [schedule attached hereto][Request for Release of Documents and
receipt delivered herewith]. The Purchased Mortgage Loans to be released shall
be delivered to _______________.]
Capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Custodial Agreement.
30
<PAGE>
IN WITNESS WHEREOF, the Seller has caused its name to be signed hereto by its
officer thereunto duly authorized as of the day and year first above written.
PAN AMERICAN BANK, FSB,
Seller
By:
-----------------------------
Title:
--------------------------
Name:
---------------------------
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<PAGE>
EXHIBIT III
Form of Power of Attorney
"Know All Men by These Presents, that Pan American Bank, FSB ("Seller"), does
hereby appoint Lehman Commercial Paper Inc. ("Buyer"), its attorney-in-fact to
act in Seller's name, place and stead in any way which Seller could do with
respect to (i) the completion of the endorsements of the Mortgage Notes and the
Assignments of Mortgages, (ii) the recordation of the assignments of Mortgages
and (iii) the enforcement of the Seller's rights under the Mortgage Loans
purchased by Buyer pursuant to a Master Repurchase Agreement Governing
Purchases and Sales of Mortgage Loans dated as of October 31, 1997 between
Seller and Buyer and to take such other steps as may be necessary or desirable
to enforce Buyer's rights against such Mortgage Loans, the related Mortgage
Files and the Servicing Records to the extent that Seller is permitted by law to
act through an agent.
TO INDUCE ANY THIRD PARTY TO ACT HEREUNDER, SELLER HEREBY AGREES THAT ANY THIRD
PARTY RECEIVING A DULY EXECUTED COPY OR FACSIMILE OF THIS INSTRUMENT MAY ACT
HEREUNDER, AND THAT REVOCATION OR TERMINATION HEREOF SHALL BE INEFFECTIVE AS TO
SUCH THIRD PARTY UNLESS AND UNTIL ACTUAL NOTICE OR KNOWLEDGE OF SUCH REVOCATION
OR TERMINATION SHALL HAVE BEEN RECEIVED BY SUCH THIRD PARTY, AND SELLER ON ITS
OWN BEHALF AND ON BEHALF OF SELLER'S ASSIGNS, HEREBY AGREES TO INDEMNIFY AND
HOLD HARMLESS ANY SUCH THIRD PARTY FROM AND AGAINST ANY AND ALL CLAIMS THAT MAY
ARISE AGAINST SUCH THIRD PARTY BY REASON OF SUCH THIRD PARTY HAVING RELIED ON
THE PROVISIONS OF THIS INSTRUMENT.
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<PAGE>
IN WITNESS WHEREOF Seller has caused this Power of Attorney to be executed and
the Seller's seal to be affixed this __ day of November, 1997.
PAN AMERICAN BANK, FSB
(Seal)
By:
---------------------------
Name:
----------------------
Title:
------------------------
33
<PAGE>
EXHIBIT IV
OPINION OF SELLER'S COUNSEL
34
<PAGE>
EXHIBIT V
Representations and Warranties
Regarding Mortgage Loans.
The Seller represents and warrants to the Buyer that, with respect to
each Mortgage Loan sold in a Transaction hereunder, as of the related Purchase
Date:
(a) Mortgage Loans as Described. The information set forth in the Mortgage
---------------------------
Loan Schedule is complete, true and correct;
(b) Payments Current Within 59 Days. The Mortgage Loan (i) together with the
-------------------------------
other Purchased Mortgage Loans subject to Transactions, would not cause the
30+ Delinquency Percentage to exceed 3%, and (ii) is not more than 59 days
Delinquent;
(c) No Outstanding Charges. There are no defaults in complying with the terms
----------------------
of the Mortgage, and all taxes, governmental assessments, insurance
premiums, water, sewer and municipal charges, leasehold payments or ground
rents which previously became due and owing have been paid, or an escrow of
funds has been established in an amount sufficient to pay for every such
item which remains unpaid and which has been assessed but is not yet due
and payable. Seller has not advanced funds, or induced, solicited or
knowingly received any advance of funds by a party other than the
Mortgagor, directly or indirectly, for the payment of any amount required
under the Mortgage Loan, except for interest accruing from the date of the
Mortgage Note or date of disbursement of the Mortgage Loan proceeds,
whichever is greater, to the day which precedes by one month the due date
of the first installment of principal and interest;
(d) Original Terms Unmodified. The terms of the Mortgage Note and Mortgage
-------------------------
have not been impaired, waived, altered or modified in any respect, except
by a written instrument which has been recorded, if necessary to protect
the interests of Buyer and which has been delivered to Buyer or its
designee (including the Custodian). The substance of any such waiver,
alteration or modification has been approved by the issuer of any related
primary mortgage guarantee policy (a "PMI Policy") and the title insurer,
to the extent required by the policy, and its terms are reflected on the
Mortgage Loan Schedule. No Mortgagor has been released, in whole or in
part, except in connection with an assumption agreement approved by the
issuer of any related PMI Policy and the title insurer, to the extent
required by the policy, and which assumption agreement is included in the
Mortgage File delivered to Buyer or its designee (including the Custodian)
and the terms of which are reflected in the Mortgage Loan Schedule;
35
<PAGE>
(e) No Defenses. The Mortgage Loan is not subject to any right of rescission,
-----------
set-off, counterclaim or defense, including without limitation the defense
of usury, nor will the operation of any of the terms of the Mortgage Note
or the Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable, in whole or in part, or
subject to any right of rescission, set-off, counterclaim or defense,
including without limitation the defense of usury, and no such right of
rescission, set-off, counterclaim or defense has been asserted with respect
thereto;
(f) Insurance Policies in Effect. The fire and casualty insurance policy
----------------------------
covering the Mortgaged Property (1) affords (and will afford) sufficient
insurance against fire and such other risks as are usually insured against
in the broad form of extended coverage insurance from time to time
available, as well as insurance against flood hazards if the Mortgaged
Property is an area identified by the Federal Emergency Management Agency
as having special flood hazards; (2) is a standard policy of insurance for
the locale where the Mortgaged Property is located, is in full force and
effect, and the amount of the insurance is in the amount of the full
insurable value of the Mortgaged Property on a replacement cost basis or
the unpaid balance of the Mortgage Loans, whichever is less; (3) names (and
will name) the present owner of the Mortgaged Property as the insured; and
(4) contains a standard mortgagee loss payable clause in favor of Seller.
All individual insurance policies with respect to the Mortgage Loan are the
valid and binding obligation of the insurer and contain a standard mortgage
clause naming Seller, its successors and assigns, as Mortgagee. All
premiums thereon have been paid. The Mortgage obligates the Mortgagor
thereunder to maintain all such insurance policies at the Mortgagor's cost
and expense, and upon the Mortgagor's failure to do so, authorizes the
holder of the Mortgage to obtain and maintain such insurance at the
Mortgagor's cost and expense and to seek reimbursement therefor from the
Mortgagor;
(g) Compliance with Applicable Laws. Any and all requirements of any federal,
-------------------------------
state or local law including, without limitation, usury, truth-in-lending,
real estate settlement procedures, consumer credit protection, equal credit
opportunity or disclosure laws applicable to the origination and servicing
of the Mortgage Loan have been complied with, and Seller shall maintain in
its possession, available for Buyer's inspection, and shall deliver to
Buyer upon demand, evidence of compliance with all such requirements;
(h) No Satisfaction of Mortgage. The Mortgage has not been satisfied,
---------------------------
canceled, subordinated or rescinded, in whole or in part, and the Mortgaged
Property has not been released from the lien of the Mortgage, in whole or
in part, nor has any instrument been executed that would effect any such
release, cancellation, subordination or rescission;
(i) Location and Type of Mortgaged Property. The Mortgaged Property is located
---------------------------------------
in the state identified in the Mortgage Loan Schedule and consists of one
or more parcels of real property with a detached single family residence
erected thereon, or a two- to four-family dwelling, or an individual
condominium unit in a condominium project, or an individual unit in a
planned unit development and no residence or dwelling is a mobile home or a
manufactured dwelling which is not permanently affixed to real property.
No portion of the Mortgaged Property is used for commercial purposes;
36
<PAGE>
(j) Valid First or Second Lien. The Mortgage is a valid, subsisting and
--------------------------
enforceable first or second lien on the Mortgaged Property, including
all buildings on the Mortgaged Property and all installations and
mechanical, electrical, plumbing, heating and air conditioning systems
located in or annexed to such buildings, and all additions,
alterations and replacements made at any time with respect to the
foregoing. The lien of the Mortgage is subject only to:
(1) the lien of current real property taxes and special assessments not
yet due and payable;
(2) covenants, conditions and restrictions, rights of way, easements and
other matters of the public record as of the date of recording
acceptable to mortgage lending institutions generally and specifically
referred to in the lender's title insurance policy delivered to the
originator of the Mortgage Loan and (i) referred to or to otherwise
considered in the appraisal made for the originator of the Mortgage
Loan or (ii) which do not adversely affect the appraised value of the
Mortgaged Property set forth in such appraisal;
(3) in the case of a Mortgaged Property that is a condominium or an
individual unit in a planned unit development, liens for common
charges permitted by statute;
(4) in the case where the Mortgage Loan is secured by a second mortgage
lien on the Mortgaged Property (and represented on the Mortgage Loan
Schedule as such), the lien of the First Mortgage; and
(5) other matters to which like properties are commonly subject which do
not materially interfere with the benefits of the security intended to
be provided by the Mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting and enforceable first or second lien and first or second priority
security interest on the property described therein and Seller has full right to
pledge and assign the same to Buyer or its designee (including the Custodian).
(k) Validity of Mortgage Documents. The Mortgage Note and the Mortgage are
------------------------------
genuine, and each is the legal, valid and binding obligation of the maker
thereof enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws relating to or affecting the
rights of creditor's generally, and by general equity principles
(regardless of whether such enforcement is considered in a proceeding in
equity or at law.) All parties to the Mortgage Note and the Mortgage had
legal capacity to enter into the Mortgage
37
<PAGE>
Loan and to execute and deliver the Mortgage Note and the Mortgage, and the
Mortgage Note and the Mortgage have been duly and properly executed by such
parties. The Mortgagor is a natural person who is a party to the Mortgage
Note and the Mortgage in an individual capacity, and not in the capacity of
a trustee or otherwise;
(l) Full Disbursement of Proceeds. The proceeds of the Mortgage Loan have been
-----------------------------
fully disbursed and there is no requirement for future advances thereunder,
and any and all requirements as to completion of any on-site or off-site
improvement and as to disbursements of any escrow funds therefor have been
complied with. All costs, fees and expenses incurred in making or closing
the Mortgage Loan and the recording of the Mortgage were paid, and the
Mortgagor is not entitled to any refund of any amounts paid or due under
the Mortgage Note or Mortgage;
(m) Ownership. Seller is the sole owner of record and holder of the Mortgage
---------
Loan. The Mortgage Loan is not assigned or pledged except as provided in
this Agreement, and Seller has good and marketable title thereto, and has
full right to pledge and assign the Mortgage Loan to Buyer or its designee
(including the Custodian) free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest,
and has full right and authority subject to no interest or participation
of, or agreement with, any other party, to sell and assign each Mortgage
Loan pursuant to this Agreement;
(n) Doing Business. All parties which have had any interest in the Mortgage
--------------
Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or, during
the period in which they held and disposed of such interest, were) (1) in
compliance with any and all applicable licensing requirements of the laws
of the state wherein the Mortgaged Property is located, and (2) organized
under the laws of such state, or (3) qualified to do business in such
state, or (4) federal savings and loan associations or national banks
having principal offices in such state, or (5) not doing business in such
state;
(o) LTV. No Mortgage Loan has a Loan-to-Value Ratio of more than 90%. The
---
Mortgage Loan, together with the other Purchased Mortgage Loans subject to
Transactions, does not have a weighted average cumulative Loan-to-Value
Ratio in excess of 80%;
(p) Title Insurance. The Mortgage Loan is covered by an ALTA mortgage title
---------------
insurance policy or such other form of policy acceptable to FNMA or FHLMC,
issued by and constituting the valid and binding obligation of a title
insurer generally acceptable to prudent mortgage lenders that regularly
originate or purchase mortgage loans comparable to the Mortgage Loans for
sale to prudent investors in the secondary market that invest in mortgage
loans such as the Mortgage Loans and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring Seller, its
successors and assigns, as to the first priority lien of the Mortgage in
the case of a First Mortgage Loan secured by a First Mortgage and the
second priority lien of the Mortgage in the case of a Mortgage Loan secured
by a second lien on the related Mortgaged Property, in the original
principal amount of the Mortgage Loan. Seller is the sole named insured of
such mortgage title insurance policy, the assignment to Buyer or the
Custodian as assignee of Buyer of Seller's interest in such mortgage title
insurance policy does not require the consent of or notification to the
insurer or the same has been obtained, and such mortgage title insurance
policy is in full
38
<PAGE>
force and effect and will be in full force and effect and inure to the
benefit of Buyer upon the consummation of the transactions contemplated by
this Agreement. No claims have been made under such mortgage title
insurance policy and no prior holder of the related Mortgage, including
Seller, has done, by act or omission, anything that would impair the
coverage of such mortgage title insurance policy;
(q) No Defaults. There is no default, breach, violation or event of
-----------
acceleration existing under the Mortgage or the Mortgage Note and no event
which, with the passage of time or with notice and the expiration of any
grace or cure period, other than the failure to make, prior to expiration
of the applicable grace period, the monthly payment due immediately prior
to the related Purchase Date if such Purchase Date occurs prior to the
expiration of such grace period, would constitute a default, breach,
violation or event of acceleration, and neither Seller nor its predecessors
have waived any default, breach, violation or event of acceleration;
(r) No Mechanics' Liens. There are no mechanics' or similar liens or claims
-------------------
which have been filed for work, labor or material (and no rights are
outstanding that under the law could give rise to such liens) affecting the
Mortgaged Property which are or may be liens prior to, or equal or
coordinate with, the lien of the Mortgage except those that are stated in
the title insurance policy and for which related losses are affirmatively
insured against by such title insurance policy;
(s) Location of Improvements; No Encroachments. All improvements which were
------------------------------------------
considered in determining the appraised value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of the
Mortgaged Property and no improvements on adjoining properties encroach
upon the Mortgaged Property except those that are stated in the title
insurance policy and for which related losses are affirmatively insured
against by such title insurance policy. No improvement located on or being
part of the mortgaged property is in violation of any applicable zoning law
or regulation;
(t) Origination. The Mortgage Loan was originated either by (x) Seller or (y)
-----------
another mortgage originator that is, if required by applicable law,
licensed, supervised and examined by a Federal or State authority. The
documents, instruments and agreements submitted for loan underwriting were
not falsified and contain no untrue statement of material fact or omit to
state a material fact required to be stated therein or necessary to make
the information and statements therein not misleading.
(u) Customary Provisions. The Mortgage contains customary and enforceable
--------------------
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the benefits
of the security provided thereby, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (ii) otherwise by
judicial foreclosure. There is no homestead or other exemption available
to a Mortgagor which would interfere with the right to sell the Mortgaged
Property at a trustee's sale or the right to foreclose the Mortgage;
39
<PAGE>
(v) Occupancy of the Mortgaged Property. As of the related Purchase Date the
-----------------------------------
Mortgaged Property is capable of being lawfully occupied under applicable
law. All inspections, licenses and certificates required to be made or
issued with respect to all occupied portions of the Mortgaged Property and,
with respect to the use and occupancy of the same, including but not
limited to certificates of occupancy and fire underwriting certificates,
have been made or obtained from the appropriate authorities. Either that
the Mortgagor represented at the time of origination of the Mortgage Loan
that the Mortgagor would occupy the Mortgaged Property as the Mortgagor's
primary residence or second home or the Mortgaged Property is capable of
being occupied pursuant to terms that approximate current standard market
rental terms and rates;
(w) No Additional Collateral. The Mortgage Note is not and has not been
------------------------
secured by any collateral except the lien of the corresponding Mortgage and
the security interest of any applicable security agreement or chattel
mortgage referred to in (j) above;
(x) Deeds of Trust. In the event the Mortgage constitutes a deed of trust, a
--------------
trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves and is named in the Mortgage,
and no fees or expenses are or will become payable by Buyer to the trustee
under the deed of trust, except in connection with a trustee's sale after
default by the Mortgagor;
(y) Acceptable Investment. Seller has no knowledge of any circumstances or
---------------------
conditions with respect to the Mortgage, the Mortgaged Property, the
Mortgagor or the Mortgagor's credit standing that can reasonably be
expected to cause private institutional investors to regard the Mortgage
Loan as an unacceptable investment, cause the Mortgage Loan to become
delinquent, or adversely affect the value or marketability of the Mortgage
Loan;
(z) Purchase of Mortgage Documents. The Mortgage File and any other documents
------------------------------
required by Buyer to be delivered for the Mortgage Loan by Seller under
this Agreement have been delivered to the Custodian. Seller is in
possession of a complete, true and accurate Mortgage File except for such
documents the originals of which have been delivered to the Buyer or its
designee (including the Custodian). Each of the documents and instruments
included in the Mortgage File is duly executed and in due and proper form
and each such document or instrument is in a form generally acceptable to
prudent institutional mortgage lenders that regularly originate and
purchase mortgage loans;
(aa) Condominiums/Planned Unit Developments. If the Mortgaged Property is a
--------------------------------------
condominium unit or a planned unit development (other than a de minimus
planned unit development) such condominium or planned unit development
project would materially meet FNMA eligibility requirements for sale to
FNMA or is located in a condominium or planned unit development project
which has received FNMA project approval and the representations and
warranties required by FNMA with respect to such condominium or planned
unit development have been made and remain true and correct in all
respects;
(bb) Transfer of Mortgage Loans. The assignment of Mortgage is in recordable
--------------------------
form and is acceptable for recording under the laws of the jurisdiction in
which the Mortgaged Property is located;
40
<PAGE>
(cc) Due on Sale. The Mortgage contains an enforceable provision for the
-----------
acceleration of the payment of the unpaid principal balance of the Mortgage
Loan in the event that the Mortgaged Property is sold or transferred
without the prior written consent of the Mortgagee thereunder;
(dd) No Buydown Provisions; No Graduated Payments or Contingent Interests. The
--------------------------------------------------------------------
Mortgage Loan does not contain provisions pursuant to which monthly
payments are paid or partially paid with funds deposited in any separate
account established by Seller, the Mortgagor or anyone on behalf of the
Mortgagor, or paid by any source other than the Mortgagor nor does it
contain any other similar provisions currently in effect which may
constitute a "buydown" provision. The Mortgage Loan is not a graduated
payment mortgage loan and the Mortgage Loan does not have a shared
appreciation or other contingent interest feature;
(ee) Consolidation of Future Advances. Any future advances made prior to the
--------------------------------
Purchase Date have been consolidated with the outstanding principal amount
secured by the Mortgage, and the secured principal amount, as consolidated,
bears a single interest rate and single repayment term. The lien of the
Mortgage securing the consolidated principal amount is expressly insured as
having first or second lien priority, as applicable, by a title insurance
policy or an endorsement to the policy insuring the mortgagee's
consolidated interest or by other title evidence acceptable to FNMA or
FHLMC. The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
(ff) Mortgaged Property Undamaged. There is no proceeding pending or threatened
----------------------------
for the total or partial condemnation of the Mortgaged Property. The
Mortgaged Property is undamaged by waste, fire, earthquake or earth
movement, windstorm, flood, tornado or other casualty so as to affect
adversely the value of the Mortgaged Property as security for the Mortgage
Loan or the use for which the premises were intended;
(gg) Collection Practices; Escrow Deposits; Interest Rate Adjustments. The
----------------------------------------------------------------
origination and collection practices used with respect to the Mortgage Loan
have been in all respects in accordance with industry custom and practice,
and have been in all respects legal and proper. With respect to escrow
deposits and escrow payments, all such payments are in the possession of
Seller and there exist no deficiencies in connection therewith for which
customary arrangements for repayment thereof have not been made. All
escrow payments have been collected in full compliance with state and
federal law. If an escrow of funds has been established, it is not
prohibited by applicable law and has been established in an amount
sufficient to pay for every item that remains unpaid and has been assessed
but is not yet due and payable. No escrow deposits or escrow payments or
other charges or payments due Seller have been capitalized under the
Mortgage or the Mortgage Note. All mortgage interest rate adjustments have
been made in strict compliance with state and federal law and the terms of
the related Mortgage Note. Any interest required to be paid pursuant to
state and local law has been properly paid and credited;
(hh) Conversion to Fixed Interest Rate. With respect to the aggregate
---------------------------------
outstanding principal balance of the Mortgage Loans on the related Purchase
Date, no more than 50% of the Mortgage Notes contain a provision allowing
the Mortgagor to convert the Mortgage
41
<PAGE>
Note from an adjustable interest rate Mortgage Note to a fixed interest
rate Mortgage Note for the remaining term thereof all in accordance with
the terms of a rider to the related Mortgage Note;
(ii) Appraisal. The Servicing Records contains an appraisal of the related
---------
Mortgaged Property signed prior to the approval of the Mortgage Loan
application by a qualified appraiser, duly appointed by the originator of
the Mortgage Loan, who had no interest, direct or indirect in the Mortgaged
Property or in any loan made on the security thereof, other than as an
employee of the lender, and whose compensation is not affected by the
approval or disapproval of the Mortgage Loan, and the appraisal and
appraiser both satisfy the requirements of Title XI of the Federal
Institutions Reform, Recovery, and Enforcement Act of 1989 and the
regulations promulgated thereunder, all as in effect on the date the
Mortgage Loan was originated;
(jj) Soldiers' and Sailors' Relief Act. The Mortgagor has not notified Seller,
---------------------------------
and Seller has no knowledge of any relief requested or allowed to the
Mortgagor under the Soldiers' and Sailors' Civil Relief Act of 1940;
(kk) Environmental Matters. To the best of Seller's knowledge based on
---------------------
customary residential mortgage industry practices the Mortgaged Property is
free from any and all toxic or hazardous substances and there exists no
violation of any local, state or federal environmental law, rule or
regulation;
(ll) "C" and "D" Loans. In the event such Mortgage Loan is a "C" Loan or "D"
-----------------
Loan, the aggregate Repurchase Price of such Mortgage Loan, together with
the other Purchased Mortgage Loans subject to then outstanding
Transactions, does not cause the aggregate Purchase Price of all Purchased
Mortgage Loans which are "C" Loans and "D" Loans to exceed 20% of the
aggregate Purchase Price for all Purchased Mortgage Loans which are subject
to then outstanding Transactions;
(mm) Seller Origination. The Mortgage Loan was originated or purchased and
-------------------
reunderwritten by Seller;
(nn) First Lien Consent. If the Mortgage Loan is a second lien Mortgage Loan,
------------------
(i) if the related first lien provides for negative amortization, the Loan-
to-Value was calculated at the maximum principal balance of such first lien
that could result upon application of such negative amortization feature,
and (ii) either no consent for the Mortgage Loan is required by the holder
of the first lien or such consent has been obtained and is contained in the
Mortgage File;
(oo) No Construction Loans. No Mortgage Loan is a construction loan or relates
----------------------
to manufactured housing that is not permanently affixed to real property
subject to the mortgage (i.e. not a mobile home);
42
<PAGE>
(pp) Selection by Seller. No Mortgage Loan was selected for inclusion under
-------------------
this Agreement on any basis which was intended to have a material adverse
effect on Buyer;
(qq) Second Mortgages. With respect to each Mortgage Loan secured by a second
----------------
lien on the related Mortgaged Property:
(1) if the LTV is higher than 70%, either the related First Mortgage does
not provide for a balloon payment or the maturity date of each
Mortgage Loan with respect to which a First Mortgage on the related
Mortgaged Property provides for a balloon payment is prior to the
maturity date of the mortgage loan relating to such first lien;
(2) the related first lien on any Mortgaged Property with respect to which
the related Mortgage Loan secured by a second lien does not provide
for negative amortization;
(3) either no consent for the Mortgage Loan secured by a second lien on
the related Mortgaged Property is required by the holder of the
related first lien or such consent has been obtained and is contained
in the Mortgage File; and
(4) the related first lien is not held by an individual.
(rr) CERCLA To the best of the Seller's knowledge, no Mortgaged Property was,
------
as of the Purchase Date or, with respect to Additional Loans or Substitute
Mortgage Loans, as of the related date of addition or substitution, located
within a one-mile radius of any site listed in the National Priorities List
as defined under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, or on any similar state list of
hazardous waste sites which are known to contain any hazardous substance or
hazardous waste;
(ss) No Bankruptcy of Mortgagor. None of the Mortgage Loans are subject to a
--------------------------
bankruptcy plan;
(tt) Conformance to Underwriting Standards. Each Mortgage Loan conforms to the
-------------------------------------
Seller's underwriting guidelines supplied to Buyer by Seller;
(uu) Qualified Mortgage. Each Mortgage Loan constitutes a "qualified mortgage"
------------------
within the meaning of Section 860G(a)(3) of the Code;
(vv) Balloon Loan Concentration. In the event that such Mortgage Loan is a
--------------------------
Balloon Loan, then the aggregate Repurchase Price of such Mortgage Loan,
together with the other Purchased Mortgage Loans which are Balloon Loans
subject to Transactions, constitutes less than 10% of the aggregate
outstanding Repurchase Price of all Purchased Mortgage Loans subject to
Transactions;
43
<PAGE>
(ww) No Short Maturity Balloon Loans. The Mortgage Loan is not a Balloon Loan
-------------------------------
with a maturity date occurring within five years from its date of the
related Purchase Date;
(xx) Owner Occupied. In the event such Mortgage Loan relates to a Mortgaged
--------------
Property which is non-owner occupied, then such Mortgage Loan, together
with the other Purchased Mortgage Loans subject to Transactions relating
to Mortgaged Properties which are non-owner occupied, does not exceed 15%
of the aggregate outstanding Repurchase Price of all Purchased Mortgage
Loans subject to Transactions;
(yy) Payment Terms. With respect to adjustable rate Mortgage Loans, the
-------------
mortgage interest rate is adjusted annually or semi-annually on each
interest rate adjustment date to equal the index plus the gross margin,
rounded up or down to the nearest 1/8%, subject to the mortgage interest
rate cap. With respect to fixed rate Mortgage Loans, the Mortgage Note is
payable each month in equal monthly installments of principal and interest
sufficient to amortize the Mortgage Loans (other than Balloon Loans) fully
by the stated maturity date, over an original term of not more than thirty
years from commencement of amortization. With respect to adjustable rate
Mortgage Loans, (x) installments of interest are subject to change due to
the adjustments to the mortgage interest rate on each interest rate
adjustment date, with interest calculated and payable in arrears and (y)
installments of principal sufficient to amortize the Mortgage Loans (other
than Balloon Loans) fully by the stated maturity date, over an original
term of not more than thirty years from commencement of amortization; and
(zz) Securitization Standards. Each of the Mortgage Loans conforms to the
------------------------
then current standards of securitization as determined in the reasonable
judgment of Buyer.
(aaa) Wet Ink Mortgage Loans. In the event such Mortgage Loan is a Wet Ink
----------------------
Mortgage Loan, the Mortgage Loan, together with the other Purchased
Mortgage Loans subject to then outstanding Transactions does not cause the
aggregate Purchase Price of all Purchased Mortgage Loans which are Wet Ink
Mortgage Loans to exceed the lesser of (x) $15,000,000 and (y) 15% of the
aggregate Purchase Price of all Purchased Mortgage Loans subject to
outstanding Transactions.
It is understood and agreed that the representations and warranties set
forth in this Exhibit V shall survive delivery of the respective Mortgage Files
to the Custodian on behalf of Buyer.
44
<PAGE>
EXHIBIT 10.69
================================================================================
LEHMAN COMMERCIAL PAPER INC.,
Buyer
and
PAN AMERICAN BANK, FSB,
Seller
and
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
Custodian
-------------------------
CUSTODIAL AGREEMENT
As of November 6, 1997
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 1 Definitions.......................................... 1
Section 2 Deposit of Purchased Mortgage Loans;
Effecting a Transaction.............................. 4
Section 3 Repurchase Date...................................... 4
Section 4 Trust Receipt........................................ 5
Section 5 Obligations of the Custodian......................... 6
Section 6 Substitution......................................... 7
Section 7 Additional Collateral................................ 7
Section 8 Future Defects....................................... 8
Section 9 Release for Servicing................................ 8
Section 10 Limitation on Release................................ 9
Section 11 Release for Payment.................................. 9
Section 12 Fees of Custodian.................................... 9
Section 13 Removal of Custodian With Respect
to some or all of the Purchased Mortgage Loans....... 9
Section 14 Examination and Copies of
Mortgage Files....................................... 10
Section 15 Insurance of Custodian............................... 10
Section 16 Covenants of Seller.................................. 11
Section 17 Periodic Statements.................................. 11
Section 18 Governing Law; Counterparts.......................... 11
Section 19 No Adverse Interest of Custodian..................... 12
Section 20 Custodian Representations............................ 12
Section 21 Termination by Custodian............................. 12
Section 22 Transfer of Purchased Mortgage Loans
Upon Termination of a Transaction.................... 12
Section 23 Notices.............................................. 13
</TABLE>
-i-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 24 Successor and Assigns................................ 13
Section 25 Concerning the Custodian............................. 13
Section 26 Indemnification...................................... 14
Section 27 Obligations of the Custodian With Respect
to the Trust Receipts................................ 14
Section 28 Authorized Representatives........................... 15
Section 29 Reproduction of Documents............................ 15
Section 30 Entire Agreement..................................... 16
</TABLE>
ANNEXES
-------
ANNEX A ADDITIONAL DEFINITIONS
EXHIBITS
--------
EXHIBIT 1 FORM OF TRUST RECEIPT
EXHIBIT 2 FORM OF REQUEST FOR RELEASE OF DOCUMENTS
AND RECEIPTS
EXHIBIT 3 AUTHORIZED REPRESENTATIVES OF THE CUSTODIAN
EXHIBIT 4 AUTHORIZED REPRESENTATIVES OF THE SELLER
EXHIBIT 5 AUTHORIZED REPRESENTATIVES OF THE BUYER
EXHIBIT 6 FORM OF MORTGAGE LOAN SCHEDULE
EXHIBIT 7 FORM OF CUSTODIAL DELIVERY
EXHIBIT 8 FORM OF NOTICE TO CUSTODIAN
EXHIBIT 9 FORM OF REPURCHASE RELEASE
EXHIBIT 10 FORM OF LOST NOTE AFFIDAVIT
<PAGE>
THIS CUSTODIAL AGREEMENT, dated as of November 6, 1997 (this
"Agreement"), is made by and between Lehman Commercial Paper Inc. (the "Buyer"),
- ---------- -----
having an address at 200 Vesey Street, 9th floor, New York, New York 10285-0900,
Pan American Bank, FSB (the "Seller"), having an address at 1300 South El Camino
------
Real, P.O. Box 2079, San Mateo, California 94401 Attention: Blair Kenny, and
Bankers Trust Company of California, N.A. (the "Custodian"), having an address
---------
at 3 Park Plaza, 16th Floor, Irvine, California 92614.
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Buyer and the Seller may, from time to time, enter into
transactions (each, a "Transaction") in which the Buyer shall purchase from the
-----------
Seller certain Purchased Mortgage Loans, with a simultaneous agreement by the
Seller to repurchase such Purchased Mortgage Loans as provided in that certain
Master Repurchase Agreement Governing Purchases and Sales of Mortgage Loans
dated as of October 31, 1997 between the Seller and the Buyer (the "Master
------
Repurchase Agreement") and a Confirmation between the Seller and the Buyer (the
- --------------------
"Confirmation"; as to each Transaction, the related Confirmation and the Master
------------
Repurchase Agreement are referred to collectively as, the "Repurchase
----------
Agreement"). The Seller shall deliver to the Custodian upon execution of this
- ---------
Agreement a true and correct copy of the Master Repurchase Agreement.
WHEREAS, Buyer has requested Custodian to act as custodian on behalf
of the Registered Holder(s) (as defined herein) for purposes of holding the
Purchased Mortgage Loans purchased pursuant to the Repurchase Agreement;
WHEREAS, the Custodian is a national banking association, is otherwise
authorized to act as Custodian pursuant to this Agreement, and has agreed to act
as custodian/bailee for hire for the Registered Holder(s), all as more
particularly set forth herein; and
WHEREAS, the Seller shall from time to time deliver Purchased Mortgage
Loans to the Custodian that are subject to a Transaction, and has agreed to
deliver or cause to be delivered to the Custodian certain documents with respect
to the Purchased Mortgage Loans subject to each Transaction in accordance with
the terms and conditions hereof;
NOW, THEREFORE, in consideration of the mutual undertakings herein
expressed, the parties hereto hereby agree as follows:
Section 1. Definitions.
-----------
Capitalized terms used but not defined herein shall have the meanings
assigned to them in the Master Repurchase Agreement.
Additional Collateral: Shall have the meaning set forth in Section 7
---------------------
hereof.
<PAGE>
Agreement: This Custodial Agreement and all amendments and
---------
attachments hereto and supplements hereof.
Assignment of Mortgage: An assignment of the Mortgage, notice of
----------------------
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the transfer of the Mortgage to the party indicated therein, which assignment,
notice of transfer or equivalent instrument may be in the form of one or more
blanket assignments covering the Mortgage Loans secured by Mortgaged Properties
located in the same jurisdiction, if permitted by law.
Authorized Representative: Shall have the meaning set forth in
-------------------------
Section 28 hereof.
Business Day: Any day excluding Saturday or Sunday and any day on
------------
which banks located in the States of New York or California are authorized or
permitted to close for business.
Buyer: Lehman Commercial Paper Inc., or its successor in interest or
-----
assigns.
Custodial Delivery: The letter executed by the Seller in order to
-------------------
deliver the Mortgage Files to the Custodian pursuant to this Agreement prior to
the related Purchase Date, a form of which is attached as Exhibit II to the
Master Repurchase Agreement.
Custodian: Bankers Trust Company of California, N.A., or any
---------
successor in interest or assigns, or any successor to the Custodian under this
Agreement as herein provided.
Mortgage: The mortgage, deed of trust or other instrument securing a
--------
Mortgage Note, which creates a first or second lien on a first or second
priority ownership interest in an unsubordinated estate in fee simple in real
property securing the Mortgage Note.
Mortgage File: Shall have the meaning set forth in Annex A attached
-------------
hereto.
Mortgage Loans: Non-securitized whole loans, namely: (i)
--------------
conventional residential mortgage loans, (ii) Wet Ink Mortgage Loans and (iii)
such other types of non-securitized whole loans as may be agreed upon by the
parties hereto in writing from time to time.
Mortgage Loan Schedule: A schedule in written and computer readable
----------------------
formats of Purchased Mortgage Loans, containing the information set forth in
Exhibit 6 hereto and otherwise acceptable to Buyer and Custodian, attached to
each Custodial Delivery.
Mortgage Note: The note or other evidence of the indebtedness of a
-------------
Mortgagor secured by a Mortgage.
Mortgaged Property: The real property securing repayment of the debt
------------------
evidenced by a Mortgage Note.
2
<PAGE>
Notice of Default: Written notice delivered by Buyer to Custodian and
-----------------
Seller, or by Seller to Custodian and Buyer, identifying the defaulting party
and the Event of Default.
Person: Any individual, corporation, partnership, joint venture,
------
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof.
Purchase Date: With respect to each Purchased Mortgage Loan, the date
--------------
on which such Purchased Mortgage Loan is purchased by the Buyer pursuant to the
Repurchase Agreement. The Purchase Date shall be specified in the Custodial
Delivery.
Purchased Mortgage Loans: Each Mortgage Loan, and/or any other
------------------------
evidence of ownership of a Mortgage Loan mutually agreed upon by the Buyer and
the Seller and identified to the Custodian, transferred or caused to be
transferred by the Seller to the Buyer or its designee (including the Custodian)
in a Transaction under the Master Repurchase Agreement, any Additional
Collateral and any Substituted Collateral delivered pursuant to this Agreement.
Registered Holder: Shall have the meaning set forth in Section 27
-----------------
hereof.
Request for Release: Shall have the meaning set forth in Section 9
-------------------
hereof.
Seller: Pan American Bank, FSB, or its successors in interest or
------
assigns.
Substituted Collateral: Shall have the meaning set forth in Section 6
----------------------
hereof.
Trust Receipt: A trust receipt issued by the Custodian evidencing the
-------------
Purchased Mortgage Loans it holds, in the form attached hereto as Exhibit 1, and
delivered to Buyer by the Custodian in accordance with Section 4 hereof.
Wet Ink Mortgage Loan: A non-securitized whole loan, namely a
---------------------
conventional mortgage loans secured by a first or second lien on a one to four
family residential property for which a Mortgage File has not been delivered to
the Custodian.
Written Instructions: Written communications received by the
--------------------
Custodian from an Authorized Representative of the Buyer or the Seller,
including communications received by telex or other telecommunications device
capable of transmitting or creating a written record.
3
<PAGE>
Section 2. Deposit of Mortgage Loans; Effecting a Transaction
--------------------------------------------------
(a) For delivery of no more than 100 Mortgage Files, no later than
9:30 a.m. (California time) on the Business Day prior to each Purchase Date and
for delivery of more than 100 Mortgage Files, no later than 9:30 a.m.
(California time) on the third (3) Business Day prior to each Purchase Date,
Seller shall deliver or cause to be delivered to the Custodian (i) the Mortgage
Files with respect to the related Purchased Mortgage Loans (other than those
relating to Wet Ink Mortgage Loans), (ii) the Custodial Delivery and (iii) the
related Mortgage Loan Schedule.
(b) On each Purchase Date upon receipt of the Trust Receipt and the
Mortgage Loan Schedule from the Custodian, the Buyer shall transfer to Seller
cash in an amount equal to the related Purchase Price.
(c) Buyer and Seller agree that in effecting each Transaction, the
transfer of the cash and the Purchased Mortgage Loans between Buyer and Seller
is intended to be, and shall be deemed to be, simultaneous. During any period
that cash and/or the Purchased Mortgage Loans are held by or for Buyer or
Seller, until such transfer has been completed, the party holding such cash
and/or Purchased Mortgage Loans shall be deemed to be holding such cash and/or
Purchased Mortgage Loans in trust for the benefit of the delivering party and
shall be obligated to return such cash and/or Purchased Mortgage Loans upon the
delivering party's request.
(d) With respect to any Wet Ink Mortgage Loans that become
Purchased Mortgage Loans under the Repurchase Agreement, Seller shall deliver or
shall cause to be delivered to the Custodian (i) a Mortgage Loan Schedule in
computer readable format on the Purchase Date and (ii) a complete Mortgage File
within five Business Days following the related Purchase Date.
(e) On and after the date on which each Transaction is consummated
until the Repurchase Date or as extended by written notice signed by both Buyer
and Seller and delivered to Custodian, or until Custodian shall receive a Notice
of Default, Custodian shall hold the Purchased Mortgage Loans related to such
Transaction in trust for the exclusive benefit of the Registered Holder and
shall not act upon Written Instructions of Buyer or Seller to deliver the
Purchased Mortgage Loans other than as expressly provided in this Agreement.
Section 3. Repurchase Date
---------------
Seller shall notify Buyer and the Custodian at least one day prior
to each Repurchase Date. Buyer shall send a Repurchase Release in the form of
Exhibit 9 to the Custodian by 12:00 noon (New York time) on each Repurchase Date
listing the Purchased Mortgage Loans to be released thereon. On the Repurchase
Date for each Transaction, unless the Custodian receives on the Business Day
prior to such Repurchase Date a Notice of Default or Written Instructions from
both the Buyer and the Seller that the Repurchase Date has been extended, and
provided that Buyer has notified Custodian by telephone that it or the
Registered Holder has received the Repurchase Price specified in the Repurchase
Release for the related Transaction, the Buyer and the Registered Holder hereby
irrevocably instruct the Custodian to release to
4
<PAGE>
the Seller or its designee the Purchased Mortgage Loans with respect to such
Transaction. Upon surrender to the Custodian of the related Trust Receipt in
connection therewith the Custodian shall issue a new Trust Receipt and Mortgage
Loan Schedule indicating any Mortgage Loans relating to the surrendered Trust
Receipt that were not repurchased by Seller.
Section 4. Trust Receipt.
-------------
No later than 1 p.m. (New York City time) on each Purchase Date
(provided Custodian has timely received the items required pursuant to Section
2(a) herein), the Custodian shall issue to Buyer (via fax with original to
follow the next Business Day) a Trust Receipt relating to the Purchased Mortgage
Loans which are not Wet Ink Mortgage Loans (with a Mortgage Loan Schedule and
exception report attached thereto) to the effect that with respect to such
Purchased Mortgage Loans, (i) all of the documents in paragraphs (a), (c), (e)
and, to the extent provided, (b), (d), (f), (g), (h) and (i) of the definition
of "Mortgage File" are in its possession; (ii) such documents have been reviewed
by it and appear regular on their face and relate to such Mortgage Loan; (iii)
based on its examination and only as to the foregoing documents, the information
set forth in the Mortgage Loan Schedule respecting such Mortgage Loan accurately
reflects the information contained in the documents in the Mortgage File as to
(A) the name of the mortgagor, (B) the address of the Mortgaged Property,
(C) the original interest rate on the Mortgage Note, (D) the original principal
amount of the Mortgage Note, and (E) the maturity date of the Mortgage Note;
(iv) the Mortgage Note and the Mortgage each bears an original signature or
signatures purporting to be the signature or signatures of the person or persons
named as the maker and mortgagor or grantor or, in the case of certified copies
of the Mortgage, that such copies bear a reproduction of such signature or
signatures; (v) the original principal amount of the indebtedness secured by the
Mortgage is identical to the original principal amount of the Mortgage Note;
(vi) if the Mortgage Note does not name "Seller" as the holder or payee, the
Mortgage Note bears original endorsements that complete the chain of ownership
from the original holder or payee to the last endorsee (the "Last Endorsee");
-------------
(vii) if the Mortgage does not name "Seller" as the mortgagee or beneficiary,
the original of the Assignment of Mortgage from the named mortgagee or
beneficiary bears the original signature purporting to be the signature of the
named mortgagee or beneficiary (and any other necessary party including
subsequent assignors) or in the case of copies certified by the Seller, that
such copies bear a reproduction of such signature or signatures and that the
Assignment of Mortgage and any intervening assignments of mortgage complete the
chain of title from the originator to the Last Endorsee; and (viii) each
Mortgage Note in its possession has been endorsed as provided in the definition
of "Mortgage File"; and (ix) each Assignment of Mortgage has been executed as
provided in the definition of "Mortgage File". With respect to each Purchased
Mortgage Loan which is a Wet Ink Mortgage Loan, the Custodian shall deliver a
Trust Receipt to Buyer with respect thereto (meeting the above requirements) no
later than the second Business Day following receipt by the Custodian of the
related Mortgage File. The Custodian shall notify Buyer in writing in the event
that the Custodian does not receive a Mortgage File relating to a Wet Ink
Mortgage Loan within five Business Days from the related Purchase Date.
Notwithstanding the foregoing, the Custodian shall not be responsible for
ensuring that the Mortgage Loan Schedule attached to any Trust Receipt in the
possession of a Registered
5
<PAGE>
Holder as a result of a substitution pursuant to Section 6 hereof is the most
current Mortgage Loan Schedule. Each Registered Holder may request the Custodian
to provide such Registered Holder with a copy of the current Mortgage Loan
Schedule with respect to a related Trust Receipt.
The Seller shall be solely responsible for providing each and every
document required for each Mortgage File to the Custodian in a timely manner and
for completing or correcting any missing, incomplete or inconsistent documents,
and the Custodian shall not be responsible or liable for taking any such action,
causing the Seller or any other Person or entity to do so or notifying any
Person (other than Buyer to the extent specifically required in this Agreement)
that any such action has or has not been taken. The Custodian makes no
representations as to and shall not be responsible to verify (i) the validity,
legality, enforceability, sufficiency, due authorization, recordability, or
genuineness of any document in any Mortgage File or any of the Purchased
Mortgage Loans identified on the Mortgage Loan Schedule or (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan.
Section 5. Obligations of the Custodian; Certain Representations and
---------------------------------------------------------
Warranties.
----------
(a) With respect to the Mortgage Files delivered to the Custodian
or which come into the possession of the Custodian, the Custodian is, following
the related transfer pursuant to Section 2(b) above, the custodian for the
Registered Holder, exclusively. The Custodian shall, following the related
transfer pursuant to Section 2(b) above, hold all documents received by it for
the exclusive use and benefit of the related Registered Holder, and shall make
disposition thereof only in accordance with this Agreement and the instructions
furnished by such Registered Holder. The Custodian shall segregate and maintain
continuous custody of the Mortgage Files in secure and fire-resistant facilities
in accordance with customary standards for such custody. To the extent that the
Custodian is unable to locate or produce any document contained in the Mortgage
File as required under this Agreement, Custodian shall, upon the request of the
Registered Holder of the related Purchased Mortgage Loan, promptly exercise its
best efforts to locate or replace, at its own expense, such documents (or in the
case of a Mortgage Note, deliver a Lost Note Affidavit in the form of Exhibit 10
attached hereto); provided, that (i) Custodian previously delivered to such
Registered Holder a Trust Receipt with respect to such document; (ii) such
document is not outstanding pursuant to a Request for Release; and (iii) such
document is still subject to this Agreement.
(b) The Custodian shall promptly notify the Registered Holder(s) if
(i) Seller fails to pay any amount due to the Custodian under this Agreement;
(ii) the Custodian has actual knowledge that any mortgage, pledge, lien,
security interest or other charge or encumbrance has been placed on the Mortgage
Files other than in the ordinary course of business; or (iii) the
representation, warranty and covenant contained in Section 5(c) below were to
become untrue or incorrect at any time during the term of this Agreement.
(c) The Custodian hereby represents, warrants and covenants to the
Buyer or Seller that, as of the date hereof, it is not controlled by, under
common control with or otherwise affiliated with or related to Seller or Buyer.
6
<PAGE>
(d) The Custodian, the Buyer and the Seller each hereby represents
and warrants to each other party that this Agreement has been duly authorized,
executed and delivered by such party and constitutes the legal, valid and
binding obligation of such party enforceable in accordance with its terms.
Section 6. Substitution.
------------
(a) Within 5 Business Days of the Custodian's receipt of a Request
for Release of Documents and Receipt in the form of Exhibit 2 attached hereto,
the Custodian will transfer, or cause to be transferred, the Purchased Mortgage
Loans specified in such Request to the Seller or its designee in exchange for
the simultaneous transfer by the Seller to the Custodian of Mortgage Loans
("Substituted Collateral"). One Business Day prior to the date of substitution,
----------------------
Seller must deliver or cause to be delivered to Custodian, the Mortgage Files
for the Substituted Collateral together with a Custodial Delivery and Mortgage
Loan Schedule. It is expressly understood and agreed that the Custodian shall
have no duty to perform any valuation of collateral and shall have no
responsibility to ascertain the adequacy of any Substituted Collateral.
(b) The Custodian shall deliver to the related Registered Holder
(via fax with the original to follow the next Business Day), no later than 2
p.m. (New York City time) one (1) Business Day after such substitution by the
Seller, (i) a Trust Receipt and Mortgage Loan Schedule that reflects the
applicable Purchased Mortgage Loans; provided that in the event the Custodian
has not received the items required to be delivered pursuant to Section 6(a)
above prior to 9:30 a.m. (California time) on the date of substitution or the
number delivered is, in the reasonable judgment of the Custodian, excessive,
then the Custodian shall deliver such Trust Receipt and Mortgage Loan Schedule
within two (2) Business Days after the date of substitution. Upon receipt from
the Custodian, Buyer shall cancel and return the old Trust Receipt to the
Custodian the next Business Day. In issuing such Mortgage Loan Schedule and
Trust Receipt, the Custodian shall employ the same procedures as set forth in
Section 4 in reviewing the Mortgage Files.
Section 7. Additional Collateral.
---------------------
(a) The Seller may, from time to time, deliver to the Custodian,
additional Mortgage Loans (the "Additional Collateral") as an addition to the
---------------------
Purchased Mortgage Loans already held by the Custodian with respect to a
Transaction. In such event, the Seller shall deliver to the Custodian the
Mortgage Files for the Additional Collateral together with a Custodial Delivery
and Mortgage Loan Schedule, with a copy to the Registered Holder(s) and, if
Buyer is not the applicable Registered Holder at such time, the Buyer, stating
that the Additional Collateral is being delivered with respect to an identified
Transaction. It is expressly understood and agreed that the Custodian shall
have no duty to perform any valuation of collateral and shall have no
responsibility to ascertain the adequacy of any Additional Collateral.
(b) The Custodian shall deliver to the related Registered Holder
(via fax with the original to follow the next Business Day) no later than 1 p.m.
(New York City time) one (1) Business Day after receipt of such Additional
7
<PAGE>
Collateral from the Seller, a Trust Receipt and Mortgage Loan Schedule and
exception report that reflects the delivery of the Additional Collateral;
provided that, in the event that the Custodian does not receive the items
required to be delivered pursuant to Section 7(a) above by no later than 9:30
a.m. (California time) on the date of delivery, then the Custodian shall deliver
such a Trust Receipt and Mortgage Loan Schedule within two (2) Business Days
after the date of delivery. In issuing such Mortgage Loan Schedule and Trust
Receipt, the Custodian shall employ the same procedures as set forth in Section
4 in reviewing the Mortgage Files.
Section 8. Future Defects.
--------------
During the term of this Agreement, if the Custodian discovers any
defect with respect to the Mortgage Files, the Custodian shall give written
specification of such defect to the Seller, the Registered Holder(s) and, if
Buyer is not a Registered Holder, Buyer. For purposes of this Section, "defect"
shall mean a failure of a document to correspond to the information set forth in
the applicable Mortgage Loan Schedule or the absence of a Mortgage File or any
other document required pursuant to this Agreement. The Seller shall be solely
responsible for completing or correcting any missing, incomplete or inconsistent
documents, and the Custodian shall not be responsible or liable for taking any
such action, causing the Seller or any other person or entity to do so or
notifying any Person that any such action has or has not been taken.
Section 9. Release for Servicing.
---------------------
(a) From time to time and as appropriate for the foreclosure or
servicing of any of the Purchased Mortgage Loans, the Custodian is hereby
authorized, upon receipt of a Request for Release of Documents and Receipt in
the form of Exhibit 2 attached hereto ("Request for Release"), with a copy to
-------------------
the applicable Registered Holder and, if Buyer is not the applicable Registered
Holder at such time, Buyer, to release or cause to be released to the Seller or
the Seller's Authorized Representative the related Mortgage File or the
documents of the related Mortgage File set forth in such Request for Release;
provided, that any document released to Seller or Seller's Authorized
Representative pursuant to a Request for Release shall be returned to Custodian
no later than thirty (30) days from the date on such Request for Release.
(b) All Mortgage Files or documents of Mortgage Files released by
the Custodian to the Seller or, at the Seller's written direction, the Seller's
Authorized Representative pursuant to this Section 9 shall be held by the Seller
or the Seller's Authorized Representative, as applicable, in trust for the
benefit of the related Registered Holder. The Seller or the Seller's Authorized
Representative, as applicable, shall return to the Custodian, the Mortgage File
or other such documents of Mortgage Files when the need therefor in connection
with such foreclosure or servicing no longer exists (but in any event no later
than thirty (30) days from the date on such Request for Release), unless the
Mortgage Loan shall be liquidated, in which case, the Seller or, if the Mortgage
File or documents were released to the Seller's Authorized Representative, the
Seller's Authorized Representative shall deliver to Custodian an additional
Request for Release that has been acknowledged and agreed by Buyer, with a copy
to the Registered Holder, certifying such
8
<PAGE>
liquidation. Upon receipt of the related Mortgage File or other such documents
from the Seller, Custodian shall return the related Request for Release to
Seller, with a copy to Buyer and the related Registered Holder, acknowledging
receipt of such Mortgage File or other such documents.
Section 10. Limitation on Release.
---------------------
The foregoing Section 9 shall be operative only to the extent that
at any time the Seller or the Seller's Authorized Representative shall not have
requested to have released to the Seller or the Seller's Authorized
Representative in total active Mortgage Files or documents (including those
requested) pertaining to five (5) Mortgage Loans at the time being held by the
Custodian under this Agreement. The Mortgage Note and/or Assignment of Mortgage
or any additional Mortgage Files or documents requested to be released by the
Seller or the Seller's Authorized Representative may be released only upon the
written acknowledgment of the Request for Release by the Registered Holder(s).
The limitations of this paragraph shall not apply to the release of Mortgage
Files to the Seller or, at Seller's written direction, the Seller's Authorized
Representative under Section 11 below.
Section 11. Release for Payment.
-------------------
Upon the payment in full of any Mortgage Loan, and upon receipt by
the Custodian of a Request for Release certifying that such payment in full has
been received, (with a copy to the applicable Registered Holder and, if Buyer is
not the applicable Registered Holder at such time, Buyer), the Custodian shall
promptly release the related Mortgage File to the Seller or, at Seller's written
direction, the Seller's subservicer. After such release the Custodian shall
amend the Mortgage Loan Schedule attached to the related Trust Receipt to
reflect the release of the applicable Mortgage Loan and shall deliver to the
related Registered Holder such amended Mortgage Loan Schedule. Buyer's lien on
any such Mortgage Loans shall not be deemed to be released until Buyer receives
the proportionate amount of the Repurchase Price relating to such Mortgage Loans
from Seller in accordance with the Repurchase Agreement.
Section 12. Fees of Custodian.
-----------------
The Custodian shall charge such fees for its services under this
Agreement as are set forth in a separate agreement between the Custodian and the
Seller, the payment of which fees, together with the Custodian's expenses in
connection herewith, shall be solely the obligation of the Seller.
Section 13. Removal of Custodian With Respect to Some or All of the Purchased
-----------------------------------------------------------------
Mortgage Loans.
--------------
Buyer may (i) require the Custodian to complete the endorsements on
the Mortgage Notes in the name of the applicable Registered Holder and to
complete the Assignments of Mortgage in the name of the applicable Registered
Holder and/or (ii) remove and discharge the Custodian from the performance of
its duties under this Agreement with respect to some or all of the Mortgage
Loans by 60 days' written notice from Buyer to the Custodian and Seller. In the
event that Buyer removes the Custodian from the performance of its duties
9
<PAGE>
under this Agreement with respect to all of the Mortgage Loans, Buyer may, in
its sole discretion, either appoint a successor Custodian to act on behalf of
Buyer by written instrument, or terminate this Agreement. In the event of any
such new appointment, the Custodian shall promptly transfer to the successor
Custodian or the applicable Registered Holder, as directed by Buyer, the
applicable Mortgage Loan documents being administered under this Agreement. In
the event of any such appointment, Buyer shall be responsible for the fees of
the successor Custodian and all reasonable out-of-pocket expenses in connection
with such transfer.
In the event of termination of this Agreement, the Custodian shall
follow the reasonable instructions of the Registered Holder(s) with respect to
the disposition of the respective Mortgage Loan documents. Concurrently with the
transfer and release of all of the Mortgage Files by the Custodian, the
Registered Holder(s) shall submit the related Trust Receipts to the Custodian
for cancellation. Notwithstanding the foregoing, in the event that Buyer
terminates this Agreement with respect to some, but not all, of the Mortgage
Loans, this Agreement shall remain in full force and effect with respect to any
Purchased Mortgage Loans for which this Agreement is not terminated hereunder.
In addition, Buyer and Custodian may, at the sole option of Buyer, enter into a
separate custodial agreement which shall be mutually acceptable to the parties
with respect to any or all of the Mortgage Loans with respect to which this
Agreement is terminated.
Section 14. Examination and Copies of Mortgage Files.
----------------------------------------
(a) Upon the written request by a Registered Holder or Buyer, such
Registered Holder or Buyer, as applicable, and its respective agents,
accountants, attorneys, auditors and prospective purchasers will be permitted,
upon three Business Days' prior notice, during normal business hours to examine
the Mortgage Files and any other documents, records and papers in the possession
of or under the control of the Custodian relating to any or all of the Purchased
Mortgage Loans. The Seller shall be responsible for any expenses in connection
with such examinations.
(b) Upon the written request of the Buyer or a Registered Holder,
the Custodian shall provide the Seller, the Buyer or such Registered Holder, as
the case may be, at such party's expense, with copies of the Mortgage Notes,
Mortgages, Assignment of Mortgages and other documents relating to one or more
of the Mortgage Loans.
Section 15. Insurance of Custodian.
----------------------
At its own expense, the Custodian shall maintain at all times
during the existence of this Agreement and keep in full force and effect a
fidelity bond and document hazard insurance. All such insurance shall be in
amounts, with standard coverage and subject to standard deductibles, all as is
customary for insurance typically maintained by institutions which act as
custodian. The minimum coverage under any such bond and insurance policies shall
be at least equal to the corresponding amounts required by FNMA in the FNMA
Mortgaged-Backed Securities Selling Guide and the FNMA Servicing Guide or by
FHLMC in the FHLMC Seller's & Servicer's Guide. A certificate of an Authorized
Representative of the Custodian shall be furnished
10
<PAGE>
to the Seller and the Registered Holder(s), upon request, stating that such
insurance is in full force and effect.
Section 16. Covenants of Seller.
-------------------
Seller covenants to Buyer as of the date that any Mortgage File
documents are released to the Seller or the Seller's subservicer pursuant to a
Request for Release that:
(a) if the Request for Release has been submitted for the release
of a Purchased Mortgage Loan that has been paid in full, all amounts received in
connection with the payment in full of the Purchased Mortgage Loan have been
credited to the Buyer as provided in the Repurchase Agreement;
(b) if item No. 1 has been checked on the Request for Release, the
Repurchase Price for the applicable Purchased Mortgage Loan has been credited to
the Buyer as provided in the Repurchase Agreement;
(c) if item No. 2 has been checked on the Request for Release, a
Custodial Delivery has been delivered simultaneously therewith listing the
Purchased Mortgage Loan to be delivered in lieu of the Substituted Collateral;
and
(d) if item No. 3 has been checked on the Request for Release, all
proceeds of foreclosure, insurance, condemnation or other liquidation have been
finally received and credited to the Buyer pursuant to the Repurchase Agreement.
Section 17. Periodic Statements.
-------------------
Within ten (10) days of each anniversary of the date of this
Agreement, or upon the reasonable request of the Buyer, the Seller or a
Registered Holder at any other time, the Custodian shall provide to the Buyer,
the Seller or such Registered Holder, as the case may be, a list of all the
Purchased Mortgage Loans for which the Custodian holds a Mortgage File. Such
list may be in the form of a copy of a Mortgage Loan Schedule, if applicable,
with manual deletions to specifically denote any Purchased Mortgage Loans paid
off, repurchased, substituted or added since the date of this Agreement.
Section 18. Governing Law; Counterparts.
---------------------------
This Agreement shall be governed by the internal laws of the State
of New York, without giving effect to the conflict of laws principles thereof.
For the purpose of facilitating the execution of this Agreement as herein
provided and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and such counterparts shall constitute and be one and the same
instrument.
11
<PAGE>
Section 19. No Adverse Interest of Custodian.
--------------------------------
By execution of this Agreement, the Custodian represents and
warrants that it currently holds, and during the existence of this Agreement
shall hold, no adverse interest, by way of security or otherwise, in any
Purchased Mortgage Loan, and hereby waives and releases any such interest which
it may have in any Purchased Mortgage Loan as of the date hereof. The Purchased
Mortgage Loans shall not be subject to any security interest, lien or right of
set-off by Custodian or any third party claiming through Custodian (other than
in the ordinary course of business), and Custodian shall not pledge, encumber,
hypothecate, transfer, dispose of, or otherwise grant any third party interest
in, the Purchased Mortgage Loans.
Section 20. Custodian Representations.
-------------------------
Custodian (and any successor custodian as of the appointment of
such custodian) hereby represents and warrants as of the date hereof and as of
each date it delivers an executed Trust Receipt that:
(a) it is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation and has all licenses
necessary to carry on its business as it is now being conducted;
(b) it is qualified to act as a custodian;
(c) it is not an Affiliate of Seller or Buyer and covenants and
agrees with Buyer and Seller that prior to any such affiliation in the future,
it shall notify Buyer and Seller;
Section 21. Termination by Custodian.
------------------------
Custodian may terminate its obligations hereunder upon 30 days'
prior written notice to Buyer, the Registered Holder(s) and Seller. Such
resignation shall take effect upon (i) the appointment of a successor custodian
acceptable to Buyer within such 30 day period; and (ii) delivery of all Mortgage
Loan Files to the successor custodian, and if no successor has been appointed
within such 30 day period, the Custodian may petition a court of competent
jurisdiction to appoint a successor custodian.
Upon such termination and appointment of successor Custodian and
receipt of all outstanding Trust Receipts, the Custodian shall (i) promptly
transfer to the successor Custodian, as directed in writing by the Registered
Holder(s), all Mortgage Files being administered under this Agreement, and (ii)
if the endorsements on the Mortgage Notes and the Assignments of Mortgage have
been completed in the name of the Custodian, assign the Mortgages and endorse
without recourse the Mortgage Notes to the successor Custodian or as otherwise
directed in writing by the Registered Holder(s).
Section 22. Transfer of Purchased Mortgage Loans Upon Termination of a
----------------------------------------------------------
Transaction.
-----------
If the Custodian is furnished with written notice in the form of
Exhibit 8 attached hereto (i) from the Buyer and the Seller that a Transaction
12
<PAGE>
with respect to the Repurchase Agreement has been terminated, or (ii) from the
Buyer that an Event of Default under the Repurchase Agreement has occurred as to
any or all of the Purchased Mortgage Loans, the Custodian shall release to such
Persons as designated in such notice, the Mortgage Files relating to the
Purchased Mortgage Loans that are no longer subject to the Transaction, and
shall deliver to the related Registered Holder an amended Trust Receipt with a
Mortgage Loan Schedule attached thereto, listing all of the Purchased Mortgage
Loans still subject to a Transaction.
Section 23. Notices.
-------
All demands, notices and communications hereunder (including,
without limitation, Trust Receipts) shall be in writing and shall be deemed to
have been duly given if mailed, by registered or certified mail, return receipt
requested, or, if by other means, including telex or other telecommunication
device capable of transmitting or creating a written record directly to the
office of the recipient, when received by the recipient party at the address
shown on the first page hereof, or at such other addresses as may hereafter be
furnished to the other parties by like notice. Any such demand, notice or
communication hereunder shall be deemed to have been received on the date
delivered to or received at the premises of the addressee (as evidenced, in the
case of registered or certified mail, by the date noted on the return receipt,
or in the case of telex or other telecommunication device, the date noted on the
confirmation of such transmission).
Section 24. Successors and Assigns.
----------------------
This Agreement shall inure to the benefit of the successors and
assigns of the parties hereto. Buyer may assign its rights hereunder as
provided in the Repurchase Agreement.
Section 25. Concerning the Custodian.
------------------------
Custodian shall have no duties or responsibilities except those
that are specifically set forth herein. Custodian shall have no responsibility
nor duty with respect to any Mortgage Loan Files while not in its possession. If
Custodian requests instructions from the Registered Holder(s) with respect to
any act, action or failure to act in connection with this Agreement, Custodian
shall be entitled to refrain from taking such action and continue to refrain
from acting unless and until Custodian shall have received written instructions
from the related Registered Holder with respect to a Mortgage File without
incurring any liability therefor to Buyer, Seller or any other Person.
Custodian shall not be liable for any action or omission to act
hereunder except for its own negligence or lack of good faith or willful
misconduct. In no event shall Custodian have any responsibility to ascertain or
take action except as expressly provided herein.
Without limiting the generality of the foregoing, Custodian may
rely upon and shall be protected in acting in good faith upon any notice or
other communication received by it and which it reasonably believes to be
genuine and duly authorized with respect to all matters pertaining to this
Agreement and its duties hereunder.
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<PAGE>
Section 26. Indemnification.
----------------
Seller agrees to reimburse, indemnify and hold harmless the
Custodian and its directors, officers, employees, or agents from and against any
and all liability, loss, cost and expense, including reasonable fees and
expenses of counsel arising from or connected with Custodian's execution and
performance of this Agreement, including but not limited to the claims of any
third parties, including Buyer, except in the case of loss, liability or expense
resulting from negligence or willful misconduct on the part of Custodian. Such
indemnification shall survive the termination of this Agreement and the
resignation or removal of the Custodian hereunder.
Section 27. Obligations of the Custodian With Respect to the Trust Receipts.
---------------------------------------------------------------
(a) The Custodian shall keep a register in which the Custodian
shall provide for the registration of transfers of Trust Receipts as provided
herein and in which it shall record the name and address of the Person to whom
such Trust Receipt is issued (the "Registered Holder"). Buyer shall be the
-----------------
initial Registered Holder for all Purchased Mortgage Loans. Each Trust Receipt,
upon initial issuance or reissuance, shall be dated the date of such issuance or
reissuance and shall evidence the receipt and possession by the Custodian on
behalf of the Registered Holder of the Trust Receipt of the Mortgage Files and
the Registered Holder's right to possess those Mortgage Files. The Custodian
shall treat the person or entity in whose name the Trust Receipt is registered
as the person or entity entitled to possession of the Mortgage Files evidenced
by such Trust Receipt for all purposes whatsoever, subject to the terms of this
Agreement, and the Custodian shall not be affected by notice of any facts to the
contrary. No Trust Receipt shall be valid for any purpose unless substantially
in the form set forth in Exhibit 1 to this Agreement and executed by manual
signature of an Authorized Representative of the Custodian. Such signature upon
any Trust Receipt shall be conclusive evidence, and the only evidence, that such
Trust Receipt has been duly delivered under this Agreement. Trust Receipts
bearing the manual signatures of individuals who were, at the time when such
signatures were affixed, Authorized Representatives of the Custodian shall bind
the Custodian, notwithstanding that such individuals have ceased to be so
authorized prior to the delivery of those Trust Receipts. Each Trust Receipt
shall have attached thereto a Mortgage Loan Schedule with an exception report
with respect to the applicable Purchased Mortgage Loans. Any transferee or
assignee of the Trust Receipt shall succeed to all the rights of the
transferring Registered Holder under this Agreement with respect to such Trust
Receipt and the related Purchased Mortgage Loans upon notice to the Custodian
and delivery to the Custodian of the appropriate evidence of such transfer and
assignment.
(b) The Registered Holder may transfer its interest in the
Mortgage Files covered by any Trust Receipt by delivering to the transferee (the
"Transferee") such Trust Receipt, together with an appropriate notice to the
- -----------
Custodian in the form of Exhibit 8 hereto (the "Notice to the Custodian").
-----------------------
Within five (5) Business Days of receipt of the Notice to the Custodian and the
Trust Receipt from the Transferee, the Custodian shall deliver, in accordance
with the written instructions of the Transferee, a Trust Receipt issued in the
name of the Transferee and to the place indicated in any such written direction
from the Transferee. Upon receipt of the Notice to the Custodian from the
14
<PAGE>
Registered Holder, the Custodian shall change its records to reflect that such
Transferee is the Registered Holder of the Mortgage Files.
(c) In the event that (i) any mutilated Trust Receipt is
surrendered to the Custodian, or the Custodian receives evidence to its
satisfaction of the destruction, loss or theft of any Trust Receipt and (ii)
there is delivered to the Custodian such security or indemnity as may be
required by it to save it harmless, then, in the absence of notice to the
Custodian that such Trust Receipt has been acquired by a bona fide purchaser,
the Custodian shall execute and deliver a new Trust Receipt to such Registered
Holder in exchange for or in lieu of any such mutilated, lost or stolen Trust
Receipt.
(d) Simultaneously with the relinquishment of a Trust Receipt to
the Custodian by the Registered Holder thereof and the delivery by the Custodian
of the related Mortgage Files to the Seller or its designee pursuant to Section
3 above or to such Registered Holder or a designee of the Registered Holder, the
Trust Receipt shall be canceled and the related Mortgage Files will no longer be
subject to this Agreement.
Section 28. Authorized Representatives.
--------------------------
Each individual designated as an authorized representative of the
Custodian, the Seller and the Buyer (each, an "Authorized Representative"), is
-------------------------
authorized to give and receive notices, requests and instructions and to deliver
certificates and documents in connection with this Agreement on behalf of the
Custodian, the Seller and the Buyer, respectively, and the specimen signature
for each such Authorized Representative of the Custodian, the Seller and the
Buyer initially authorized hereunder is set forth on Exhibits 3, 4 and 5,
respectively. From time to time, Custodian, the Seller and the Buyer may, by
delivering to the others a revised exhibit, change the information previously
given pursuant to this Section, but each of the parties hereto shall be entitled
to rely conclusively on the then current exhibit until receipt of a superseding
exhibit. The Seller shall deliver or cause to be delivered to Custodian an
Authorized Representatives exhibit for each subservicer designated by the Seller
in connection with Sections 9, 10 and 11 of this Agreement; provided, that the
Custodian shall not recognize any request from Seller's subservicer unless and
until the Seller has given the Custodian written notice identifying such
subservicer and such Authorized Representatives exhibit is received by the
Custodian. The Custodian shall be entitled to rely conclusively upon (i)
written notice from the Seller identifying a subservicer authorized to give
instructions under Sections 9, 10 and 11 of this Agreement until receipt of
written notice from the Seller revoking such authority and (ii) the most recent
Authorized Representatives exhibit delivered to it by a subservicer of the
Seller until receipt of a superseding exhibit. If the Custodian shall at any
time receive conflicting instructions from the Seller and a subservicer of the
Seller, the Custodian shall be entitled to rely on the instructions of the
Seller.
Section 29. Reproduction of Documents.
-------------------------
This Agreement and all documents relating thereto, including,
without limitation, (i) consents, waivers and modifications which may hereafter
be executed, and (ii) certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
15
<PAGE>
microcard, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 30. Entire Agreement.
----------------
No amendment or waiver of any provision of this Agreement nor
consent to any departure herefrom shall in any event be effective unless the
same shall be in writing and signed by all the parties hereto, and then such
amendment, waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. This Agreement, together with the
Exhibits, Annexes and other writings referred to herein or delivered pursuant
hereto, constitute the entire agreement and understanding of the parties with
respect to the matters and transactions contemplated by this Agreement and
supersede any prior agreement and understandings with respect to those matters
and transactions.
Section 31. Transmission of Custodial Files.
-------------------------------
Written instructions as to the method of shipment and shipper(s)
that the Custodian is directed to utilize in connection with the transmission of
Mortgage Files in the performance of Custodian's duties hereunder shall be
delivered to the Custodian by Seller prior to any shipment of any Mortgage Files
hereunder. In the event the Custodian does not receive written instructions as
provided for in the preceding sentence, the Custodian is hereby authorized and
shall be indemnified as provided herein by Seller to utilize a national
recognized securities courier service provided that the Custodian employs
prudent care in arranging for such courier service in accordance with industry
standards. Seller will arrange for the provision of such services at its sole
cost and expense (or, at the Custodian's option, reimburse the Custodian for all
costs and expenses incurred by the Custodian consistent with such instructions)
and will maintain such insurance against such loss or damage to the Mortgage
Files during shipment as the Seller deems appropriate.
16
<PAGE>
IN WITNESS WHEREOF, the Buyer, the Seller and the Custodian have
caused their names to be duly signed hereto by their respective officers
thereunto duly authorized, all as of the date first above written.
LEHMAN COMMERCIAL PAPER INC.,
Buyer
By: /s/ [SIGNATURE ILLEGIBLE]
---------------------------------
Name: Authorized Signatory
---------------------------------
Title:
---------------------------------
PAN AMERICAN BANK, FSB,
Seller
By: /s/ LAWRENCE J. GRILL
---------------------------------
Name: Lawrence J. Grill
---------------------------------
Title: President
---------------------------------
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
Custodian
By: /s/ MELANIE ANBARCI
---------------------------------
Name: Melanie Anbarci
---------------------------------
Title: Assistant Secretary
---------------------------------
17
<PAGE>
ANNEX A
ADDITIONAL DEFINITIONS
In addition to the Definitions set forth in Section 1, the following
words and phrases, unless the context otherwise requires, shall have the
following meaning:
Mortgage File: With respect to each Mortgage Loan, the following
-------------
original documents constituting an original mortgage file:
(a) the original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of _______, without recourse" and signed in
the name of the last endorsee (the "Last Endorsee") by an authorized
officer (in the event that the Mortgage Loan was acquired by the Last
Endorsee in a merger, the signature must be in the following form:
"[the Last Endorsee], successor by merger to [name of predecessor]";
in the event that the Mortgage Loan was acquired or originated while
doing business under another name, the signature must be in the
following form: "[the Last Endorsee], formerly known as [previous
name]";
(b) the original of any guarantee executed in connection with the Mortgage
Note (if any);
(c) the original Mortgage with evidence of recording thereon or copies
certified by Seller to have been sent for recording;
(d) the originals of all assumption, modification, consolidation or
extension agreements, with evidence of recording thereon or copies
certified by Seller to have been sent for recording;
(e) the original Assignment of Mortgage in blank for each Mortgage Loan,
in form and substance acceptable for recording and signed in the name
of the Last Endorsee (in the event that the Mortgage Loan was acquired
by the Last Endorsee in a merger, the signature must be in the
following form: "[the Last Endorsee], successor by merger to [name of
predecessor]"; in the event that the Mortgage Loan was acquired or
originated while doing business under another name, the signature must
be in the following form: "[the Last Endorsee], formerly known as
[previous name]";
(f) the originals of all intervening assignments of mortgage with evidence
of recording thereon or copies certified by Seller to be true and
correct and to have been sent for recording;
(g) the original of any security agreement, chattel mortgage or equivalent
document executed in connection with the Mortgage (if any);
1
<PAGE>
(h) the original policy of title insurance or a true copy thereof or if
such policy has not yet been delivered by the insurer, the commitment
or binder to issue the same; and
(i) the original power of attorney, if any, or a copy thereof certified by
an authorized officer of the Seller, for any document described above.
From time to time, the Seller shall forward to the Custodian
additional original documents or additional documents evidencing an assumption,
modification, consolidation or extension of a Mortgage Loan.
With respect to any documents which have been delivered or are being
delivered to recording offices for recording and have not been returned to the
Seller in time to permit their delivery hereunder at the time of such transfer,
in lieu of delivering such original documents, Seller shall deliver to Custodian
a true copy thereof with a certification by the Seller on the face of such copy
substantially as follows: "I [name and title of signatory] of Seller do hereby
certify that this is a true, correct and complete copy of the original, which
has been transmitted for recordation." The Seller shall deliver such original
documents to the Custodian promptly after they are received.
In the event that item (h) is missing from the Mortgage File with
respect to a Custodial Delivery, notwithstanding such missing item, such
Mortgage File shall be deemed complete provided that such item is delivered to
the Custodian within 5 Business Days of such Custodial Delivery.
2
<PAGE>
EXHIBIT 1
FORM OF TRUST RECEIPT
(date)
[To be addressed to the Registered Holder]
Re: The Custodial Agreement, dated as of November 6, 1997 (the
"Custodial Agreement"), among Lehman Commercial Paper Inc.
("Buyer"), Pan American Bank, FSB ("Seller"), and Bankers Trust
Company of California, N.A.("Custodian")
Ladies and Gentlemen:
The Custodian hereby acknowledges that the above named person has been
identified to it as the Registered Holder of this Trust Receipt and has the
rights of a "Registered Holder" under the Custodial Agreement with respect to
the Purchased Mortgage Loans identified in the Mortgage Loan Schedule attached
hereto. Pursuant to the Custodial Agreement, the Custodian shall hold the
Purchased Mortgage Loans, identified in the Mortgage Loan Schedule attached
hereto (other than any Mortgage Loan listed on the attachment hereto which has
been paid in full and released in accordance with the provisions of the
Custodial Agreement) for the exclusive benefit of the above addressee.
In accordance with the provisions of Section 4 of the Custodial
Agreement, the undersigned, as the Custodian, hereby certifies that as to each
Purchased Mortgage Loan identified in the Mortgage Loan Schedule attached hereto
(other than any Mortgage Loan paid in full or any Mortgage Loan listed on the
attachment hereto) it has received the Mortgage Files and, it has reviewed the
Mortgage Files and has determined that, except as noted in the exception report
attached hereto (i) all documents in paragraphs (a), (c), (e), and, to the
extent provided in the Mortgage Files, (b), (d), (f), (g), (h and (i) of the
definition of "Mortgage File" are in its possession; (ii) such documents have
been reviewed by it and appear regular on their face and relate to such Mortgage
Loan; (iii) based on its examination and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule respecting such Mortgage
Loan accurately reflects the information contained in the documents in the
Mortgage File as to (A) the name of the mortgagor, (B) the address of the
Mortgaged Property, (C) the original interest rate on the Mortgage Note, (D) the
original principal amount of the Mortgage Note, and (E) the maturity date of the
Mortgage Note; (iv) the Mortgage Note and the Mortgage each bears an original
signature or signatures purporting to be the signature or signatures of the
person or persons named as the maker and mortgagor or grantor or, in the case of
certified copies of the Mortgage, that such copies bear a reproduction of such
signature or signatures; (v) the original principal amount of the indebtedness
secured by the Mortgage is identical to the original principal amount of the
Mortgage Note; (vi) if the Mortgage Note does not name "Seller" as the holder or
payee, the Mortgage Note bears original endorsements that complete the chain of
ownership from the original holder or payee to the Last Endorsee; (vii) if the
Mortgage does not name "Seller" as the
1
<PAGE>
mortgagee or beneficiary, the original of the Assignment of Mortgage from the
named mortgagee or beneficiary bears the original signature purporting to be the
signature of the named mortgagee or beneficiary (and any other necessary party
including subsequent assignors) or in the case of copies certified by the
Seller, that such copies bear a reproduction of such signature or signatures and
that the Assignment of Mortgage and any intervening assignments of mortgage
complete the chain of title from the originator to the Last Endorsee; and (viii)
each Mortgage Note in its possession has been endorsed as provided in the
definition of "Mortgage File"; and (ix) each Assignment of Mortgage has been
executed as provided in the definition of "Mortgage File". Notwithstanding the
foregoing, the Custodian shall not be responsible for ensuring that the Mortgage
Loan Schedule attached hereto in the possession of a Registered Holder as a
result of a substitution pursuant to Section 6 of the Custodial Agreement is the
most current Mortgage Loan Schedule. The Registered Holder hereof may request
the Custodian to provide it with a copy of the current Mortgage Loan Schedule
with respect to this Trust Receipt. The Custodian makes no representations as to
and shall not be responsible to verify (i) the validity, legality,
enforceability, sufficiency, due authorization, recordability, or genuineness of
any document in any Mortgage File or any of the Purchased Mortgage Loans
identified on the Mortgage Loan Schedule or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized terms used but not otherwise defined herein shall have the
meanings set forth in the above-referenced Custodial Agreement.
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
Custodian
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
2
<PAGE>
Exhibit 10.70
LOAN PURCHASE AND SALE AGREEMENT
This Loan Purchase and Sale Agreement (this "Agreement") by and
between AAMES CAPITAL CORPORATION, a California corporation and AAMES FUNDING
CORPORATION, a California corporation on the one hand (each, a "Purchaser"),
and PAN AMERICAN BANK, F.S.B., a federal savings bank, on the other hand
("Seller"), is made and executed as of April 1, 1997 with reference to the
following facts:
R E C I T A L S
- - - - - - - -
A. Seller desires to sell to Purchaser, and Purchaser desires to purchase
from Seller, on the terms and subject to the conditions set forth herein,
adjustable and fixed rate loans secured by residential real estate ("Loans" and
individually a "Loan").
B. From time to time, Seller will deliver to Purchaser a schedule of
Loans ("Loan Schedule") to be included in a portfolio of Loans ("Portfolio") for
possible sale to Purchaser.
C. As part of this Agreement, Seller and Purchaser have entered into a
Purchase Price Addendum (a Forward Agreement) (the "Addendum") which is attached
hereto and made a part hereof.
NOW, THEREFORE, in reference to the aforementioned facts, and in
consideration of the covenants and agreements herein set forth, Purchaser and
Seller hereby agree as follows:
A G R E E M E N T
- - - - - - - - -
Section 1. Due Diligence Review. (A) On or prior to the purchase date of
the Portfolio (the "Closing Date"), Seller shall deliver to Purchaser at 3731
Wilshire Boulevard, 2nd Floor, Los Angeles, CA 90010, Attention: Raymond
Callahan, for each Loan in the Portfolio, all of the loan documents with respect
to such Loan (collectively, the "Loan File"). Each Loan File shall contain, at
a minimum, the following executed original documents in form and substance
satisfactory to Purchaser:
(1) the promissory note (the "Note") and applicable riders thereto
evidencing the borrower's obligation to repay the Loan, endorsed by an
authorized representative of Seller as follows: "Pay to the order of Aames
Capital Corporation, without recourse", together with any agreements affecting
the terms of the Note:
(2) Allonge (if applicable):
(3) the security instrument (deed of trust or mortgage, including all
riders and legal description) (each, a "Mortgage") securing the Loan, properly
evidencing recordation in the county in which the Mortgaged Property is located,
together with any agreements affecting the Mortgage. When Seller cannot deliver
the originals of the recorded Mortgage creating a lien on the related Mortgaged
Property because of a delay associated with recording (provided such delay is
not caused by Seller), Seller may deliver certified true copies of the Mortgage
with an affidavit of recording. Seller shall deliver to Purchaser the original
Mortgage within one hundred twenty (120) days after the Closing Date; however
where the Seller has not received the original Mortgage from the recorder within
the 120 day period, then Seller shall so notify Purchaser and shall deliver the
original Mortgage promptly upon receipt of same. If Seller fails to deliver to
Purchaser said original Mortgage within such period, Seller shall repurchase the
related Loan within ten (10) calendar days after Purchaser's written request
therefor at the Repurchase Price (as defined in Section 7 hereof).
(4) the assignment of the Mortgage in recordable form (certified copy
if the original is being recorded) and any intervening assignments if
applicable;
(5) all title documents including the original mortgagee policy of
title insurance, the preliminary title report, the escrow/closing instructions
and the purchase contract (if the Loan is a purchase money loan). Where Seller
cannot deliver the original mortgagee policy of title insurance because of a
delay not caused by Seller, Seller may deliver a certified true copy of the
mortgagee title insurance binder. Seller shall deliver to Purchaser the original
mortgagee title insurance policy promptly upon recept of same, but not later
than one hundred twenty (120) days after the Closing Date. If Seller fails to
deliver to Purchaser said original mortgagee policy of title insurance within
such 120-day period, Seller shall repurchase the related Loan within ten (10)
calendar days after Purchaser's written request therefor at the Repurchase Price
(as defined in Section 7 hereof).
(6) hazard insurance documents, a flood determination certificate,
flood insurance policy, if applicable, and tax service contract;
(7) all disclosures required by all applicable federal, state and
local laws including, without limitation the federal Equal Credit Opportunity
Act and Regulation B thereunder, the federal Truth in Lending Act and Regulation
Z thereunder, the federal Real Estate Settlement Procedures Act of 1974 and
Regulation X thereunder and the federal Fair Credit Reporting Act, in each case
as amended;
(8) the borrower's original application for the Loan, the HUD-1
Settlement statement issued in connection with the Loan, and all of the original
documents executed by the borrower in connection with the origination of the
Loan;
(9) all credit information on the borrower including a credit report
dated not earlier than 90 days prior to the date of the Note, verifications of
employment and of deposits of the borrower, or alternative evidence of
employment, income and assets acceptable to Purchaser;
<PAGE>
(10) a signed appraisal of the Mortgaged Property setting forth the
appraised value of the Mortgaged Property, dated not earlier than 90 days prior
to the date of the Note, including a statement of the census tract number; and
(11) a survey of the Mortgaged Property where applicable.
(B) Within 30 days after the Closing Date (the "Diligence Review Period"),
Purchaser shall review each Loan File delivered by Seller to determine that all
required documents set forth above have been executed and received, and that
such documents relate to the Loans identified on the Loan Schedule and otherwise
comply with the requirements of this Agreement. Purchaser shall, within the
Diligence Review Period, identify and notify Seller of each Loan which does not
meet the terms and conditions of this Agreement (a "Deficient Loan") due to the
following: (1) the terms of the Note or the Mortgage differ from the information
set forth on the Loan Schedule with respect to such Loan; (2) any required
document set forth above constituting a part of a Loan File has not been
properly executed or delivered to Purchaser, is unrelated to the Loans
identified on the Loan Schedule, is legally insufficient or is otherwise
unacceptable to Purchaser; (3) Purchaser determines that the Loan does not
conform to the underwriting guidelines of Seller as provided to Purchaser; (4)
Purchaser determines upon inspection of the real property collateral for the
Loan (the "Mortgaged Property") or review of the Loan File that the Mortgaged
Property is unacceptable to Purchaser; (5) as of the Closing Date any required
payment of principal or interest for the Loan is thirty (30) days or more past
due; or (6) as of the Closing Date, the Loan is one as to which foreclosure
proceedings have commenced or for which a notice of default has been recorded by
any holder of a mortgage or other lien on the Mortgaged Property, or as to which
any legal proceeding concerning Seller is pending, or as to which bankruptcy has
been filed by the mortgagor. Seller shall have ten (10) days (the "Cure Period")
to correct or cure any deficiency identified by Purchaser. Seller hereby
covenants and agrees that if any such deficiency is not corrected or cured,
Seller will, within 15 days after Purchaser's notice to Seller of such
deficiency either (1) repurchase the Deficient Loan at the Repurchase Price set
forth in Section 7 hereto or (2) substitute for any Deficient Loan a different
loan or loans (a "Substitute Loan") with the following characteristics: (a) a
principal balance equal to or no more than 10% greater than or less than the
principal balance of the Deficient Loan, (b) a remaining term to maturity equal
to or no more than 12 months later than or 12 months earlier than the Deficient
Loan, (c) an interest rate not less than that of the Deficient Loan and if the
Deficient Loan is an adjustable rate loan, an identical index, adjustment
period, and annual interest rate caps, and a margin, lifetime interest rate cap
and lifetime interest rate floor not less than the margin, lifetime interest
rate cap and lifetime interest rate floor of the Deficient Loan, (d) a loan-to-
value ratio equal to or lower than the Deficient Loan, (e) the same or greater
lien priority than the Deficient Loan, (f) the Mortgaged Property is the same or
better property type than the Mortgaged Property of the Deficient Loan, (g) the
same or better occupancy status as the Deficient Loan, and (h) otherwise having
such characteristics so that the representations an warranties of Seller set
forth in Section 5 herein would have been correct had such Substitute Loan
originally been a Loan.
In the case of a Substitute Loan, (i) where the Purchase Price (as defined
in Section 2(A) hereof) of the Deficient Loan exceeds the Purchase Price of the
Substitute Loan, Seller shall pay the difference between the Purchase Price of
the Deficient Loan and the Substitute Loan to Purchaser, and (ii) where the
Purchase Price of the Deficient Loan is less than the Purchase Price of the
Substitute Loan, Purchaser shall pay the difference between the Purchase Price
of the Substitute Loan and the Deficient Loan to Seller. Forty-five (45) days
after the Closing Date, Purchaser shall prepare and deliver to Seller a
Substitute Loan Balance setting forth the adjustment to the Purchase Price for
each Substitute Loan, and the aggregate adjustment to the Purchase Price for the
Portfolio netting amounts owed each party by the other. Seller shall review the
Substitute Loan Balance within five days and shall promptly notify Purchaser of
any discrepancies. Seller and Buyer shall confer until they are in agreement on
the aggregate adjustment to the Purchase Price of the Portfolio. If there is an
aggregate adjustment to the Purchase Price of the Portfolio, the party that owes
the other party money shall pay the owed party by wire transfer of
immediately available funds.
Section 2. Loan Purchases. (A) Subject to the terms and conditions set
forth herein and in the Addendum, Seller shall sell, assign, and transfer to
Purchaser, and Purchase shall buy, on the Closing Date, for the Purchase price
for the Portfolio set forth in the related bid letter of intent (the "Purchase
Price"), all Seller's right, title and interest in and to each Loan and the Loan
File with respect to such Loan.
(B) It is the intention of Purchaser and Seller that the sale of each Loan
hereunder shall be made on a servicing-released basis. Simultaneously with the
purchase of each Loan hereunder and in consideration of Purchaser's payment of
the Purchase Price, Seller shall transfer all servicing rights and benefits to
Purchaser. Seller shall deliver within five (5) days of the Closing Date such
notices to the related borrowers concerning the transfer of the servicing of the
Loans as may then be required by applicable state and federal law. Seller shall
within twenty (20) days of the Closing Date (the "Servicing Transfer Date")
deliver to Purchaser documentation sufficient to enable Purchaser or its
designated representative to service such Loan in compliance with all rules,
orders and regulations of federal and state governments and other duly appointed
authorities with jurisdiction over such Loan. Seller shall on or prior to the
Servicing Transfer Date take any and all action necessary to transfer to
Purchaser all interest of Seller in, and to make Purchaser the loss payee of,
each mortgage title insurance policy, hazard insurance policy and each other
insurance policy constituting a portion of the Loan File.
(C) Nothing contained in this Agreement, or in any document executed in
connection herewith, shall be deemed to transfer any of Seller's right, title,
and interest in any Deficient Loan to Purchaser. Seller expressly disclaims any
intention to sell to Purchaser, and Purchaser expressly disclaims any intention
to acquire from Seller, any interest in any Deficient Loan whose deficiencies
are not cured prior to the termination of the Diligence Review. Period and the
related Loan Documents and servicing rights with respect to such Deficient Loan.
Any Loan Documents with respect to any Deficient Loan whose deficiencies are not
cured prior to the termination of the Diligence Review Period delivered by
Seller to Purchaser shall be held in trust by Purchaser and shall be returned to
Seller immediately after the termination of the Diligence Review Period.
(D) Purchaser shall not be deemed to have assumed any liability or
obligation of Seller except as expressly set forth herein.
<PAGE>
Section 3. Payment of Purchase Price. On the Closing Date, subject to
Seller's satisfaction of the conditions set forth in Section 4 hereof, Purchaser
shall pay by wire transfer of immediately available funds the Purchase Price for
the Portfolio, as of the applicable cut-off date (the "Cut Off Date"), plus the
aggregate accrued but unpaid interest on the Loans at the contractual interest
rates for the Loans, as calculated as of the close of business on the last day
prior to the Closing Date. Purchaser shall be entitled to all payments of
principal and interest on the Loans collected on and after the Closing Date.
Any payments received by Seller after the Cut Off Date shall be forwarded to
Purchaser by overnight mail within one Business Day of receipt.
Section 4. Conditions Precedent to Purchase. Purchaser's obligation to
purchase and pay for a Loan is subject to the following conditions:
(A) Due Diligence Review. Purchaser completes its due diligence review of
--------------------
each Loan File pursuant to Section 1 hereof, and determines in its sole
discretion that each Loan complies with the requirements of this Agreement and
is not an Deficient Loan. Purchaser will not purchase any Deficient Loan;
provided, however, that Purchaser shall promptly deliver notice of its
- -------- -------
determination to Seller.
(B) Representations and Warranties. All of the representations and
------------------------------
warranties of Seller under this Agreement shall be true as of the Closing Date
and shall not be affected or limited in any way as a result of Purchaser's
review or verification at any time of any Loan Files in the Portfolio.
(C) Other Conditions. All other terms and conditions of this Agreement
----------------
shall have been complied with.
Section 5. Seller's Representations, Warranties and Obligations. Each
representation, warranty and covenant made by Seller hereunder is for the
express benefit of Purchaser (and each investor, if any, which ultimately
purchases a Loan from Purchaser). It is understood and agreed that (i) the
representations and warranties set forth in this Agreement are being relied upon
by Purchaser for its own decision to purchase a Loan and in any subsequent
decision of Purchaser to sell, transfer and/or assign the Loan to any investor,
(ii) shall survive the sale and delivery of the Loans to Purchaser and
subsequent sale, transfer and/or assignment to any investor and (iii) will
continue in full force and effect for the remaining life of each Loan purchased
hereunder. Upon discovery by either Seller or Purchaser of a breach of any of
the representations and warranties of Seller, the party discovering such breach
shall give prompt written notice to the other party.
A. General Representations. Seller represents and warrants to Purchaser
-----------------------
that, as of the Closing Date:
1. Organization. Seller is a savings bank duly organized, validly
------------
existing and in good standing under the laws of the United States and is
licensed and qualified to transact business in every jurisdiction where a
Mortgaged Property is located and such license and qualification are required.
2. Power and Authority. Seller has the full corporate power and authority
-------------------
to execute and deliver this Agreement and to perform in accordance herewith.
The execution, delivery and performance of this Agreement (including all
instruments of transfer to be delivered pursuant to this Agreement) by Seller
and the consummation of the transactions contemplated hereby have been duly and
validly authorized and none of the foregoing conflicts with or will conflict
with, or results in or will result in, a breach of any term, condition or
provision of Seller's articles of incorporation or by-laws or any agreement to
which Seller is a party or by which Seller is bound, or constitutes or will
constitute a material default or result in an acceleration under any such
agreement. This Agreement evidences the valid, binding and enforceable
obligation of Seller. All requisite corporate action has been taken by Seller
to make this Agreement valid and binding upon Seller in accordance with its
terms.
3. No Consent. No consent, approval, authorization or order of any court,
----------
governmental body or any other person or entity is required for the execution
and delivery by Seller of this Agreement and the performance of its obligations
hereunder including, but not limited to, the sale of the loans to Purchaser.
4. No Litigation. Neither Seller nor any of its properties is subject to
-------------
or bound by any pending or, to its knowledge, threatened suit, action,
arbitration or legal or administrative or other proceeding which might have a
material adverse affect on its ability to perform its obligations under this
Agreement or which might have a material adverse effect on Seller's financial
condition or business prospects.
5. Compliance with Laws. Seller is in compliance in all material respects
--------------------
with all applicable federal, state and local laws and regulations and has all
federal, state and local licenses, permits and other authorizations of
governmental authorities used or required in the conduct of its business
(collectively, "Licenses") except those the absence of which would not have a
material adverse impact on the operations of Seller, and Seller has not received
any notice that revocation, termination or suspension is being considered with
respect to any of its Licenses, nor do any grounds for such revocation,
termination or suspension exist. No employee, officer, director or 25%
shareholder of Seller (either individually or in their capacity as an employee,
officer, director or shareholder of Seller or another entity) and no entity in
which any such person has acted as an employee, officer, director or shareholder
has been the subject of any action (whether or not successful) for the
revocation, termination or suspension of any such License. Seller further
covenants to notify Purchaser immediately upon the suspension, revocation,
expiration or other termination of any License or of the taking of any action
against Seller which could adversely affect the Licenses.
6. No Untrue Information. No untrue statement of material fact about
---------------------
Seller, its business or financial condition is contained in this Agreement or in
any statement, report or other document furnished or to be furnished by Seller
pursuant to this Agreement or in connection with the transactions contemplated
hereby and none of the foregoing omits to state a fact necessary to make the
statements contained herein or therein in light of the circumstances under which
they were made not misleading.
7. No Bulk Transfer, Etc. The transfer, assignment and conveyance of the
----------------------
Loans by Seller pursuant to this Agreement are in the ordinary course of
Seller's business and are not subject to the bulk transfer laws or any similar
statutory provisions in effect in any applicable jurisdiction. Seller is not
transferring the Loans with the intent to hinder, delay or defraud any of its
creditors. Seller is solvent and will not be rendered insolvent by the sale of
any of the Loans. The purchase price paid by Purchaser constitutes fair
consideration and reasonably equivalent
<PAGE>
value for the Loans. No fraud or illegality on the part of the Seller affecting
any Loan or otherwise in connection with any transaction contemplated by the
Agreement has occurred.
8. Ability to Perform. Seller does not believe, nor does it have any
------------------
reason or cause to believe, that it cannot perform in all material respects each
and every covenant and obligation contained in this Agreement.
9. Fictitious Name. Seller does not do business under a fictitious name
---------------
or, if it does so, a fictitious business name or assumed name statement has been
filed, recorded and/or published in each jurisdiction in which the Loans were
originated in accordance with all applicable laws, rules and regulations.
10. No Accrued Liabilities. There are no accrued liabilities of Seller
----------------------
with respect to the Loans or circumstances under which such accrued liabilities
will arise against Seller, or Purchaser as assignee of the Loans, with respect
to actions or events occurring on or prior to the Closing Date, or due to
actions or omissions of Seller.
B. Representations and Warranties with Respect to Each Loan. As of the
--------------------------------------------------------
Closing Date, Seller represents and warrants to Purchaser as follows:
1. Payments Current. All payments required to be made up to the Closing
----------------
Date for the Loan under the terms of the Note have been made and credited. No
payment required under the Loan is more than 29 days past due;
2. No Outstanding Charges. All taxes, governmental assessments,
----------------------
insurance premiums, water, sewer and municipal charges, leasehold payments or
ground rents which previously became due and owing have been paid. Seller has
not advanced funds, or induced, solicited or knowingly received any advance of
funds by a party other than the borrower, directly or indirectly, for the
payment of any amount required under the Loan, except for interest accruing from
the date of the Note or date of disbursement of the Loan proceeds, whichever is
later, to the day which precedes by one month the due date of the first
installment of principal and interest;
3. Original Terms Unmodified. The terms of the Note and the Mortgage
-------------------------
have not been impaired, waived, altered or modified in any respect, except by a
written instrument a copy of which has been delivered to Purchaser and which has
been recorded, if necessary, to protect the interests of Purchaser and the
substance of any such waiver, alteration or modification has been approved by
the issuer of any mortgagee title incurance policy, to the extent required by
the policy. No instrument of release or waiver has been executed in connection
with any Loan and no borrower or any guarantor of any Loan has been released, in
whole or in part. The borrower named in the Loan was the borrower at the closing
of such Loan, and no such borrower has assigned, transferred, pledged or
delegated any of his rights or obligations under the Note or the Mortgage;
4. No Defense. The Loan is not subject to any right of rescission,
----------
set-off, counterclaim or defense, including, without limitation, the defense of
usury, nor will the operation of any of the terms of the Note or the Mortgage,
or the exercise of any right thereunder, render either the Note or the Mortgage
unenforceable, in whole or in part, or subject to any right of rescission, set-
off, counterclaim or defense, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto;
5. Hazard and Flood Insurance. Pursuant to the terms of the related
--------------------------
Mortgage, all buildings or other improvements upon the Mortgaged Property are
insured by a generally acceptable insurer against loss by fire, hazards of
extended coverage and such other hazards as are customary in the area where the
Mortgaged Property is located in an amount which is at the least equal to the
lesser of (i) the maximum insurable value of such improvements and (ii) the
combined principal balance of the Loan and the principal balance of each
mortgage loan senior in priority to the Loan; provided, however, that such
-------- -------
hazard insurance shall be in an amount not less than such amount as is
necessary to avoid the application of any co-insurance clause contained in the
related hazard insurance policy. If the Mortgaged Property is in an area
identified by the Federal Emergency Management Agency as having special flood
hazards, a flood insurance policy in a form meeting the requirements of the
current guidelines of the Federal Insurance Administration is in effect with
respect to such Mortgaged Property with a generally acceptable carrier in an
amount representing coverage not less than the least of (A) the combined
principal balance of the Loan and the principal balance of each mortgage senior
in priority to the lien of the Loan, (B) the minimum amount required to
compensate for damage or loss on a replacement cost basis or (C) the maximum
amount of insurance that is available under the Flood Disaster Protection Act of
1973. All individual insurance policies contain a standard mortgagee clause
naming Seller and its successors and assigns as mortgagee, and all premiums
thereon have been paid. The Mortgage obligates the related borrower to maintain
the hazard and, if applicable, flood insurance policy at such borrower's cost
and expense, and on such borrower's failure to do so, authorizes the holder of
the Mortgage to obtain and maintain such insurance at such related borrower's
cost and expense, and to seek reimbursement therefor from such borrower. Each of
the hazard and, if applicable, the flood insurance policy has been issued by a
carrier meeting the requirements of the Seller's Guide, is the valid and binding
obligation of the insurer, is in full force and effect, and will be in full
force and effect and inure to the benefit of Purchaser upon the consummation of
the transactions contemplated by the Agreement. Seller has not engaged in, and
has no knowledge of the related borrower's having engaged in, any act or
omission which would impair the coverage of any such policy, the benefits of the
endorsement provided for therein, or the validity and binding effect thereof. In
addition, each policy provides for ten (10) days' advance notice in writing to
the mortgagee, its successors and/or assigns, in the event the policy is to be
canceled. Seller has furnished proof of such coverage and delivered the same to
Purchaser.
6. Compliance with Applicable Laws. The Loan and all activities
-------------------------------
performed in connection with the Loan by seller and each other person involved
in the origination of the Loan comply and complied in all respects with any and
all requirements of all applicable federal, state and local laws and regulations
including, without limitation the federal Equal Credit Opportunity Act and
Regulation B thereunder, the federal Truth in Lending Act and Regulation Z
thereunder, the federal Real Estate Settlement Procedures Act of 1974 and
Regulation X thereunder and the federal fair Credit Reporting Act, in each act
as amended. Seller shall deliver to Purchaser evidence of compliance with all
such requirements. Any applicable period within which the related borrower may
rescind the Loan has expired. The related Borrower was not required by the
Seller to pay any fees, charges or other amounts which have been excluded from
the calculation of the finance charge by the Seller except to he extent such
fees may properly be excluded under, and were bona fide and reasonable in amount
for purposes of, the federal Truth in Lending Act. All fees imposed by any
affiliate of the seller upon the related borrower in connection with the Loan
have been properly disclosed to such borrower under the requirements of the
federal Truth in Lending Act and any other state or federal law, rule or
regulation. Any provision of the documents included in the Loan file purporting
to require the payment of a prepayment fee or penalty complies with all
applicable state and federal laws and is enforceable in accordance with is terms
against the related borrower;
<PAGE>
7. Type of Mortgaged Property. The Mortgaged Property consists of a
--------------------------
single parcel of real property with a single family residence erected thereon,
or a two- to four-family dwelling, or an individual unit in a planned unit
development or condominium project, none of which is a mobile home, a boat, a
cooperative apartment or manufactured dwelling. No portion of the Mortgaged
Property is used for commercial purposes;
8. Valid Lien; No Satisfaction of Mortgage. The Mortgage evidences a
---------------------------------------
valid, subsisting and enforceable first or junior lien on the Mortgaged
Property, including all buildings on the Mortgaged Property and all
installations and mechanical, electrical, plumbing, heating and air conditioning
systems located in or affixed to such buildings, and all additions, alterations
and replacements made at any time with respect to the foregoing. The lien of the
Mortgage is subject, in the case of a Loan secured by a junior lien, only to the
lien of any senior mortgage referred to in the title policy contained in the
related Loan File and subject, in all cases only to: the lien of current real
property taxes and assessments not yet due and payable; covenants, conditions
and restrictions, rights of way, easements and other matters of the public
record as of the date of recording acceptable to mortgage lending institutions
generally and specifically referred to in the mortgagee title insurance policy
delivered to the originator of the Loan and (A) referred to or otherwise
considered in the appraisal made for the originator of the Loan or (B) which do
not materially adversely affect the appraised value of the Mortgaged Property
set forth in such appraisal; and other matters to which like properties are
commonly subject and which do not materially interfere with the benefits of the
security intended to be provided by the Mortgage or the use, enjoyment, value or
marketability of such Mortgaged Property. The Mortgage was duly and properly
recorded in the recorder's office for the county wherein the Mortgaged Property
is located. The Mortgage has not been satisfied, canceled, subordinated or
rescinded, in whole or in part, and the Mortgaged Property has not nor has any
instrument been executed or recorded that would effect any such release,
cancelation, subordinated or rescission;
9. Validity of Mortgage Documents. The Note and the Mortgage are
------------------------------
genuine, and each is the legal, valid and binding obligation of the maker
thereof enforceable in accordance with its terms. The Note and Mortgage
delivered to Purchaser are the only executed copies thereof. All parties to the
Note and the Mortgage had legal capacity to enter into the Loan and to execute
and deliver the Note and the Mortgage, and the Note and the Mortgage have been
duly and properly executed by such parties;
10. Full Disbursement of Proceeds. The proceeds of the Loan have been
-----------------------------
fully disbursed and there is no requirement for future advances thereunder, and
any and all requirements as to completion of any on-site or off-site
improvements and as to disbursements of any escrow funds therefor have been
complied with. All costs, fees and expenses incurred in making or closing the
Loan and the recording of the Mortgage were paid, and the related borrower is
not entitled to any refund of any amounts paid or due under the Note or the
Mortgage;
11. Ownership. Seller is the sole owner of record and holder of the Loan.
---------
The Loan has not been assigned or pledged, and Seller has good and marketable
title thereto, and has full right to transfer, sell and assign the Loan and the
related servicing rights to Purchaser free and clear of any encumbrance,
equity, participation interest, lien, pledge, charge, claim, interest or
participation of, or agreement with, any other party, pursuant to the Agreement.
Upon the sale of each Loan to Purchaser, Purchaser will acquire all right, title
and interest in and to such Loan, free and clear of any pledges, liens, security
interests, claims, participations, interests or other equities or encumbrances
of any type, kind or nature;
12. Doing Business. All parties which have had any interest in the Loan,
--------------
whether as mortgagee, assignee, pledgee or otherwise are (or during the period
in which they held and disposed of such interest, were) (i) in compliance in all
material respects with any and all applicable licensing requirements of the laws
of the state wherein the Mortgaged Property is located and (ii) organized under
the laws of such state, or (iii) qualified to do business in such state, or (iv)
federal savings and loan associations or national banks having principal offices
in such state or (v) not deemed to be doing business in such state;
13. LTV. At origination, the loan-to-value ratio ("LTV") of the Loan,
---
based on the original principal balance of the Loan and the value of the related
Mortgaged Property set forth in the appraisal contained in the related Loan
File, did not exceed the maximum LTV amount set forth in the Seller's Guide for
such Loan; and if the Loan is a junior priority lien, the principal balances of
all related senior liens outstanding at the origination of the Loan were added
to the original principal balance of the Loan to determine the LTV for such Loan
and, if such senior liens provide for negative amortization, deferred interest
or an open-end feature which permits additional borrowings, the balances of such
related senior liens used to calculate the LTV are based on the maximum amount
of negative amortization, deferred interest or maximum amount of borrowings
permitted under such senior liens;
14. Title Insurance. The Loan is covered by either an ALTA mortgagee
---------------
title insurance policy, or the equivalent thereof if an ALTA policy is not
available in a specific geographic location, issued by a title insurer
reasonably acceptable to Purchaser. The title insurance policy has been issued
by a title insurer licensed to do business in the jurisdiction where the
Mortgaged Property is located, insuring Seller, its successors and assigns, as
to the first- or junior-priority lien of the Mortgage in the original principal
amount of the Loan. Seller is the sole insured of such mortgagee title insurance
policy, and such mortgage title insurance policy is in full force and effect and
will be in force and effect upon the consummation of the transactions
contemplated by this Agreement. No claims have been made under such mortgagee
title insurance policy, the accuracy of any attorney's opinion of title has
never been disputed, and no prior holder of the Mortgage, including Seller, has
done, by act or omission, anything which could impair the coverage or
enforceability of such mortgagee title insurance policy or the accuracy of such
attorney's opinion of title. Each such mortgage title insurance policy includes
all endorsements which are customary for loans similar to the Loans or which may
be required by Purchaser in the exercise of its reasonable discretion;
15. No Defaults. there is no default, breach, violation or event of
-----------
acceleration existing under the Note or the Mortgage and no event which, with
the passage of time or with notice and the expiration of any grace or cure
period, would constitute a default, breach, violation or event of acceleration,
and neither Seller nor its predecessors has waived any default, breach,
violation or event of acceleration;
16. No Mechanic's Liens. There are no mechanic's, materialman's or similar
-------------------
liens or claims which have been filed for work, labor or material (and no rights
are outstanding that under the law could give rise to such liens) affecting the
related Mortgaged Property which are or may be liens prior to, or equal or
coordinate with, the lien of the related Mortgage;
17. Location of Improvements; No Encroachments. All improvements which
------------------------------------------
were considered in determining the appraised value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of the Mortgaged
Property and no improvements on adjoining properties encroach upon the Mortgaged
Property (except such encroachments as have been affirmatively insured over by
the title insurer). No
<PAGE>
improvement located on or being part of the Mortgaged Property is in violation
of any applicable zoning law, rule or regulation;
18. Customary Provisions. The Mortgage contains customary and
--------------------
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property of the
benefits of the security provided thereby, including, (i) in the case of a
Mortgage designated as a deed or trust, by trustee's sale and (ii) otherwise by
judicial foreclosure. There is no homestead or other exemption available to
the related borrower which would interfere with the right to sell the Mortgaged
Property at a trustee's sale or the right to foreclose the Mortgage;
19. Occupancy Certificates. The Mortgaged Property is lawfully
----------------------
occupied under applicable law. All inspections, licenses and certificates
required to be made or issued with respect to all occupied portions of the
Mortgaged Property and, with respect to the use and occupancy of the same,
including but not limited to certificates of occupancy and fire underwriting
certificates, have been made or obtained from the appropriate authorities;
20. No Additional Collateral. The Note is not and has not been secured by
------------------------
any collateral except the lien of the related Mortgage;
21. Deeds of Trust. In the event the Mortgage constitutes a deed of
--------------
trust, a trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves and is named in the Mortgage, and no
fees or expenses are or will become payable by Purchaser to the trustee under
the deed of trust, except in connection with a trustee's sale after default by
the related borrower;
22. Acceptable Investment. To the best knowledge of Seller, there are
---------------------
no facts or circumstances or conditions with respect to the Mortgage, the
Mortgaged Property or the related borrower that can reasonably be expected to
cause mortgage lending institutions to regard the Loan as an unacceptable
investment, cause the Loan to become delinquent or adversely affect the value or
marketability of the Loan;
23. Condominium Units. If the Loan is secured by a Mortgage on a
-----------------
condominium unit located in a condominium project, the condominium project and
the Loan conform in all material respects to the requirements set forth in the
Seller's Guide with respect to condominium projects and Loans secured by a
Mortgage on a condominium unit located in a condominium project;
24. Transfer of Loans. Each Note has been properly endorsed in a
-----------------
manner that satisfies any requirement of endorsement in order to transfer to the
Purchaser all right, title and interest of the Seller to that Note. Each
Assignment of Mortgage is in recordable form, is acceptable for recording under
the laws of the jurisdiction in which the Mortgaged Property is located and is
sufficient to effect the assignment and transfer to the Purchaser of the
benefits of the Seller, as original mortgagee or assignee thereof, under each
Mortgage to which such assignment relates;
25. Due-on-Sale. The Mortgage contains an enforceable provision for
-----------
the acceleration of the payment of the unpaid principal balance of the Loan in
the event that the Mortgaged Property is sold or transferred without the prior
written consent of the mortgagee thereunder;
26. No Buydown Provisions; No Graduated Payments or Contingent
----------------------------------------------------------
Interest. The Loan does not contain provisions pursuant to which monthly
- --------
payments are paid or partially paid with funds deposited in any separate account
established by the mortgagee, the seller of the Mortgaged Property, the related
borrower or anyone on behalf of the related borrower,or paid by any source other
than such borrower, nor does it contain any other similar provision which may
constitute a "buydown" provision. The Loan is not a graduated payment mortgage
loan. The Loan does not have a shared appreciation or other contingent interest
feature;
27. Mortgaged Property Undamaged. Except as set forth in the appraisal
----------------------------
which forms part of the related Loan File, the Mortgaged Property is undamaged
by waste, fire, earthquake or earth movement, windstorm, flood, tornado or
other casualty so as to affect materially and adversely the value of the
Mortgaged Property as security for the Loan or the use for which the premises
were intended. To the best of Seller's knowledge the related borrower is not in
and has not been in violation of, no prior owner of the Mortgaged Property was
in violation of, and the Mortgaged Property does not violate any standards
under, applicable federal, state or local statutes, ordinances, rules,
regulations, orders or decisions with regard to pollutants or hazardous or toxic
substances as amended and supplemented from time to time;
28. Demand Statements. Seller has not received any requests for a
-----------------
demand statement with respect to the Loan;
29. Loan File. Seller has delivered to Purchaser a true, complete and
---------
accurate Loan File which contains the Note, the Mortgage and Seller's Assignment
of Mortgage, the application and all information obtained by Seller as a result
of its credit investigations, together with each of the other documents and
instruments specified to be included therein by the Agreement or the Seller's
Guide, each in due and proper form, and each such document or instrument
complies in all material respects with the requirements of the Seller's Guide.
The credit information contained in each such Loan File was compiled by the use
of generally accepted lawful credit investigation procedures, including inquiry
to national credit investigation agencies;
30. Appraisal. The appraisal meets the requirements of all applicable
---------
state and federal laws, rules and regulations in all respects and was performed
by a qualified appraiser who is duly licensed under all applicable state and
federal laws and who has no interest, direct or indirect, in the Mortgaged
Property or in any loan encumbering the Mortgaged Property, and who does not
receive compensation which is affected by the approval or denial of the Loan;
31. Adjustable Rate Loans. Each Loan that has an adjustable rate of
---------------------
interest has an interest rate not less than the floor rate specified in the
related Note. With respect to each adjustable rate Loan, all adjustments have
been made strictly in accordance with the terms of the related Note and the
Mortgage. No adjustable rate loan is subject to negative amortization or
permits the conversion of the Loan to a fixed interest rate. Each adjustable
rate Loan was underwritten as though such Loan would initially have borne
interest at a rate equal to the applicable index plus the related margin at the
time of origination;
32. Condition of Borrower. The Seller is not aware of any
---------------------
circumstances existing at or prior to the Closing Date that would lead it to
believe the related borrower is unable to repay the Loan in accordance with the
terms of the Note. No event or circumstance has occurred or has arisen which,
with or without notice, passage of time or both, could result in the seizure of
the Mortgaged Property by state or federal agents acting under any state or
federal law, rule or regulation including, without limitation, the Controlled
Substances Act or the Internal Revenue Code or the regulations promulgated
pursuant to either of the foregoing;
33. Servicing Practices. The origination and collection practices
-------------------
used with respect to each Loan have in all material respects complied with
standards generally required by institutional lenders and with applicable law,
and have been in all respects legal and proper. The information contained in
and appearing upon the Seller's
<PAGE>
servicing records with respect to the Loan is accurate in all material respects
and adequately reflects the true status of the Loan to which said records
relate;
34. No Escrow Deposits. There are no escrow deposits or accounts
------------------
maintained in connection with the Loan;
35. Junior Liens - Maturity Date; No consent of Senior Holder. If the
---------------------------------------------------------
Loan is a junior lien, the maturity date of the loan is at least twelve (12)
months prior to the maturity date of any related senior mortgage loan if such
senior mortgage loan provides for a balloon payment. With respect to each Loan
which is a Junior Lien, either (A) no consent for such loan was required by the
holder of the related senior lien prior to the making of such Loan or (B) such
consent has been obtained and written evidence thereof is contained in the
related Loan File;
36. Soldiers' and Sailors' Relief Act. The borrower is not entitled to
---------------------------------
relief under the Solders' and Sailors' Civil Relief Act of 1940.
Section 6. Seller's Repurchase Obligations. Seller shall repurchases any
Loan sold to Purchaser pursuant to this Agreement within ten (10) business days
after receipt of written notice from Purchaser of any of the following
circumstances;
(a) Failure by Seller to deliver to Purchaser the contents of the Loan
File for any Loan within one hundred twenty (120) days after the related Closing
Date.
(b) Discovery of any evidence of fraud or falsity in the origination of
the Loan or in the sale of the Loan to Purchaser which has a material adverse
effect on the value or marketability of the Loan.
(c) Seller fails to observe or perform, or is or becomes in breach of,
any of the representations, warranties or agreements contained in this
Agreement; provided, however that such failure or breach has a material adverse
effect on the value of the Loan or Loans to which such failure or breach
pertains; and provided, further, that if Seller is or becomes in breach of any
representation or warranty contained in Section 5 A hereof, Purchaser may
require Seller to repurchase Loans which are materially and adversely affected
by such breach sold by Seller to Purchaser under this Agreement which are
materially and adversely affected by such breach at the "Repurchase Price" (as
defined in Section 7 of this Agreement). It is understood that Seller's
obligation to repurchase any Loan is binding and enforceable against it without
regard to an limitation set forth in such representation or warranty concerning
the knowledge of Seller as to the facts stated therein.
(d) A borrower exercises his statutory right to rescind a Loan and
Purchaser determines in its sole discretion that such exercise is valid.
Section 7. Repurchase Price. The repurchase price (the "Repurchase
Price") of any Loan to be paid by Seller for any repurchase of such Loan
required pursuant to Section 6 hereof shall be calculated as follows:
(a) The Purchase Price of such Loan,
(b) less any principal reduction occurring subsequent to the related
Closing Date.
(c) plus all interest accrued but unpaid on the outstanding principal
balance of the Loan from the Closing Date through and including the next
payment due date following the date on which the repurchase is made,
(d) plus all expenses, including, but not limited to reasonable fees and
expenses of counsel incurred by Purchaser in enforcing Seller's
obligations to repurchase such Loan.
Seller shall pay the Repurchase Price for the repurchased Deficient Loan
to Purchaser by wire transfer of immediately available funds to an account
designated by Purchaser. Promptly following its receipt of the full amount of
the Repurchase Price for such Loan, Purchaser shall endorse the related Note
(without recourse) and shall execute an assignment of the related Mortgage
(without recourse), in recordable form, and deliver same, together with the
related Loan File, to Seller, all at Seller's sole cost and expense. As
additional consideration, Purchaser shall release all servicing rights with
respect to such Loan and shall cooperate with Seller in effecting, at Seller's
expense, the transfer or servicing of such Loan.
Section 8 Indemnification. In addition to the repurchase obligations of
Seller, and all other remedies available to Purchaser under this Agreement, at
law or in equity, and regardless of any investigation conducted by Purchaser
with respect to any Loan at any time, Seller shall indemnify Purchaser and its
agents, affiliates, assigns, officers, directors and employees (each a
"Purchaser Indemnitee") from and hold them harmless against all losses, claims,
demands, liabilities, damages, penalties, fines, forfeitures, costs (including
court costs and reasonable attorney's fees), judgments, and any other costs,
fees and expenses (collectively, "Damages") resulting or arising from:
(i) any material breach of any representation, warranty or obligation
of Seller set forth in, or made pursuant to, this Agreement;
(ii) any act or failure to act or any breach of any representation,
warranty or obligation made by any Purchaser Indemnitee in reliance upon
any representation, warranty or obligation of Seller contained in or made
pursuant to this Agreement;
(iii) claims made by borrowers or third parties against any Purchaser
Indemnitee arising from negligence, fraud or a material omission on the
part of Seller in receiving, processing or funding any Loan sold to
Purchaser;
(iv) all Damages arising out of or in connection with any one or more
of the items set forth in Section 6(a) through (d), inclusive, of this
Agreement;
(v) any Damages arising due to any act or omission of Seller prior to
the date of this Agreement or, with respect to any particular Loan, any
Damages due to acts or omissions of Seller or any other party involved in
such Loan transaction on or prior to the Closing Date and/or any Damages
relating to any defect or deficiency in any Loan existing as of the
Closing Date (including, without limitation, a defect in the documentation
of any Loan or defects which would cause the loan to fail to be in
strict compliance with the representations and warranties set forth in
Section 5 B. at all times since the date the related borrower applied for
such loan); and
(vi) any undertaking of an investigation of the facts relating to any
claim or demand to which this indemnity relates, and reasonable costs or
expenses incurred to consultants and investigators in connection with such
investigation or in the defense of any claims related to a Loan which may
give rise to Damages.
Section 9. No Partnership, Agency or Other Relationship; Power of
Attorney. Nothing contained in this Agreement shall be deemed or construed by
any person to create a partnership or joint venture between Purchaser and
Seller, or to constitute either of Purchaser or Seller the agent, nominee or
representative of the other.
<PAGE>
Seller shall not represent itself to any person as the Purchaser's agent, loan
agent, nominee or otherwise. Seller shall not name Purchaser in its
advertisements, stationery, business cards, loan applications or related
documents or forms. Without limitation on or expansion of the foregoing,
Seller hereby appoints Purchaser, its agents, employees, successors and assigns,
the true and lawful attorney-in-fact of Seller without right of revocation and
with the full power of substitution for and in the place and stead of Seller and
on behalf and for the benefit of Purchaser, to demand, control and collect all
sums due on the Loans purchased under this Agreement, and to enforce any and all
rights with respect thereto, and to endorse the name of Seller where Seller's
name is designated as the payee upon any notes, collateral, security,
acceptances, checks, drafts, money orders or other evidences of payment coming
into the hands of Purchaser in full or partial payment of any Loan, and to
satisfy or release, or cause to be satisfied or released, all liens and security
interests related thereto, when and if Purchaser may determine to do so.
Section 10. Expenses. Each party shall be responsible for its own
expenses incurred in connection with this Agreement; provided, however, that
-------- -------
Seller shall bear any expenses arising as a result of (a) any changes or
modifications required to be made to any documents underlying the Loan for
whatever reason (so long as such change or modification relates to the
origination of such Loan or the period prior to the related Closing Date); (b)
the preparation and delivery of all notices relating to the transfer of
servicing required by applicable state and federal law, including, without
limitation, notices required by RESPA, in connection with any repurchase
pursuant to Section 6 hereof; and (c) the preparation and delivery of all
notices to the hazard insurance companies in order to designate Purchaser as
payee under the lender loss payable clause. Seller acknowledges that, in
connection with Purchaser's purchase of Loans from Seller, Purchaser may
reasonably conclude that Seller is required to comply with various federal and
state laws. In this connection, Seller expressly understands and acknowledges
that Purchaser may from time to time require Seller to deliver such notices to
borrowers as Purchaser reasonably concludes are required by law to be delivered
by the Seller, all at Seller's sole cost and expense.
Section 11. Maintenance of Fidelity Bond and Errors and Omissions
Insurance. Seller shall maintain, with a company reasonably acceptable to
Purchaser, a blanket fidelity bond and an errors and omissions insurance policy,
with broad coverage on all officers, employees or other persons acting in any
capacity with regard to the Loans, who handle funds, money, documents and papers
relating to the Loans ("Employees"). Any such fidelity bond and errors and
omissions insurance policy shall protect and insure the Seller against losses,
including forgery, theft, embezzlement, fraud, errors and omissions and
negligent acts of such Employees. Such policy shall also protect against any
erroneous release or satisfaction of each lien created by the Security
Instruments before the related Note has been fully paid and satisfied. No
provisions of this Section 11 requiring a fidelity bond and errors and omissions
insurance policy shall diminish or relieve the Seller from its duties and
obligations as set forth in this Agreement. The minimum coverage under any such
fidelity bond and errors and omissions insurance policy shall be at least equal
to the corresponding amounts required by the Seller from its duties and
obligations as set forth in this Agreement. The minimum coverage under any such
fidelity bond and errors and omissions insurance policy shall be at least equal
to the corresponding amounts required by the Seller's Guide. Upon the request of
Purchaser, Seller shall cause to be delivered to Purchaser a certified true copy
of such fidelity bond and errors and omissions insurance policy.
Section 12. Miscellaneous.
(a) No Solicitation. Seller shall not specifically target for
----------------
refinancing any borrower or co-borrower under any Loan sold by Seller to
Purchaser during the period of twelve (12) months immediately following the
Closing Date for such Loan. Any Borrower seeking to refinance a Loan directly
with Seller within such 12-month period must be referred to Purchaser. In the
event Seller breaches this covenant and a loan is refinanced, Seller shall pay
to Purchaser, within two (2) business days after Seller's receipt of notice from
Purchaser demanding payment, an amount equal to 2% of the principal balance of
such Loan outstanding immediately prior to such refinance. Such payment shall be
in addition to the amounts that may be owed under Section 12(b) hereof.
(b) Exhibits. All exhibits attached hereto or referred to in this
--------
Agreement are incorporated by reference into this Agreement.
(c) Entire Agreement. The entire agreement between the parties is
----------------
contained in this Agreement and cannot be modified in any respect except by an
amendment in writing signed by both parties.
(d) Assignment. Neither Seller nor Purchaser may assign its rights or
----------
obligations under this Agreement without the prior written consent of the other.
This Agreement shall be binding and inure to the benefit of the permitted
successors and assigns of the parties hereto.
(e) Attorneys' Fees and Expenses: Choice of Law and Forum. If any party
----------------------------------------------------
hereto shall bring suit or other proceeding against the other as a result of any
alleged breach or failure by the other party to fulfill or perform any covenants
or obligations under this Agreement, then the prevailing party obtaining final
judgment in such action shall be entitled to receive from the non-prevailing
party reasonable attorneys' fees incurred by reason of such action and all costs
of suit and preparation therefor at both trial and appellate levels. In
addition, any such suit or proceeding shall be brought in the federal or state
courts located in Los Angeles County, California, which courts shall have sole
and exclusive in personam, subject matter and other jurisdiction in connection
with such suit or proceedings and venue shall be appropriate for all purposes in
such courts. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of california.
(f) No Remedy Exclusive; Waiver. No remedy under this Agreement is
---------------------------
exclusive of any other available remedy, but each remedy shall be cumulative and
shall be in addition to other remedies given under this Agreement or existing at
law or in equity. Any forbearance by a party to this Agreement in exercising any
right or remedy under this Agreement or otherwise afforded by applicable law
shall not be a waiver or preclude the exercise of that or any other right or
remedy. Seller hereby waives any statute of limitations or other defense that
might otherwise be raised in any action to enforce Seller's indemnification and
repurchase obligations hereunder.
(g) Termination. Either Purchaser or Seller may terminate this Agreement
-----------
at any time upon ten (10) days' prior written notice to the other party;
provided, however, that Sections 5, 6, 7, 8, and 12 (a), (b) and (f) of this
Agreement shall survive any such termination.
(h) Severability. Whenever possible, each provision of this Agreement
------------
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be or become
prohibited or invalid under applicable law, such provision shall be ineffective
to the extent of such prohibition or invalidity without invalidating the
remainder of such provision or the remaining provision of this Agreement.
(i) Financial Statements; Other Information. Seller shall furnish to
---------------------------------------
Purchaser ninety (90) days after the close of its fiscal year, a copy of its
audited annual financial statements and supporting schedules, prepared in
accordance with generally accepted accounting principles, consistently applied.
Seller agrees to make available to
<PAGE>
Purchaser a knowledgeable financial or accounting officer for the purpose of
answering questions regarding the financial statements and any developments
affecting the financial or other condition of Seller. During the term of this
Agreement, Seller shall furnish Purchaser such periodic, special or other
reports or information, whether or not provided for herein, as shall be
necessary, reasonable or appropriate to Purchaser.
(j) Notice. All notices, communications, documents, correspondence and
------
other materials received by Seller from any person whatsoever after the Closing
Date relating to a Loan shall be forwarded to Purchaser by overnight courier, at
Seller's expense, within two (2) business days following receipt thereof by
Seller. All notices under this Agreement shall be in writing, deemed effective
upon receipt and shall be delivered to the addresses set below:
If to Purchaser: If to Seller:
AAMES CAPITAL CORPORATION PAN AMERICAN BANK, F.S.B.
P.O. Box 76930 1300 South El Camino Real, Suite 320
Los Angeles, California 90010 San Mateo, California 94402
Attn: Mark E. Costello Attn: Blair Kenny
Executive Vice President - Loan Production
IN WITNESS WHEREOF, the parties hereto have duly executed this Master
Loan Purchase Agreement as of the 1st day of April, 1997.
AAMES CAPITAL CORPORATION PAN AMERICAN BANK, F.S.B.
AAMES FUNDING CORPORATION
By: /s/ SHANNON THURMOND, V.P. By: /s/ LAWRENCE J. GILL
--------------------------- ----------------------
For: Mark E. Costello Name: Lawrence J. Gill
Executive Vice President - ------------------------
Loan Production Title: President
("Purchaser") -----------------------
("Seller")
<PAGE>
EXHIBIT 10.71
================================================================================
Pan American Bank, F.S.B.
Seller
and
AMRESCO Residential Capital Markets, Inc.
Buyer
CONTINUING LOAN PURCHASE AGREEMENT
February 27, 1997
Fixed and Adjustable First Lien Residential Mortgage Loans
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page No.
--------
<S> <C>
SECTION 1 DEFINITIONS ............................................... 1
Section 1.1 Defined Terms ...................................... 1
-------------
Section 1.2 Other Terms ........................................ 7
-----------
SECTION 2 PURCHASE OF LOANS AND TRANSFER OF SERVICING ............... 7
Section 2.1 Notice of Availability ............................. 7
----------------------
Section 2.2 Buyer's Offer and Seller's Acceptance .............. 8
-------------------------------------
Section 2.3 Purchase of Loans and Transfer of Servicing Rights . 9
--------------------------------------------------
Section 2.4 Purchase Price ..................................... 9
--------------
Section 2.5 Transfer of Servicing .............................. 9
---------------------
Section 2.6 Sale Treatment ..................................... 9
--------------
SECTION 3 SETTLEMENT ................................................ 10
Section 3.1 Place and Time of Settlement ....................... 10
----------------------------
Section 3.2 Seller's Deliveries on Settlement Date ............. 10
--------------------------------------
Section 3.3 Buyer's Deliveries at Settlement ................... 10
--------------------------------
SECTION 4 REPRESENTATIONS AND WARRANTIES ............................ 10
Section 4.1 General Representations and Warranties of Seller ... 10
------------------------------------------------
Section 4.2 Representations and Warranties of Seller Regarding
--------------------------------------------------
the Offered Loans .................................. 13
-----------------
Section 4.3 Representations and Warranties of Seller Regarding
--------------------------------------------------
the Loans .......................................... 14
---------
Section 4.4 General Representations and Warranties of Buyer .... 23
-----------------------------------------------
SECTION 5 PRE-SETTLEMENT COVENANTS .................................. 24
Section 5.1 Continued Servicing ................................ 24
-------------------
Section 5.2 Preparation of Assignments ......................... 25
--------------------------
Section 5.3 IRS Reporting ...................................... 25
-------------
Section 5.4 Compliance with Law ................................ 25
-------------------
Section 5.5 No Sale of Assets .................................. 26
-----------------
Section 5.6 Private Mortgage Insurance ......................... 26
--------------------------
SECTION 6 POST-SETTLEMENT COVENANTS .................................. 26
Section 6.1 Notice of Servicing Transfer ....................... 26
----------------------------
Section 6.2 IRS Examination .................................... 26
---------------
</TABLE>
-i-
<PAGE>
<TABLE>
<S> <C>
Section 6.3 Tax on Sale ........................................ 27
-----------
Section 6.4 Books and Records .................................. 27
-----------------
Section 6.5 On-Site Reviews .................................... 27
---------------
Section 6.6 Financial Statements ............................... 27
--------------------
Section 6.7 Post-Servicing Transfer Date Loan Payments ......... 27
------------------------------------------
Section 6.8 Transfer of Servicing Rights and PMI ............... 27
------------------------------------
Section 6.9 Delivery of Original Mortgage ...................... 28
-----------------------------
Section 6.10 Confidentiality .................................... 28
---------------
Section 6.11 Continued Cooperation .............................. 28
---------------------
Section 6.12 Covenant to Cooperate .............................. 28
---------------------
Section 6.13 No Personal Solicitation ........................... 29
------------------------
SECTION 7 CONDITIONS TO SETTLEMENT .................................. 29
Section 7.1 Conditions to Buyer's Obligations .................. 29
---------------------------------
Section 7.2 Opinion of Counsel ................................. 31
------------------
Section 7.3 Conditions to Seller's Obligations ................. 31
----------------------------------
SECTION 8 SURVIVAL OF COVENANTS, REPRESENTATIONS AND WARRANTIES ..... 32
SECTION 9 POST-SETTLEMENT REPURCHASE AND ADJUSTMENTS ................ 32
Section 9.1 Repurchase Obligations ............................. 32
----------------------
Section 9.2 Repurchase Price ................................... 34
----------------
Section 9.3 Post-Settlement Adjustments to Purchase Price ...... 35
---------------------------------------------
SECTION 10 INDEMNIFICATION ........................................... 35
Section 10.1 Seller's Indemnification ........................... 35
------------------------
Section 10.2 Buyer's Indemnification ............................ 35
-----------------------
Section 10.3 Indemnification Procedures ......................... 36
--------------------------
SECTION 11 TERMINATION ............................................... 37
Section 11.1 Termination by Either Party ........................ 37
---------------------------
Section 11.2 Termination by Buyer ............................... 37
--------------------
Section 11.3 Effect of Termination .............................. 38
---------------------
</TABLE>
-ii-
<PAGE>
<TABLE>
<S> <C>
SECTION 12 MISCELLANEOUS ............................................. 38
Section 12.1 No Waiver ......................................... 38
---------
Section 12.2 Amendment and Modification ........................ 39
--------------------------
Section 12.3 Notices ........................................... 39
-------
Section 12.4 Expenses .......................................... 40
--------
Section 12.5 No Remedy Exclusive ............................... 40
-------------------
Section 12.6 Independent Contractor ............................ 40
----------------------
Section 12.7 Severability ...................................... 41
------------
Section 12.8 Entire Agreement .................................. 41
----------------
Section 12.9 Assignment ........................................ 41
----------
Section 12.10 Captions .......................................... 41
--------
Section 12.11 Governing Law ..................................... 41
-------------
Section 12.12 Counterparts ...................................... 41
------------
Section 12.13 Drafting .......................................... 41
--------
Section 12.14 Choice of Forum ................................... 41
---------------
Section 12.15 WAIVER OF JURY TRIAL .............................. 42
--------------------
</TABLE>
EXHIBITS AND SCHEDULES
----------------------
EXHIBIT A - Form of Bill of Sale and Assignment
SCHEDULE 1 TO BILL OF SALE AND ASSIGNMENT
EXHIBIT B - Form of Offer and Acceptance
SCHEDULE 1 TO OFFER AND ACCEPTANCE
EXHIBIT C - CONTENTS OF LEGAL FILE
EXHIBIT D - CONTENTS OF CREDIT FILE
SCHEDULE 2.1
SCHEDULE 4.2(b) (A)
EXHIBIT E - OPINION OF COUNSEL
EXHIBIT F - OFFICER'S CERTIFICATE
ATTACHMENT 1 - COLLECTION ACCOUNT LETTER AGREEMENT
-iii-
<PAGE>
CONTINUING LOAN PURCHASE AGREEMENT
----------------------------------
THIS CONTINUING LOAN PURCHASE AGREEMENT (this "Agreement") is made and
---------
entered into this 27th day of February, 1997 by and between AMRESCO Residential
Capital Markets, Inc., a Delaware corporation ("Buyer"), and Pan American Bank,
-----
F.S.B., a federal savings bank ("Seller").
------
WHEREAS, Seller is engaged in the business of originating, acquiring
and servicing fixed and adjustable rate, closed-end single-family residential
mortgage loans, and has proposed to offer to sell portfolios of such loans to
Buyer from time to time subject to Buyer's review and acceptance of all or any
part of each such portfolio; and
WHEREAS, Seller desires from time to time to sell to Buyer, and Buyer
desires from time to time to purchase from Seller certain loans due and to
become due thereunder.
NOW THEREFORE, in consideration of the premises and other covenants
contained herein, Buyer and Seller agree as follows:
SECTION 1 DEFINITIONS
Section 1.1 Defined Terms
-------------
"Affiliate": With respect to any Person, any other Person that, directly or
---------
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with the Person specified.
"Acceptance": Seller's acceptance of Buyer's Offer.
----------
"Accepted Servicing Practices": With respect to any Loan, written servicing
----------------------------
procedures that Seller would follow in servicing first lien residential mortgage
loans held for its own account, giving due consideration to those mortgage
servicing practices of prudent mortgage lending institutions that service
mortgage loans of the same type as such Loan in the jurisdiction where the
related Mortgaged Property is located.
"Adjustable Rate Loan": A Loan which provides for the adjustment of the
--------------------
Mortgage Interest Rate payable in respect thereto.
"Appraised Value": With respect to any Mortgaged Property, the lesser of
---------------
(i) the value thereof as determined by an appraisal made for the originator of
the Loan at the time of origination of the Loan by an appraiser who met the
minimum requirements of FNMA and FHLMC, and (ii) the purchase price paid for the
related Mortgaged Property by the Obligor
AMRESCO RESIDENTIAL CAPITAL MARKETS, INC. Continuing Loan Purchase Agreement
02/25/97 Page 1
<PAGE>
with the proceeds of the Loan, provided, however, in the case of a Refinanced
Loan, such value of the Mortgaged Property is based solely upon the value
determined by an appraisal made for the originator of such Refinanced Loan at
the time of origination of such Refinanced Loan by an appraiser who met the
minimum requirements of FNMA and FHLMC.
"Assignment of Mortgage": An assignment of the Mortgage, notice of transfer
----------------------
or equivalent instrument, in recordable form, which when recorded is sufficient
under the laws of the jurisdiction where the related Mortgaged Property is
located to reflect of record the sale of the Mortgage to Buyer, or its assignee.
"Bid Percentage": A percentage, determined by Buyer in its sole discretion,
--------------
on which the Purchase Price is based.
"Bill of Sale": Each bill of sale and assignment in the form attached
------------
hereto as Exhibit A, which evidences the sale and acquisition of a portfolio of
---------
Loans and to which Seller shall attach, as Schedule 1, the Loan Schedule,
----------
listing the Loans to be purchased pursuant to such Bill of Sale.
"Business Day": A day other than Saturday, Sunday, or any other day on
------------
which Seller or Buyer is not regularly open for business.
"Buyer": AMRESCO Residential Capital Markets, Inc., a Delaware corporation.
-----
"Collection Account": The trust account or accounts which are created and
------------------
maintained by the Seller for collection of principal and interest, insurance
proceeds, any Repurchase Price or any other proceeds from the Loan received by
the Seller from the Settlement Date until the Servicing Transfer Date.
"Credit File": The file containing those items listed in Exhibit D attached
----------- ---------
hereto, and any additional documents required to be added thereto pursuant to
this Agreement.
"Custodial Agreement": The Amended and Restated Master Custodial Agreement
-------------------
dated as of November 1, 1995 executed by and between Buyer and Custodian.
"Custodian": Bankers Trust Company of California, N.A.
---------
"Cut-off Date": The date as of which the Principal Balance and the Pool
------------
Balance are determined for purposes of the Offered Loan Schedule.
"Deleted Loan": A Loan which is repurchased or substituted with a Qualified
------------
Substitute Loan by Seller in accordance with the terms of this Agreement.
AMRESCO RESIDENTIAL CAPITAL MARKETS, INC. Continuing Loan Purchase Agreement
02/25/97 Page 2
<PAGE>
"Due Date": The day of the month on which each Monthly Payment is due on a
--------
Loan, exclusive of any grace period.
"Due Diligence Period": The period as proposed in the Notice of
--------------------
Availability, or as otherwise agreed to by Buyer and Seller in the Letter of
Intent. During such period Seller shall make the Mortgage File and any
information, records and files pertaining to the Offered Loans available to
Buyer at its offices located in Ontario, California or at any other location
mutually agreed upon by Buyer and Seller.
"ECOA": The Equal Credit Opportunity Act, 15 U.S.C. (S) 1601.
----
"Escrow Payment": The amounts constituting ground rents, taxes,
--------------
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and any other
payments required to be escrowed by the Obligor with the mortgagee pursuant to
the Mortgage or any other document.
"Excluded Loans": The Offered Loans owned by Seller and offered for sale to
--------------
Buyer pursuant to a Notice of Availability, which Offered Loans Buyer elects not
to purchase and which Excluded Loans shall be deleted from the Loan Schedule.
"FHLMC": The Federal Home Loan Mortgage Corporation, or any successor
-----
thereto.
"Fixed Rate Loan": A Loan which provides for a fixed Mortgage Interest Rate
---------------
payable with respect thereto.
"FNMA": The Federal National Mortgage Association, or any successor
----
thereto.
"GNMA": The Governmental National Mortgage Association, or any successor
----
thereto.
"Interest Rate Adjustment Date": With respect to an Adjustable Rate Loan,
-----------------------------
the date on which the Mortgage Interest Rate is adjusted with respect to such
Loan. The first Interest Rate Adjustment Date for each Adjustable Rate Loan is
the date set forth on the Loan Schedule.
"IRS": The Internal Revenue Service, or any successor thereto.
---
"Legal Fees": With respect to any indemnified party, any and all fees,
----------
costs, and expenses of any kind reasonably incurred by such party or its counsel
in investigating, preparing for, defending against, or providing evidence,
producing documents, or taking other action with respect to, any threatened or
asserted claim.
"Legal File": The file containing those items listed in Exhibit C attached
---------- ---------
hereto, and any additional documents required to be added thereto pursuant to
this Agreement.
AMRESCO RESIDENTIAL CAPITAL MARKETS, INC. Continuing Loan Purchase Agreement
02/25/97 Page 3
<PAGE>
"Letter of Intent": A letter from Buyer to Seller, based solely upon
----------------
information provided in the Notice of Availability, proposing an indicative bid
for the Offered Loans, and setting forth the required Due Diligence Period.
"Loan": Each loan selected by Buyer for purchase from the Offered Loans
----
owned by Seller, which Loans shall be listed in the Loan Schedule attached as
Schedule 1 to each Acceptance and Bill of Sale.
- ----------
"Loan Package": Collectively, the Loans listed on a single Loan Schedule.
------------
"Loan Schedule": The schedule of Loans attached to an Acceptance, and shall
-------------
be the Offered Loan Schedule revised to delete the Excluded Loans.
"Loan-To-Value Ratio" or "LTV": The ratio of the outstanding principal
----------------------------
amount of the Loan as of the origination date to the lesser of (a) the Appraised
Value of the related Mortgaged Property or (b) if the Loan was made to finance
the acquisition of the related Mortgaged Property, the purchase price of the
Mortgaged Property, expressed as a percentage.
"Monthly Payment": The scheduled monthly payment of principal and interest
---------------
on a Loan.
"Mortgage": Any mortgage, deed of trust, security deed, or other similar
--------
instrument creating a first lien on residential real property to secure
repayment of such Loan, or a certified copy thereof.
"Mortgage File": The Credit File and the Legal File for any Loan.
-------------
"Mortgage Interest Rate": The current annual rate of interest borne on a
----------------------
Note, net of any primary mortgage guaranty insurance premium.
"Mortgage Interest Rate Margin": With respect to Adjustable Rate Loans, the
-----------------------------
percentage above the specified index identified in the related Note for the
purpose of calculating the applicable Mortgage Interest Rate.
"Mortgaged Property": The property subject to such Mortgage.
------------------
"New Servicer": Advanta Mortgage Corp. USA, a Delaware corporation.
------------
"Note": The original promissory note or other original evidence of
----
indebtedness executed by the respective Obligor to evidence such Obligor's
indebtedness under such Loan.
"Notice of Availability": Each notice from Seller to Buyer that a portfolio
----------------------
of Offered Loans and the right to service each such Offered Loan is available to
Buyer pursuant to the
AMRESCO RESIDENTIAL CAPITAL MARKETS, INC. Continuing Loan Purchase Agreement
02/25/97 Page 4
<PAGE>
procedures set forth in Section 2.1, which Notice of Availability may be in the
-----------
form of a written or verbal communication or contained on a diskette and shall
include, or in the case of a verbal communication be followed by, an Offered
Loan Schedule.
"Notice Date": The date on which Seller sends such Notice of Availability
-----------
to Buyer.
"Obligor": Any person obligated for payment of such Offered Loan or who has
-------
transferred or assigned any property interest to Seller to secure payment of
such Offered Loan.
"Offer": A letter from Buyer to Seller identifying the Offered Loans which
-----
Buyer proposes to purchase and the applicable Bid Percentage, which Offer shall
be in the form attached hereto as Exhibit B.
---------
"Offered Loan": A mortgage loan that is secured by a first position lien on
------------
completed, one-to-four family residential real estate, and that Seller owns and
offers to Buyer to purchase pursuant to a Notice of Availability.
"Offered Loan Schedule": The schedule of Offered Loans related to the
---------------------
particular Notice of Availability, which lists to the extent and as available
the mapping document information relating to each Offered Loan required to be
included with each Notice of Availability, as set forth in Schedule 2.1 attached
------------
to this Agreement, and which shall be in electronic format and, if requested by
Buyer, hard copy.
"Person": Any individual, corporation, partnership, joint venture,
------
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Pool Balance": With respect to each Offer and each portfolio of Loans to
------------
be purchased pursuant to this Agreement, the aggregate outstanding Principal
Balance of the Loans as of the related Cut-off Date.
"Principal Balance": With respect to an Offered Loan and a particular
-----------------
Offer, the unpaid principal balance of such Loan as of the Cut-off Date, as
shown on the books and records of Seller; provided that the Principal Balance
shall not include any accrued but unpaid fees or charges.
"Purchase Price": With respect to each Bill of Sale, the price paid by
--------------
Buyer for the Loans acquired pursuant to such Bill of Sale, which shall be
calculated according to the following formula:
(a) the product of
(i) the Bid Percentage and
AMRESCO RESIDENTIAL CAPITAL MARKETS, INC. Continuing Loan Purchase Agreement
02/25/97 Page 5
<PAGE>
(ii) the Pool Balance minus the aggregate amount of all payments
of principal made to Seller on the Loans acquired from the
Cut-off Date up to, but not including, the Settlement Date,
(b) plus accrued but unpaid interest on each of the Loans acquired
at the applicable per annum interest rate, as set forth on the
Loan Schedule from the Cut-off Date up to, but not including,
the Settlement Date,
(c) minus the aggregate amount of all payments of charges and fees
in connection with the Loans made to Seller from the Cut-off
Date up to, but not including, the Settlement Date.
"Qualified Substitute Loan": A mortgage loan eligible to be substituted by
-------------------------
the Seller for a Deleted Loan which must, on the date of such substitution, (i)
have an outstanding principal balance, after deduction of all scheduled payments
due in the month of substitution, equal to or less than the outstanding
principal balance of the Deleted Loan; (ii) have a Mortgage Interest Rate (with
respect to Fixed Rate Loans) or a Mortgage Interest Rate Margin (with respect to
Adjustable Rate Loans) at least equal to the Mortgage Interest Rate or the
Mortgage Interest Rate Margin, respectively, of the Deleted Loan; (iii) have a
remaining term to maturity not greater than that of the Deleted Loan and not
more than one year less than, that of the Deleted Loan; (iv) comply with each
representation and warranty set forth in Sections 4.1, 4.2 and 4.3; (v) be the
-------------------------
same property type (i.e., one family, condominium, etc.) or be a single family
----
dwelling and the same occupancy status or be a primary residence as the Deleted
Loan; (vi) not provide for a "balloon" payment if the Deleted Loan did not
provide for a "balloon" payment (and if such Deleted Loan provided for a
"balloon" payment, the Qualified Substitute Loan shall have an original maturity
of not less than the original maturity of the Deleted Loan); and (vii) satisfy
at a minimum the Loan characteristics of the Deleted Loan, including, but not
limited to, the credit grade requirements, LTV and qualifications for inclusion
in a "real estate mortgage investment conduit".
"Repurchase Price": The amount described in Section 9.2 of this Agreement.
---------------- -----------
"Residential Dwelling": Except as excluded below, any one of the following:
--------------------
(i) a one family dwelling, either attached or detached,
(ii) a two to four family dwelling,
(iii) a one family dwelling unit in a condominium project that meets
the eligibility requirements of FNMA, or
AMRESCO RESIDENTIAL CAPITAL MARKETS, INC. Continuing Loan Purchase Agreement
02/25/97 Page 6
<PAGE>
(iv) a detached one family dwelling in a planned unit development.
Mortgaged Properties that consist of the following property types are not
---
eligible for sale to the Buyer: (a) co-operative units, (b) log homes, except
when the appraisal indicates that the property is in a market where log homes
are not unusual, at least two of the comparables are also of log construction
and the log home has no deferred maintenance and a complete set of functioning
modern appliances, (c) earthen homes, (d) underground homes, (e) mobile homes,
(f) manufactured homes (as defined in the FNMA Seller-Servicer's Guide), except
when the appraisal indicates that the home is of comparable construction to a
stick or beam construction home, is readily marketable, has been permanently
affixed to the site and is not in a mobile home "park" and (g) none of which is
situated on more than ten acres of property.
"RESPA": Real Estate Settlement Procedures Act, 12 U.S.C. (Section Symbol)
-----
2601 et seq.
------
"Seller": Pan American Bank, F.S.B., a federal savings bank.
------
"Servicing Transfer Date": The date which is at least fifteen (15) days but
-----------------------
no more than thirty (30) days after the date on which Seller sends its notices
pursuant to Section 6.1 and on which Seller transfers to the New Servicer all
-----------
servicing responsibilities relating to all the Loans sold on the corresponding
Settlement Date pursuant to Section 2.5.
------------
"Settlement" or "Settlement Date": Each date mutually agreed upon by the
-------------------------------
parties on which Seller sells and Buyer acquires a portfolio of Loans.
"TILA": The Truth in Lending Act, 15 U.S.C. (Section Symbol) 1600 et seq.
----
Section 1.2 Other Terms
-----------
(a) Accounting and financial terms used herein and not otherwise
defined in this Agreement shall be construed in accordance with generally
accepted accounting definitions and principles as consistently applied.
(b) Words used in this Agreement in the singular, where the
context so permits, shall be deemed to include the plural, and vice versa.
SECTION 2 PURCHASE OF LOANS AND TRANSFER OF SERVICING
Section 2.1 Notice of Availability.
----------------------
(a) From time to time, Seller may make available to Buyer and
Buyer may offer to purchase any or all of the Offered Loans listed in a
Notice of Availability on a servicing-released basis pursuant to the terms
of this Agreement.
AMRESCO RESIDENTIAL CAPITAL MARKETS, INC. Continuing Loan Purchase Agreement
02/25/97 Page 7
<PAGE>
(b) Each Notice of Availability shall be either communicated
verbally to Buyer or sent to Buyer by hand delivery or overnight courier.
Such Notice of Availability shall indicate a proposed Closing Date, which
shall be at least fifteen (15) Business Days after the date of such Notice
of Availability.
(c) Based upon the information contained in the Notice of
Availability, the Buyer may submit a Letter of Intent to Seller. Seller
shall have three (3) Business Days to accept such Letter of Intent.
(d) Upon acceptance of the Letter of Intent by Seller, Buyer shall
commence due diligence on the Offered Loans, at the conclusion of which
Buyer may submit an Offer. Seller shall deliver an Offered Loan Schedule
with each Notice of Availability, which shall include information relating
to each Offered Loan generally in accordance with the format and criteria
set forth in Schedule 2.1 to this Agreement. Seller shall bear all costs of
sending or communicating the Notice of Availability and Offered Loan
Schedule to Buyer.
Section 2.2 Buyer's Offer and Seller's Acceptance.
-------------------------------------
(a) If Buyer chooses to submit an offer to purchase any or all of
the Offered Loans, Buyer shall send an Offer to Seller by overnight mail
for delivery the following day or by facsimile, within a reasonable period
of time after the end of the Due Diligence Period. If the Offer is sent by
facsimile, the original Offer shall be sent to Seller by overnight mail for
delivery the following day. The Offer shall attach the Offered Loan
Schedule (minus the Excluded Loans) and shall set forth the Bid
Percentage(s).
(b) To accept the Offer, Seller shall, within two (2) Business
Days after Seller's receipt of the Offer, execute and return, by facsimile,
an Acceptance, with an original, which shall have attached thereto a Loan
Schedule, sent by overnight courier for delivery the following day. If
Buyer has not received an executed Acceptance by facsimile within 2
Business Days after Seller's receipt of the Offer, Buyer's Offer to
purchase the Loans pursuant to the terms of the Offer shall automatically
expire, unless Buyer agrees, in writing, to extend the period for
acceptance of the Offer.
(c) By executing the Acceptance, Seller agrees to execute the Bill
of Sale and to sell on the related Settlement Date the Loans set forth in
the related Loan Schedule (as such Loan Schedule may be amended by mutual
agreement of Seller and Buyer to reflect the actual Loans accepted by Buyer
as of the Settlement Date) for a Purchase Price based on the Bid Percentage
set forth in the Offer and the Acceptance, and to perform all obligations
of Seller contained in Section 3.2 of this Agreement.
-----------
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Section 2.3 Purchase of Loans and Transfer of Servicing Rights.
--------------------------------------------------
(a) By execution of a Bill of Sale on a Settlement Date, subject
to the terms and conditions set forth in this Agreement,
(i) Seller shall sell, transfer, assign, and convey to
Buyer, without recourse, but subject to the terms of this Agreement,
and Buyer shall purchase and take on such Settlement Date, all of
Seller's right, title, and interest in and to the Loans listed in the
Loan Schedule attached to such Bill of Sale;
(ii) Seller shall sell, transfer, assign, and convey to
Buyer, and Buyer shall purchase and take on such Settlement Date, all
of Seller's right, title, and interest in and to all escrow deposits
held in connection with the Loans listed in the Loan Schedule attached
to such Bill of Sale; and
(iii) Seller shall also irrevocably assign to Buyer, and
Buyer shall take on such Settlement Date, Seller's right to service
each Loan sold pursuant to the Bill of Sale and to collect any
servicing fee in connection with such Loan, which Buyer shall
subsequently assign to New Servicer.
Section 2.4 Purchase Price. The Purchase Price for the Loans purchased on
--------------
each Settlement Date shall be based on the Bid Percentage set forth in the Offer
and the Acceptance and shall be calculated according to the formula set forth in
the definition of the term Purchase Price.
Section 2.5 Transfer of Servicing. As of each Settlement Date, Seller shall
---------------------
transfer to Buyer any and all rights to service the Loans sold on the related
Settlement Date, including but not limited to Seller's right to receive all
payments and receivables with respect to the Loans. Buyer may, at its option,
transfer the rights to service the Loans to New Servicer. Notwithstanding the
foregoing, Seller shall continue to service the Loans for Buyer following the
Settlement Date and until the corresponding Servicing Transfer Date as set forth
in Section 5.1; provided, however, that Seller shall not take any action which
----------- -------- -------
would modify any Loan without the prior written consent of Buyer. New Servicer
shall assume responsibility for servicing the Loans on and after such Servicing
Transfer Date. Seller shall ensure that all escrow balances are received by
Buyer or, at Buyer's option to New Servicer, on the Servicing Transfer Date. If
such balances are not received by Buyer within ten (10) days, Seller shall remit
to Buyer, or at its option, to New Servicer, in immediately available funds, an
amount equal to said balances. The Seller shall be required to pay all expenses
incurred by it in connection with its servicing activities hereunder and shall
not be entitled to any servicing compensation or reimbursement for such
expenses.
Section 2.6 Sale Treatment. The sale of each Loan shall be reflected on the
--------------
Seller's balance sheet and other financial statements as a sale of assets by the
Seller.
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SECTION 3 SETTLEMENT
Section 3.1 Place and Time of Settlement. Each Settlement shall take place
----------------------------
at Seller's place of business in San Mateo, California or at such other place as
the parties may agree, on the Settlement Date, which shall be within 2 Business
Days of the satisfaction of all conditions to Settlement, as set forth herein.
Section 3.2 Seller's Deliveries on Settlement Date. On or before each
--------------------------------------
Settlement Date, Seller shall deliver at its sole cost and expense the following
to Buyer:
(a) a Bill of Sale, executed by Seller, substantially in the form
of Exhibit A, with respect to the Loans sold at such Settlement;
---------
(b) as required by RESPA, the form of notice of servicing
transfer, to be sent by Seller pursuant to Section 6.1 for each Loan, which
-----------
form shall indicate the date on which it shall be sent by Seller;
(c) the Mortgage File with respect to each Loan sold at such
Settlement, the contents of which are subject to the approval of Buyer and
its legal counsel;
(d) evidence satisfactory to Buyer of Seller's authority to
execute the endorsements, assignments, and Bills of Sale; and
(e) all other documents, instruments and writings required to be
delivered by Seller prior to or at such Settlement pursuant to Section 7.1
-----------
of this Agreement or as reasonably requested by Buyer.
Section 3.3 Buyer's Deliveries at Settlement. At each Settlement, Buyer
--------------------------------
shall deliver to Seller the Purchase Price for the Loans sold at such Settlement
by wire transfer of immediately available funds in U.S. dollars to the account
designated by Seller, subject to any adjustments required hereunder.
SECTION 4 REPRESENTATIONS AND WARRANTIES
Section 4.1 General Representations and Warranties of Seller. As of the
------------------------------------------------
date hereof, and as of each Settlement Date, Seller represents and warrants as
follows:
(a) Organization. Seller is a savings bank, duly organized,
------------
validly existing, and in good standing under the laws of the United States
of America, and is qualified and authorized to transact business in, and is
in good standing under the laws of, each state where a Mortgaged Property
is located and each jurisdiction in which it is required to be qualified in
order to conduct its business. Seller has the requisite corporate power and
authority to
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own and operate its properties, and holds all required licenses,
certificates and permits, if necessary, to carry on its business as it is
now being conducted, and to consummate the transactions contemplated by
this Agreement.
(b) Authorization of this Agreement. Seller has the requisite
-------------------------------
corporate power and authority to execute and deliver this Agreement, and to
consummate the transactions contemplated hereby. The execution, delivery,
and performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action, and no other corporate proceedings on the part of Seller
are necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
Seller and constitutes a legal, valid, and binding obligation of Seller,
enforceable against Seller in accordance with its terms, except as such
enforcement may be affected by bankruptcy, by other insolvency laws, or by
general principles of equity.
(c) Ordinary Course of Business. The consummation of the
---------------------------
transactions contemplated by this Agreement are in the ordinary course of
business of Seller, and the transfer, assignment and conveyance of the
Notes and the Mortgages by Seller pursuant to this Agreement are not
subject to the bulk transfer or any similar statutory provisions in effect
in any applicable jurisdiction.
(d) No Conflict or Violation. The execution and delivery of this
------------------------
Agreement by Seller does not, and the performance of this Agreement by
Seller will not, (i) result in a violation of or conflict with any
provisions of the charter or by-laws or equivalent governing instruments of
Seller or any material agreement to which Seller is a party, (ii) violate
any law, rule, regulation, code, ordinance, judgment, injunction, order,
writ, decree, or ruling applicable to Seller, or (iii) conflict with or
violate any agreement, permit, concession, grant, franchise, license, or
other governmental authorization or approval necessary for sale of the
Loans by Seller. No regulatory approvals or consents are required with
respect to Seller's consummation of the transactions contemplated by this
Agreement.
(e) Litigation. No action, suit, proceeding, or governmental
----------
investigation or inquiry is currently pending, or to the knowledge of
Seller, threatened against Seller which, if adversely determined, would
have a material adverse effect on the business, combined assets or
financial condition of Seller or on the Loans or would prevent the
consummation of the transactions contemplated by this Agreement.
(f) Financial Condition. Seller has previously furnished Buyer
-------------------
with Seller's most recent audited financial statements, together with the
respective reports thereon of the Seller's independent public accountants,
and Seller's most recent unaudited financial statements, each of which has
been prepared in accordance with generally accepted accounting principles.
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Each of the balance sheets included in the financial statements sets forth
Seller's financial condition as of the date thereof, and there have been no
material adverse changes in Seller's business or financial conditions since
that date.
(g) Accuracy of Statements. Neither this Agreement, nor any
----------------------
statement, report, or other document furnished or to be furnished pursuant
to this Agreement, or in connection with the transaction contemplated
hereby, contains any untrue statement of fact by Seller, or omits to state
a fact necessary to make the statements of Seller contained therein not
misleading.
(h) Fidelity Bond. Upon request, Seller will deliver to Buyer a
-------------
true and correct copy of Seller's fidelity bond and Seller's errors and
omissions policy, and/or certificates evidencing the same as currently in
effect, the amounts and coverages of both of which will be acceptable to
Buyer. Seller shall, at its own expense, maintain a fidelity bond and an
errors and omissions policy, in amounts at least as great as, and with the
coverages at least as broad as, those currently in effect. Seller shall,
upon request, furnish proof of such coverage at or before the first
Settlement and, upon request, annually thereafter.
(i) Ability to Perform; Solvency. Seller does not believe, nor
----------------------------
does it have any reason or cause to believe, that it cannot perform each
and every covenant contained in this Agreement. Seller is solvent and the
sale of the Loans will not cause Seller to become insolvent. The sale of
the Loans is not undertaken with the intent to hinder, delay or defraud any
of the Seller's creditors.
(j) No Consent Required. No consent, approval, authorization or
-------------------
order of any court or governmental agency or body is required for the
execution, delivery and performance by Seller of or compliance by Seller
with this Agreement or the Loans, or the sale of the Loans to the Buyer or
the consummation of the transactions contemplated by this Agreement, or if
required, such approval has been obtained prior to each Settlement Date.
(k) Selection Process. The Loans were not intentionally selected
-----------------
in a manner intended to adversely affect the interest of the Buyer.
(1) Commissions to Third Parties. Seller has not dealt with any
----------------------------
broker or agent or other Person who might be entitled to a fee, commission
or compensation in connection with this transaction other than the Buyer
except as Seller has previously disclosed to Buyer in writing.
(m) Fair Consideration. The consideration received by Seller upon
------------------
the sale of the Loans under this Agreement constitutes fair consideration
and reasonably equivalent value for the Loans.
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(n) HUD Approval. Seller is a mortgagee approved by the Secretary
------------
of Housing and Urban Development pursuant to Sections 203 and 211 of the
National Housing Act, as amended.
(o) Sale Treatment. The Seller has determined that the disposition
--------------
of the Loans pursuant to this Agreement will be afforded sale treatment for
accounting and tax purposes.
Section 4.2 Representations and Warranties of Seller Regarding the Offered
--------------------------------------------------------------
Loans. With respect to each Notice of Availability, Seller and any of its
- -----
Affiliates represents and warrants to Buyer that as of the corresponding Notice
Date:
(a) Accuracy of Statements. The information contained in the
----------------------
Offered Loan Schedule and all information provided regarding delinquencies
in the Offered Loans are true and correct in all respects. Neither the
Offered Loan Schedule nor the Mortgage File nor any other document
furnished in connection with this transaction contains any untrue statement
of fact by Seller or its Affiliates, or omits to state a fact, necessary to
make the statements of Seller or its Affiliates contained therein not
misleading.
(b) Origination. Each of the Offered Loans was originated or
-----------
acquired (i) by the Seller either directly or indirectly through loan
brokers or a correspondent lender specifically approved by the Seller, such
that (A) the Offered Loan was originated in conformity with the
underwriting standards of Seller set forth in Schedule 4.2(b) (A) to this
-------------------
Agreement and were underwritten in strict accordance therewith, (B) the
Seller approved the Offered Loan either prior to or after the funding
thereof, and (C) the Seller funded the Offered Loan on the date of
origination thereof with its own funds or with funds obtained by it or,
in the case of an Offered Loan originated by a correspondent lender
approved by the Seller, the Offered Loan was approved by the Seller prior
to origination and was purchased by the Seller from such correspondent
lender within thirty (30) days of the date of origination pursuant to a
mandatory purchase commitment in effect at origination, (ii) by a mortgagee
approved by the Secretary of Housing and Urban Development pursuant to
Sections 203 and 211 of the National Housing Act, or (iii) by a savings and
loan association, a savings bank, a commercial bank, a credit union, an
insurance company, or similar institution which is supervised and examined
by a Federal or State authority. The Note, the Mortgage and all other
documents contained in the Legal Files are on FNMA or FHLMC uniform
instruments or are on forms acceptable to FNMA or FHLMC. The documents,
instruments and agreements submitted for loan underwriting were not
falsified and contain no untrue statement of material fact and do not omit
to state a material fact required to be stated therein or necessary to make
the information and statements therein not misleading. Seller has not made
any representations to the Obligor that are inconsistent with the mortgage
instruments used.
(c) Genuineness of Signatures. Each of the documents in the Legal
-------------------------
File is genuine and contains genuine signatures. Each document that Buyer
requires to be an
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<PAGE>
original document is an original document. All certified copies of original
documents are true copies and meet the applicable requirements and
specifications of this Agreement and any other requirements that Buyer has
reasonably made of Seller.
Section 4.3 Representations and Warranties of Seller Regarding the Loans.
------------------------------------------------------------
With respect to each Loan, Seller represents and warrants to, and covenants with
Buyer that, as of the Settlement Date on which such Loan is sold:
(a) Title to Loans. Seller has good title to and is the sole owner
--------------
of record and holder of the Loan and the indebtedness evidenced by each
Note. Unless otherwise disclosed in the Note or the Mortgage or on the
Offered Loan Schedule, Seller is the original mortgagee or assignee of the
Mortgage, and there has been no more than one prior assignment and no sale
or hypothecation by Seller of the Loan. The Loan is not assigned or
pledged, and Seller has good, indefeasible and marketable title thereto,
and has full right to transfer and sell the Loan to Buyer free and clear
of any encumbrance, equity interest, participation interest, lien, pledge,
charge, claim or security interest, and has full right and authority
subject to no interest or participation of, or agreement with, any other
party, to sell and assign each Loan pursuant to this Agreement, and
following the sale of each Loan, Buyer will own such Loan free and clear of
any encumbrance, equity interest, participation interest, lien, pledge,
charge, claim or security interest.
(b) Accuracy of the Loan Schedule. The Loan is as described in the
-----------------------------
Loan Schedule delivered by Seller to Buyer, and the information contained
in the Loan Schedule is true and correct as of the Settlement Date.
(c) Payments. As of the Settlement Date, no Loan is thirty (30) or
--------
more days delinquent (determined on a contractual basis), no Loan will have
been thirty (30) or more days delinquent (determined on a contractual
basis) more than once during the twelve (12) months preceding the
Settlement Date, and the first Monthly Payment has been made, or shall be
made, as the case may be, with respect to the Loan on its Due Date.
(d) No Outstanding Charges. There are no defaults in complying
----------------------
with the terms of the Mortgage. All taxes, governmental assessments,
insurance premiums, water, sewer and municipal charges, leasehold payments
or ground rents which previously became due and owing have been paid, or an
escrow of funds has been established in an amount sufficient to pay for
every such item which remains unpaid and which has been assessed but is not
yet due and payable. Seller has not advanced funds, or induced or
solicited or knowingly received any advance of funds by a party other than
the Obligor, directly or indirectly, for the payment of any amount required
under the Loan, except for interest accruing from the date of the Note or
date of disbursement of the Loan proceeds, whichever occurred later, to the
day which precedes by one month the Due Date of the first Monthly Payment.
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(e) Original Terms Unmodified. The terms of the Note and the
-------------------------
Mortgage have not been impaired, waived, altered or modified in any
respect, except by a written instrument which has been recorded, if
necessary to protect the interests of Buyer. The substance of any such
waiver, alteration or modification has been approved by the title insurer,
to the extent required by the policy, and its terms are reflected on the
Loan Schedule. No Obligor has been released, in whole or in part, except in
connection with an assumption agreement approved by the title insurer, to
the extent required by the policy, and which assumption agreement is part
of the Legal File.
(f) Absence of Defenses. The Loan and the Note are not subject to
-------------------
any right of rescission, set-off, counterclaim, or defense (including the
defense of usury), based on the invalidity or unenforceability of the Note
and/or Mortgage or on any conduct of Seller or any of its officers,
employees, representatives, Affiliates or assignors in originating or
servicing the Loan prior to the Settlement Date, nor will the operation of
any of the terms of the Loan or the Note, or the exercise of any right
thereunder, render the Loan or the Note unenforceable, in whole or in part,
or subject to any right of rescission, set-off, counterclaim , or defense
(including the defense of usury) based on any such invalidity,
unenforceability or conduct. No right of rescission, set-off, counterclaim,
or defense with respect thereto has been asserted to Seller or, to Seller's
knowledge, has been asserted to any other person and no Obligor was a
debtor in any state or Federal bankruptcy or insolvency proceeding at the
time the Loan was originated.
(g) Hazard Insurance. Pursuant to the terms of the Mortgage, all
----------------
improvements upon the Mortgaged Property are insured by an insurer
acceptable to FNMA against loss by fire and such other risks as are usually
insured against in the broad form of extended coverage hazard insurance
available from time to time, including flood hazards if upon origination of
the Loan, the Mortgaged Property was in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special flood
hazards (and if flood insurance was required by federal regulation and such
flood insurance has been made available). All such insurance policies
(collectively, the "hazard insurance policy") meet the requirements of the
current guidelines of the Federal Insurance Administration, conform to the
requirements of the FNMA Seller's Guide and the FNMA Servicers' Guide, and
are a standard policy of insurance for the locale where the Mortgaged
Property is located. The amount of the insurance is at least in the amount
of the full insurable value of the Mortgaged Property on a replacement
cost basis or the unpaid balance of the Loan, whichever is less. The hazard
insurance policy names (and will name) the Obligor as the insured and
contains a standard mortgagee loss payable clause in favor of Seller (or
Seller's servicer) and its successors and assigns. The Mortgage obligates
the Obligor thereunder to maintain the hazard insurance policy at the
Obligor's cost and expense, and on the Obligor's failure to do so,
authorizes the holder of the Mortgage to obtain and maintain such insurance
at such Obligor's cost and expense, and to seek reimbursement therefor from
the Obligor. Where required by state law or regulation, the Obligor has
been given an opportunity to
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<PAGE>
choose the carrier of the required hazard insurance policy, provided the
policy is not a "master" or "blanket" hazard insurance policy covering a
condominium, or any hazard insurance policy covering the common facilities
of a planned unit development. The hazard insurance policy is the valid and
binding obligation of the insurer, is in full force and effect, and will
be in full force and effect and inure to the benefit of Buyer upon the
consummation of the transactions contemplated by this Agreement. Seller has
not engaged in, and has no knowledge of the Obligor's or any subservicer's
having engaged in, any act or omission which would impair the coverage of
any such policy, the benefits of the endorsement provided for therein, or
the validity and binding effect of either. In connection with the issuance
of the hazard insurance policy, no unlawfil fee, commission, kickback or
other unlawful compensation or value of any kind has been or will be
received, retained or realized by any attorney, firm or other person or
entity, and no such unlawful items have been received, retained or realized
by Seller.
(h) Compliance with Applicable Laws. Any and all requirements of
-------------------------------
any federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit
protection, equal credit opportunity or disclosure laws applicable to the
Loan have been complied with, and the Seller shall maintain in its
possession available for the Buyer's inspection, and shall deliver to the
Buyer upon demand, evidence of compliance with all such requirements. The
consummation of the transactions contemplated hereby will not involve the
violation of any such laws or regulations.
(i) No Satisfaction of Mortgage or Note. Neither the Mortgage nor
-----------------------------------
the Note has been satisfied, canceled, subordinated or rescinded, in whole
or in part, and the Mortgaged Property has not been released from the lien
of the Mortgage, in whole or in part, nor has any instrument been executed
that would effect any such release, cancellation, subordination or
rescission. Seller has not waived the performance by the Obligor of any
action, if the Obligor's failure to perform such action would cause the
Loan to be in default, nor has Seller waived any default resulting from any
action or inaction by the Obligor.
(j) Location and Type of Mortgaged Property. The Mortgaged
---------------------------------------
Property consists of a parcel of real property with a single family
residence erected thereon, or a two to four-family dwelling, or an
individual condominium unit in a low -rise or high-rise condominium
project, or an individual unit in a planned unit development. The Mortgaged
Property is either a fee simple estate or a long-term residential lease. If
the Loan is secured by a long-term residential lease, (A) the terms of such
lease expressly permit the mortgaging of the leasehold estate, the
assignment of the lease without the lessor's consent (or the lessor's
consent has been obtained and such consent is in the Mortgage File) and the
acquisition by the holder of the Mortgage of the rights of the lessee upon
foreclosure or assignment in lieu of foreclosure to provide the holder of
the Mortgage with substantially similar protection; (B) the terms of such
lease do not (i) allow the termination thereof upon the lessee's default
without the holder of the Mortgage being entitled to receive written notice
of, and
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opportunity to cure, such default, (ii) allow the termination of the lease
in the event of damage or destruction as long as the Mortgage is in
existence or (iii) prohibit the holder of the Mortgage from being insured
under the hazard insurance policy relating to the Mortgaged Property; (C)
the original term of such lease is not less than fifteen (15) years; (D)
the term of such lease does not terminate earlier than five (5) years after
the maturity date of the Note; and (E) the Mortgaged Property is located in
a jurisdiction in which the use of leasehold estates for residential
properties is a widely accepted practice.
(k) Valid Lien. The Mortgage for any Loan creates a valid,
----------
subsisting, enforceable and perfected first lien on the Mortgaged Property,
and includes all buildings on the Mortgaged Property and all installations
and mechanical, electrical, plumbing, heating and air conditioning systems
located in or annexed to such buildings, and all additions, alterations
and replacements made at any time with respect to the foregoing. The lien
of the Mortgage is subject only to "Permitted Exceptions," which consist of
the following:
(1) the lien of current real property taxes and assessments
not yet due and payable;
(2) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of
recording acceptable to prudent mortgage lending institutions
generally and specifically referred to in the lender's title insurance
policy delivered to the originator of the Loan and referred to or
otherwise considered in the appraisal made for the originator of the
Loan; and
(3) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the
security intended to be provided by the Mortgage or the use,
enjoyment, value or marketability of the related Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document related to
and delivered in connection with the Loan established and created a valid,
subsisting, enforceable and perfected first lien and first priority
security interest on the property described therein, and Seller has full
right to sell and assign the same to Buyer.
(1) Validity of Mortgage Documents. The Note and the Mortgage and
------------------------------
every other agreement, if any, executed and delivered by the Obligor in
connection with the Loan are genuine, and each is the legal, valid and
binding obligation of the maker thereof enforceable in accordance with its
terms. All parties to the Note, the Mortgage and each other such related
agreement had legal capacity to enter into the Loan and to execute and
deliver the Note, the Mortgage and each other such related agreement, and
the Note, the Mortgage and each other such related agreement have been duly
and properly executed by the respective Obligors. Seller has reviewed all
of the documents constituting the Mortgage
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File and has made such inquiries as it deems necessary to make and confirm
the accuracy of the representations set forth herein. The documents,
instruments and agreements submitted for loan underwriting were not
falsified by any party and contain no untrue statement of material fact or
omit to state a material fact required to be stated therein or necessary to
make the information and statements therein not misleading. No fraud was
committed by any party in connection with the origination of the Loan.
(m) Full Disbursement of Proceeds. The Loan has been closed and
-----------------------------
the proceeds of the Loan have been fully disbursed and there is no
requirement for future advances thereunder, and any and all requirements as
to completion of any on-site or off-site improvement and as to
disbursements of any escrow funds therefor have been complied with. All
costs, fees and expenses incurred in making or closing the Loan and the
recording of the Mortgage were paid, and the Obligor is not entitled to any
refund of any amounts paid or due under the Note or Mortgage.
(n) Doing Business. All parties which have had any interest in the
--------------
Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or, during
the period in which they held and disposed of such interest, were) (1) in
compliance with any and all applicable licensing requirements of the laws
of the state where the Mortgaged Property is located, and (2)(a) organized
under the laws of such state, or (b) qualified to do business in such
state, or (c) federal savings and loan associations, savings banks, or
national banks having principal offices in such state, or (d) not doing
business in such state.
(o) LTV. The Loan to Value Ratio for each Loan was no greater than
---
90%.
(p) Title Insurance. The Loan is covered by either (a) an
---------------
attorney's opinion of title and abstract of title the form and substance of
which is acceptable to FNMA, or (b) an ALTA lender's title insurance policy
or other generally acceptable form of policy of insurance issued by a title
insurer qualified to do business in the jurisdiction where the Mortgaged
Property is located, insuring Seller, its successors and assigns, as to the
first priority lien of the Mortgage in the original principal amount of the
Loan, subject only to the Permitted Exceptions, and against any loss by
reason of the invalidity or unenforceability of the lien resulting from the
provisions of the Mortgage providing for adjustment in the Mortgage
Interest Rate and Monthly Payment. Additionally, such lender's title
insurance policy affirmatively insures ingress and egress, and against
encroachments by or upon the Mortgaged Property or any interest therein.
Where required by state law or regulation, the Obligor has been given the
opportunity to choose the carrier of such lender's title insurance policy.
Seller, its successors and assigns, are the sole insureds (except in the
case of a joint protection policy, in which case the Seller's interest is
insured) of such lender's title insurance policy, and such lender's title
insurance policy is valid and remains in full force and effect and will be
in full force and effect upon the sale of the Loan to Buyer. No claims
have been made under such lender's title insurance policy, and no prior
holder of the Mortgage,
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including Seller, has done anything which would impair the coverage of such
lender's title insurance policy. In connection with the issuance of such
lender's title insurance policy, no unlawful fee, commission, kickback or
other unlawful compensation or value of any kind has been or will be
received, retained or realized by any attomey, firm or other person or
entity, and no such unlawful items have been received, retained or realized
by Seller.
(q) No Defaults. There is no default, breach, violation or event
-----------
of acceleration existing under the Mortgage or the Note or related
documents and no event which, with the passage of time or with notice and
the expiration of any applicable grace or cure period, would constitute a
default, breach, violation or event of acceleration, and neither Seller nor
its predecessors have waived any default, breach, violation or event of
acceleration.
(r) No Mechanics' Liens. There are no mechanics' or similar liens
-------------------
or claims which have been filed for work, labor or material (and no rights
are outstanding that under the law could give rise to such liens) affecting
the related Mortgaged Property which are or may be liens prior to, or equal
or coordinate with, the lien of the related Mortgage.
(s) Location of Improvements; No Encroachments. All improvements
------------------------------------------
which were considered in determining the Appraised Value of the Mortgaged
Property lay wholly within the boundaries and building restriction lines of
the Mortgaged Property and no improvements on adjoining properties encroach
upon the Mortgaged Property. No improvement located on or being part of the
Mortgaged Property is in violation of any applicable zoning law or
regulation; provided, that in no event shall a legal non-conforming use of
the Mortgaged Property be considered a violation of any such zoning law or
regulation.
(t) Payment Terms. For Fixed Rate Loans, the Note is payable on
-------------
the first day of each month in equal monthly installments (other than the
last payment) of principal and interest. For Adjustable Rate Loans, the
Mortgage Interest Rate is adjusted in accordance with the terms of the Note
and the Note is payable on the first day of each month and, during an
adjustment period or initial period, in equal monthly installments of
principal and interest. Installments of interest are subject to change due
to the adjustments to the Mortgage Interest Rate on each Interest Rate
Adjustment Date, with interest calculated and payable in arrears,
sufficient to amortize the Loan fully by the stated maturity date, over an
original term of not more than thirty years from inception of the Loan.
(u) Interest Rate Adjustments. All required notices of interest
-------------------------
rate and payment amount adjustments have been sent to the Obligor on a
timely basis and the computations of such adjustments were properly
calculated. All interest rate adjustments applicable to the Loans have been
made in strict compliance with state and federal law and the terms of the
related Note. Any interest required to be paid pursuant to state and local
law has been properly paid and credited.
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(v) Customary Provisions. The Mortgage contains customary and
--------------------
enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for the realization against the Mortgaged Property
of the benefits of the security provided thereby, including, (i) in the
case of a Mortgage designated as a deed of trust, by trustee's sale, and
(ii) otherwise by judicial or nonjudicial foreclosure. Upon default by an
Obligor on a Loan and foreclosure on, or trustee's sale of, the Mortgaged
Property pursuant to the proper procedures, the holder of the Loan will be
able to deliver good and merchantable title to the Mortgaged Property.
There is no homestead or other exemption available to the Obligor which
would interfere with the right to sell the Mortgaged Property at a
trustee's sale or the right to foreclose the Mortgage subject to applicable
federal and state laws and judicial precedent with respect to bankruptcy
and right of redemption.
(w) Occupancy of the Mortgaged Property. All inspections, licenses
-----------------------------------
and certificates required to be made or issued with respect to all occupied
portions of the Mortgaged Property and with respect to the use and
occupancy of the same, including, but not limited to, certificates of
occupancy and fire underwriting certificates, have been made or obtained
from the appropriate authorities.
(x) No Additional Collateral. The Note is not and has not been
------------------------
secured by any collateral except the lien of the corresponding Mortgage and
the security interest of any applicable security agreement or chattel
mortgage referred to in the "Valid Lien" representation above.
(y) Deeds of Trust. In the event the Mortgage constitutes a deed
--------------
of trust, a trustee, authorized and duly qualified under applicable law to
serve as such, has been properly designated and currently so serves and is
named in the Mortgage, and no fees or expenses are or will become payable
by Buyer to the trustee under the deed of trust, except in connection with
a trustee's sale after default by the Obligor.
(z) Due on Sale. Each Mortgage, together with any such documents
-----------
as may be required under applicable law, contains a provision for the
acceleration of the payment of the unpaid principal balance of the Loan in
the event that the Mortgaged Property is sold or transferred without the
prior written consent of the mortgagee thereunder, at the option of the
mortgagee. This provision provides that the mortgagee cannot exercise its
option if either (a) the exercise of such option is prohibited by federal
law or (b)(i) the Obligor causes to be submitted to the mortgagee
information required by the mortgagee to evaluate the intended transferee
as if a new loan were being made to such transferee and (ii) the mortgagee
reasonably determines that the mortgagee's security will not be impaired by
the assumption of such Loan by the transferee and that the risk of breach
of any covenant or agreement in the documents evidencing such Loan is
acceptable to the mortgagee. To the best of Seller's knowledge, such
provision is enforceable.
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(aa) Transfer of Loans. Each of the Mortgage and the Assignment of
-----------------
Mortgage is in recordable form and is acceptable for recording under the
laws of the jurisdiction in which the Mortgaged Property is located, and
each Mortgage has been delivered to the appropriate recorder's office for
recording. Each Assignment of Mortgage shall be sufficient to effect the
transfer of Seller's security interest in the corresponding Mortgaged
Property.
(bb) No Buydown Provisions: No Graduated Payments or Contingent
----------------------------------------------------------
Interests. The Loan does not contain provisions pursuant to which Monthly
---------
Payments are paid or partially paid with funds deposited in any separate
account established by Seller, the Obligor or anyone on behalf of the
Obligor, or paid by any source other than the Obligor, nor does it contain
any other similar provisions currently in effect which may constitute a
"buydown" provision. The Loan is not a graduated payment mortgage loan and
the Loan does not have a shared appreciation or other contingent interest
feature.
(cc) Consolidation of Future Advances. Any future advances made to
--------------------------------
the Obligor prior to the Offer Date have been consolidated with the
outstanding principal amount secured by the Mortgage, and the secured
principal amount, as consolidated, bears a single interest readjustment
feature or rate and single repayment term. The lien of the Mortgage
securing the consolidated principal amount is expressly insured as having
first lien priority by a title insurance policy, an endorsement to the
policy insuring the mortgagee's consolidated interest or by other title
evidence acceptable to Buyer, FNMA and FHLMC. The consolidated principal
amount does not exceed the original principal amount of the Loan.
(dd) Mortgaged Property Undamaged; No Condemnation Proceedings.
---------------------------------------------------------
There is no proceeding pending or, threatened for the total or partial
condemnation of the Mortgaged Property. The Mortgaged Property is undamaged
by waste, fire, earthquake or earth movement, windstorm, flood, water,
tornado or other casualty so as to adversely affect the value of the
Mortgaged Property as security for the Loan or the use for which the
premises were intended and each Mortgaged Property is in good repair. There
have not been any condemnation proceedings with respect to the Mortgaged
Property and Seller has no knowledge of any such proceedings in the future.
(ee) Collection Practices; Escrow Deposits. The origination,
-------------------------------------
servicing and collection practices used by Seller with respect to the Loan
have been in accordance with Accepted Servicing Practices and are in all
respects in compliance with all applicable laws and regulations. With
respect to escrow deposits and Escrow Payments, all such payments are in
possession of Seller or the servicer of such Loan and there exist no
deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made. All Escrow Payments have been
collected in full compliance with state and federal law. Unless prohibited
by applicable law, an escrow of funds has been established in an amount
sufficient to pay for every item which remains unpaid and which has been
assessed but is not yet due and payable. No escrow deposits or Escrow
Payments or other charges or payments due Seller have been capitalized
under the Mortgage or the Note.
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<PAGE>
(ff) Appraisals. Seller has delivered to Buyer an appraisal of the
----------
Mortgaged Property signed prior to the approval of the Mortgage application
by a qualified appraiser, who (i) is licensed in the state where the
Mortgaged Property is located, (ii) has no interest, direct or indirect, in
the Mortgaged Property or in any Loan or the security therefor, and (iii)
does not receive compensation that is affected by the approval or
disapproval of the Loan. The appraisal shall have been made within ninety
(90) days of the Settlement Date, be completed in compliance with the
Uniform Standards of Professional Appraisal Practice, any additional
requirement set forth for appraisals in Schedule 2.1 attached to this
------------
Agreement, and all applicable Federal and state laws and regulations.
(gg) Soldier's and Sailors' Relief Act. The Obligor has not
---------------------------------
notified Seller and Seller has no knowledge of any relief requested or
allowed to the Obligor under the Solider's and Sailors's Civil Relief Act
of 1940.
(hh) Environmental Matters. There exists no violation of any local,
---------------------
state or federal environmental law, rule or regulation in respect of the
Mortgaged Property which violation has or could have a material adverse
effect on the market value of such Mortgaged Property. Seller has no
knowledge of any pending action or proceeding directly or indirectly
involving the related Mortgaged Property in which compliance with any
environmental law, rule or regulation is in issue; and, to the best of
Seller's knowledge, nothing further remains to be done to satisfy in full
all requirements of each such law, rule or regulation constituting a
prerequisite to the use and enjoyment of such Mortgaged Property.
(ii) Obligor Acknowledgment. The Obligor has executed a statement
----------------------
to the effect that the Obligor has received all disclosure materials
required by applicable law with respect to the making of adjustable rate
mortgage loans. Seller shall maintain or cause to be maintained such
statement in the Credit File.
(jj) No Construction Loans. The Loan was not made in connection
---------------------
with (a) the construction or rehabilitation of a Mortgaged Property or (b)
facilitating the trade-in or exchange of a Mortgaged Property.
(kk) Selection. The Loans were not selected for inclusion under
---------
this Agreement from among Seller's mortgage loan portfolio on any basis
which would have an adverse effect on the interests of Buyer.
(11) Circumstances Affecting Value, Marketability or Prepayment.
----------------------------------------------------------
Except as otherwise disclosed to Buyer, Seller has no knowledge of any
circumstances or conditions with respect to the Mortgage, the Mortgaged
Property, the Obligor, or the Obligor's credit standing that could
reasonably be expected to adversely affect the value or the marketability
of any Mortgaged Property or Loan, subject to the economic and geological
conditions generally and specifically to the area in which the Mortgaged
Property is located, or cause the Loan to become delinquent.
AMRESCO RESIDENTIAL CAPITAL MARKETS, INC. Continuing Loan Purchase Agreement
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(mm) Riegle Act. Except as disclosed on the Loan Schedule, none of
----------
the Loans are classified as "high cost" loans under Section 32 of the Home
Ownership and Equity Protection Act of 1994.
(nn) REMIC Status. The Loan is a qualified mortgage for inclusion
------------
in a "real estate mortgage investment conduit" for federal income tax
purposes.
The Seller hereby covenants to bring each of the representations and
warranties referred to above current as of the Servicing Transfer Date.
Additionally, upon Buyer's request, the Seller hereby covenants to bring the
representations and warranties stated in Subsections 4.3(a)-(h), (j)-(p), (s),
-------------------------------------
(t), (v)-(cc), (ff), (ii)-(kk), (mm) and (nn) current up to ninety (90) days
- ---------------------------------------------
after the related Settlement, provided that with respect to a securitization of
the Loans, such representations and warranties shall be revised, to the extent
allowed or required by the rating agencies and the certificate insurer and
acceptable to Buyer, to reflect the actual pool of Loans being securitized.
Section 4.4 General Representations and Warranties of Buyer. As of the
-----------------------------------------------
date hereof, and as of each Settlement Date, Buyer represents and warrants as
follows:
(a) Organization. Buyer is a corporation, duly organized, validly
------------
existing, and in good standing under the laws of the State of Delaware, and
is qualified and authorized to transact business in, and is in good
standing under the laws of, each jurisdiction in which such qualification
is required for Buyer to do business. Buyer has the requisite corporate
power and authority to own and operate its properties, to carry on its
business as it is now being conducted, to execute and deliver this
Agreement and to consummate the transactions contemplated by this
Agreement.
(b) Authorization of this Agreement. The execution, delivery, and
-------------------------------
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action, and no other corporate proceedings on the part of Buyer
are necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
Buyer and constitutes a legal, valid, and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms, except that such
enforcement may be affected by bankruptcy, by other insolvency laws, or by
general principles of equity.
(c) No Conflict or Violation. The execution and delivery of this
------------------------
Agreement by Buyer does not, and the performance of this Agreement by Buyer
will not, (i) result in a violation of or conflict with any provisions of
the charter or by-laws or equivalent governing instruments of Buyer, (ii)
violate any law, rule, regulation, code, ordinance, judgment, injunction,
order, writ, decree, or ruling applicable to Buyer, or (iii) conflict with
or violate any agreement, permit, concession, grant, franchise, license, or
other governmental
AMRESCO RESIDENTIAL CAPITAL MARKETS, INC. Continuing Loan Purchase Agreement
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<PAGE>
authorization or approval necessary for purchase of the Loans by Buyer. No
regulatory approvals or consents are required with respect to Buyer's
consummation of the transactions contemplated by this Agreement.
(d) Litigation. No action, suit, proceeding, or governmental
----------
investigation or inquiry is currently pending, or to the knowledge of
Buyer, threatened against Buyer which, if adversely determined, would have
a material adverse effect on the business, combined assets or financial
condition of Buyer or on the Loans or would prevent the consummation of the
transactions contemplated by this Agreement.
SECTION 5 PRE-SETTLEMENT COVENANTS
Seller covenants and agrees that:
Section 5.1 Continued Servicing. Seller shall continue servicing the Loans
-------------------
to be sold on each Settlement Date until the related Servicing Transfer Date
(the "Interim Servicing Period"), unless otherwise agreed to in writing by the
------------------------
parties, on Seller's system in conformance and accordance with (i) all of the
requirements in the Legal File, (ii) applicable law, (iii) Accepted Servicing
Practices, and (iv) the terms of this Agreement.
Seller shall make interest rate adjustments for each Loan in compliance
with the requirements of the related Mortgage and Note and execute and deliver
the notices required by each Mortgage and Note regarding interest rate
adjustments. Seller shall also, at its sole cost and expense, provide timely
notification to the Obligor of all applicable data and information regarding
such interest rate adjustments and Seller's methods of implementing such
interest rate adjustments for any interest rate adjustment scheduled to occur up
to ten (10) days after the Servicing Transfer Date.
Continuously during the Interim Servicing Period, Seller will proceed
diligently to collect all payments due under each of the Loans when the same
shall become due and payable and will take special care in ascertaining and
estimating annual ground rents, taxes, assessments, water rates, municipal
charges, condominium charges, fire and hazard insurance premiums, mortgage
insurance premiums, and all other charges that, as provided in any Mortgage,
will become due and payable, to the end that the installments payable by the
Obligors will be sufficient to pay such charges as and when they become due and
payable.
Seller shall deposit, without duplication, in the Collection Account on a
daily basis within one Business Day of receipt, and retain therein the following
payments and collections:
(i) all payments on account of principal, including principal
prepayments, on the Loans;
(ii) all payments on account of interest on the Loans;
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<PAGE>
(iii) all late payment charges; and
(iv) any proceeds for the Loan (i.e., liquidation, insurance,
condemnation) and other amounts.
All payments received by Seller on account of principal, including
principal prepayments, on the Loans during the Interim Servicing Period
referred to in (i) above, shall be credited by Seller against the Loan to reduce
the outstanding principal amount due on such Loan. "Principal prepayments" as
used herein shall include any payment or other recovery of principal on a Loan
which is received in advance of its scheduled due date, including any prepayment
penalty or premium thereon, which is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
Seller shall segregate and hold all funds collected and received pursuant
to each Loan separate and apart from any of its own funds and general assets in
the Collection Account in the form of time deposit or demand accounts, which may
be interest bearing. Funds in the Collection Account shall be insured by the
FDIC to the maximum extent available. The creation of the Collection Account
shall be evidenced by a letter agreement substantially in the form of Attachment
----------
1 hereto.
- -
On the thirtieth (30th) day of each month during the Interim Servicing
Period, Seller shall remit to Buyer by wire transfer of immediately available
funds to the account designated in writing by Buyer the funds in the Collection
Account. Additionally, on the Servicing Transfer Date, Seller shall wire
transfer all funds in the Collection Account to Buyer to the account designated
by Buyer.
Section 5.2 Preparation of Assignments. Prior to each Settlement Date,
--------------------------
Seller shall, at its sole expense, prepare and deliver an Assignment of Mortgage
in form and substance acceptable to Buyer and its counsel and assignments of any
other security documents corresponding to each Loan to be sold on such
Settlement Date.
Section 5.3 IRS Reporting. To the extent required by law, Seller shall
-------------
report to the IRS and each Obligor the amount of interest paid (including,
without limitation, the obligations with respect to Forms 1098 and 1099 and back
up withholding with respect to same, if required) by such Obligor on the Loan on
which he is the Obligor from the date of the advance made by Seller to such
Obligor through and including the Servicing Transfer Date, and Buyer or New
Servicer shall thereafter report to the IRS and each Obligor the amount of
interest paid by such Obligor on the Loan on which he is the Obligor.
Section 5.4 Compliance with Law. From the date of this Agreement to each
-------------------
Settlement Date, Seller shall comply with and use its best efforts to cause each
Obligor to comply with all applicable state and Federal rules and regnlations
including those requiring the giving of notices, and
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<PAGE>
where applicable, Seller warrants that it will comply with the National Housing
Act of 1934, as from time to time amended, the Servicemen's Readjustment Act of
1944, as amended, and with all rules and regulations issued under either such
act.
Section 5.5 No Sale of Assets. Without the prior written consent of Buyer,
-----------------
Seller shall not sell, lease, assign, transfer, encumber or permit the
encumbrance of, or otherwise dispose of:
(a) any of the Offered Loans from the date that Seller signs the
Letter of Intent until the earlier of (i) the day on which Seller receives
Buyer's Offer or (ii) the close of business on the day ten (10) Business
Days after the Due Diligence Period expires; and
(b) any of the Loans included in the Loan Schedule to Buyer's
Offer from the date on which such Offer is received until the Settlement
Date or until the Offer is rejected by Seller.
Section 5.6 Private Mortgage Insurance. Seller shall provide any
--------------------------
notification to private mortgage insurance companies necessary to ensure
continuation of such insurance upon transfer of the Loans to Buyer.
SECTION 6 POST-SETTLEMENT COVENANTS
Section 6.1 Notice of Servicing Transfer. Seller and Buyer shall each
----------------------------
comply with, and Seller shall assist Buyer in complying with, the notice
requirements of the Cranston Gonzalez National Affordable Housing Act of 1990.
Such compliance by each party shall include, without limitation, sending its own
notices of the transfer of servicing from Seller to Buyer, at its sole expense.
Seller's notice to each Obligor shall state that any payments due from such
Obligor that are due 15 or more days after the date on which Seller sends such
notice shall be made to Buyer in care of New Servicer. Seller's assistance to
Buyer shall include providing Buyer with any information that Seller has or has
access to and that Buyer reasonably requires to complete its notices. Buyer
shall approve any such notices sent by Seller, and Seller shall have the right
to approve any such notices sent by Buyer, prior to the date mailed. To enable
the parties to determine the Servicing Transfer Date, Seller shall, with respect
to all Loans sold on each Settlement Date, send all notices pursuant to this
Section 6.1 on the same day, and shall, upon sending such notices, inform Buyer
- -----------
of the date on which such notices are sent. Within ten (10) days of each
Settlement Date, Seller shall deliver to Buyer or, at Buyer's option, to New
Servicer, a copy of the notice sent with respect to each Loan sold on such
Settlement Date.
Section 6.2 IRS Examination. Buyer and Seller shall cooperate fully with
---------------
each other in connection with any examination conducted by any tax authority
after each Settlement Date, provided that nothing herein shall be construed as
obligating Buyer or Seller to disclose or furnish any tax information not
related to the transfer of the Loans. Buyer and Seller shall inform each other
promptly of any material developments in the course of any such examination, the
results of any such examination, and any proceeding related thereto.
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Section 6.3 Tax on Sale. Each party shall promptly pay in full and when
-----------
due any tax or other governmental charge or fee imposed upon it under applicable
law on the sale of the Loans from Seller to Buyer pursuant to this Agreement.
Section 6.4 Books and Records. Seller agrees to keep and maintain such
-----------------
books and records so as to meet and comply with all applicable laws, and the
requirements or recommendations of ECOA and TILA. The same shall be available to
Buyer at any time, upon reasonable notice, during regular business hours, for
examination and audit to the extent required to determine compliance with such
laws. Such records shall include a loan register documenting all loan
applications taken by Seller.
Section 6.5 On-Site Reviews. Seller agrees, upon reasonable notice and
---------------
during regular business hours, to meet with Buyer from time to time to discuss
Seller's business activities related to this Agreement and to allow Buyer to
conduct periodic on-site audits of Seller's business activities related to this
Agreement.
Section 6.6 Financial Statements. Each party shall furnish to the other
--------------------
for as long as this Agreement is in effect, (i) as soon as available, and in any
event within ninety (90) days after the end of each fiscal year, audited or
certified financial statements consisting of a balance sheet as of the end of
such fiscal year, together with related statements of income or loss and
reinvested earnings and changes in financial position for such fiscal year,
prepared by independent certified public accountants in accordance with
generally accepted accounting principles, and (ii) if available, within ten (10)
days after the end of each quarterly period unaudited financial statements which
may be satisfied by furnishing a copy of the quarterly report filed with the
Securities and Exchange Commission ("SEC"). With respect to Buyer, this covenant
---
may be fulfilled by providing the audited financial statements and/or SEC
filings of Parent. In addition, each party shall provide the other, from time to
time, upon reasonable request (which shall include a written statement
describing the reason therefor) and sixty (60) days' notice, any other financial
reports or statements reasonably required by the requesting party.
Section 6.7 Post-Servicing Transfer Date Loan Payments. Seller agrees that
------------------------------------------
it will remit to Buyer, or at Buyer's option, to New Servicer, within 48 hours
after receipt, any payment on a Loan including, without limitation, all payments
of principal and interest, late charges, and back check charges received from an
Obligor on or after the Servicing Transfer Date at the following address:
Advanta Mortgage Corp. USA, P.O. Box 15473, Wilmington, DE 19850-9011, or such
other address as Buyer may designate. Seller shall remit such payment via an
overnight delivery service.
Section 6.8 Transfer of Servicing Rights and PMI. Seller shall use all
------------------------------------
efforts to assist Buyer in the transfer from Seller to Buyer of servicing rights
and servicing contracts for the monitoring of ad valorem taxes and flood hazard
insurance for each Loan, including assisting Buyer with any notices to private
mortgage insurance companies or ad valorem tax or flood hazard insurance service
companies.
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Section 6.9 Delivery of Original Mortgage. With respect to each Loan, if
-----------------------------
the original recorded Mortgage is not delivered on the Settlement Date, the
Seller shall cause by no later than sixty (60) days after the Settlement Date,
the original recorded Mortgage and, if applicable, any prior Assignment of
Mortgage to be delivered to Buyer, or at Buyer's option to Custodian. The Seller
shall pay the out-of-pocket costs incurred in connection with such acts.
Section 6.10 Confidentiality.
---------------
(a) Seller shall not disclose any confidential or proprietary
information of Buyer, the Offered Loans, the Mortgage Files, the Offer, the
Acceptance, any of the terms of this Agreement or the list of Obligors and data
relating to their mortgages (collectively, the "Confidential Information") to
-------------------------
any person who is not a partner, officer, employee, counsel, or agent of Seller
except with the consent of Buyer or pursuant to a subpoena or order issued by a
court of competent jurisdiction or by a judicial or administrative or
legislative body or committee.
(b) In the event that Seller receives a request to disclose any
Confidential Information under such subpoena or order, Seller shall (i) notify
Buyer thereof within 10 days after receipt of such request, (ii) consult with
Buyer on the advisability of taking steps to resist or narrow such request, and
(iii) if disclosure is required or deemed advisable, cooperate with Buyer in any
attempt that it may make to obtain an order or other reliable assurance that
confidential treatment will be accorded to designated portions of the
Confidential Information.
(c) All information and documents that Buyer provides to Seller
pursuant to this Agreement shall be deemed to be Confidential Information.
(d) Neither Seller nor any of its Affiliates shall issue any press
release or public announcement concerning the contemplated transaction, the
existence of this Agreement, or the terms, conditions, and provisions of this
Agreement (i) without the prior written consent of Buyer or (ii) except as
required by law, in which event Seller shall consult with Buyer to the extent
practicable before making such disclosure.
Section 6.11 Continued Cooperation. Seller shall cooperate with Buyer in
---------------------
Buyer's future efforts to pool the Loans (perhaps with other loans) for
securitization purposes. Such cooperation shall include providing Buyer with
historical delinquency information for loans similar in type to the Loans
originated by Seller (including appropriate comfort letters with respect
thereto), execution of additional transfer or assignment documents, estoppel
certificates or other verification of Buyer's performance of this Agreement, and
compliance with other reasonable requests made by Buyer.
Section 6.12 Covenant to Cooperate. Seller hereby covenants to cooperate
---------------------
with any disposition of the Loans which Buyer attempts, which shall include but
not be limited to: (i) providing reasonable and customary reports on an ongoing
basis to sponsors, rating agencies, credit
Continuing Loan Purchase Agreement
Page 28
<PAGE>
enhancers and investors involved in the securitization or other disposition of
the Loans ("Disposition Participants"), (ii) giving access to records,
------------------------
facilities and employees for the on-and off-site legal investigation and due
diligence by Disposition Participants upon reasonable notice and at reasonably
acceptable times, and (iii) making representations to Disposition Participants
generally no more onerous than its representations made herein.
Section 6.13 No Personal Solicitation. From and after each Settlement Date,
------------------------
Seller agrees that it will not take any action or permit or cause any action to
be taken by any of its agents and Affiliates, or by any independent contractors
or independent mortgage brokerage companies on Seller's behalf, to personally,
by telephone or mail, solicit the borrower or Obligor under any Loan for any
purpose whatsoever, including to refinance a Loan, nor will Seller buy a loan to
an Obligor secured by a Mortgaged Property, in whole or in part, without the
prior written consent of Buyer. It is understood and agreed that all rights and
benefits relating to the solicitation of any Obligors and the attendant rights,
title and interest in and to the list of such Obligors and data relating to
their mortgages (including insurance renewal dates) shall be transferred to
Buyer pursuant hereto on each Settlement Date and Seller shall take no action to
undermine these rights and benefits. Notwithstanding the foregoing, it is
understood and agreed that promotions undertaken by Seller or any Affiliate of
Seller which are directed to the general public at large, including, without
limitation, mass mailing based on commercially acquired mailing lists,
newspaper, radio and television advertisements, shall not constitute
solicitation under this paragraph, nor is Seller prohibited from responding to
unsolicited requests or inquiries made by an Obligor.
SECTION 7 CONDITIONS TO SETTLEMENT
Section 7.1 Conditions to Buyer's Obligations. The obligations of Buyer to
---------------------------------
purchase the Loans at each Settlement are subject to the satisfaction at or
prior to such Settlement of each of the following conditions (any or all of
which may be waived by Buyer):
(a) Representations and Warranties Correct. Each of the
--------------------------------------
representations and warranties of Seller contained in this Agreement shall be
true and correct in all material respects in accordance with their terms as of
the date of this Agreement, and on and as of such Settlement Date with the same
force and effect as though made on and as of such Settlement Date, and, if Buyer
so requests, Seller shall have delivered to Buyer a certificate in the form of
Exhibit F attached hereto to such effect signed on Seller's behalf by its
- ---------
President or another appropriate officer.
(b) Compliance with Covenants. Seller shall have performed and be in
-------------------------
compliance with, in all material respects, all of its respective covenants,
acts, and obligations to be performed under this Agreement, and Seller shall
have delivered to Buyer a certificate in the form of Exhibit F attached hereto
---------
to such effect signed on Seller's behalf by its President or another appropriate
officer.
Continuing Loan Purchase Agreement
Page 29
<PAGE>
(c) Settlement Documents. Seller shall have executed and delivered
--------------------
this Agreement and this Agreement shall not have been terminated; Seller shall
have delivered the Mortgage Files in connection with the Loans to be purchased
on such Settlement Date, and executed all documents required to transfer the
Loans in accordance with the terms of this Agreement.
(d) Corporate Documents. On or before each Settlement Date, Seller
-------------------
shall have delivered to Buyer:
(i) a certificate of its jurisdiction of incorporation dated not
earlier than the date of the thirtieth day preceding the Settlement
Date, to the effect that Seller is a corporation validly existing
and in good standing (if applicable) under the laws of such
jurisdiction as of such date;
(ii) a certificate of the Secretary or Assistant Secretary of
Seller attaching (A) evidence of such corporation action or
authorization as is necessary to approve of this Agreement and the
authorization of the officers of Seller to sign this Agreement,
which action or authorization shall continue to be in force as of
the Settlement Date, and (B) specimen signatures of the officers of
Seller authorized to sign this Agreement;
(iii) a copy, certified as true by the Secretary or Assistant
Secretary of Seller, of the charter and the by-laws of Seller; and
(iv) all other documents, instruments, and writings required to
be delivered by Seller pursuant to this Agreement.
(e) Corporate Actions. All corporate and other acts necessary to
------------------
authorize the execution, delivery, and performance of this Agreement and the
consummation of the transactions contemplated hereunder shall have been taken by
Seller.
(f) Access to Information: Due Diligence. Buyer and its
-------------------------------------
representatives shall have had access to such information and records of Seller
as Buyer shall have reasonably requested to ascertain Seller's compliance with
this Agreement, and all such information and records shall be satisfactory to
Buyer and its representatives in accordance with the terms of this Agreement.
(g) No Pending Litigation. There shall not be pending or threatened
---------------------
any suit, action, injunction, investigation, inquiry, or other proceeding
against either of the parties before any court or government agency, which, in
Buyer's good faith judgment, has resulted or is reasonably likely to result in
an order staying or judgment restraining or prohibiting the transactions
contemplated hereby or subjecting a party to material liability on the grounds
that it has breached any law or regulation or otherwise acted improperly in
connection with the transactions contemplated hereby.
Continuing Loan Purchase Agreement
Page 30
<PAGE>
Section 7.2 Opinion of Counsel. The obligations of Buyer to purchase the
------------------
Loans at the first Settlement following execution of this Agreement are subject
to Buyer having received an opinion of Seller's counsel satisfactory to Buyer,
in the form of Exhibit E attached hereto, as to such matters concerning this
---------
Agreement or the Settlement as are reasonably requested by Buyer. Thereafter, at
each Settlement, Seller's counsel must furnish a reliance letter relating to the
original opinion or must provide a new opinion.
Section 7.3 Conditions to Seller's Obligations. The obligations of Seller
----------------------------------
to sell the Loans at each Settlement are subject to the satisfaction at or prior
to such Settlement, of each of the following conditions (any or all of which may
be waived by Seller):
(a) Purchase Price. The Purchase Price shall have been delivered to
--------------
Seller pursuant to Seller's reasonable instructions in accordance with
Section 3.3.
-----------
(b) Representations and Warranties Correct. Each of the
--------------------------------------
representations and warranties of Buyer contained in this Agreement shall be
true and correct in all material respects in accordance with their terms as
of the date of this Agreement, and on and as of such Settlement Date with
the same force and effect as though made on and as of such Settlement Date,
and if Seller so requests, Buyer shall have delivered to Seller a
certificate to such effect signed on Buyer's behalf by its President or
another appropriate officer.
(c) Compliance with Covenants. Buyer shall have performed and be in
-------------------------
compliance with, in all material respects, all of its respective covenants,
acts, and obligations to be performed under this Agreement, and Buyer shall
have delivered to Seller a certificate to such effect signed on Buyer's
behalf by its President or another appropriate officer.
(d) Corporate Documents. On or before the Settlement Date, Buyer shall
-------------------
have delivered to Seller:
(i) a certificate of its jurisdiction of incorporation dated not
earlier than the date of the thirtieth day preceding the Settlement
Date, to the effect that Buyer is a corporation validly existing and
in good standing (if applicable) under the laws of such jurisdiction
as of such date;
(ii) a certificate of the Secretary or Assistant Secretary of
Buyer attaching (A) evidence of such corporation action or
authorization as is necessary to approve of this Agreement and the
authorization of the officers of Buyer to sign this Agreement, which
action or authorization shall continue to be in force as of the
Settlement Date, and (B) specimen signatures of the officers of Buyer
authorized to sign this Agreement;
(iii) a copy, certified as true by the Secretary or Assistant
Secretary of Buyer, of the charter and the by-laws of Buyer; and
Continuing Loan Purchase Agreement
Page 31
<PAGE>
(iv) all other documents, instruments, and writings required to be
delivered by Buyer pursuant to this Agreement.
(e) Corporate Actions. All corporate and other acts necessary to
-----------------
authorize the execution, delivery, and performance of this Agreement and
the consummation of the transactions contemplated hereunder shall have been
taken by Buyer.
(f) No Pending Litigation. There shall not be pending or threatened
---------------------
any suit, action, injunction, investigation, inquiry, or other proceeding
against either of the parties before any court or government agency, which,
in Seller's good faith judgment, has resulted or is reasonably likely to
result in an order staying or judgment restraining or prohibiting the
transactions contemplated hereby or subjecting a party to material
liability on the grounds that it has breached any law or regulation or
otherwise acted improperly in connection with the transactions contemplated
hereby.
SECTION 8 SURVIVAL OF COVENANTS, REPRESENTATIONS AND WARRANTIES
It is understood and agreed that the covenants, representations and warranties
set forth in this Agreement shall survive delivery and release of the Mortgage
Files to Buyer for a period of two (2) years from the date on which such
covenant, representation, or warranty is made or one year from the date that the
breach or misrepresentation was actually discovered by Buyer, whichever is
later. It is further understood that the covenants, representations and
warranties set forth in this Agreement shall inure to the benefit of Buyer, its
successors and assigns, or any holder of any endorsement of any Note or any
assignment of the Loan Documents.
SECTION 9 POST-SETTLEMENT REPURCHASE AND ADJUSTMENTS; REPURCHASE OBLIGATION OF
SELLER
Section 9.1 Repurchase Obligations. It is understood and agreed
----------------------
that the representations and warranties contained in Section 4 of this Agreement
---------
shall survive the sale of the Loans to Buyer and shall inure to the benefit of
Buyer, its successors and assigns, notwithstanding any restrictive or qualified
endorsement on any Note or Assignment of Mortgage or the examination or lack of
examination of any Mortgage File.
(a) In the event that Buyer discovers that any of the representations
and warranties set forth herein were untrue in any material respect as of the
related Settlement Date and that such breaches of the representations and
warranties materially and adversely affect the interest of Buyer in the Loans:
Buyer shall give Seller notice of, and shall request that Seller cure, such
failure, breach, or action within sixty (60) days of Seller's receipt of such
notice. For purposes of this section, Seller acknowledges that Buyer intends to
sell the Loans to a trust for the purpose of
Continuing Loan Purchase Agreement
Page 32
<PAGE>
securitization to be insured by a "certificate insurer", and that any breach of
representation or warranty which would cause the Loan to be ineligible for
securitization or cause the certificate insurer to refuse coverage would
constitute a material adverse effect.
The Seller shall, at the request of the Buyer and assuming that Seller has a
Qualified Substitute Loan, rather than repurchase the Loan as provided below,
remove such Loan and substitute in its place a Qualified Substitute Loan or
Loans; provided that such substitution shall be effected not later than one
hundred twenty (120) days after the related Settlement Date. Any repurchase of a
Loan pursuant to the foregoing provisions of this Section 9.1 (a) shall occur on
----------- -
a date designated by Buyer and shall be accomplished by deposit in the
Collection Account of the amount of the Repurchase Price for distribution to
Buyer.
At the time of repurchase of any deficient Loan, Buyer and Seller shall arrange
for the reassignment of the repurchased Loan to Seller and the delivery to
Seller of any documents held by the Custodian relating to the repurchased Loan.
In the event the Repurchase Price is deposited in the Collection Account, Seller
shall, simultaneously with such deposit, give written notice to Buyer that such
deposit has taken place. Upon such repurchase, the related Loan Schedule shall
be amended to reflect the withdrawal of the repurchased Loan from this
Agreement.
As to any Deleted Loan for which Seller substitutes a Qualified Substitute Loan
or Loans, Seller shall effect such substitution by delivering to Buyer for such
Qualified Substitute Loan or Loans the Note, the Mortgage, the Assignment of
Mortgage and such other documents and agreements as are required by the
Custodial Agreement, with the Note endorsed as required therein. Seller shall
deposit in the Collection Account the Monthly Payment and any servicing fee due
on such Qualified Substitute Loan or Loans in the month following the date of
such substitution. Monthly Payments due with respect to Qualified Substitute
Loans in the month of substitution will be prorated between Buyer and Seller.
For the month of substitution, distributions to Buyer will include a prorated
portion of the Monthly Payment due on such Deleted Loan, and Seller shall
thereafter be entitled to retain all amounts subsequently received by Seller in
respect of such Deleted Loan. Seller shall give written notice to Buyer that
such substitution has taken place and shall amend the Loan Schedule to reflect
the removal of such Deleted Loan from the terms of this Agreement and the
substitution of the Qualified Substitute Loan. Upon such substitution, such
Qualified Substitute Loan or Loans shall be subject to the terms of this
Agreement in all respects, and Seller shall be deemed to have made with respect
to such Qualified Substitute Loan or Loans, as of the date of substitution, the
covenants, representations and warranties set forth in Sections 4.1, 4.2 and
---------------------
4.3.
- ---
For any month in which Seller substitutes one or more Qualified Substitute Loans
for one or more Deleted Loans, Seller will determine the amount (if any) by
which the aggregate principal balance of all such Qualified Substitute Loans as
of the date of substitution is less than the aggregate stated Principal Balance
of all such Deleted Loans (after application of
Continuing Loan Purchase Agreement
Page 33
<PAGE>
scheduled principal payments due in the month of substitution). An amount equal
to the product of the amount of such shortfall multiplied by the Repurchase
Price shall be distributed by Seller in the month of substitution. Accordingly,
on the date of such substitution, Seller will deposit from its own funds into
the Collection Account an amount equal to such amount.
It is understood and agreed that the obligations of Seller set forth in this
Section 9.1(a) to cure, substitute for or repurchase a defective Loan constitute
- -------------
the sole remedies of Buyer respecting a breach of the foregoing representations
and warranties.
Any cause of action against Seller relating to or arising out of the breach of
any representations and warranties made in Sections 4.1, 4.2 or 4.3 shall
------------------------
accrue as to any Loan upon (i) discovery of such breach by Buyer or notice
thereof by Seller to Buyer, (ii) failure by Seller to cure such breach or
repurchase such Loan as specified above, and (iii) demand upon Seller by Buyer
for compliance with the relevant provisions of this Agreement.
(b) If Seller fails to cure such failure, breach or action to the sole
satisfaction of Buyer within such 60-day period, Seller shall, not later than
thirty (30) days after said 60-day period, repurchase such Loan at the
Repurchase Price set forth in Section 9.2.
-----------
Section 9.2 Repurchase Price. In the event Seller repurchases a Loan from
----------------
Buyer pursuant to Section 9.1 above, the Repurchase Price shall be an amount
-----------
equal to
(a) the product of
(i) the Bid Percentage and
(ii) the Principal Balance of such Loan,
(b) minus the aggregate amount of all payments of principal made to
Buyer on such Loan from the Settlement Date up to, but not including, the
date of repurchase,
(c) plus accrued but unpaid interest up to and including the date of
repurchase,
(d) plus any reasonable and customary out-of-pocket expenses paid to
third parties relating to such Loan.
Upon payment of the Repurchase Price as set forth herein, Buyer shall deliver
the Mortgage Files relating to such repurchased Loan and shall execute and
deliver such instruments of transfer or assignment, in each case without
recourse, as shall be necessary to vest in Seller title to such repurchased Loan
on a servicing-released basis. Seller shall pay all out-of-pocket costs incurred
in delivering the Mortgage File to Seller. Except for the negligence or willful
misconduct of Buyer or Buyer's representative, Buyer shall have no liability for
the failure by the courier to deliver the Mortgage File to Seller for any reason
whatsoever.
Continuing Loan Purchase Agreement
Page 34
<PAGE>
Section 9.3 Post-Settlement Adjustments to Purchase Price. Within sixty
---------------------------------------------
(60) days after each Settlement Date, the parties to this Agreement shall notify
the other in writing of any miscalculations, misapplied payments, unapplied
payments or other accounting errors (each, a "Discrepancy") which said party has
------------
discovered and which affects the Principal Balance of any of the Loans purchased
on such Settlement Date or the Purchase Price for the Loans purchased on such
Settlement Date. Notice under this Section 9.3 shall include copies of documents
-----------
sufficient to describe each Discrepancy. Buyer shall pay Seller or Seller shall
pay Buyer, as the case may be, an amount sufficient to correct such Discrepancy,
with all such adjustments calculated using the Bid Percentage. Any amounts due
hereunder shall be paid within ten (10) days of notice by the first party to the
other party.
SECTION 10 INDEMNIFICATION
Section 10.1 Seller's Indemnification.
------------------------
(a) Seller agrees to indemnify and hold Buyer, its Affiliates, and
their respective officers, directors, employees, agents, successors, and
assigns, and related entities from and to reimburse them for, any loss, cost,
expense, damage, liability, or claim (including, without limitation, all Legal
Fees) relating to, arising out of, based upon, or resulting from:
(i) Seller's ownership of or actions with respect to the Loans;
(ii) Seller's breach of any of its representations and
warranties contained in this Agreement; or
(iii) Seller's breach of or failure to perform any of its
covenants or agreements contained in or made pursuant to this Agreement.
(b) The obligations of Seller under this Section shall survive the
transfer and delivery of the Loans to Buyer and the termination of this
Agreement.
(c) Notwithstanding the foregoing, Seller shall not have any liability
in respect of the representations or warranties on the part of Seller herein
contained to the extent such liability would not have arisen but for Buyer's own
willful misconduct or negligence.
Section 10.2 Buyer's Indemnification.
-----------------------
(a) Buyer agrees to indemnify and hold Seller, its Affiliates, and
their respective officers, directors, employees, agents, successors, and
assigns, and related entities from and to reimburse them for, any loss, cost,
expense, damage, liability, or claim (including, without limitation, all Legal
Fees) relating to, arising out of, based upon, or resulting from:
Continuing Loan Purchase Agreement
Page 35
<PAGE>
(i) Buyer's ownership of or actions with respect to the Loans;
(ii) Buyer's breach of any of its representations and warranties
contained in this Agreement; or
(iii) Buyer's breach of or failure to perform any of its covenants
or agreements contained in or made pursuant to this Agreement.
(b) The obligations of Buyer under this Section shall survive the
transfer and delivery of the Loans to Seller and the termination of this
Agreement.
(c) Notwithstanding the foregoing, Buyer shall not have any liability
in respect of the representations or warranties on the part of Buyer herein
contained to the extent such liability would not have arisen but for Seller's
own willful misconduct or negligence.
Section 10.3 Indemnification Procedures.
--------------------------
(a) Within 10 days after a receipt by a party of a third party claim,
the indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Agreement, deliver a claim notice to the
indemnifying party; provided, however, that the omission so to notify the
-----------------
indemnifying party shall not relieve the indemnifying party from any liability
that the indemnifying party may have to the indemnified party otherwise than
under this subsection. In the event that any third party claim is made against
the indemnified party and the indemnified party notifies the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, to assume the defense
thereof, with counsel satisfactory to the indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), which consent shall not be unreasonably withheld. The indemnified party
shall have the right to employ separate counsel in any action or claim and to
participate in the defense thereof at the expense of the indemnifying party, if
the retention of such counsel has been specifically authorized by the
indemnifying party, if such counsel is retained because the indemnifying party
does not notify the indemnified party within 20 days after receipt of a claim
notice that it elects to undertake the defense thereof, or if there is a
reasonable basis on which the indemnified party's interest may differ from those
of the indemnifying party.
(b) The indemnifying party shall remit payment for the amount of a
valid and substantiated claim for indemnification hereunder within 15 business
days of the receipt of a claim notice therefor. Upon the payment in full of any
claim hereunder, the indemnifying party shall be subrogated to the rights of the
indemnified party against any person with respect to the subject matter of such
claim. In the event of a dispute, the parties shall proceed in good faith to
negotiate a resolution of such dispute.
Continuing Loan Purchase Agreement
Page 36
<PAGE>
(c) The indemnified party shall have the right to reject any
settlement approved by the indemnifying party if the indemnified party waives
its right to indemnification hereunder. The indemnified party shall have the
right to settle any third party claim over the objection of the indemnifying
party; provided, however, that if the indemnifying party is contesting such
--------- -------
claim in good faith and has assumed the defense of such claim from the
indemnified party, the indemnified party waives any right to indemnity therefor.
(d) In the event that the indemnifying party reimburses the
indemnified party with respect to any third party claim and the indemnified
party subsequently receives reimbursement from another person with respect to
that third party claim, then the indemnified party shall remit such
reimbursement from such other person to the indemnifying party within thirty
(30) days of receipt thereof.
SECTION 11 TERMINATION
Section 11.1 Termination by Either Party.
---------------------------
(a) This Agreement may be terminated with or without cause by either
party upon thirty (30) days written notice to the other party, provided that the
delivery requirements and other terms of this Agreement have been fully complied
with as to prior Settlements.
(b) After termination pursuant to Section 11.1(a), the provisions of
---------------
this Agreement shall continue to apply to any Loans previously transferred from
Seller to Buyer pursuant to this Agreement.
Section 11.2 Termination by Buyer. This Agreement may be immediately
--------------------
terminated by Buyer, at Buyer's sole option, upon notice to Seller upon the
occurrence of any of the following events ("Termination Events"):
------------------
(a) Seller breaches or fails to comply with any term or condition of
this Agreement and fails to cure such breach or failure within fifteen (15)
days of receipt of notice thereof from Buyer;
(b) Any of Seller's representations or warranties in Sections 4.1 or
---------------
4.2 of this Agreement is untrue in any material respect;
---
(c) Notwithstanding Section 11.2(a), Seller does not deliver the Loans
---------------
or any Loan Document relating to such Loans within the time periods stated
in this Agreement;
(d) Notwithstanding Sections 11.2(a) and 11.2(b), any document or
----------------------------
paper delivered hereunder is incorrect in any material respect or otherwise
does not comply with the terms and provisions of this Agreement;
Continuing Loan Purchase Agreement
Page 37
<PAGE>
(e) Any material reduction in Seller's net worth occurs, as determined
solely by Buyer;
(f) A petition for involuntary bankruptcy is filed against Seller, or
Seller is adjudged bankrupt or insolvent by a court of competent
jurisdiction or a regulatory agency, or a court of competent jurisdiction or
a regulatory agency appoints a receiver, liquidator, conservator, or trustee
for Seller or all or substantially all of its assets, or approves any
petition filed against Seller for its reorganization;
(g) Seller institutes proceedings for voluntary bankruptcy, files a
petition seeking reorganization under the Federal Bankruptcy Code, files
under any law for the relief of debtors, consents to the appointment of a
receiver of all or substantially all of its property, makes a general
assignment for the benefit of its creditors, or admits in writing its
inability to pay its debts generally as they become due;
(h) Seller merges with or consolidates into another corporation, sells
or otherwise disposes of all or substantially all of its property and
assets, or permits any change to occur in the stock ownership of Seller
which would transfer effective voting control from the persons now
exercising such control to others; or
(i) The placement of Seller on probation or restriction of its
activities in any manner by a Federal or state government agency, including
FHLMC, FNMA, or GNMA.
Section 11.3 Effect of Termination. Upon expiration of the thirty (30) day
---------------------
notice period pursuant to Section 11.1(a) or upon written notice to Seller
--------------
pursuant to Section 11.2 that a Termination Event has occurred, this Agreement
------------
shall be of no force and effect and the parties' obligations to each other
hereunder shall cease; provided, however, that each party shall continue to have
--------- -------
such obligations as may remain with respect to all Loans acquired by Buyer in
Settlements that have occurred prior to the date on which this Agreement
terminates.
SECTION 12 MISCELLANEOUS
Section 12.1 No Waiver. Failure or delay on the part of Buyer to audit any
---------
Loan or to exercise any right provided for herein, shall not act as a waiver
thereof, nor shall any single or partial exercise of any right by Buyer or
Seller preclude any other or further exercise thereof. In no event shall a term
or provision of this Agreement be deemed to have been waived, modified or
amended, unless said waiver, modification or amendment is in writing and signed
by the parties hereto. Notwithstanding any investigation conducted before or
after the purchase of any Loan, and notwithstanding any actual or implied
knowledge or notice of any facts or circumstances which Buyer may have as a
result of such investigation or otherwise, Buyer shall be entitled to rely upon
the warranties, representations, and covenants of Seller in this Agreement, and
the obligations of Seller with respect thereto shall survive the purchase of
said Loans by Buyer and inure to the benefit of all future assignees of said
Loans.
Continuing Loan Purchase Agreement
Page 38
<PAGE>
Section 12.2 Amendment and Modification. Subject to applicable law, this
-------------------------
Agreement may not be amended, modified, or supplemented except in writing signed
by both parties.
Section 12.3 Notices. All notices, requests, demands, consents, approvals,
-------
agreements, or other communications, to or by a party to this Agreement shall:
(a) be in writing addressed to the authorized address of the recipient
set out in Section 12.3(c) of this Agreement or to such other address as
---------------
such recipient may have notified the sender;
(b) be signed by an authorized officer of the sender (if necessary) or
an employee of the sender; and
(c) be delivered in person or sent by registered or certified mail
return receipt requested, facsimile transmission, or by overnight courier and be
- ------------------------
deemed to be duly given or made:
(i) in the case of delivery in person, when delivered to the
recipient at such address;
(ii) in the case of registered or certified mail, three days after
the date of mailing;
(iii) in the case of overnight courier, two days after shipment or
the date of receipt, whichever is earlier; or
(iv) in the case of facsimile transmission when received in
legible form by the recipient at such address and in the event that
the recipient has been requested to acknowledge receipt of the entire
facsimile transmission, upon the sending or receiving the
acknowledgment of receipt (which acknowledgment the recipient will
promptly give);
but if such delivery or dispatch is later than 5:00 p.m. local time on a
Business Day or occurs on a day which is not a Business Day, it will be deemed
to have been duly given or made at the commencement of business on the next
Business Day.
Notices may be sent
to Buyer: AMRESCO Residential Capital Markets, Inc.
c/o AMRESCO Residential Credit Corporation
3401 Centrelake Drive, Suite 480
Ontario, California 91761
Attention: Jason R. Marx
Fax No.: (909) 390-5570
Continuing Loan Purchase Agreement
Page 39
<PAGE>
with copy to: AMRESCO Residential Capital Markets, Inc.
700 North Pearl Street
Suite 2400, LB #342
Dallas, Texas 75201
Attention: General Counsel
Fax No.: (214) 953-7757
to Seller: Pan American Bank, F.S.B.
1300 South El Camino Real
Suite 320
San Mateo, California 94401
Attention: Blair Kenny, Vice President
Fax No.: (415)345-0323
to New Servicer: Advanta Mortgage Corp. USA
16875 West Bernardo Drive
San Diego, California 92128
Attention: SVP Loan Servicing
Fax No: (714) 674-1353
or to such other address as Buyer, Seller and New Servicer shall have specified
in writing to each other.
Section 12.4 Expenses. Each party hereto shall bear its own expenses,
--------
including the fees of any attorneys, accountants, or others engaged by such
party, in connection with this Agreement and the transactions contemplated
hereby, except as otherwise expressly provided herein.
Section 12.5 No Remedy Exclusive. No remedy under this Agreement is intended
-------------------
to be exclusive of any other available remedy, but each remedy shall be
cumulative and shall be in addition to other remedies under this Agreement or
existing at law or in equity.
Section 12.6 Independent Contractor. Nothing herein contained shall be
----------------------
deemed or construed to create a partnership or joint venture between Seller and
Buyer. In the performance of its duties or obligations under this Agreement or
any other contract, commitment, undertaking, or agreement made pursuant to this
Agreement, neither Seller nor Buyer shall be deemed to be, or permit itself to
be, understood to be the employee or agent of the other and shall at all times
take whatever measures as are necessary to insure that its status shall be that
of an independent contractor operating as a separate entity. None of Seller's or
Buyer's employees, agents or servants is entitled to the benefits that are
provided to the employees of the other party. Each party is solely interested in
the results obtained under this Agreement and therefore the manner and means of
conducting the other party's business affairs are under the sole control of such
other party and such other party shall be solely and entirely responsible for
its acts and for the acts of its agents, employees, and servants.
Continuing Loan Purchase Agreement
Page 40
<PAGE>
Section 12.7 Severability. If any one or more of the provisions of this
------------
Agreement shall be held to be invalid, illegal, or unenforceable, the validity,
legality, and enforceability of the remaining provisions of this Agreement shall
not be affected thereby. To the extent permitted by applicable law, each party
hereto waives any provision of law which renders any provision of this Agreement
invalid, illegal, or unenforceable in any respect, unless material to the
purpose of this Agreement.
Section 12.8 Entire Agreement. Seller and Buyer each acknowledge that no
----------------
representations, agreements, or promises were made to such party by the other
party or any of its employees other than those representations, agreements, or
promises specifically contained herein. This Agreement and any Schedules and
Exhibits hereto constitute the entire agreement and understanding of the parties
with respect to the matters and transactions contemplated hereby. This Agreement
supersedes any prior agreement and understanding with respect to these matters
and transactions.
Section 12.9 Assignment. Except as set forth in the following sentence,
----------
neither party shall have the right to assign any of its duties, obligations, or
rights under this Agreement without the prior written consent of the other.
Buyer shall have the right to assign its rights under this Agreement to any
Affiliate or to any successor holder of the Notes.
Section 12.10 Captions. The captions in this Agreement are for convenience
--------
only, do not form a part of this Agreement, and do not in any way modify,
interpret, or construe the intentions of the parties hereto.
Section 12.11 Governing Law. This Agreement shall be governed by and be
-------------
constructed in accordance with the laws of the State of California, without
regard to the conflicts of laws rules thereof.
Section 12.12 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed to be an original, and all such
counterparts shall together constitute one and the same instrument.
Section 12.13 Drafting. Each party acknowledges that its legal counsel
--------
participated in the preparation of this Agreement. The parties therefore
stipulate that the rule of construction that ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this
Agreement to favor any party against the other.
Section 12.14 Choice of Forum. Any judicial proceeding brought against any
---------------
of the parties hereto with respect to this Agreement shall be brought in any
court of competent jurisdiction in either Los Angeles or Orange County,
California, or Dallas County, Texas or in the Federal District Court for the
Northern District of the State of Texas or the Central District of the State of
California, irrespective of where such party may be located at the time of such
proceeding, and by execution and delivery of this Agreement, each of the parties
to this Agreement hereby consents to the exclusive jurisdiction of any such
court and waives any defense or opposition to such jurisdiction.
Continuing Loan Purchase Agreement
Page 41
<PAGE>
Section 12.15 WAIVER OF JURY TRIAL. EACH PARTY HERETO WAIVES, TO THE FULLEST
--------------------
EXTENT PERMITTED BY APPLICABLE LAW, THE RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
[INTENTIONALLY LEFT BLANK]
Continuing Loan Purchase Agreement
Page 42
<PAGE>
IN WITNESS WHEREOF, Buyer and Seller have caused their respective duly
authorized representatives to execute this Agreement as of the date first above
written.
BUYER:
AMRESCO Residential Capital Markets, Inc., a
Delaware corporation
By: /s/ JASON R. MARX
-----------------------------
Printed Name: Jason R. Marx
-------------------
Title: Vice President
--------------------------
SELLER:
Pan American Bank, F.S.B.,
a federal savings bank
By: /s/ LAWRENCE J. GRILL
-----------------------------
Printed name: Lawrence J. Grill
-------------------
Title: President
--------------------------
Continuing Loan Purchase Agreement
Page 43
<PAGE>
EXHIBIT 10.72
MORTGAGE LOAN PURCHASE AGREEMENT
---------------------------------
This is a Mortgage Loan Purchase Agreement (the "Agreement"), dated as of
May 28 1997, by and between SAXON MORTGAGE, INC., a Virginia corporation,
------
("Saxon" or the "Purchaser"), and PAN AMERICAN BANK, FSB (the "Seller").
RECITALS
1. The Seller desires to sell certain mortgage loans (the "Mortgage Loans")
to the Purchaser and the Purchaser desires to purchase such Mortgage Loans from
the Seller.
2. The parties intend hereby to set forth the terms and conditions upon
which the transaction will be effected.
AGREEMENT
NOW THEREFORE, in consideration of the premises and the mutual agreements
set forth herein, the parties hereto agree as follows:
SECTION 1. Definitions. Whenever used herein, the following words and
-----------
phrases, unless the context otherwise requires, shall have the following
meanings.
Borrower: Each person liable as maker of the Note evidencing the related
--------
Mortgage Loan or executing the Mortgage securing such Loan.
Certified Copy: A photocopy bearing a certificate signed by an officer of
--------------
Seller, or, in the case of recorded documents, signed by the title company or
the escrow/settlement agent responsible for recording such document, certifying
that such copy represents a true and correct reproduction of the original of
such document and, in the case of any recorded document, that such original has
been sent for recordation in the appropriate jurisdiction.
Closing Date: May 28, 1997, (or, if no different date has been specified
------------- ------------
the preceding blank space, the date of this Agreement) or as soon thereafter as
the conditions to payment of the Purchase Price contained in this Agreement can
be met; the actual date of payment of the Purchase Price shall be deemed to be
the Closing Date.
Cut-off Balance: As to each Mortgage Loan, the scheduled unpaid principal
------- -------
balance thereof as of the close of business on the Cut-off Date after
application of (i)
1
<PAGE>
scheduled payments of principal due on or before the Cut-off Date, whether or
not collected, and (ii) all other recoveries of principal collected on or before
the Cut-off Date.
Cut-off Date: The first day of the month in which the Closing Date occurs.
------------
FHLMC: The Federal Home Mortgage Corporation, or any successor thereto.
-----
FNMA: The Federal National Mortgage Association, or any successor thereto.
----
Mortgage or Security Instrument: A valid mortgage, deed of trust, or other
-------------------------------
form of security instrument customary under the laws and practices of the
Property State for the purpose of creating a voluntary lien on residential real
estate.
Mortgage Loan or Loans: The mortgage loans to be delivered to the Purchaser
----------------------
pursuant to this Agreement, as more particularly described in the schedule of
Mortgage Loans attached to this Agreement as Exhibit 3, and the documents
relating to each such loan required to be delivered pursuant to the Saxon
Shipping Manual.
Mortgage File: As to each Mortgage Loan, a file containing all of the
-------------
documents relating to each such Mortgage Loan required to be delivered pursuant
to this Agreement.
Mortgage Note: The note evidencing each Mortgage Loan indebtedness.
-------------
Mortgaged Premises: The property described in the Mortgage as securing the
------------------
Mortgage Loan.
Originator: The Seller, or, as to a Mortgage Loan originated by an entity
----------
other than the Seller, such other originator.
Property State: The jurisdiction in which the Mortgaged Premises are
--------------
located.
Purchase Price:Purchase Price Percentage: See Section 2(b) hereof.
----------------------------------------
Saxon Shipping Manual. The manual setting forth Saxon's general document
---------------------
shipping requirements entitled the "Saxon Shipping Manual" as provided to Seller
on or before the date of this Agreement .
Servicing Transfer Effective Date: If the Closing Date occurs 16 or more
---------------------------------
days prior to the end of a calendar month, the Servicing Transfer Effective Date
shall be the FIRST day of the month immediately following the month in which the
Closing Date occurs; if the Closing Date occurs fewer than 16 days prior to the
end of a calendar month, the Servicing Transfer Effective Date shall be the
first day of the SECOND month following the month in which the Closing Date
occurs.
2
<PAGE>
SECTION 2. AGREEMENT TO SELL AND PURCHASE.
-------------------------------
(a) Pursuant to the terms of this Agreement, the Purchaser agrees to
purchase and the Seller hereby agrees to sell, transfer, assign set over and
convey to the Purchaser, without recourse but subject to the terms of this
Agreement, all right, title and interest of the Seller in and to the Mortgage
Loans.
(b) The purchase price for the Mortgage Loans (the "Purchase Price") shall
be equal to the Cut-off Balance of each Mortgage Loan, multiplied by the
percentage of par (the "Purchase Price Percentage") agreed upon by the parties
pursuant to that certain Commitment Letter to the Seller from the Purchaser,
dated as of May 22, 1997 (the "Commitment Letter") a copy of which is attached
------------
hereto as Exhibit 1, plus accrued interest on each Mortgage Loan at the interest
rate provided in each related Mortgage Note from the Cut-off Date through the
day prior to the Closing Date.
The Purchaser shall be entitled to (1) all principal and interest due after
the Cut-off Date, (2) all other recoveries of principal collected after the
Cut-off Date, provided, however, that all scheduled payments of principal due on
or before the Cut-off Date and collected thereafter shall belong to the Seller.
(c) This sale of the Mortgage Loans shall be made on a "servicing released"
basis and shall constitute a transfer by the Seller to the Purchaser of all
rights of every kind with respect to the servicing of each Mortgage Loan. This
transfer of the servicing rights to the Purchaser will be effective as of the
Servicing Transfer Effective Date. In the interim between the Closing Date and
the Servicing Transfer Effective Date, the Seller will service the Mortgage
Loans in accordance with FNMAI/FHLMC guidelines. Seller shall deliver to each
Borrower the notice of transfer of servicing required by law (commonly known as
the "goodbye letter") no fewer than 15 days prior to the Servicing Transfer
Effective Date.
(d) Upon request of Saxon, Seller agrees to refund to Saxon any above-par
portion of the Purchase Price of any Mortgage Loan which refinances for any
reason within six (6) months of sale by Seller to Saxon, provided, however, that
the amount of the above-par portion to be refunded shall be offset by the amount
of any prepayment penalty received by Saxon respecting such loan.
SECTION 3. TRANSFER AND DELIVERY OF DOCUMENTS AND OTHER INFORMATION.
--------------------------------------------------------
A. Ownership of each Mortgage Loan, and the related Mortgage File, shall be
transferred to Purchaser upon payment of the Purchase Price. Seller shall also
provide a schedule setting forth the following information with respect to each
Mortgage Loan: (1) Mortgage Loan number, (2) Borrower name and address, (3)
occupancy type, (4) Mortgage Loan purpose, (5) first payment date, (6) original
loan-to-value (LTV) ratio, (7) original balance, (8) Cut-off Balance, (9)
documentation type, (10) date through which
3
<PAGE>
the Loan is paid, (11) original term to maturity, and (12) the Note interest
rate as of the Cut-off Date.
Each Mortgage File shall contain the following documents for the related
Mortgage Loan provided, however, that if the original of any document specified
in Paragraphs 2, 3, or 4 of this Section has been sent for recording and not yet
returned, a Certified Copy thereof shall be delivered at closing. Seller shall
cause the original of each such document to be delivered to the Purchaser as
soon as it is available bearing evidence of such recordation, but in any event
on or before six (6) months after the closing of this sale, or upon demand of
Purchaser, repurchase the Mortgage Loan at the Repurchase Price calculated
pursuant to Section 6(b) hereof:
1. Original executed Note, together with the original of any surety
agreement or guaranty agreement relating to the Note or any such assumption
agreement, endorsed without recourse to the order of "Texas Commerce Bank
National Association, as Custodian," which acts as custodian for the Purchaser,
together with the original of any and all of the following which exist with
respect to the Note:
. Conversion option agreement
. Buydown Agreement
. Modification agreement or any other agreement affecting Note terms
. Surety or guarantee agreement
. Any power of attorney used in executing the Note.
2. An original Mortgage creating a valid lien upon the Mortgage Premises to
secure the Mortgage Note, and bearing evidence that such Mortgage has been duly
recorded in the appropriate public records depository for the jurisdiction in
which the Mortgaged Premises are located (the "Appropriate Recording Location");
3. An "original Mortgage assignment", assigning the Mortgage to the
Purchaser's custodian, "Texas Commerce Bank National Association, as the
Custodian", bearing evidence of recordation in the Appropriate Recording
Location and which has been prepared and executed in accordance with the laws in
effect in such Location. Additionally, the Seller shall deliver to the Purchaser
original or Certified Copies of any intervening mortgage assignments, bearing
such evidence of recordation, which establish a complete chain of title from the
originator of the Mortgage to the Seller;
4. If any power of attorney was used in connection with the Mortgage, the
recorded original of such power attorney. If any assumption agreement,
modification agreement, or other agreement affecting terms of the Mortgage
exists in connection with the Mortgage Loan, the recorded original of such
agreement;
5. As to each Mortgage Loan, a lender's title insurance policy satisfying
the requirements of Section 4(23) of this Agreement, or if all conditions for
issuance of such
4
<PAGE>
a policy have been met, but the policy has not been issued, a written commitment
binder, or other form of preliminary documentation for such a policy as
customarily issued by title insurers and relied upon by institutional mortgage
lenders in the Property State. Seller shall either deliver the original lender's
title insurance policy to the Purchaser on or before 90 days after the closing
of this sale, or upon demand of Purchaser repurchase the Mortgage Loan;
6. As to each Mortgage Loan on which a mortgage insurance policy was
required at origination, the original mortgage insurance policy, issued by the
applicable insurer;
7. A hazard insurance policy satisfying the requirements of Section 4(10)
and 4(12) of this Agreement or a certificate of insurance issued by the insurer
certifying that a such a hazard insurance policy is in effect as to the
Mortgaged Premises;
8. If the Mortgaged Premises are located is a Special Flood Hazard Area
participating in a flood insurance program, a certificate of insurance issued by
the insurer certifying that a flood insurance policy meeting FNMA guidelines is
in effect as to the Mortgaged Premises in the lesser of the amount of the
Mortgage Loan or the maximum available amount under such insurance program;
otherwise; evidence of a "life-of-loan" flood hazard tracking service or other
documents as necessary to enable compliance with applicable laws relating to
flood insurance;
9. An original report of appraisal of the Mortgaged Premises, or a Certified
Copy of the original;
10. An original settlement statement, on the form approved by the Department
of Housing and Urban Development ("HUD") executed in connection with the
Mortgage Loan in the manner required by HUD-administered laws and regulations,
or, if the original thereof is not available or if any such statement is not
signed by any required party, a Certified Copy thereof;
11. All other Mortgage Loan documents relating to the Mortgage Loan required
to be delivered pursuant to the Saxon Shipping Manual.
B. As to any Mortgage Loan on which one or more payments have been received,
Seller shall deliver complete payment histories, escrow/impound account records,
copies of any written communications with or on behalf of the borrower, and all
other servicing records reasonably requested by Purchaser to evaluate or perform
such servicing.
SECTION 4. REPRESENTATION AND WARRANTIES OF SELLER.
---------------------------------------
As a material inducement to the Purchaser to enter into this Agreement, the
Seller makes the following representations and warranties to the Purchaser and
to Purchaser's
5
<PAGE>
successors and assigns, each of which shall survive closing of this sale, and
shall not be merged into the documents executed at such closing:
Company Representation and Warranties.
- -------------------------------------
The Seller represents and warrants to the Purchaser that as the Closing Date:
(a) The Seller has not dealt with any broker or agent or anyone else who
might be entitled to a fee or commission in connection with such sale other
that the Purchaser or any of its affiliates;
(b) The Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State set forth in the Seller's Officer's
Certificate attached hereto as Exhibit B, with file corporate power necessary
to carry on its business as now being conducted; the Seller has the file
corporate power and authority to execute and deliver this Agreement and to
perform in accordance herewith; the execution, delivery and performance of this
Agreement (including all instruments of transfer to be delivered pursuant to
this Agreement) by the Seller and the consummation of the transactions
contemplated hereby have been duly and validly authorized; this Agreement
evidences the valid, binding and enforceable obligation of the Seller; and all
requisite corporate action has been taken by the Seller to make this Agreement
valid and binding upon the Seller in accordance with its terms;
(c) The consummation of the transactions contemplated by this Agreement is
in the ordinary course of business of the Seller, and the transfer, assignment
and conveyance of the Notes and the Security Instruments by the Seller pursuant
to this Agreement are not subject to the bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction;
(d) Neither the execution and delivery of this Agreement, the sale of any
Mortgage Loan to the Purchaser, nor the fulfillment of or compliance with the
terms and conditions of this Agreement, will conflict with or result in a breach
of any provision of the Seller's charter or by-laws or any legal restriction or
any material agreement to which the Seller is now a party or by which it is
bound, or result in the violation of any law, rule, regulation, order, judgment
or decree to which the Seller or its property is subject, or impair the value of
any such Loan;
(e) There is no action, suit, proceeding or investigation pending or to the
Seller's knowledge threatened against the Seller that, either in any one
instance or in the aggregate, may result in any material adverse change in the
business, operations, financial condition, or assets of the Seller, or in any
material impairment of the right or ability of the Seller to carry on its
business substantially as now conducted, or in any material liability on the
part of the Seller, or that would draw into question the validity of this
Agreement or any Mortgage Loan or of any action taken or to be taken in
connection
6
<PAGE>
with the obligations of the Seller contemplated herein, or that would be likely
to impair materially the ability of the Seller to perform under the terms of
this Agreement;
(f) The Seller is the sole owner of each Mortgage Loan, free and clear of
any adverse claim or security interest, and has the full right to sell each
Mortgage Loan to the Purchaser, together with any rights with respect to the
servicing of each Mortgage Loan following the closing date sold pursuant to this
Agreement;
(g) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this Agreement or
the sale of each Mortgage Loan as evidenced by the consummation of the
transactions contemplated by this Agreement, or if required, such approval has
been obtained prior to the closing date;
(h) The Seller used no selection procedures adverse to the interests of
Purchaser in selecting each Mortgage Loan from among the outstanding residential
mortgage loans in its portfolio as to which the representations and warranties
in this Agreement could be made;
(i) The Seller will treat the disposition of each and all Mortgage Loans as
sales of assets for financial accounting and reporting purposes;
(j) The Seller is an experienced seller/servicer of residential mortgage
loans, with the facilities, procedures, and experienced personnel necessary to
service each Mortgage Loan in accordance with industry standards. In the event
any Mortgage Loan is required by the terms of the Commitment Letter to conform
origination guidelines of FNMA or FHLMC (each an "Agency"), Seller is approved
and is in good standing, to sell and service mortgage loans for such Agency, and
no event has occurred, including but not limited to a change in insurance
coverage, which would make the Seller unable to comply with such Agency's
eligibility requirements or which would require notification to such Agency;
(k) The Seller does not believe, nor does it have any reason or cause to
believe, that it cannot perform each and every covenant contained in this
Agreement;
(l) To the best of Seller's knowledge, neither this Agreement nor any
statement, report or other document furnished or to be furnished pursuant to
this Agreement or in connection with the sale of any Loan or Loans to Saxon
contains any materially untrue statement of fact or omits to state a fact
necessary to make the statements contained therein not misleading;
(m) Each of Seller's financial statements delivered to the Purchaser fairly
present the pertinent results of operations and have been prepared in accordance
with generally accepted accounting principles consistently applied throughout
the periods
7
<PAGE>
involved, except as set forth in the notes thereto. There has been no change in
the business, operations, financial condition, properties or assets of the
Seller since the date of the Seller's financial statements that would have a
material adverse effect on its ability to perform its obligations under this
Agreement;
(n) The consideration received by the Seller upon the sale of each Mortgage
Loan under this Agreement constitutes fair consideration and reasonably
equivalent value for the Mortgage Loans;
(o) Seller is solvent, and the sale of the Mortgage Loans individually and
in the aggregate, will not cause the Seller to become insolvent. No sale of the
Mortgage Loans to Saxon is undertaken with the intent to hinder, delay or
defraud any of the Seller's creditors.
Seller Representations and Warranties Regarding Individual Mortgage Loans.
-------------------------------------------------------------------------
As to each Mortgage Loan, the Seller hereby represents and warrants to the
Purchaser that, as of the Closing Date:
(1) Mortgage Loans as Described. The information set forth in the schedule
----------------------------
of Mortgage Loans, if any, attached hereto or to any Bulk Purchase Agreement
between the parties is complete, true and correct in all material respects. Any
photocopy delivered to Saxon purporting to be a copy of a Note or other Mortgage
Loan document is certified by Seller to be a true copy of the document
represented therein;
(2) Note Calculations and Terms. The Note related to the Mortgage Loan is
----------------------------
payable on the first day of each month in equal monthly installments of
principal and interest, with interest calculated and payable in arrears,
sufficient to amortize the Mortgage Loan fully by the stated maturity date,
over an original term from commencement of amortization of not more than 30
years. If the Mortgage Loan provides for an adjustable rate of interest, all
blank spaces in the Note relating to change dates, calculation of changes, and
limits on interest rate changes have been correctly filled in; and the index is
correctly defined. Any blank space in the Note relating to the late change for
overdue payments has been correctly filled in;
(3) Payment Status. All payments required to be made prior to the
---------------
Closing Date for the Mortgage Loan under the terms of the Note have been made,
and no payment has been 30 days delinquent more than once in the past 12 months;
(4) No Defaults. There is no default, breach, violation or event of
------------
acceleration existing under the Security Instrument or the Note, and no event
which, with the passage of time or with notice and the expiration of any grace
or cure period, would constitute a default, breach, violation or event of
acceleration, and neither the Seller nor its predecessors have waived any
default, breach, violation or event of acceleration;
8
<PAGE>
(5) No Outstanding Charges. There are no defaults in complying with the
----------------------
terms of the Security Instrument, and all taxes, governmental assessments,
insurance premiums, leasehold payments or ground rents which previously became
due and owing have been paid, or an escrow of funds has been established and
delivered to Saxon in an amount sufficient to pay for every such item which
remains unpaid and which has been assessed but is not yet due and payable. The
Seller has not advanced funds or induced, solicited or knowingly received any
advance of funds by a party other than the Borrower, directly or indirectly, for
the payment of any amount required under the Mortgage Loan, except for interest
accruing from the date of the Note or date of disbursement of the Mortgage Loan
proceeds, whichever is later, to the day which precedes by one month the due
date of the first installment of principal and interest;
(6) Original Terms Unmodified. The terms of the Note and Security
-------------------------
Instrument have not been impaired, waived, altered or modified in any respect,
except by a written instrument which has been recorded, if necessary to protect
the interests of the Purchaser, and which is contained in the Mortgage File for
each Mortgage Loan to be delivered to Saxon. The substance of any such waiver,
alteration or modification has been approved by the issuer of any related
mortgage insurance policy and the title insurer, to the extent required by such
policies, and its terms have been disclosed to Saxon. No Borrower has been
released, in whole or in part, except in connection with an assumption agreement
approved by the issuer of any related mortgage insurance policy and the title
insurer, to the extent required by such policies, and which assumption agreement
is part of the related Mortgage File delivered to Saxon. Any prepayment penalty
set forth in the terms of the Note has not been waived or limited and remains in
force according to its terms;
(7) No Fraud in Origination. The Seller has not, and no borrower, appraiser,
-----------------------
broker, or person verifying income, assets, or employment of any borrower has
made any false or intentionally misleading statement of material fact, or
intentionally withheld information necessary to prevent any such statement from
being misleading, in connection with the approval or origination of the Mortgage
Loan. Seller has not failed to disclose to Saxon any material fact known to
Seller in connection with the Mortgage Loan;
(8) No Defenses. The Mortgage Loan is not subject to any right of
-----------
rescission, set-off, counterclaim or defense, including without limitation the
defense of usury, nor will the operation of any of the terms of the Note of the
Security Instrument, or the exercise of any right thereunder, render either the
Note or the Security Instrument unenforceable, in whole or in part, or subject
to any right of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto. Seller has no
knowledge that any mortgagor intends to assert any such defense; and Seller has
no knowledge that any person liable on the Mortgage Loan was a debtor under any
9
<PAGE>
bankruptcy or insolvency law at the time the Mortgage Loan was originated, or
has become such a debtor since origination;
(9) Authority and Licensing. At all relevant times the originator of the
-----------------------
Mortgage Loan was duly organized, validly existing and in good standing in its
state of incorporation, and fully authorized to do business in the State in
which the mortgage premises are located under any applicable state law regarding
doing business. The Mortgage Loan was originated in compliance with any
applicable state or local law regarding doing business, and the licensing of
mortgage brokers and/or lenders. At all relevant times all acts of officers
acting or purporting to act on behalf of the Seller and the originator, if
different from the Seller, in the origination of the Mortgage Loan, the
execution of documents, and the performance of any other act pursuant to this
Agreement have been duly and validly authorized, and shall be deemed to have
been expressly ratified and confirmed;
(10) Hazard Insurance. All buildings or other, improvements upon the
----------------
Mortgaged Premises are insured against loss by fire, hazards of extended
coverage and such other hazards as are customary in the area where the Mortgaged
Premises is located pursuant to insurance policies issued by insurers having a
current rating by Best's Insurance Reports of BIVI or better, and providing for
no deductible in excess of the lesser of $1,000 or 1% of the applicable amount
of coverage;
(11) Flood Insurance. If upon origination of the Mortgage Loan, the
---------------
Mortgaged Premises were in an area identified in the Federal Register by the
Federal Emergency Management Agency as having special flood hazards, and such
flood insurance has been made available in the Mortgaged Premises' jurisdiction,
a flood insurance policy meeting FNMA guidelines in effect at the time of
origination is in effect. If at such time the Mortgaged Premises was not located
in such an area, Seller has obtained a life-of-loan flood certification with
respect to the Mortgaged Premises and has delivered the documentation related
thereto with each Mortgage Loan;
(12) Hazard and Flood Policies. All individual insurance policies contain a
-------------------------
standard mortgagee clause naming the Seller and its successors and assigns as
Mortgagee, and all premiums thereon have been paid. The Security Instrument
obligates the borrower thereunder to maintain the insurance policy at the
borrower's cost and expense, and on the borrower's failure to do so, authorizes
the holder of the Security Instrument to obtain and maintain such insurance at
such borrower's cost and expense, and to seek reimbursement therefor from the
borrower. The Seller has not engaged in, and has no knowledge of the borrower's
or any services' having engaged in, any act or omission which would impair the
coverage of any such policy. Seller is not affiliated with any insurance agent
or broker which received compensation in connection with any such policy, and
Seller has not and will not receive any payment or thing of value in connection
with the issuance of any such policy;
10
<PAGE>
(13) Appraisal. Seller has delivered to Purchaser an appraisal of the
---------
Mortgaged Premises signed prior to the approval of the Mortgage Loan application
by a qualified appraiser, duly appointed by the Seller, who had no interest,
direct or indirect in the Mortgaged Premises or in any loan made on the
security thereof; and whose compensation is not affected by the approval or
disapproval of the Mortgage Loan. The determination of value of the Mortgaged
Premises contained in such appraisal was determined in substantial compliance,
in all material respects, with Uniform Standards of Professional Appraisal
Practice;
(14) ARM Disclosure. If the Mortgage Loan provides for an adjustable rate of
--------------
interest, an adjustable rate mortgage disclosure ("ARM Disclosure") has been
provided to the borrower as required by the federal truth-in-lending laws
("TILA") and a copy of the ARM Disclosure is contained in the Mortgage File for
each Mortgage Loan to be delivered to Saxon. All material terms of the Arm
Disclosure are correct and consistent with the Note;
(15) No Satisfaction of Security Instrument. The Security Instrument has not
--------------------------------------
been satisfied, canceled, subordinated or rescinded, in whole or in part, and
the Mortgaged Premises have not been released from the lien of the Security
Instrument, in whole or in part, nor has any instrument been executed that would
effect any such release, cancellation, subordination or rescission;
(16) Location and Type of Mortgage Property. The Mortgage Loan is secured by
--------------------------------------
real property improved with a detached single family residence, other dwelling,
or a two-to-four-family dwelling constituting an eligible type of Mortgaged
Premises under Saxon's Underwriting guidelines. If the Mortgage Loan is secured
premises containing a manufactured home, such Loan is identified as such in the
Mortgage Loan Schedule. No portion of the Mortgage Premises is used for
commercial purposes;
(17) Valid Lien. The Security Instrument is a valid and enforceable lien on
----------
the Mortgaged Premises, including all improvements thereon, subject only to the
lien of current real property taxes, assessments not yet due and payable, and to
covenants, conditions and restrictions, rights of way, easements and other
matters acceptable to mortgage lending institutions generally and specifically
referred to in the lender's title insurance policy which do not adversely affect
the appraised value of the Mortgaged Premises; do not materially interfere with
the residential use, enjoyment, value, or marketability of the related Mortgaged
Premises; and are not identified in Saxon's underwriting guidelines as
unacceptable title exceptions.
If the Loan has been expressly offered to and accepted by Saxon as a second
lien Mortgage Loan, then the Security Instrument is subject to only to only one
prior mortgage lien; otherwise the Loan is not subject to any other mortgages,
deeds of trust, or similar liens. To the best of the Seller's knowledge, as of
the date of origination of the Mortgage Loan, the Mortgaged Preniises were not
subject to any lien subordinate to the
11
<PAGE>
lien of the Security Instrument, except as specifically set forth in the related
title insurance policy or binder;
(18) Mortgage Documents and Execution. If the Mortgage Loan is an adjustable
--------------------------------
interest mortgage ("ARM"), the Note is of a form identical to that prescribed by
Purchaser for the applicable ARM program. If the Mortgage Loan is a fixed rate
loan, the Note is of FNMA/FHLMC Form 3200 or other form acceptable to those
agencies. The Security Instrument is of a form acceptable to FNMA and FHLMC for
first liens (or, if the Loan has been expressly offered to and accepted by Saxon
as a second lien Mortgage Loan, the form is acceptable to FNMA and FHLMC for
second liens). The Note and the Security Instrument are genuine, and each is the
legal, valid and binding obligation of the maker thereof enforceable in
accordance with its terms subject to bankruptcy, reorganization or other similar
laws. All parties to the Note and the Security Instrument had legal capacity to
enter into the Mortgage Loan and to execute and deliver the Note and the
Security Instrument, and no party was induced to do so by fraud, duress, or
undue influence;
(19) Full Disbursement of Proceeds. The proceeds of the Mortgage Loan have
-----------------------------
been fully disbursed, and there is no requirement for future advances
thereunder, and any and all requirements as to completion of any on-site or off-
site improvement and as to disbursements of any escrow funds therefor have been
complied with. Any advances of proceeds prior to the Cut-Off Date have been
consolidated with the outstanding principal amount secured by the Security
Instrument. All costs, fees and expenses incurred in making or closing the
Mortgage Loan and the recording of the Security Instrument were paid, and the
Borrower is not entitled to any refund of any amount paid or due under the
Note or Security Instrument;
(20) Ownership: Third Party Interests. Immediately prior to the sale of the
--------------------------------
Mortgage Loan to the Purchaser, the Seller will be the sole owner of, and will
have good and marketable title to, the Mortgage Loan, subject to no prior lien,
mortgage, security interest, participation interest, pledge, claim, charge or
other encumbrance. On the date of sale to Saxon, the Mortgage Loan will be duly
and validly assigned, and the related Notes will be endorsed, in the manner
required by Saxon's published shipping instructions. The Mortgage Loan is not
subject to any servicing or subservicing agreement with any third party as of
the Closing Date;
(21) Doing Business. All parties which have had any interest in the Mortgage
--------------
Loan, whether as mortgagee, assignee, pledgee, Seller or otherwise, are (or,
during the period in which they held and disposed of such interest, were) (a) in
compliance with any and all applicable licensing requirements of the laws of the
state and locality in which the Mortgaged Premises is located, and (b) either
organized under the laws of such state, or in compliance with any applicable
laws of such state related to qualification to do business in such state;
12
<PAGE>
(22) LTV: Primary Mortgage Insurance Policy. No Mortgage Loan has an LTV
--------------------------------------
equal to or greater than 95%. Either the original LTV of the Mortgage Loan was
not more than 80% or the excess over 75% is and will be insured as to payment
defaults by a mortgage insurance policy until the LTV of such Mortgage Loan
reduced to 80%. All provisions of any such mortgage insurance policy have been
and are being complied with, if the Mortgage Loan documents purport to show that
such insurance policy is in force, then such policy is in full force and effect,
and all premiums due thereunder have been paid. Any Mortgage Loan subject to a
mortgage insurance policy obligates the mortgagor thereunder to maintain the
mortgage insurance policy and to pay all premiums and charges in connection
therewith. The note rate for the Mortgage Loan is net of any such insurance
premium.
If the Loan has been expressly offered to and accepted by Saxon as a second
lien Mortgage Loan, then the cumulative LTV with respect to total of the first
lien loan and the Mortgage Loan is not equal to or greater than 95%;
(23) Title Insurance. The Mortgage Loan is insured by an ALTA-form lender's
---------------
title insurance policy, or other form of policy of insurance acceptable to FNMA
or FHLMC, issued by a title insurer acceptable to FNMA or FHLMC and qualified to
do business in the jurisdiction in which the Mortgaged Premises are located,
insuring the Seller, its successors and assigns, in the original principal
amount of the Mortgage Loan, subject only to the exceptions permitted under the
terms of this Agreement and Saxon's Underwriting guidelines. The Seller is the
sole insured of such title insurance policy, and no prior holder of the Security
Instrument, including the Seller, has done, by act of omissions, anything which
would impair the coverage of such policy. (If the mortgaged premises are located
in the state of Iowa, an attorney's opinion of title of a form acceptable to
FNMA or FHLMC may be substituted for such title policy; however the aforesaid
standards for acceptable title exceptions nevertheless apply);
If the Loan has been expressly offered to and accepted by Saxon as a second
lien Mortgage Loan, then the Mortgage Loan is insured by a title insurance
policy meeting the requirements contained in Saxon's Underwriting guidelines;
(24) No Mechanics' Liens. No mechanics' or similar liens or claims relating
-------------------
to work, labor or material have been filed, and no rights are outstanding that
under applicable law could give rise to any such liens, affecting the Mortgaged
Premises which are or may be liens prior to, or of equal priority with the lien
of the Security Instrument;
(25) [Reserved];
(26) Location of Improvements: No Encroachments. All improvements which were
------------------------------------------
considered in determining the appraised value of the Mortgaged Premises lie
wholly within the boundaries and building restriction lines of the Mortgaged
Premises, and no improvements on adjoining properties encroach upon the
Mortgaged Premises. No improvement located or being part of the Mortgaged
Premises is in material violation of any applicable zoning law or regulation;
13
<PAGE>
(27) Approved Originator. The Mortgage Loan was originated (in some cases
-------------------
within the meaning contemplated by "no action" letters issued by the Securities
Exchange Commission) by (i) a mortgagee approved by the Secretary of Housing and
Urban Development pursuant to Sections 203, and 211 of the National Housing Act
or by a Supervised Depository Institution; or (ii) by a savings and loan
association, bank, credit union, or other depository institution or insurance
company supervised as such by a federal or state supervisory agency having
jurisdiction over such depository institution or insurance company;
(28) Customary Provisions. The Security Instrument contains customary and
--------------------
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgage Property of the
benefits of the security provided thereby, including, (i) in the case of a
Security Instrument designated as a deed of trust or security deed, by
trustee's sale, and (ii) otherwise by judicial foreclosure. There is no
homestead or other exemptions available to a mortgagor which would interfere
with the right to sell the Mortgaged Premises at a trustee's sale or the right
to foreclose the Security Instrument;
(29) Conformance with Seller's Underwriting and Documents. Although
----------------------------------------------------
Purchaser may re-underwrite the Mortgage Loan under Purchaser's guidelines,
Seller represents and warrants that the Mortgage Loan substantially meets the
underwriting guideline of the Seller in effect at the time the Mortgage Loan was
originated;
(30) Occupancy of the Mortgaged Premises. As of the closing date, the
-----------------------------------
Mortgaged Premises are not unlawfully occupied. All inspections, licenses and
certificates required to be made or issued with respect to all occupied portions
of the Mortgaged Premises and, with respect to the use and occupancy of the
same, including but not limited to certificates of occupancy, have been made or
obtained from the appropriate authorities;
(31) No Additional Collateral. The Note is not and has not been secured by
------------------------
any collateral except the lien of the corresponding Security Instrument and such
collateral deemed to be included therein under applicable law;
(32) Deed of Trust Trustees. In the event the Security Instrument is a deed
----------------------
of trust, the trustee named in the deed of trust is fully qualified under
applicable law to serve as such, has been properly designated and currently so
serves, and no fees or expense are or will become payable by the Purchaser to
the trustee under the deed of trust, except as expressly provided in the deed of
trust or under applicable law in connection with a trustee's sale following
default;
(33) Acceptable Investment. The Seller has no knowledge of any circumstances
---------------------
or conditions with respect to the Security Instrument, the Mortgaged
14
<PAGE>
Premises, the Borrower or the Borrower's credit standing that can reasonably be
expected to cause the Mortgage Loan to become delinquent, or adversely affect
the value or marketability of the Mortgage Loan;
(34) Assignment. All assignments of the Security Instrument necessary to
----------
establish a chain of title from the originator of the Mortgage Loan through
Seller to Saxon, or its servicer or custodian as required by Saxon's published
guidelines, and meeting the requirements of the jurisdiction in which the
Mortgaged Premises are located, have been duly executed and recorded, and
customary evidence of such recordation has been delivered to Purchaser;
(35) Due on Sale. The Note and the Security Instrument contain identical
-----------
customary provisions for the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan in the event that the Mortgaged Premises is sold or
transferred without the prior written consent of the Mortgagee thereunder;
(36) Assumability. The Mortgage Loan is assumable in accordance with the
------------
terms thereof, if such terms so provide;
(37) No Buydown Provisions; No Graduated Payments or Contingent Interests.
--------------------------------------------------------------------
The Mortgage Loan does not contain provisions pursuant to which monthly payments
are paid or partially paid with funds deposited in any separate account
established by the Seller, the Borrower or anyone on behalf of the Borrower, or
paid by any source other than the Borrower nor does it contain any other similar
provisions currently in effect which may constitute a "buydown" or "temporary
buydown" provision. The Mortgage Loan is not a graduated payment mortgage loan,
and the Mortgage Loan does not have a shared appreciation or other contingent
interest feature;
(38) No Negative Amortization. The Mortgage Loan does not provide for
------------------------
negative amortization of the indebtedness in any circumstances;
(39) Mortgaged Premises Undamaged; No Condemnation. The Mortgaged
---------------------------------------------
Premises are undamaged by waste, fire, earthquake or earth movement, windstorm,
flood, tornado or other casualty so as to materially affect adversely the value
of the Mortgaged Premises as security for the Mortgage Loan or for the use of
the premises as a residence. There is no proceeding pending or threatened for
the total or partial condemnation of the Mortgaged Premises;
(40) Origination Fees. The fees collected and procedures employed at
----------------
origination of the Mortgage Loan were reasonable, customary, and in compliance
with all applicable laws. Neither Seller nor any other lender or broker
participating in the origination had, at the time of origination, any ownership
interest in or revenue sharing agreement with any appraiser, credit reporter,
title or escrow company, or other
15
<PAGE>
settlement service provider involved in the origination or settlement of the
loan, except as disclosed to and accepted by the borrower in accordance with
applicable law;
(41) Escrow Accounts. Any escrow or impound payments have been calculated,
---------------
collected, and administered in compliance with all applicable laws. Any escrow
or impound account is in Seller's possession as set forth in the mortgage loan
documents and records, in an amount sufficient to pay for every item provided
for by such account, without, however exceeding any maximum balance allowed by
law. No escrow payments or other charges or payments due the Seller have been
capitalized, and there exist no deficiencies in connection therewith. Any
interest required by law or contract to be paid on any escrow account has been
fully paid or appropriately credited;
(42) Compliance with Applicable Laws. Requirements of all federal, state and
-------------------------------
local law including, without limitation, truth-in-lending, real estate
settlement procedures, consumer credit protection, equal credit opportunity, or
usury, applicable to the Mortgagee Loan have been complied with. Any evidence of
such compliance requested by Purchaser to be included in the Mortgage Loan file
has been included, and Seller will maintain in its files and deliver to
Purchaser upon demand any additional evidence of such compliance;
(43) Soldiers' and Sailors' Relief Act. The Borrower has not notified the
---------------------------------
Seller, and the Seller has no knowledge of any relief requested or allowed to
Borrower under the Soldiers' and Sailors' Civil Relief Act of 1940;
(44) Environmental Matters. The Mortgaged Premises are sufficiently free
---------------------
from any and all toxic or hazardous substances so as to be in compliance with
all applicable local, state or federal environmental laws, rules or regulations;
(45) Legal Proceedings. As of the date hereof; no property securing a
-----------------
Mortgage Loan is subject to foreclosure, litigation, bankruptcy or insolvency
proceedings or any work out or foreclosure agreement, and, to the best of the
Seller's knowledge, the filing of a bankruptcy or insolvency proceeding that
would result in such Mortgage Loan becoming subject to bankruptcy or insolvency
proceedings is not imminent;
(46) Servicing. Any servicing of the Mortgage Loan since origination has
---------
been in accordance with FNMA/FHLMC guidelines. In the event any servicing has
been performed, all servicing and collection practices used with respect to the
Mortgage Loan have been reasonable, customary, and in compliance with all
applicable laws;
(47) No Convertibility. The Mortgage Loan is not subject to conversion from
-----------------
an adjustable to a fixed rate of interest;
16
<PAGE>
(48) No Section 32 Loans. The Mortgage Loan is not a "High Rate, High Cost"
-------------------
loan (commonly known as a Section 32 loan) according to Regulation Z of the
Truth in Lending Act, as amended;
(49) No Consumer Credit Loans. The Mortgage Loan is not a "purchase money
------------------------
loan" for the purchase of non-real estate consumer goods, or "a consumer credit
contract" for the purchase of non-real estate consumer goods, as those terms are
defined in the regulations of the Federal Trade Commission relating to
preservation of consumer's claims and defenses as set forth in 16 C.F.R. Part
433 or as amended or recodified.
SECTION 5. Representations and Warranties of the Purchaser. The
-----------------------------------------------
Purchaser makes the following representations and warranties to the Seller and
to Seller's successors and assigns, each of which shall survive closing of this
sale, and shall not be merged into the documents executed at such closing:
(a) The Purchaser is acquiring the Mortgage Loans for its own account and
not as agent for any other person or entity;
(b) The Purchaser considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of
investment in the Mortgage Loans;
(c) The Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the Commonwealth of Virginia and has all
licenses necessary to carry on its business as now being conducted; the
Purchaser has the full corporate power and authority to execute and deliver this
Agreement and to perform in accordance herewith; the execution, delivery and
performance of this Agreement by the Purchaser and the consummation of the
transactions contemplated hereby have been duly and validly authorized; this
Agreement evidences the valid, binding and enforceable obligation of the
Purchaser; and all requisite corporate action has been taken by the Purchaser to
make this Agreement valid and binding upon the Purchaser in accordance with its
terms;
(d) The consummation of the transactions contemplated by this Agreement are
in the ordinary course of business of the Purchaser;
(e) Neither the execution and delivery of this Agreement, the acquisition of
the Mortgage Loans by the Purchaser, the sale of the Mortgage Loans to the
Purchaser or the transactions contemplated hereby, nor the fulfillment of or
compliance with the terms and conditions of this Agreement, will conflict with
or result in a breach of any of the terms, conditions or provisions of the
Purchaser's charter or by-laws or any legal restriction or any agreement or
instrument to which the Purchaser is now a party or by which it is bound, or
constitute a default or result in an acceleration under any of the
17
<PAGE>
foregoing, or result in the violation of an law, rule, regulation, order,
judgment or decree to which the Purchaser or its property is subject;
(f) There is no action, suit, proceeding or investigation pending or, to the
best of Purchaser's knowledge, threatened against the Purchaser that, either in
any one instance or in the aggregate, may result in any material adverse change
in the business, operations, financial condition, properties or assets of the
Purchaser, or in any material impairment of the right or ability of the
Purchaser to carry on its business substantially as now conducted, or in any
material liability on the part of the Purchaser, or that would draw into
question the validity of this Agreement or of any action taken or to be taken in
connection with the obligations of the Purchaser contemplated herein, or that
would be likely to impair materially the ability of the Purchaser to perform
under the terms of this Agreement; and
(g) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Purchaser of or compliance by the Purchaser with this
Agreement or the sale of the Mortgage Loans as evidenced by the consummation of
the transactions contemplated by this Agreement, or if required, such approval
has been obtained prior to the Closing Date.
SECTION 6. Remedies Upon Breach of Representation or Warranty; Repurchase
--------------------------------------------------------------
Obligations.
-----------
(a) Seller agrees that each of the representations, warranties and
covenants made herein have been relied upon by Purchaser notwithstanding any
examination of Mortgage Loans heretofore or hereafter made by Purchaser or the
Custodian on its behalf; and that such representations, warranties and covenants
shall survive payment of the Purchase Price and the delivery of the Mortgage
Loans, and shall remain in full force and effect until such time as all of the
Mortgage Loans have been paid in full, foreclosed or otherwise retired,
notwithstanding any applicable statute of limitations, which Seller hereby
expressly waives.
(b) Upon discovery by either party of a breach of a representation and
warranty of Seller set forth in this Agreement, and upon further discovery that
such breach materially and adversely affects any Mortgage Loan or the interest
of the Purchaser therein, such party shall give prompt notice to the other
party. Purchaser may also give such notice relating to any failure by Seller to
deliver final documents as required under Section 3 of this Agreement. Seller
shall have 60 days after receipt of such notice in which to cure in all material
respects such breach. In the event that the Seller is unable to effect such cure
within such time, then upon written demand by Purchaser the Seller shall within
10 days of such demand repurchase each affected Mortgage Loan at a price equal
to the unpaid principal balance of such Mortgage Loan multiplied by the Purchase
Price Percentage, plus accrued and unpaid interest thereon at the gross coupon
rate through the date of repurchase (the "Repurchase Price"). Upon
18
<PAGE>
payment of the repurchase price, Purchaser shall promptly return the Mortgage
File relating to the repurchased Mortgage Loan to the Seller.
(c) In addition, the Seller shall indemnify the Purchaser and hold it
harmless against any losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments and other costs and
expenses arising out of or resulting from any claim, demand, defense or
assertion based on, related to, or arising from (a) a breach by the Seller of
any of its convenants, representations or warranties contained in this Agreement
or (b) the servicing of any Mortgage Loan prior to the transfer of servicing to
Purchaser or its designated servicer.
(d) Any cause of action relating to or arising out of the breach of any
covenant, representation, or warranty of Seller made herein shall be deemed to
accrue as to any Mortgage Loan upon the last to occur of (i) discovery of such
breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii)
failure by the Seller to cure such breach upon and in accordance with the demand
of Purchaser made in accordance with this Agreement.
(e) The remedies described in this Section 6 shall be cumulative and in
addition to any other remedies available under applicable law.
SECTION 7. Successors and Assigns; Assignment of Agreement.
-----------------------------------------------
A. This Agreement shall bind and inure to the benefit of and be enforceable
by the Seller and the Purchaser and their respective successors and assigns.
This Agreement shall not be assigned, pledged or hypothecated by either party
without the consent of the other party or its successors or assigns, which
consent shall not be unreasonably withheld or delayed. Failure or delay by a
prospective assignee of either party in executing upon request a written
assumption of this Agreement and all convenants, representations, and warranties
contained herein shall be reasonable grounds for withholding consent to
assignment to such prospective assignee.
B. The foregoing limitations on assignments notwithstanding, the Purchaser
may, at the Purchaser's sole option, effect one or more assignments of this
Agreement or sales of some or all of the Mortgage Loans (a) to a trustee as part
of one or more rated or unrated public or private pass-through transactions; (b)
to one or more third party purchasers in one or more whole loan or participation
pools; or (c) in connection with other secondary market or securitization
transactions provided, however, that Purchaser shall not effect any such sale in
any manner that would (i) impose an obligation on the Seller or the Purchaser to
register under the Securities Act of 1933 or (ii) otherwise result in the
violation of any applicable securities laws or regulations. The Seller shall
cooperate with reasonable requests of the Purchaser to provide the information
necessary to facilitate any assignment of the Agreement pursuant to this
paragraph. In addition, Seller agrees to execute, upon request of Purchaser,
reconstitution agreements in
19
<PAGE>
connection with such transactions, subject to the following conditions: (i)
Seller shall have an opportunity to review such documents and negotiate in good
faith regarding the terms thereof; (ii) Seller shall upon request restate all of
the representators or warranties contained in this Agreement, but any such
restated representations and warranties shall be made as of the Closing Date;
and (iii) Purchaser shall reimburse Seller for any out-of-pocket expenses
incurred in connection with complying with this Section 7(B).
SECTION 8. Conditions to Closing. The obligations of the Seller and the
---------------------
Purchaser to consummate the sale and purchase of the Mortgage Loans on the
Closing Date are subject to the satisfaction of the following conditions:
(a) all of the representations and warranties of the Seller and the
Purchaser under this Agreement shall be true and correct as of the Closing Date,
and no event shall have occurred that, with notice or the passage of time, would
constitute a default under this Agreement;
(b) all Mortgage Files shall have been delivered to the Purchaser as
provided by this Agreement; and
(c) all other terms and conditions of this Agreement shall have been
complied with in all material respects.
SECTION 9. Closing; Delivery of Mortgage Loans. The closing of the
-----------------------------------
purchase and sale of the Mortgage Loans and the delivery of the Mortgage Loans
shall take place on the Closing Date. At the Purchaser's option, the closing
shall be either: by telephone, confirmed by letter or wire as the parties shall
agree; or conducted in person, at such place as the parties shall agree. The
Closing Documents shall consist of fully executed originals of the following
documents:
(a) this Agreement, which may be executed in counterparts;
(b) the schedule of Mortgage Loans, to be attached to each counterpart of
this Agreement; and
(c) an Officer's Certificate in the form of Exhibit 2 hereto, including all
attachments thereto.
Subject to the conditions to closing set forth herein, the Purchaser shall
pay the Purchase Price to the Seller on the Closing date by wire transfer of
immediately available funds to the account designated by the Seller.
SECTION 10. Certain Costs to be Paid by Seller. The Seller shall pay any
----------------------------------
commissions due to any broker or agent in connection with this transaction on
any Mortgage Loan. In addition, Seller will pay any legal fees and expenses of
its attorneys,
20
<PAGE>
and fees incurred in connection with the transfer and delivery of the Mortgage
Loans, including preparation and recording of Assignments.
SECTION 11. Protection of Confidential Information. The Seller shall keep
--------------------------------------
confidential and shall not divulge to any party, without the Purchaser's written
consent, the price paid by the Purchaser for the Mortgage Loans, except to the
extent required by law or to the extent that it is appropriate for the Seller to
do so in working with legal counsel, auditors, contract service providers,
taxing authorities or other governmental agencies.
SECTION 12. No Solicitation. From and after the effective date of this
---------------
Agreement, the Seller shall not directly or indirectly solicit, and the Seller
shall exercise reasonable efforts to prevent any of its affiliates from directly
or indirectly soliciting, by means of direct mail, or telephonic or personal
solicitation, any Borrower of any of the Mortgage Loans for purposes of
prepayment or refinance or modification of such Loans; it being understood and
agreed that all rights and benefits relating to the direct solicitation of such
Borrowers and all attendant rights, title and interest in and to the list of
such Loans shall be included among the Mortgage Loan assets transferred to the
Purchaser pursuant hereto. Provided that the transaction contemplated by this
Agreement is consummated, the benefits of such transfer shall inure to the
Purchaser from and after the effective date of this Agreement, and the Seller
and its affiliates shall take no action after the date hereof to adversely
affect such rights and benefits. It is understood and agreed that (i) promotions
undertaken by the Seller or any affiliate of the Seller which are directed to
the general public at large, including without limitation mass mailings based on
commercially acquired mailing lists, newspaper, radio and television
advertisements, and (ii) unsolicited requests made by customers to any retail
branches or offices of the Seller or its affiliates shall not constitute
solicitation under this Section 12.
SECTION 13. Indulgences, Not Waivers. Any failure or delay by either party
------------------------
in enforcing any provision this Agreement shall not constitute a waiver of such
party's right to enforce such provision subsequently with respect to the same or
subsequent circumstances.
SECTION 14. Notices. All demands, notices and communications hereunder
-------
shall be in writing and shall be deemed to have been duly given on the earlier
of (a) three business days after being mailed by registered or certified mail,
return receipt requested and (b) otherwise when received by the other party at
the address shown below in this Section or such other address as may hereafter
be furnished to the other party by like notice. Any such demand, notice or
communication hereunder shall be deemed to have been received on the date
delivered to or received at the premises of the addressee as
21
<PAGE>
follows: if to the Purchaser: Saxon Mortgage, Inc., 4880 Cox Road, Glen Allen,
Virginia 23060, Attn.: Senior Vice President, and if to the Seller, Pan American
Bank, FSB, at: 1300 South El Camino Real, 6th Floor, San Mateo, California
-----------------------------------------------------------
94402. Attn.: Mr. Blair Kenny, or if no other address is specified in the
- -----------------------------
preceding blank space, to the officer of Seller executing this Agreement at the
address of such officer on file with Purchaser.
SECTION 15. Severability. Any determination by a court of competent
------------
jurisdiction that any provision of this Agreement is void or unenforceable shall
not affect the validity and enforceability the remaining provisions hereof.
SECTION 16. Counterparts. This Agreement may be executed simultaneously
------------
in any number of counterparts. Each counterpart shall be deemed to be an
original, and all such counterparts shall constitute one and the same
instrument.
SECTION 17. Governing Law. This Agreement shall be governed by, and
-------------
construed in accordance with, the laws of the Commonwealth of Virginia, without
giving effect to any choice of law provisions thereof.
SECTION 18. Waivers: Modifications. No term or provision of this Agreement
----------------------
may be waived or modified unless such waiver or modification is in writing and
signed by the party against whom such waiver or modification is sought to be
enforced.
SECTION 19. Exhibits. The exhibits to this Agreement are hereby
--------
incorporated and made a part hereof and are an integral part of this Agreement.
SECTION 20. Survival. This Agreement, and all covenants, representations,
--------
and warranties set forth herein, shall survive the Closing and shall not merge
into the Closing documents. Without limiting the foregoing, proceeding with
Closing shall not constitute any waiver of Purchaser's right too require any
missing or incorrect document required to be delivered hereunder, even if
Purchaser was afforded an opportunity to review such Mortgage Loan prior to
Closing.
IN WITNESS WHEREOF the parties have caused this document to be
executed by their respective authorized officers as of the date first written
above:
SELLER: PAN AMERICAN BANK, FSB
By: /s/ LAWRENCE J. GRILL
-------------------------------------
Name: Lawrence J. Grill
Its: President
22
<PAGE>
PURCHASER: SAXON MORTGAGE, INC.
By: /s/ CHARLES E. COUDRIET
-------------------------------------
Name: Charles E. Coudriet
Its: President
<PAGE>
Exhibit 21.1
Subsidiaries of United PanAm Financial Corp.
1. United PanAm Mortgage Corp.
2. Pan American Financial, Inc.
3. Pan American Bank, FSB
4. United Auto Credit Corporation
<PAGE>
EXHIBIT 23.1
The Board of Directors
United PanAm Financial Corp.:
We consent to the use of our report included herein and to the reference to our
firm under the heading "Experts" in the prospectus.
/s/ KPMG PEAT MARWICK LLP
San Francisco, California
November 10, 1997
