FIRST AMENDMENT TO AMENDED AND RESTATED SUBACCOUNTING AGREEMENT
Exhibit 10.1
FIRST
AMENDMENT TO AMENDED AND RESTATED
THIS
FIRST AMENDMENT TO THE AMENDED AND RESTATED SUBACCOUNTING AGREEMENT (this
“Amendment”) is made and entered into as of this 24th day of February 2010 (the
“Effective Date”), by and between, UNITED WESTERN BANK®, a federal savings bank
(“Bank”), EQUITY TRUST COMPANY, a South Dakota trust company (“ETC”), EQUITY
ADMINISTRATIVE SERVICES, INC., an Ohio corporation (“EAS”), and STERLING
ADMINISTRATIVE SERVICES, LLC, a Texas limited liability company (“SAS” and,
collectively with EAS, the “Companies”). The Companies, ETC and Bank are
referred to herein each as a “Party” and collectively as the “Parties.”
Capitalized terms used and not defined in this Amendment shall have the meanings
ascribed to them in the Subaccounting Agreement (as defined below).
WITNESSETH
WHEREAS, Bank, ETC and the Companies
are parties to that certain AMENDED AND RESTATED SUBACCOUNTING AGREEMENT dated
June 27, 2009 (the “Subaccounting Agreement”) whereby, among other things, ETC
and the Companies maintain Bank Accounts at Bank for the benefit of Custodial
Account Holders, and the Companies act as agent for Bank to provide Custodial
Account Holder record keeping and certain other services with respect to the
Custodial Accounts and balances maintained in the Bank Accounts for the benefit
of the individual Custodial Account Holders.
WHEREAS, the Parties desire to amend
the Subaccounting Agreement as described in further detail in this
Amendment.
NOW, THEREFORE, for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows:
1. The following sentence shall be
added at the end of Section 1 of the Agreement:
“For purposes of this Agreement, Bank
Accounts shall include any Bank Account deposits participated to Third Party
Banks pursuant to the terms of this Agreement.”
2. The second paragraph of Section 10
of this Agreement is hereby deleted in its entirety and replaced with the
following paragraph:
“Notwithstanding anything to the
contrary herein, written consent of the Bank is required prior to the Companies
and ETC participating out Bank Account deposits to any Third Party Bank (as
defined below), which consent shall not be unreasonably withheld. In
addition, Bank may propose that the Companies and ETC participate out Bank
Account deposits to a Third Party Bank, and the written consent of the Companies
and ETC shall be required prior to such participation, which consent shall not
be unreasonably withheld. A “Third Party Bank” is any federally
insured bank or saving and loan institution chartered by an agency of the
federal government or any state government that is agreed to between the Parties
and (x) has a composite rank of 75 or higher as published by IDC Financial
Publishing, Inc. (“IDC”) from
1
time to
time or (y) if such bank or institution is not rated by IDC, such bank or
institution is “well capitalized” (as that term is defined in 12 CFR
565.4(b)(1), but subject to 12 CFR 565.4(c)). Any Party proposing
participation of Bank Account deposits to a Third Party Bank as provided herein
(the “Proposing Party”) shall first deliver to Bank or the Companies and ETC, as
the case may be (the “Receiving Party”) detailed information regarding the
proposed participation, including the proposed amount of Bank Account deposits
to be participated out, the name of the Third Party Bank to accept the deposits,
the proposed terms of such Third Party Bank’s participation and information
regarding the financial and regulatory status of such Third Party Bank (the
“Participation Information”). The Receiving Party shall, within seven business
days after the date of its receipt of all Participation Information (such
seven-business-day period, the “Response Period”), provide in writing to the
Proposing Party (a) the Receiving Party’s written consent to the proposed
participation, or (b) a statement that the Receiving Party will not consent to
the participation, together with reasonable details supporting its decision not
to grant consent. In the event the Receiving Party fails to respond
to a participation request within the Response Period, then the Parties shall
deem that the Receiving Party’s consent to the proposed participation has been
granted. The Parties will take all reasonable or necessary actions, including
opening accounts at Third Party Banks and executing and delivering new account
forms and other customary and reasonably necessary documents required by any
Party or the Third Party Bank, to allow the participation of Bank Account
deposits as provided for herein. Bank acknowledges that Custodial
Account Holders have the right, at their sole option, to direct the Companies
and ETC to deposit their respective funds with another depository institution;
however, ETC and the Companies will use commercially reasonable efforts to have
cash balances relating to Custodial Accounts retained at Bank (or a Third Party
Bank if Bank has proposed or consented to participate out any or all of the
Custodial Deposits as provided above). The Companies shall have the
right to remove any deposits participated out to a Third Party Bank under this
paragraph at any time after (i) receipt by the Companies or ETC of a rating
report published by IDC indicating a composite rank for such Third Party Bank of
74 or lower, if such Third Party Bank is rated by IDC, or (ii) if such Third
Party Bank is not rated by IDC, the Companies or ETC become aware that such
Third Party Bank is not “well capitalized” (as that term is defined in 12 CFR
565.4(b)(1), but subject to 12 CFR 565.4(c)), in either of which case the
Companies shall have the right to move such deposits to Bank or another Third
Party Bank pursuant to the terms of this Section 10. In the event
that Bank has proposed or consented to participate out deposits in the Bank
Accounts to a Third Party Bank that pays interest, subaccounting or other
administrative fees to the Companies with respect to the deposits participated
out to such Third Party Bank (the “Third Party Rate”) that is, in the aggregate,
in excess of the applicable Contract Variable Rate as then in effect, the
Companies, on the one hand, and Bank, on the other hand, will split the benefit
of the difference between such higher Third Party Rate and the applicable
Contract Variable Rate 50/50. In the event that the Third Party Rate
is, in the aggregate, less than the applicable Contract Variable Rate, Bank
shall be responsible for making the Companies whole for the difference between
such Contract Variable Rate and such lower Third Party Rate. The
terms of this paragraph shall not adversely affect any rights of the Custodial
Account Holders.”
3. The last sentence of Section 11 of
the Agreement shall be deleted in its entirety and replaced with the following
sentence:
2
“This Agreement may be terminated by
the Companies or ETC upon thirty (30) days’ prior written notice to Bank at any
time after Bank files with the Office of Thrift Supervision, or any successor
regulator designated as Bank’s principal regulator, any thrift financial report,
or replacement or successor report if not a thrift financial report, which
report reflects that Bank is neither “well capitalized” nor “adequately
capitalized,” as those terms are defined in 12 CFR 565.4(b)(1) and (2) or in any
replacement or successor federal regulation published from time to time and at
any time by the federal government of the United States of America (a
“Triggering TFR”). Bank shall provide the Companies and ETC notice
that Bank has filed a Triggering TFR within three (3) business days of such
filing.”
The Parties agree that all other terms
or conditions of the Subaccounting Agreement shall remain in full force and
effect and the Parties reaffirm the same. The Subaccounting
Agreement, as amended by this Amendment, contains the entire understanding of
the Parties with respect to the subject matter thereof, and supersedes all prior
agreements and understandings relating to the subject mater
thereof.
This Amendment shall be binding upon
and inure to the benefit of and be enforceable by the Parties and their
respective successors, assigns (including any direct or indirect successor by
merger or consolidation) and administrators.
[Signature
page follows.]
3
IN
WITNESS WHEREOF, the Parties have entered into this Amendment as of the date
first written above.
|
EQUITY
ADMINISTRATIVE SERVICES, INC.
|
|
|
By: /s/ Xxxxxxx
Xxx
|
|
|
Name: Xxxxxxx
Xxx
|
|
|
Title: CFO
|
|
|
STERLING
ADMINISTRATIVE SERVICES, LLC
|
|
|
By: /s/ Xxxxxxx
Xxx
|
|
|
Name: Xxxxxxx
Xxx
|
|
|
Title: CFO
|
|
|
EQUITY
TRUST COMPANY
|
|
|
By: /s/ Xxxxxxx
Xxx
|
|
|
Name: Xxxxxxx
Xxx
|
|
|
Title: CFO
|
|
|
UNITED
WESTERN BANK
|
|
|
By: /s/ Xxxx X.
Xxxxxx
|
|
|
Name:
Xxxx X. Xxxxxx
|
|
|
Title:
CEO
|
|
3
