EXHIBIT 10.7
AMENDMENT TO
DEPOSIT ACCOUNTS PURCHASE AND ASSUMPTION AGREEMENT
THIS AMENDMENT TO DEPOSIT ACCOUNTS PURCHASE AND ASSUMPTION AGREEMENT
(the "Amendment") is made and entered into as of the 30th day of September,
2003, by and between DIRECT MERCHANTS CREDIT CARD BANK, NATIONAL ASSOCIATION, a
national banking association ("Seller"), and FIRST NATIONAL BANK OF OMAHA, a
national banking association ("Purchaser").
WITNESSETH:
WHEREAS, Seller and Purchaser entered into a DEPOSIT ACCOUNTS PURCHASE
AND ASSUMPTION AGREEMENT dated as of the 25th day of September, 2003 (the
"Agreement") in order to effectuate the purchase and assumption of certain
certificates of deposit from Seller to Purchaser; and
WHEREAS, Seller and Purchaser wish to amend certain terms of the
Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree that the Agreement shall be amended as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. The definition of "Premium Amount" shall be
replaced with the following:
"Premium Amount" shall mean $30,300,000.00.
ARTICLE II
ASSIGNMENT AND ASSUMPTION OF CERTAIN DEPOSIT LIABILITIES
SECTION 2.02(a)(i) shall be amended to replace "after the Closing Date"
with "on and after October 10, 2003."
SECTION 2.02(a)(iii) shall be amended to replace "after the Cut-Off
Time" with "on and after October 10, 2003."
SECTION 2.02(a)(iv) shall be amended to replace "after the Cut-Off
Time" with "on and after October 10, 2003."
SECTION 2.02(a)(v) shall be replaced in its entirety with "1099
reporting for all interest paid directly by the Purchaser on and after October
10, 2003."
SECTION 2.02(a)(vii) shall be amended to replace "within 30 days after
the Closing Date" with "within 45 days after the Closing Date."
SECTION 2.02(b)(ii) shall be amended to replace "prior to the Closing
Date" with "prior to October 10, 2003."
SECTION 2.02(b)(iv) shall be amended to replace "up to the Cut-Off
Time" with "prior to October 10, 2003."
SECTION 2.02(b)(v) shall be amended to replace "prior to the Closing
Date" with "prior to October 10, 2003."
SECTION 2.02(b)(vi) shall be replaced in its entirety with "1099
reporting for all interest paid directly by Seller up to October 10, 2003."
ARTICLE III
THE CLOSING AND SETTLEMENT
SECTION 3.01. THE CLOSING. The Closing Date shall be changed to be
September 30, 2003.
ARTICLE V
CERTAIN COVENANTS
SECTION 5.02(b). In Section 5.02(b), the reference to "the Closing
Date" shall be changed to "October 10, 2003".
SECTION 5.02(e) shall be replaced in its entirety with the following:
"Commencing on the Closing Date, the Books and Records shall be the property of
Purchaser, provided that Seller may retain possession of such copies thereof as
may be required to provide Interim Services, as that term is defined in Article
X, and meet legal, regulatory, tax, accounting and auditing requirements. Seller
shall deliver the original Books and Records to Purchaser within five (5)
Business Days of the Closing Date, current through the Cut-Off Time."
ARTICLE VI
CONDITIONS OF CLOSING
SECTION 6.01(j) shall be amended to replace "at least six Business Days
prior to Closing" with "no later than October 2, 2003."
A new ARTICLE X shall be added to the Agreement which provides as
follows:
ARTICLE X
INTERIM SERVICES PROVIDED BY SERVICER
SECTION 10.01 INTERIM SERVICES. Subject to Purchaser's fulfillment of
its settlement obligations set forth below:
(a) Seller shall, on behalf of Purchaser, but at Seller's own
cost and expense, for the period on and after the Closing Date through
and including October 9, 2003, ("Interim Service Period"): (i) service
the CDs in substantially the same manner as currently serviced and in
accordance with the terms of the CDs and all applicable laws, rules and
regulations; (ii) not take any action with respect to the CDs which
will increase the obligations assumed by Purchaser; (iii) comply with
the terms and conditions of the CDs and all laws, rules and regulations
applicable thereto; and (iv) fulfill the other obligations of continued
performance imposed upon Seller under the terms of the CDs
(collectively, "Interim Services").
2
(b) Seller shall, notwithstanding anything to the contrary in
Sections 2.01, 2.02(a)(ii), or 5.03(a) of the Agreement, make all
required payments of principal and interest on the CDs that become due
prior to October 10, 2003. Timing of such payments shall be set forth
in Section 10.02. The provision of Interim Services shall constitute
one of Seller's agreements pursuant to Section 7.01(b) of the
Agreement. Seller's obligations pursuant to Section 10.01(b) shall also
constitute one of Seller's agreements pursuant to Section 7.01(b) of
the Agreement, but such obligations shall not be subject to Section
7.05(d), the two year time limit of Section 7.05(e), or the limitations
of Section 7.05(f)(i).
SECTION 10.02 DAILY SETTLEMENT. Seller will provide Purchaser with a
report of CD maturities and Accrued Interest for all CDs. Such report will be
provided each day during the Interim Service Period before 10:00 a.m. Central
Time. Purchaser shall send funds, by wire transfer, to Seller in order that
Seller may pay the funds to the appropriate Depositor. Seller will pay funds to
the appropriate Depositor within two (2) hours after receiving the wire transfer
from Purchaser.
EXHIBIT A
Exhibit A shall be replaced with the Exhibit A attached hereto.
MISCELLANEOUS
All other terms and conditions of the Agreement remain in full force and effect
except as expressly amended herein. In the event of conflict between the
Agreement and this Amendment, this Amendment shall control.
3
IN WITNESS WHEREOF, Seller and Purchaser have caused this Amendment to
be duly executed as of the date first above written.
DIRECT MERCHANTS CREDIT CARD BANK,
NATIONAL ASSOCIATION, as Seller
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name Xxxxxxx X. Xxxxxx
---------------------------------------
Title President and Chief Executive Officer
--------------------------------------
FIRST NATIONAL BANK OF OMAHA,
as Purchaser
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name Xxxxxxx X. Xxxxxx
---------------------------------------
Title Senior Vice President
--------------------------------------
4
