Exhibit 10.1
FIRST AMENDMENT
TO THE
BRANCH PURCHASE AND ASSUMPTION AGREEMENT
THIS
FIRST AMENDMENT TO THE BRANCH PURCHASE AND ASSUMPTION AGREEMENT
(this “Amendment”), dated May 31, 2005, is made by and
between Gold Bank, a Kansas banking corporation
(“Seller”), and Olney Bancshares of Texas, Inc., a
Texas corporation (“Buyer”).
RECITALS
A.
Seller and Buyer are parties to the Branch Purchase and Assumption
Agreement, dated January 12, 2005 (the "Original Agreement"). The
Original Agreement, as amended by this Amendment, is referred to as
the "Agreement".
B.
Seller and Buyer desire to amend the Original Agreement to (a)
obligate Buyer to report to the customers and the IRS all interest
paid or earned during the entire year in which the Closing Date
occurs, (b) provide procedures for settlement of uncollected items
included in the Deposits, (c) allow Buyer to assume Deposits,
including Public Deposits (as defined below), along with any
overdrafts included in Deposits, and any IRA Accounts associated
with FSA Borrowers, (d) revise the list of data processing
equipment in Schedule 1.01(c)(ii) to the Original Agreement, (e)
require Buyer to remove any software owned or used by Seller
located on any equipment acquired by Buyer from Seller, (f) allow
Buyer to assume responsibility for issuing statements as of the
Closing Date to the customers of such Branch Offices, and (g)
address matters with respect to outstanding letters of credit
issued by or on behalf of Seller.
C.
Capitalized terms used herein that are not otherwise defined herein
shall have the meanings given to such terms in the Original
Agreement.
AGREEMENT
ACCORDINGLY, in consideration of the premises,
the mutual covenants and agreements set forth herein, and other
good and valuable consideration, receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
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A.
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Amendments
to Original Agreement
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1.
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Schedule
1.01(c)(ii) to the Original Agreement is hereby deleted in its
entirety and replaced with the Schedule 1.01(c)(ii) attached to
this Amendment.
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2.
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Section 1.01(c)
of the Original Agreement is hereby amended by adding the following
sentence to the end of Section 1.01(c):
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Notwithstanding any language to the contrary,
the parties agree that any and all software (or the right to use
such software), whether or not shown in the asset records of the
Branch Offices, shall remain the property of Seller and that Buyer
agrees to remove all software owned or used by Seller from the
computer equipment acquired from Seller within a reasonable period
after the Closing Date. Buyer acknowledges that Buyer shall have no
right to use such software after the Closing Date and agrees to
indemnify and hold harmless Seller from any claims caused by
Buyer’s failure to remove such software in accordance with
this Agreement or otherwise use such software in a manner that is
not specifically allowed by the license agreements for such
software.
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3.
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Section
1.01(d)(vii) of the Original Agreement is hereby deleted in its
entirety and replaced with the following Section
1.01(d)(vii):
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(vii)
shall include all deposit-related overdrafts, including overdrafts
pursuant to an overdraft protection plan, if any, authorized and
maintained on the books of the Branch Offices in association with
Seller’s existing policy regarding overdrafts; and
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4.
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Sections
1.02(a) and (b) of the Original Agreement are hereby deleted in
their entirety and replaced with the following Sections 1.02(a) and
(b):
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(a)
Deposit Liabilities . All deposit liabilities maintained at
the Branch Offices, in accordance with the terms of the agreements
pertaining to such deposits, as shown on the books and records of
Seller as of the close of business on the Closing Date, including
accrued but unpaid interest thereon through the Closing Date,
except as provided in Sections 1.02(c) and 2.03(c) hereof (the
“Deposits” or “Deposit Liabilities”). As
used herein, the term “Deposits” and “Deposit
Liabilities” shall include all of the deposit products
offered by Seller from the Branch Offices, including, without
limitation, passbook accounts, statement accounts, checking
accounts, money market accounts, and certificates of deposit,
including the Public Deposits. As used herein, the term
“Public Deposits” means the certificates of deposit,
the demand deposit accounts and other deposit accounts of various
governmental entities as set forth on Schedule 1.02(a) attached
hereto.
(b)
Assumed Contracts . The obligations and liabilities of
Seller arising from and after the Closing Date under any and all
contract and leases necessary for the operation or maintenance of
the Branch Offices that are assignable by Seller to Buyer
(collectively, the “ Assumed Contracts ”),
including without limitation (i) the lease for the Oklahoma City
branch and (ii) the Public Deposits Pledge Agreements, but
excluding any contracts with respect to originating or servicing
FSA loans. As used herein, the term “Public Deposits Pledge
Agreements” means each pledge agreement, custody agreement,
security agreement and related contract pursuant to which
marketable securities are pledged to governmental entities to
secure the Public Deposits.
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5.
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Section 1.02(c)
of the Original Agreement is hereby deleted in its entirety and
replaced with the following Section 1.02(c):
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(c)
Liabilities Not Assumed by Buyer . Notwithstanding Sections
1.02(a), 1.02(b) and 2.03 hereof, Buyer shall not assume any other
liabilities of Seller, whether known or unknown, disclosed or
undisclosed, contingent or otherwise, which have arisen or may
arise or be established in connection with the conduct of business
at the Branch Offices prior to the Closing Date, including without
limitation any claims or liabilities arising prior to the Closing
Date from or in connection with any FSA Loans (collectively, the
“ Excluded Liabilities ”).
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6.
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Section 2.03(a)
of the Original Agreement is hereby deleted in its entirety and
replaced with the following Section 2.03(a):
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(a) At
the Closing, Seller shall resign as trustee and custodian with
respect to any individual retirement account (“ IRA
Account ”) as to which Seller is trustee or custodian and
as to which one or more of the assets included therein is a deposit
included within the Deposits transferred to Buyer on the Closing
Date. At the Closing, Seller shall designate or appoint Buyer as
successor trustee or custodian under each such IRA
Account.
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7.
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Section 9.03 of
the Original Agreement is hereby deleted in its entirety and
replaced with the following Section 9.03:
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9.03
Statements . After the Closing Date, Buyer shall be
responsible for issuing statements to the customers of the Branch
Offices. On the Closing Date, the employees of Seller shall create
statements with respect to the Deposits of such customers as of the
close of business on the Closing Date. If Seller is not able to
create such statements by the close of business on the Closing
Date, then the employees of Buyer shall create such statements. As
soon as reasonably practicable after the Closing Date, Buyer shall
mail such statements to such customers.
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8.
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Section 9.05 of
the Original Agreement is hereby deleted in its entirety and
replaced with the following Section 9.05:
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9.05
Uncollected Items . Buyer and Seller shall settle the amount
of all uncollected items included in the Deposits on the Closing
Date which are returned to Seller after the Closing Date as
uncollected; provided, that Seller shall, upon Buyer’s making
such payment, deliver each such item to Buyer and shall assign to
Buyer any and all rights which Seller may have or obtain in
connection with such returned items. Buyer and Seller, as the case
may be, agree to transfer funds for any net balance due to the
other party upon settlement of such uncollected items via wire
transfer.
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9.
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Section 9.06 of
the Original Agreement is hereby deleted in its entirety and
replaced with the following Section 9.06:
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9.06
ACH . Prior to the Closing Date, Buyer will notify all
Automated Clearing House (“ ACH ”) originators
effecting debits or credits to the accounts of the Deposit
Liabilities of the purchase and assumption transactions
contemplated by this Agreement. For a period of one hundred twenty
(120) days beginning on the Closing Date, Seller will honor all ACH
items related to accounts of Deposit Liabilities which are
mistakenly routed or presented to Seller. Seller will make no
charge to Buyer for honoring such items, and will use its best
efforts to transmit to Buyer via facsimile, by 10:00 a.m. or as
soon as practicable thereafter, each day’s ACH data that is
to be posted that day. Items mistakenly routed or presented after
the 120-day period may be returned to the presenting party. Seller
and Buyer shall make arrangements to provide for the daily
settlement with immediately available funds by Buyer of any ACH
items honored by Seller.
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10.
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Section 9.11 of
the Original Agreement is hereby deleted in its entirety and
replaced with the following Section 9.11:
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9.11
Information Reporting . With respect to the Loans and
Deposits purchased and assumed by Buyer pursuant to this Agreement,
Buyer shall be responsible for reporting to the customer and to the
Internal Revenue Service
