EXHIBIT 10.3
AMENDMENT NO.1 TO
JOINT VENTURE FORMATION AGREEMENT
AND ASSET PURCHASE AGREEMENT
============================
THIS AMENDMENT is entered into this 13th day of April 1995, by and among
each of the "JV Parties" (as defined below) and the "APA Parties" (as defined
below).
BACKGROUND STATEMENT
NationsBank N.A. (Carolinas), NationsBank of Florida, N.A., both national
banking associations (jointly and severally, the "Banks"), and National Bancard
Corporation, a Florida corporation ("NaBANCO") have entered into a Joint Venture
Agreement, dated April 2, 1995, and joined in by NationsBank Corporation, a
North Carolina corporation ("NationsBank") that indirectly owns the Banks, and
First Financial Management Corporation, a Georgia corporation ("FFMC") that owns
NaBANCO (the "JV Agreement," and the parties thereto, including NationsBank and
FFMC, the "JV Parties").
The Banks, NationsBank, N.A., a national banking association headquartered
in Bethesda, Maryland, NationsBank of Georgia, N.A., a national banking
association headquartered in Atlanta, Georgia, NationsBank of Kentucky, N.A., a
national banking association headquartered in Hopkinsville, Kentucky,
NationsBank of Tennessee, N.A., a national banking association headquartered in
Nashville, Tennessee, NationsBank of Texas, N.A., a national banking association
headquartered in Dallas, Texas, Terminal Management Systems, Inc., a Virginia
corporation headquartered in Norfolk, Virginia, NaBANCO, First Financial Bank, a
special purpose (credit card) bank organized under the laws of Georgia, and
NaBANCO Merchant Services Corporation, a Delaware corporation, have entered into
an Asset Purchase Agreement, dated April 7, 1995 (the "Asset Purchase
Agreement," and the parties thereto, the "APA Parties")
Section 10.1 of the JV Agreement and Section 2.1 of the Asset Purchase
Agreement each provide that the transactions contemplated by the respective
agreement will be effective in terms of allocating all economic consequences
among the applicable parties as of the "Effective Date" (as separately defined
in each such agreement). Each such agreement provides that the respective
Effective Date will be March 31, 1995, unless the respective "Closing"
contemplated by such agreement does not occur before a specified date in April
that has already passed.
Notwithstanding such provisions, the JV Parties and the APA Parties,
respectively, wish to have the "Effective Date" pursuant to each of the JV
Agreement and the Asset Purchase Agreement be March 31, 1995, provided that the
respective "Closings" pursuant to such agreements occur at a mutually agreed
time in April.
Furthermore, the parties to the JV Agreement would like to provide that
certain payments that were contemplated to be made at the "Closing" (as defined
in the JV Agreement) will be made at a later date, although such purchased
assets will be conveyed at such Closing.
NOW THEREFORE, in consideration of the mutual promises contained in the JV
Agreement, the Asset Purchase Agreement and this Amendment, the JV Parties and
the APA Parties (as applicable) hereby agree as follows:
1. JV Agreement "Effective Date." The JV Parties agree that,
------------------------------
notwithstanding the provisions in Section 10.1 of the JV Agreement that if the
"Closing" (as defined in the JV Agreement) does not occur until after April 6,
1995 then the "Effective Date" (as defined in the JV Agreement) will be as of
the last day of the month in which certain approvals are obtained and statutory
waiting periods expire, such "Effective Date" will be March 31, 1995 so long as
such Closing occurs in April 1995.
2. APA Agreement "Effective Date". The APA Parties agree that,
------------------------------
notwithstanding the provisions in Section 2.1 of the Asset Purchase Agreement
that if the "Closing" (as defined in the Asset Purchase Agreement) does not
occur until after April 11, 1995 then the "Effective Date" (as defined in that
Asset Purchase Agreement) will be as of the last day of the month in which
certain approvals are obtained and statutory waiting periods expire, such
"Effective Date" will be March 31, 1995 so long as such Closing occurs in April
1995.
3. Payments for Fixed Assets. The JV Parties agree that notwithstanding
-------------------------
the provisions Sections 2.2 and 2.3 of the JV Agreement, the fixed assets
(including certain capitalized leases identified in the APA) to be sold by
NaBANCO Merchant Services Corporation to the Partnership pursuant to the
"Capitalization Plan" (as defined in the JV Agreement) and the capital stock of
TMS to be sold to the Partnership by NationsBank of Delaware, N.A. pursuant to
the Capitalization Plan will be transferred to the Partnership at the "Closing"
(as defined in the JV Agreement), but the payments from the Partnership to the
respective seller for such fixed assets and capital stock will be paid
contemporaneously with the determination of the "Final Purchase Price" (as
defined in the Asset Purchase Agreement) pursuant to Section 1.3(a) of the Asset
Purchase Agreement. The JV Parties shall cause the Partnership to pay for such
fixed assets and TMS stock at such time.
4. Effect of Amendment. Except as such agreements are amended by this
-------------------
Amendment, the JV Parties agree that the JV Agreement remains in full force and
effect and the APA parties agree that the Asset Purchase Agreement remains in
full force and effect.
2
IN WITNESS WHEREOF, each the JV Parties and each of the APA Parties have
executed this Amendment as of the date first above written.
THE JV PARTIES:
--------------
NATIONSBANK, N.A. (CAROLINAS) NATIONAL BANCARD CORPORATION
By: /s/ Richard F. Shaffner By: /s/ Randolph L. M. Hutto
---------------------------- -----------------------------
Richard F. Shaffner Randolph L.M. Hutto
Vice President Executive Vice President
NATIONSBANK OF FLORIDA, N.A. FIRST FINANCIAL MANAGEMENT CORPORATION
By: /s/ Richard F. Shaffner By: /s/ Randolph L.M. Hutto
---------------------------- ------------------------------
Richard F. Shaffner Randolph L.M. Hutto
Vice President Executive Vice President
NATIONSBANK CORPORATION
By: /s/ Richard F. Shaffner
----------------------------
Richard F. Shaffner
Vice President
THE APA PARTIES:
---------------
FIRST FINANCIAL BANK NATIONAL BANCARD CORPORATION
By: /s/ Randolph L.M. Hutto By: /s/ Randolph L.M. Hutto
---------------------------- ----------------------------
Randolph L.M. Hutto Randolph L.M. Hutto
Executive Vice President Executive Vice President
3
NaBANCO MERCHANT SERVICES NATIONSBANK OF KENTUCKY, N.A.
CORPORATION
By: /s/ Randolph L.M. Hutto By: /s/ Richard F. Shaffner
---------------------------- ----------------------------
Randolph L.M. Hutto Richard F. Shaffner
Executive Vice President Vice President
NATIONSBANK, N.A. NATIONSBANK OF FLORIDA, N.A.
By: /s/ Richard F. Shaffner By: /s/ Richard F. Shaffner
---------------------------- -----------------------------
Richard F. Shaffner Richard F. Shaffner
Vice President Vice President
NATIONSBANK OF GEORGIA, N.A. NATIONSBANK OF TENNESSEE, N.A.
By: /s/ Richard F. Shaffner By: /s/ Richard F. Shaffner
---------------------------- -----------------------------
Richard F. Shaffner Richard F. Shaffner
Vice President Vice President
NATIONSBANK OF TEXAS, N.A. NATIONSBANK, N.A. (CAROLINAS)
By: /s/ Richard F. Shaffner By: /s/ Richard F. Shaffner
---------------------------- -----------------------------
Richard F. Shaffner Richard F. Shaffner
Vice President Vice President
TERMINAL MANAGEMENT
SYSTEMS, INC.
By: /s/ Richard F. Shaffner
----------------------------
Richard F. Shaffner
Vice President
* * *
4