EXHIBIT 2.2
AMENDMENT NO. 1 TO THE
PURCHASE AND ASSUMPTION AGREEMENT DATED MAY 26, 0000
XXXXXXX XXXX XX XXXXXXX, FSB AND AMERICAN SAVINGS BANK, F.S.B.
This Amendment No. 1 ("Amendment No. 1") to the Purchase and
Assumption Agreement dated May 26, 1997 between Bank of America, FSB and
American Savings Bank, F.S.B. (the "Purchase Agreement") is entered into by and
between Bank of America, FSB ("Seller") and American Savings Bank, F.S.B.,
("Purchaser") as of November 25, 1997. Unless otherwise defined herein,
capitalized terms used in this Amendment No. 1 have the meanings assigned to
such terms in the Purchase Agreement.
NOW, THEREFORE, in consideration of the representations, promises and
obligations set forth in this Amendment No. 1 and in the Purchase Agreement and
intending to be legally bound hereby, Seller and Purchaser agree as follows:
1. Confirmation of Understandings Supplementing and/or Amending the
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Purchase Agreement. Attached to this Amendment No. 1 are Exhibits A through I
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(collectively, the "Memoranda"). Seller and Purchaser hereby confirm and agree
that the Memoranda accurately reflect various understandings and agreements that
have been entered into between the parties hereto subsequent to the date of the
Purchase Agreement, and Seller and Purchaser agree to be bound by the terms of
each of the Memoranda. The understandings and agreements reflected in the
Memoranda shall supplement and amend the provisions of the
Purchase Agreement and, to the extent of any inconsistency between the Memoranda
and the Purchase Agreement, the provisions of the Memoranda shall govern.
2. Preparation of Statement. The parties agree that the Statement,
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as defined in Section 1.1 of the Purchase Agreement and prepared in accordance
with the procedures set forth in Article 2 and Exhibit A to the Purchase
Agreement, shall be delivered by Seller to Purchaser on Friday, November 28,
1997. The Statement shall be based on computer tapes, trial balances and other
deposit, loan and accounting information as of the close of business on Monday,
November 24, 1997, with all such information also to be provided to Purchaser on
November 28, 1997.
3. Early Reconciliation. The Purchase Agreement contemplates that
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the Settlement Payment paid at Closing will be recalculated after Closing in
order to reflect accurately all balances and other information as of the close
of business on the Closing Date, in accordance with the provisions of Article 10
and the procedures set forth in Exhibit+A to the Purchase Agreement and that,
when the Final Statement becomes final and binding, a supplemental closing will
be held at which the responsible party will pay the amount determined to be due,
with interest thereon at the Federal Funds Rate from the Closing Date to the
date of such payment. Seller and Purchaser anticipate that there may be a
significant difference between the deposit and loan balances, and the dollar
amounts of other
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assets and liabilities included in the Statement (upon which the Settlement
Payment is based) and the deposit and loan balances and such other dollar
amounts that will be reflected in the Final Statement and they wish to make an
interim adjustment to the Settlement Payment, in an amount they agree to be
appropriate, rather than waiting until the Supplemental Closing Date to make
such adjustment. Accordingly, Seller and Purchaser agree that a payment will be
made by the responsible party by wire transfer by 10:00 a.m. Hawaii Standard
Time on December 16, 1997 in such amount as the parties agree is appropriate (a)
to adjust the Settlement Payment to reflect more accurately the actual cash,
deposits and loan balances, and the actual dollar amounts of other assets and
other liabilities accounts that Seller has been able to review and appropriately
apportion (if necessary), that were transferred to Purchaser as of the close of
business on December 5, 1997 and (b) to pay interest on such adjustment amount
at the Federal Funds Rate for the period between December 5, 1997 and December
15, 1997. The amount of such payment shall be reflected in the Initial Final
Statement and the Final Statement but any determinations made by the parties in
arriving at the amount of such payment shall be disregarded and shall not
prejudice either party's position with respect to the correct cash deposit and
loan balances and the dollar amounts of other assets or other liabilities that
should be reflected in the Initial Final Statement and Final Statement.
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4. Weekly Settlements. The parties anticipate that, during the post-
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closing period, there will be a number of customer-related or other transactions
that will require cash settlements between Seller and Purchaser ("Trailing
Transactions") that are unrelated to the determination of the final adjustments
to the settlement balances as of the Closing Date. Except for special
settlements, Seller and Purchaser agree that cash settlement of Trailing
Transactions will be conducted weekly, with Trailing Transactions for the period
between Thursday of the prior week and Wednesday of the current week to be
settled on Friday of the current week (or the next business day if Friday is a
holiday). Settlement shall be by wire transfer from Purchaser to Seller in the
total amount of all Trailing Transactions the settlement of which requires
payment by Purchaser to Seller and by wire transfer from Seller to Purchaser in
the total amount of all Trailing Transactions the settlement of which requires
payment by Seller to Purchaser, the parties agreeing that there shall not be a
netting of settlement payments. If Trailing Transactions not yet settled at any
time aggregate $1,000,000 or more, or if an authorized officer of Seller and an
authorized officer of Purchaser agree with respect to a Trailing Transaction or
a series of Trailing Transactions in a lesser amount, there shall be a special
settlement with the responsible party making the settlement payment by wire
transfer within two business days after the parties agree on the settlement
amount. The parties
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agree that nothing in this Section 4 is intended to or shall affect any
adjustments that are to be made to the accounts of the customers of either ASB
or BOA, all of which adjustments are to be made within the time periods
specified in the Purchase Agreement or as otherwise required by law, regulation
or customary business practice.
5. Records. Without in any way waiving or relinquishing its
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ownership rights therein, Purchaser agrees that Seller may retain custody of
Records that (a) relate to the Loans and New Loans which Seller shall continue
to service after Closing pursuant to and in accordance with the Subservicing and
Conversion Agreement (other than the original promissory notes evidencing such
Loans and New Loans, which promissory notes are to be delivered to Seller on the
Closing Date (or promptly thereafter)) or, (b) are identified from time to time,
in a writing executed by an officer of Purchaser, as Records which Seller is not
then required to deliver. Except as expressly modified hereby, the provisions
relating to Records in the Purchase Agreement, including without limitation the
provisions set forth in Section 7.5 and 7.6 thereof, shall remain in full force
and effect.
6. Pukalani Branch. The BOA Pukalani Branch is a Designated Branch
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in the Purchase Agreement, but it was later determined that this branch would be
closed by ASB at Closing with the Deposits at that branch to be transferred to
ASB's Pukalani Branch. Seller and Purchaser agree that the Cash on
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Hand will include the cash actually on hand at the Pukalani Branch of BOA after
the close of business on the Closing Date, which cash will be delivered to the
ASB Pukalani Branch, where the amount thereof will be counted and verified by
representatives of ASB and BOA.
7. Keeau Site. Schedule 1.1(c) includes the Keeau branch as an
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"Other Branch not to be transferred to Purchaser." Subsequently, Purchaser
requested that the site be transferred and Seller agreed to transfer the site as
a Designated Branch via an assignment of lease. Schedule 1.1(c) is deemed
amended accordingly.
8. Cash on Hand. The definition of "Cash on Hand" in the Purchase
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Agreement is amended to exclude xxxxx cash since Purchaser and Seller have
agreed that, based on operational considerations, Seller will not be selling
xxxxx cash amounts to Purchaser. The parties further acknowledge that the
definition of "Cash on Hand" within the Agreement excludes cash in BOA's ATM's
and cash at non-designated sites, and the Statement, the Initial Final Statement
and the Final Statement shall exclude those cash balances. However, rather than
separately selling cash from these locations to some other entity, Seller has
agreed with Purchaser to sell these cash balances via a separate settlement wire
from Purchaser that is expected to occur on or about December 11, 1997.
9. Excludable Loan. Purchaser and Seller agree to clarify the
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definition of "Excludable Loan" whereby loans which
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are 31-60 days past due as of 30 days prior to the Closing Date will be included
in the Statement for settlement purposes with the understanding that Purchaser
has the option to put back these loans to the Seller pursuant to Section 2.8 if
any or all of these loans are more than 30 days past due as of the Closing Date.
10. Except as expressly modified by the terms of the Amendment No. 1
(including the Memoranda), the Purchase Agreement remains in full force and
effect in accordance with its terms.
IN WITNESS WHEREOF, Seller and Purchaser have caused the Amendment No.
1 to be executed by their duly authorized officers as of the date first above
written.
BANK OF AMERICA, FSB AMERICAN SAVINGS BANK, F.S.B.
By /s/ Xxxxxxx X. Sted By /s/ Xxxxx X. Xxxxxx
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Name Xxxxxxx X. Sted Name Xxxxx X. Xxxxxx
Title EVP Title President
By /s/ Xxxxxxx X.X. Xxxxx
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Name Xxxxxxx X.X. Xxxxx
Title General Counsel VP
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