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EXHIBIT 2.2
AMENDMENT NO. 1 TO AGREEMENT
AMENDMENT NO. 1 TO AGREEMENT, dated as of June 13, 2001 ("AMENDMENT"),
is entered into by and among BINGHAM FINANCIAL SERVICES CORPORATION, a Michigan
corporation ("PARENT"), BLOOMFIELD ACCEPTANCE COMPANY, L.L.C., a Michigan
limited liability company ("BAC"), BLOOMFIELD SERVICING COMPANY, L.L.C., a
Michigan limited liability company ("BSC"), HARTGER & WILLARD MORTGAGE
ASSOCIATES, INC., a Michigan corporation ("H&W"), WELLS FARGO BANK, NATIONAL
ASSOCIATION, a national banking association ("PURCHASER"), and WELLS FARGO &
COMPANY, a Delaware corporation ("BUYER"). BAC, BSC and H&W are collectively
referred to herein as "SELLERS" and sometimes individually as a "SELLER."
R E C I T A L S :
WHEREAS, Parent, Sellers, Purchaser and Buyer are parties to that
certain Agreement dated as of May 8, 2001 ("Original Agreement").
WHEREAS, the parties intend to modify certain terms of the Original
Agreement.
NOW, THEREFORE, in consideration of their mutual promises and
obligations and intending to be legally bound hereby, the parties hereby agrees
as follows:
ARTICLE 1.
DEFINITIONS
1.1 Certain Definitions.
(a) Capitalized terms used herein without definition shall have the
meanings specified in the Original Agreement.
(b) As used in this Amendment and the Original Agreement, "Agreement"
shall mean the Original Agreement, as amended hereby.
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ARTICLE 2.
AMENDMENT OF THE ORIGINAL AGREEMENT
2.1 Section 1.1. The definition of "Contract" or "Contracts" contained
in Section 1.1 of the Agreement shall be restated in its entirety to read as
follows:
"CONTRACT" or "CONTRACTS" means any rights and interests
arising under or in connection with any agreement, arrangement, bond,
commitment, franchise, guarantee, indemnity, indenture, instrument,
lease, license, or understanding, whether written or oral.
2.2 Section 2.4. Section 2.4 of the Agreement shall be restated in its
entirety to read as follows:
2.4 Purchase Price. (a) The Purchase Price shall be an amount
equal to the sum of the Stock Purchase Price, the Loan Purchase Price
and the Purchase and Assumption Purchase Price.
(i) The Stock Purchase Price is that portion of the Purchase
Price to be paid to Parent for the Stock and shall be a fixed
amount equal to $100,000.
(ii) The Loan Purchase Price is that portion of the Purchase
Price to be paid to BAC for the Loans and shall be an amount
equal to (A) the book value at the Closing Date of the
Aberdeen at Ormand Beach MHC loan, plus (B) the book value at
the Closing Date of the Sundowner/Country Villa/Melrose Mobile
Home & RV Parks loan, less $350,000. The Loan Purchase Price
shall be adjusted if, within six months of the Closing Date,
Purchaser sells the Sundowner/Country Villa/Melrose Mobile
Home & RV Parks loan for an amount greater than such Loan's
book value at the Closing Date less $350,000, net of
Purchaser's costs. In such event, Purchaser shall pay to BAC
at the time of such sale an amount equal to the difference
between the amount realized for such Loan and such Loan's book
value at the Closing Date less $350,000, net of Purchaser's
costs.
(iii) The Purchase and Assumption Purchase Price is that
portion of the Purchase Price to be paid to the Sellers for
the assets acquired and liabilities assumed and shall be an
amount equal to (A) $6,500,000, less (B) a deduction for the
amounts set forth in the column entitled "Value" on Schedule
2.4(iii), for each of the Investors, if any, for which Sellers
are unable to obtain the consent required by Section 6.3(c).
Notwithstanding the foregoing, the deduction described in
clause (B) above, if any, shall be
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offset by and reduced by an amount not to exceed $86,625.00,
which amount represents the increase in the value of Sellers'
loan servicing portfolio between March 26, 2001, as set forth
on Schedule 2.4(iii), and the Closing Date (the "Servicing
Credit"); provided, however, that the Servicing Credit shall
not operate to reduce the deduction described in clause (B)
above to less than zero. Of the Purchase and Assumption
Purchase Price, $50,000 is allocated to the fixed assets.
(iv) The parties agree that Purchaser will hold back the sum
of $1,000,000 (the "FHLMC Holdback Amount") from the Purchase
and Assumption Purchase Price determined as set forth in
Section 2.4(iii) above, pending receipt by Purchaser of a
written consent, in form and substance reasonably acceptable
to Purchaser and Sellers, from the Federal Home Loan Mortgage
Corporation ("FHLMC Consent"). Subject to the following
sentence, within two Business Days of Purchaser's receipt of
the FHLMC Consent, Purchaser shall remit the FHLMC Holdback
Amount to Parent and Sellers by wire transfer to the account
designated in accordance with Section 3.3(b). If the FHLMC
Consent is not received on or before December 31, 2001 (the
"Holdback Deadline")(regardless of whether the FHLMC Consent
is received by Purchaser following the Holdback Deadline),
subject to clause (vi) below, the Purchase and Assumption
Price shall be permanently reduced by the amount of the FHLMC
Holdback Amount and no further amounts shall be due or payable
to Parent or any Seller with respect to the FHLMC Consent.
(v) The parties agree that Purchaser will hold back the sum of
$51,007.56 (the "SunAmerica Holdback Amount") from the
Purchase and Assumption Purchase Price, pending receipt of
written consent, in substantially the form attached hereto as
Exhibit A, from SunAmerica Life Insurance Company (the
"SunAmerica Consent") and Purchaser will hold back the sum of
$109,940.13 (the "Anchor Holdback Amount") from the Purchase
and Assumption Purchase Price, pending receipt of written
consent, in substantially the form attached hereto as Exhibit
B, from Anchor National Life Insurance Company (the "Anchor
Consent"). Subject to the following sentence, within two
Business Days of Purchaser's receipt of the SunAmerica Consent
or the Anchor Consent, Purchaser shall remit the corresponding
SunAmerica Holdback Amount or Anchor Holdback Amount to Parent
and Sellers by wire transfer to the account designated in
accordance with Section 3.3(b). If either the SunAmerica
Consent or the Anchor Consent is not received by the Holdback
Deadline (regardless of whether such consent is received by
Purchaser following the Holdback Deadline), subject to clause
(vi) below, the Purchase and Assumption Price shall be
permanently reduced by the amount of the corresponding
SunAmerica Holdback Amount or Anchor
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Holdback Amount and no further amounts shall be due or payable
to Parent or any Seller with respect to such consent.
(vi) Notwithstanding the foregoing, to the extent the
Servicing Credit does not reduce the Purchase and Assumption
Price at the Closing because the Servicing Credit would
otherwise have reduced the deduction described in clause
(iii)(B) above to less than zero, such portion of the
Servicing Credit shall be offset against and shall reduce the
FHLMC Holdback Amount, the SunAmerica Holdback Amount and/or
the Anchor Holdback Amount, as the case may be, to be retained
by Purchaser, and within two Business Days of the Holdback
Deadline, Purchaser shall remit such portion of the Servicing
Credit to Parent and Sellers by wire transfer to the account
designated in accordance with Section 3.3(b); provided,
however, that such portion of the Servicing Credit shall not
exceed the aggregate amount of any holdback amount or amounts
with respect to which consents were not received by the
Holdback Deadline.
2.3 Section 3.3. Section 3.3 of the Agreement shall be restated in its
entirety to read as follows:
3.3 Deliveries by Buyer and Purchaser. On the Closing Date,
Buyer and Purchaser shall deliver or cause to be delivered the
following to Parent and Sellers:
(a) copies of resolutions duly adopted by the Board of
Directors and (if applicable) shareholders of Buyer and Purchaser
authorizing this Agreement and the transactions contemplated hereby,
certified as of the Closing Date by a Secretary or Assistant Secretary
of such party;
(b) an amount equal to the Purchase Price (less the sum of the
FHLMC Holdback Amount, the SunAmerica Holdback Amount and the Anchor
Holdback Amount) by wire transfer in immediately available funds to an
account designated in writing to Buyer and Purchaser by Parent and
Sellers;
(c) the duly executed Transition Services Agreement; and
(d) the documents required to be delivered by Buyer and
Purchaser pursuant to Section 7.3 and such other documents as may be
required by this Agreement.
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ARTICLE 3.
MISCELLANEOUS
3.1 Terms of Original Agreement Ratified. Except as amended or modified
hereby, the terms, covenants and provisions of the Original Agreement are hereby
ratified and confirmed and shall remain in full force and effect.
3.2 Governing Law. This Amendment and the rights and obligations of the
parties hereto shall be governed by and construed in accordance with the laws of
the State of Michigan.
3.3 Entire Agreement. This Amendment constitutes the entire agreement
of the parties hereto with respect to the amendments contained herein and
supersedes any prior expressions of intent or understandings with respect
thereto.
3.4 Counterparts. This Amendment may be executed in two or more
counterparts and by different parties hereto on separate counterparts, each of
which shall be deemed an original and all of which together shall constitute one
and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first above written.
BINGHAM FINANCIAL SERVICES
CORPORATION
By: /s/ Ronald A. Klein
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Name: Ronald A. Klein
Title: President and CEO
BLOOMFIELD ACCEPTANCE
COMPANY, L.L.C.
By: /s/ Ronald A. Klein
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Name: Ronald A. Klein
Title: Manager
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BLOOMFIELD SERVICING
COMPANY, L.L.C.
By: /s/ Ronald A. Klein
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Name: Ronald A. Klein
Title: Manager
HARTGER & WILLARD MORTGAGE
ASSOCIATES, INC.
By: /s/ Ronald A. Klein
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Name: Ronald A. Klein
Title: President and CEO
WELLS FARGO & COMPANY
By: /s/ John E. Ganoe
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Name: John E. Ganoe
Title: Executive Vice President
WELLS FARGO BANK, NATIONAL
ASSOCIATION
By /s/ J. Edward Blakey
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Name: J. Edward Blakey
Title: Executive Vice President
By: /s/ Linda A. Paulin
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Name: Linda A. Paulin
Title: Senior Vice President
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