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EXHIBIT 2.2
AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT
WITNESSETH THAT:
WHEREAS, pursuant to an Asset Purchase Agreement dated June 1, 1998
(the "Agreement") by and among Independence Funding Company, LLC, a Texas
limited liability company ("IFC"), Telecapital, L.P., a Delaware limited
partnership ("Telecapital" and together with IFC, "Sellers"), AMRESCO
Independence Funding, Inc., a Delaware corporation ("Purchaser1," each of
Purchaser1 and Purchaser2 being a "Purchaser"), AMRESCO Commercial Finance, Inc.
(formerly known as AMRESCO Commercial Lending Corp.), a Nevada corporation
("Purchaser2"), and AMRESCO, INC., a Delaware corporation ("Parent", and
collectively with Purchaser1 and Purchaser2, the "Purchaser Parties"), Sellers
agreed to transfer to Purchaser1 and Purchaser2, and Purchaser1 and Purchaser2
agreed to purchase and assume from Sellers, all of the IFC Purchased Assets (as
defined) and Telecapital Purchase Assets (as defined), respectively, and all of
the IFC Assumed Liabilities (as defined) and Telecapital Assumed Liabilities (as
defined), respectively;
WHEREAS, pursuant to the Agreement the obligation to redeem the limited
partnership interest in Telecapital of Xxxxx X. Xxxxxx ("Xxxxxx") was excluded
from the Telecapital Assumed Liabilities; and
WHEREAS, pursuant to the Agreement, the "stay put" bonuses payable by
IFC to Xxxxxxx X. Xxxx, Xx., W. Xxxxx Xxxxxxx, Xxxxxx Xxxxxxx, and Xxxxxx
Xxxxxxxx (together with Xxxxxx, "Executive Employees") were excluded from the
IFC Assumed Liabilities; and
WHEREAS, Sellers have agreed to assign, and the Purchaser Parties have
agreed to assume, all of IFC's rights and obligations under the employment
agreements between IFC and Telecapital, as the case may be, and the Executive
Employees, including without limitation the obligation to pay the "stay put"
bonuses thereunder and the obligation to pay for Xxxxxx'x limited
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partnership unit in Telecapital but excluding the right to receive and acquire
Xxxxxx'x limited partnership interest in Telecapital (which shall be redeemed
and cancelled by Telecapital, without any Purchaser Party acquiring any interest
therein); and
WHEREAS, the Executive Employees have agreed to certain modifications
to their respective employment agreements, to be effective upon the closing of
the transactions under the Agreement on the date hereof; and
WHEREAS, the parties desire to amend the Agreement to reflect the
foregoing;
NOW, THEREFORE, in consideration of the foregoing premises, the
execution of various documents simultaneously herewith by IFC, Telecapital, the
Purchaser Parties, and the Executive Employees, and the mutual covenants
contained herein, Sellers and the Purchaser Parties agree that the Agreement is
hereby amended as follows:
1. Capitalized Terms. Each capitalized term used in this Amendment which is
not defined herein shall have the defined meaning set forth in the Agreement.
2. Amendments to Purchase Price.
(a) Section 2.2(a)(i) of the Agreement is hereby amended to read as
follows:
(i) At the Closing the Purchaser Parties shall pay to IFC cash in an
amount equal to $33,834,585 in immediately available funds by
wire transfer to an account designated by IFC.
(b) The first sentence of Section 2.2(a)(ii) of the Agreement is hereby
amended to read as follows:
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(ii) The Purchaser Parties shall deliver a convertible promissory
note (the "IFC Note") in the principal amount of $ 27,685,509
convertible into the number of shares of common stock, par value $.05
per share ("Common Stock"), of Parent which results from dividing the
principal amount plus accrued interest by the average closing sales
prices (adjusted for any stock splits, stock dividends,
reclassification, reorganization or similar event during the
applicable time period) for the Common Stock as reported on the Nasdaq
National Market System for the five (5) trading days immediately
preceding the effective date of the Registration Statement.
The remainder of Section 2.2(a)(ii) shall remain unchanged.
(c) Section 2.2(b)(i) of the Agreement is hereby amended to read as
follows:
(i) At the Closing the Purchaser Parties shall pay to Telecapital
cash in an amount equal to $9,819,544 in immediately available funds
by wire transfer to an account designated by Telecapital.
(d) The first sentence of Section 2.2(b)(ii) of the Agreement is
hereby amended to read as follows:
(ii) The Purchaser Parties shall deliver a convertible promissory
note (the "Telecapital Note") in the principal amount of $8,036,837,
convertible into the number of shares of common stock, par value $.05
per share ("Common Stock"), of Parent which results from dividing the
principal amount plus accrued interest by the average closing sales
prices (adjusted for any stock splits, stock dividends,
reclassification, reorganization or similar event during the
applicable time period) for the Common Stock as reported on the Nasdaq
National Market System for the five (5) trading days immediately
preceding the effective date of the Registration Statement.
The remainder of Section 2.2 (b)(ii) shall remain unchanged.
3. Interpretation. The Amendments made hereby shall be considered an
integral part of the Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
INDEPENDENCE FUNDING COMPANY, LLC
By: /s/ B. Xxxx Xxxxx
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Name: B. Xxxx Xxxxx
Title: Chief Executive Officer
TELECAPITAL, L.P.
By: Telecapital Corp., General Partner
By: /s/ B. Xxxx Xxxxx
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Name: B. Xxxx Xxxxx
Title: Chief Executive Officer
AMRESCO INDEPENDENCE
FUNDING, INC.
By: /s/ Xxxxxxxx Xxxxx
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Name: Xxxxxxxx Xxxxx
Title: Chairman of the Board
AMRESCO COMMERCIAL
FINANCE, INC.
By: /s/ Xxxxxxxx Xxxxx
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Name: Xxxxxxxx Xxxxx
Title: Vice President
AMRESCO, INC.
By: /s/ Xxxxxxxx Xxxxx
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Name: Xxxxxxxx Xxxxx
Title: President B Commercial Finance
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[The Registrant hereby agrees to provide supplementally a copy of any schedule
omitted from the Asset Purchase Agreement, as amended by this Amendment No. 1 to
Asset Purchase Agreement, to the Commission upon request.]
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