CONSENT TO ASSIGNMENT
Exhibit
2.2
Reference
is made to that certain Agreement and Plan of Merger, dated as of September
5,
2005 (the “Merger Agreement”), by and among Airlie Opportunity Master Fund,
Ltd., a Cayman Islands limited partnership (the “Assignor”), ARH Mortgage Inc.,
a Delaware corporation (“ARH”), and United Financial Mortgage Corp., an Illinois
corporation (“UFMC”), concerning the acquisition of UFMC by ARH through the
merger of a wholly-owned subsidiary of ARH with and into UFMC, with UFMC being
the surviving corporation.
On
the
date hereof, the Assignor entered into that certain Stock Purchase, Assignment
and Assumption Agreement with WDM Fund, L.P., a Delaware limited partnership
(“WDM Fund”) (an executed copy of which is attached as Exhibit A hereto, the
“Assignment”), pursuant to which, subject to the execution and delivery of this
Consent to Assignment, the Assignor agreed to assign to WDM Fund all of its
rights, benefits, privileges and interests in and to the Merger Agreement,
and
WDM Fund agreed to such assignment and agreed to assume all of the Assignor’s
burdens, obligations and liabilities under the Merger Agreement.
In
accordance with Section 9.11 of the Merger Agreement, and subject to, and
conditioned upon, the continuing accuracy and enforceability by UFMC of the
agreements and acknowledgements set forth in the following paragraph and the
delivery of a Consent to Assignment by ARH, UFMC hereby: (i) consents to the
Assignment, to be effective as of such time as set forth in the Assignment;
and
(ii) acknowledges that the Assignor has complied fully with all of the
requirements set forth in Section 9.11 of the Merger Agreement.
In
order
to induce UFMC to execute and deliver this Consent to Assignment, each of WDM
Fund and the Assignor hereby agrees and acknowledges that: (i) the consent
and
acknowledgement contained herein shall in no event constitute a release by
UFMC
of the Assignor’s burdens, obligations and liabilities under the Merger
Agreement; (ii) the Assignment shall not eliminate, limit, diminish or otherwise
reduce any rights of UFMC against the Assignor under the Merger Agreement,
except to the extent that the obligations of the Assignor under the Merger
Agreement are actually performed by WDM Fund in accordance with the Merger
Agreement and the Assignment; (iii) notwithstanding the Assignment, the Assignor
shall remain bound by, and subject to, all of the duties, obligations, terms,
provisions, covenants, burdens and liabilities under the Merger Agreement
(including the obligations to pay and discharge all of the liabilities of the
Assignor), except to the extent that such duties, obligations, terms,
provisions, covenants, burdens and liabilities of the Assignor are actually
performed or complied with by WDM Fund in accordance with the Merger Agreement
and the Assignment; and (iv) all transfer, documentary, sales, use, stamp,
registration and other such taxes, if any, and all conveyance fees, recording
charges and other fees and charges, if any (including any penalties and
interest) incurred in connection with the consummation of the transactions
contemplated by the Assignment shall be borne by WDM Fund.
In
recognition of the Assignment consented to hereby, and in accordance with the
request of the Assignor, Section 9.06 of the Merger Agreement shall hereby
include the following:
If
to WDM
Fund:
WDM
Fund,
L.P.
000
Xxxx
Xxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Attention: Xxxxxx
Xxxxx
Portfolio
Manager
with
a
copy to:
Xxxxxxx
Xxxxxxxx & Xxxx llp
Two
World
Financial Center
Attention: Xxxxxx
X.
Xxxxxx. Esq.
THIS
AGREEMENT SHALL BE GOVERNED IN ACCORDANCE WIH THE LAWS OF THE STATE OF NEW
YORK
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPALS THEREOF (OTHER THAN SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
[signature
page follows]
Dated: September 30, 2005
| United Financial Mortgage Corp. | ||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxxxx | |
|
Xxxxx X. Xxxxxxxx |
||
| President and Chief Executive Officer | ||
| Airlie Opportunity Master Fund, Ltd. | ||
| |
|
|
| By: | /s/ Xxxxxx Xxxxx | |
|
Xxxxxx Xxxxx |
||
| Portfolio Manager | ||
| WDM Fund, L.P. | ||
| |
|
|
| By: | /s/ Xxxxxx Xxxxx | |
|
Xxxxxx Xxxxx |
||
| Portfolio Manager | ||
