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EXHIBIT 10.1
SECOND AMENDMENT TO
ASSET PURCHASE AGREEMENT
This Second Amendment to Asset Purchase Agreement is executed as of
November 5, 1996 by and among Search Capital Group, Inc. ("Search Capital"),
Search Funding III, Inc. ("Search Funding") and U.S. Lending Corporation, as
debtor-in-possession ("U.S. Lending").
R E C I T A L S:
WHEREAS, Search Capital, Search Funding and U.S. Lending have entered into
that certain Asset Purchase Agreement dated as of July 17, 1996 (the
"Agreement");
WHEREAS, Search Capital has been unable to date to obtain the necessary
stockholder approval for the clarifying amendments to the terms of its 9%/7%
Convertible Preferred Stock, which is a condition to consummation of the
transaction contemplated by the Agreement;
WHEREAS, the total current market value for Search Capital's 9%/7%
Convertible Preferred Stock and Common Stock to be issued under the Agreement
to U. S. Lending has declined;
WHEREAS, Search Capital and U.S. Lending are willing to amend the
Agreement (i) to specify that the stock prices for determination of the number
of shares of Common Stock and Preferred Stock to be issued to U.S. Lending will
float based on the trading prices for such stock and (ii) to provide for the
issuance to U.S. Lending of Search Capital's Series B 9%/7% Convertible
Preferred Stock in lieu of its 9%/7% Convertible Preferred Stock;
NOW, THEREFORE, for and in consideration of the premises and other
valuable consideration, the parties hereto agree to amend the Agreement as
follows:
1. THE DEFINITION OF "COMMON STOCK PRICE" IN SECTION 1 SHALL BE
AMENDED TO READ IN ITS ENTIRETY AS FOLLOWS:
"Common Stock Price" means the average of the high bid and low
asked prices, weighted on a daily basis by the number of shares
traded, for the Common Stock for the 20 trading days preceding the
Closing Date on the over-the-counter market, as reported by the
National Quotation Bureau, Xxxxxxxx'x or the National Association of
Securities Dealers, Inc.
2. THE DEFINITION OF "PREFERRED STOCK PRICE" IN SECTION 1 SHALL BE
AMENDED TO READ IN ITS ENTIRETY AS FOLLOWS:
EXHIBIT "A"
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"Preferred Stock Price" means the average of the high bid and
low asked prices, weighted on a daily basis by the number of shares
traded, for Search Capital's 9%/7% Convertible Preferred Stock for
the 20 trading days preceding the Closing Date on the
over-the-counter market, as reported by the National Quotation
Bureau, Xxxxxxxx'x or the National Association of Securities Dealers,
Inc.
3. THE DEFINITION OF "PREFERRED STOCK" IN SECTION 1 SHALL BE
AMENDED TO READ IN ITS ENTIRETY AS FOLLOWS:
"Preferred Stock" means shares of Convertible Preferred Stock
that, upon issuance, will be part of Search Capital's Series B 9%/7%
Convertible Preferred Stock described in the Preference Certificate,
of which there are approximately 2,554,060 shares issued and
outstanding as of the date of this Agreement.
4. EXHIBIT 2C ATTACHED TO THE AGREEMENT SHALL BE REPLACED AND
SUBSTITUTED WITH EXHIBIT 2C ATTACHED HERETO.
5. SECTION 2(C) OF THE AGREEMENT SHALL BE AMENDED TO DELETE FROM
ITS SECOND SENTENCE THE PHRASE "WHICH CERTIFICATE OF DESIGNATION SHALL BE
AMENDED PRIOR TO THE CLOSING BY CERTAIN AMENDMENTS TO BE FILED WITH THE
DELAWARE SECRETARY OF STATE".
6. SECTION 6(B) OF THE AGREEMENT SHALL BE AMENDED TO READ IN ITS
ENTIRETY AS FOLLOWS:
(b) Shareholder Approvals. Search Capital shall use its
reasonable efforts to cause the approval by April 1, 1997 by its
shareholders of certain clarifying amendments to the Certificate of
Designation for its 9%/7% Convertible Preferred Stock, as described
in Search Capital's Proxy Statement for a special meeting of
shareholders originally scheduled for October 1, 1996. Search Capital
makes no warranty or guaranty that such approvals will be obtained by
April 1, 1997.
7. SUBSECTIONS 6(I), 7(A)(X) AND 7(B)(XII) OF THE AGREEMENT SHALL
BE DELETED.
8. NEW SUBSECTIONS (U) AND (V) SHALL BE ADDED TO SECTION 8.
SUBSECTIONS (U) AND (V) SHALL READ IN THEIR ENTIRETY AS FOLLOWS:
u. Payment Upon Failure of Automatic Conversion of Preferred
Stock. Search Capital shall pay to U.S. Lending $.08 per share of
Preferred Stock issued at the Closing if the conditions for automatic
conversion of such Preferred Stock into shares of Search Capital's
9%/7% Convertible Preferred Stock are not satisfied in accordance
with Section 10(h) of the Preference Certificate on or before April
1, 1997. Such payment shall be made on or before April 15, 1997.
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v. Listing of Preferred Stock. Search Capital agrees to use
reasonable efforts to list its Common Stock (including the shares
issued to U.S. Lending) on NASDAQ or a national exchange and, in that
connection, agrees to use reasonable efforts to list the Preferred
Stock (including the shares issued to U.S. Lending) and its 9%/7%
Convertible Preferred Stock at the same time. U.S. Lending
acknowledges, however, that Search Capital does not currently qualify
for a listing on NASDAQ or any other national exchange and will be
unable to obtain such listing until it does qualify.
9. NEW SECTION 6(K) SHALL BE ADDED TO THE AGREEMENT AND SHALL READ IN
ITS ENTIRETY AS FOLLOWS:
k. Findings by Bankruptcy Court. As part of the confirmation
of its Amended Plan of Reorganization, U.S. Lending shall seek and
obtain appropriate findings from the bankruptcy court to the effect
that the securities, and any cash compensation under Section 8(u), to
be received by U.S. Lending under this Agreement, as amended by the
Second Amendment to Asset Purchase Agreement dated November 5,1996,
are reasonably equivalent in value to the securities that would
have been received under this Agreement before its amendment by said
Second Amendment, that the changes and modifications to this
Agreement and the Amended Plan of Reorganization as a result of the
Second Amendment are not material, and comply with the requirements
of Sections 1125 and 1127 of the U.S. Bankruptcy Code and that no
further voting on the Amended Plan is necessary.
10. U.S. LENDING AGREES AND CONFIRMS THAT IT IS NOT AWARE OF ANY BREACH
BY SEARCH CAPITAL AND SEARCH FUNDING OF THEIR OBLIGATIONS UNDER THE AGREEMENT,
AS AMENDED HEREBY. U.S. LENDING WAIVES ANY BREACH BY SEARCH CAPITAL AS A RESULT
OF THE FAILURE TO DATE TO OBTAIN THE STOCKHOLDER APPROVALS REFERENCED IN FORMER
SECTION 6(B).
11. THE PARTIES AGREE THAT THE AGREEMENT, AS AMENDED HEREBY, IS IN FULL
FORCE AND EFFECT.
EXECUTED as of the date first above written.
U.S. LENDING CORPORATION
By: /s/ XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. Xxxxxxxx
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Title: Vice President
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SEARCH CAPITAL GROUP, INC.
By: /s/ XXXXXX X. XXXX
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Name: Xxxxxx X. Xxxx
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Title: Senior Executive Vice President
and Chief Financial Officer
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SEARCH FUNDING III, INC.
By: /s/ XXXXXX X. XXXX
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Name: Xxxxxx X. Xxxx
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Title: Senior Executive Vice President
and Chief Financial Officer
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APPROVED
OFFICIAL COMMITTEE OF
UNSECURED CREDITORS OF
U.S. LENDING CORPORATION
By:
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Name:
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Title:
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OFFICIAL EQUITY COMMITTEE OF
U.S. LENDING CORPORATION
By:
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Name:
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Title:
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