1
Exhibit 99.1
TERMINATION AGREEMENT
This TERMINATION AGREEMENT, dated as of January 4, 2000 (this
"Agreement"), is made and entered into by and between Impac Commercial Holdings,
Inc., a Maryland corporation ("ICH"), and AMRESCO Capital Trust, a Texas real
estate investment trust ("ACT"). ICH and ACT are hereunder also referred to
collectively as the "Parties" and individually as a "Party."
W I T N E S S E T H
WHEREAS, the Parties have entered into an Agreement and Plan
of Merger, dated as of August 4, 1999 (the "Merger Agreement"), pursuant to
which, subject to the satisfaction or waiver (to the extent permitted by
applicable law) of the conditions set forth therein, ICH would be merged with
and into ACT (the "Merger"), with ACT continuing as the surviving entity in the
Merger; and
WHEREAS, pursuant to the terms and provisions of Section
8.1(b) of the Merger Agreement, the Parties have agreed that each of ICH and ACT
would have the right to terminate the Merger Agreement if the Merger were not
consummated before December 31, 1999; and
WHEREAS, the Merger was not consummated before December 31,
1999 and the Parties believe it is in their respective best interests and the
best interests of their respective stockholders that the Merger and the other
transactions contemplated by the Merger Agreement not be consummated and,
accordingly, that the Merger Agreement be terminated as provided in Section
8.1(b) thereof; and
WHEREAS, it is the intention of the Parties hereto that the
Merger Agreement be terminated and, except as expressly set forth in this
Agreement, that the Merger Agreement forthwith become void and have no effect
and that the Parties have no further obligations or liabilities to each other
with respect thereto; and
WHEREAS, the Board of Directors of ICH and the Board of Trust
Managers of ACT each consent to the termination of the Merger Agreement upon the
terms set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereby agree as follows:
1. DEFINED TERMS. Capitalized terms used herein and not
otherwise defined shall have the respective meanings ascribed to such terms in
the Merger Agreement.
2
2. TERMINATION. The Parties hereby agree that, pursuant to
Section 8.1(b) of the Merger Agreement, the Merger Agreement is hereby
terminated effective immediately.
3. TERMINATION FEE. The Parties hereby agree, consistent with
the terms and provisions of Article VIII of the Merger Agreement, that neither
ICH nor ACT shall be obligated to pay, and neither ICH nor Act shall pay, any
Termination Fee in connection with the termination of the Merger Agreement as
contemplated by this Agreement.
4. CONFIDENTIALITY. As set forth in the last sentence of
Section 6.2 of the Merger Agreement, notwithstanding the termination of the
Merger Agreement as provided herein, each of ACT and ICH shall continue to hold,
and shall continue to use commercially reasonable efforts to cause its and its
respective subsidiaries and joint ventures' officers, employees, accountants,
counsel, financial advisors and other representatives and Affiliates to continue
to hold, any nonpublic information in confidence to the extent required by, and
in accordance with, and to continue to comply with the provisions of the letter
agreements between ICH and ACT (the "Confidentiality Agreements"). From and
after the termination of the Merger Agreement as provided herein, the
Confidentiality Agreements shall remain in full force and effect in accordance
with their respective terms.
5. EXPENSES. As set forth in Section 8.2(a) of the Merger
Agreement, notwithstanding the termination of the Merger Agreement as provided
herein, all out-of-pocket costs and expenses incurred by the Parties in
connection with the Merger Agreement and the transactions contemplated thereby
shall be paid by the Party incurring such expense, except that those expenses
incurred in connection with the printing and mailing of the Proxy Statement and
the Registration Statement, as well as the filing fee related thereto, shall be
shared equally by ACT and ICH.
6. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
7. EXCLUSIVE AGREEMENT; AMENDMENT. This Agreement, together
with the Confidentiality Agreements, supersedes all prior agreements (whether
written or oral) among the parties hereto with respect to the subject matter
hereof, and is intended as a complete and exclusive statement of the terms of
the agreement among the Parties with respect thereto. This Agreement may not be
modified, amended, altered or supplemented except by a written instrument
executed and delivered by each of the Parties.
8. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the Parties and delivered to the other Party.
[SIGNATURE PAGE FOLLOWS]
2
3
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the undersigned as of the date first above written.
IMPAC COMMERCIAL HOLDINGS, INC.
By: /s/ Randal A. Nardone
--------------------------------
Name: Randal A. Nardone
Title: Chief Operating Officer
AMRESCO CAPITAL TRUST
By: /s/ Jonathan S. Pettee
--------------------------------
Name: Jonathan S. Pettee
Title: President
3