EXHIBIT (c)(14)
THIRD AMENDMENT TO
AGREEMENT FOR SATISFACTION OF JUDGMENT
This Third Amendment to Agreement for Satisfaction of Judgment is
entered into as of the 16th day of September, 1997 by and among HOMEOWNERS
GROUP, INC. ("HOMG"), HOMEOWNERS MARKETING SERVICES, INC. ("HMS") and THE CROSS
COUNTRY GROUP, L.L.C. ("CC").
WHEREAS, on October 31, 1996, CC, HOMG and HMS entered into an
Agreement for Satisfaction of Judgment (the "Agreement") for the satisfaction
and release of that certain judgment entered on December 20, 1995 in favor of
Acceleration National Insurance Company against HMS for the sum of $5,156,022
plus interest and costs;
WHEREAS, as of January 31, 1997, CC, HOMG and HMS entered into the
First Amendment to the Agreement, and as of July 1, 1997 CC, HOMG and HMS
entered into the Second Amendment to the Agreement;
WHEREAS, CC, HOMG and HMS desire to further amend the Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Section 2 of the Agreement is hereby deleted and replaced in its
entirety with the following:
CASH PAYMENT. CC, as assignee of the rights of ANIC, agrees to accept
the sum of $2,698,214.80 (the "Judgment Amount") plus interest at 10% per annum
since September 5, 1996, as provided in Section 8, plus interest at 10% per
annum on $4,100,000 from September 1, through September 4, 1996 (collectively,
the "Payoff Amount") in full and complete satisfaction of the Judgment on the
condition such payment is received by CC no later than the Consummation of the
Offer (as defined in the Fourth Amendment to the Merger Agreement dated as of
even date herewith (the "Fourth Amendment")), or November 4, 1997, whichever
occurs first.
2. Section 5 of the Agreement is hereby deleted and replaced in its
entirety with the following:
FORBEARANCE OF COLLECTION EFFORTS. Unless sooner terminated pursuant to
the provisions of Section 7 of this Agreement, CC, as the assignee of the rights
of ANIC, will not undertake
prior to November 14, 1997, any act to execute on the Judgment, including the
issuance or service of writs of attachment, garnishment or execution from any
court, or to obtain discovery in aid of execution from any third party.
3. Section 7 of the Agreement is hereby deleted and replaced in its
entirety with the following:
CONTINGENCIES AND TERMINATION. The obligations of CC, as the assignee
of ANIC, to accept the Payoff Amount in full satisfaction of the Judgment and to
forbear from any and all efforts to enforce the Judgment are contingent upon
Consummation of the Offer. Sections 2 and 5 of the Agreement shall become null,
void, and of no further force or effect at the sole option of CC upon the
occurrence of any one of the following events:
(a) the earlier of (i) expiration of the Offer, or (ii)
the filing of an involuntary bankruptcy, receivership
or other insolvency proceeding against HOMG;
(b) either CC or HOMG advises the other or either HOMG or
CC publicly announces that the Merger Agreement has
been abandoned. HOMG further agrees to directly
notify CC within twenty-four hours should the Merger
Agreement be abandoned by HOMG for any reason;
(c) the stockholders of HOMG fail to approve and to
authorize the Merger;
(d) holders of more than 10% of HOMG's stock shall have
claimed or perfected appraisal rights;
(e) the failure of HMS and HMSI to execute and deliver to
CC within five (5) business days from the date of
execution of this Third Amendment, the appropriate
UCC financing statements necessary to grant a
perfected security interest to CC in their assets, in
accordance with Section 16 of the Agreement and that
certain Security Agreement dated as of September __,
1997; as amended, by and among CC, HMS and HMSI and
that certain Security Agreement dated as of September
__, 1997, by and among CC and various subsidiaries of
HOMG;
(f) HOMG or CC fails to obtain the approval of any
government regulatory body or agency from which
approval of the Offer, as defined in the Merger
Agreement, as amended by the Fourth Amendment is
required prior to closing of the Offer;
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(g) (i) the public announcement by a person not currently
a reported owner of 10% or more, other than CC or any
of its affiliates, of beneficial ownership
("beneficial ownership" being defined in accordance
with Rule 13d-3 of the Securities Exchange Act of
1934, as amended, the ("Exchange Act")) of 10% or
more of HOMG's common stock outstanding; (ii) the
date upon which a tender offer or exchange offer is
first published or sent or given within the meaning
of Rule 14d-2(a) of the Exchange Act by a person
other then CC or its affiliates; or (iii) the filing
of a Schedule 13D by a person other then CC or its
affiliates that contains a description of a plan or
proposal that such reporting person or its affiliates
have in response to any of the requested information
contained in Item 4(b)-(j) of the Schedule 13D;
(h) the breach (without regard to materiality) by Company
of any of the terms and/or conditions of the Merger
Agreement, as amended; or
If any of the foregoing events occur and CC elects to terminate its
agreements and commitments set forth in Section 2 and 5 of this Agreement, CC
shall promptly notify HOMG and HMS in writing of its decision to do so.
4. Section 10 of the Agreement is hereby deleted and replaced in its
entirety with the following:
MUTUAL RELEASE. Upon Consummation of the Offer and upon receipt by CC
of either the Payoff Amount (if such payment occurs on or before November 14,
1997) or the Judgment, as reduced by the Refund Claim (if such payment occurs
after November 14, 1997), CC, HOMG and HMS will execute and exchange a mutual
release in the form attached to the Agreement as Exhibit 1. Within 30 days after
receiving such payment, CC shall file a Satisfaction of Judgment for each action
pending in : (i) the Circuit Court of Broward County, Florida, styled Homeowners
Marketing Services, Inc. v. Acceleration National Insurance Company. Case No.
96-001110 CACA (12) (the "Domestication Action"); and (ii) the Court of Common
Pleas of Franklin County, Ohio, styled Acceleration National Insurance Company
v. Homeowners Marketing Services, Inc., et al., Consolidated Case Nos.
91CVH11-9404, 94CVH05-3083 (the "Ohio Action"), and be responsible for
dismissing with prejudice each of the following actions: (i) the Ohio Action;
(ii) the Domestication Action; (iii) that certain action pending in the Circuit
Court of Broward County, Florida, styled Acceleration National Insurance Company
v. Homeowners Marketing Services, Inc., et al., Case. No. 96-001152 (18); and
(iv) that certain action pending in the Circuit Court of Dade County, Florida,
styled Acceleration National Insurance Company v. Homeowners Marketing Services,
Inc., Case No. 96-00850 (CA) 23.
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5. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but which together
shall constitute one and same instrument.
6. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the internal laws of the Commonwealth of Massachusetts without
giving effect to principles of conflicts of laws. The parties further agree that
venue for any action shall be in the Suffolk County Superior court, Commonwealth
of Massachusetts.
7. NO OTHER MODIFICATIONS. Except as modified by this Agreement, the
terms of the Agreement shall remain unmodified and in full force and effect.
IN WITNESS WHEREOF, each party has executed this Amendment by its duly
authorized representative on the date set forth below.
HOMEOWNERS GROUP, INC.
Date: 9/16/97 By:/s/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name:
Title:
HOMEOWNERS MARKETING
SERVICES, INC.
Date: 9/16/97 By:/s/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name:
Title:
THE CROSS COUNTRY GROUP,
L.L.C.
Date: 9/16/97 By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name:
Title:
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