Exhibit 10.1
Agreement of Purchase and Sale of Membership Interest
--------------------------------
--------------------------------
AGREEMENT OF PURCHASE
AND SALE OF MEMBERSHIP INTEREST
BY AND AMONG
TRAFFIX, INC.,
MORTGAGE INDUSTRY CONSULTANTS, LLC
AND
MONTVALE MANAGEMENT, LLC
--------------------------------
--------------------------------
MARCH 7, 2003
AGREEMENT OF PURCHASE AND SALE OF MEMBERSHP INTEREST
AGREEMENT (this "Agreement"), dated March 7, 2003, by and among
Mortgage Industry Consultants, LLC, a New York limited liability company, having
its principal office at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
("Purchaser"), Traffix, Inc., a Delaware corporation, having its principal
office at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Seller") and
Montvale Management, LLC, a Delaware limited liability company, having its
principal office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
(the "Company").
W I T N E S S E T H:
WHEREAS, Seller, as of the date hereof, owns a membership interest in
the Company representing fifty-one (51%) of the aggregate membership interests
of the Company (the "Interest"); and
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, the Interest on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and in order to set forth the terms and conditions of the
purchase and sale of the Interest and the manner of carrying the same into
effect, the parties hereto hereby agree as follows:
1. PURCHASE AND SALE OF INTEREST. Subject to and upon the terms and
conditions set forth in this Agreement, at the Closing (as hereinafter defined
in Section 3 hereof), Seller will sell, transfer, convey, assign and deliver to
Purchaser, and Purchaser will purchase, all of Seller's right, title and
interest in and to the Interest.
2. PURCHASE CONSIDERATION. As full and total consideration for the
sale, transfer, conveyance, assignment and delivery of the Interest by Seller to
Purchaser, and in reliance upon the representations and warranties made herein
by Seller, Purchaser agrees to pay to Seller One Million Six Hundred Thousand
Dollars ($1,600,000) (the "Purchase Price"), One Million Dollars ($1,000,000) of
which shall be paid at the Closing (the "Closing Payment") and by Purchaser's
issuance of a Promissory Note in the amount of Six Hundred Thousand Dollars
($600,000) as set forth in EXHIBIT A annexed hereto (the "Promissory Note").
3. CLOSING. The Closing is taking place concurrently with the execution
of this Agreement at the offices of ▇▇▇▇▇▇▇▇, ▇▇▇▇ & Brandeis, LLP, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Closing"). The day on which the Closing
actually occurs is herein sometimes referred to as the "Closing Date".
4. SELLER'S OBLIGATIONS AT CLOSINGS; FURTHER ASSURANCES. (a) At the
Closing Seller agrees to deliver or cause to be delivered to Purchaser (and, as
applicable, execute):
(i) a membership certificate representing the
Interest.
(ii) a general release in favor of the Company in
substantially the form of EXHIBIT B annexed hereto;
(iii) a certified copy of resolutions adopted by the
Board of Directors of Seller authorizing the
execution, delivery and performance of this
Agreement;
(iv) the opinion of Seller's counsel, reasonably
satisfactory to Purchaser;
(v) the resignation of (A) the manager of the Company
appointed by Seller pursuant to Section 4.1 of the
Operating Agreement of Montvale Management, LLC dated
as of October 15, 1999 and (B) any and all officers
of the Company who are otherwise employed by, or
primarily associated with Seller;
(vi) a Media Purchase Agreement substantially in the
form of EXHIBIT D annexed hereto (the "Media
Agreement");
(vii) a Non-Competition Undertaking, substantially in
the form of EXHIBIT E annexed hereto;
(viii) a Pledge Agreement substantially in the form
of EXHIBIT F annexed hereto (the "Pledge Agreement");
and
(ix) all other documents and instruments required to
be delivered to Purchaser pursuant to the provisions
of this Agreement.
(b) At any time and from time to time after the Closing, at
Purchaser's request and expense and without further consideration, Seller will
execute and deliver such other instruments of sale, transfer, conveyance,
assignment and confirmation and take such actions as Purchaser may reasonably
deem necessary or desirable in order to more effectively transfer, convey and
assign to Purchaser, and to confirm Purchaser's title to, the Interest.
5. PURCHASER'S OBLIGATIONS AT CLOSING. (a) At the Closing, Purchaser
agrees to deliver, or cause to be delivered, as the case may be, to Seller (and,
as applicable, execute):
(i) the Closing Payment;
(ii) the Promissory Note;
2
(iii) a general release in favor of the Seller from
the Company in substantially the form of EXHIBIT C
annexed hereto;
(iv) a certified copy of resolutions adopted by the
Board of Managers of Purchaser authorizing the
execution, delivery and performance of this
Agreement;
(v) an opinion of Purchaser's counsel reasonably
satisfactory to Seller;
(vi) the Media Agreement;
(vii) the Pledge Agreement;
(viii) the Guaranty as set forth in EXHIBIT G annexed
hereto; and
(ix) all other documents and instruments required
to be delivered to Sellers pursuant to the provision
of this Agreement.
6. POST CLOSING DELIVERY BY THE COMPANY OF SELLER'S BOOK VALUE
CAPITAL ACCOUNT.
(a) No later than thirty (30) days after the Closing Date, the
Company shall cause the Company's regularly engaged certified public accounting
firm (the "Firm") to prepare and deliver to the Seller and the Purchaser a
statement setting forth the Seller's book value capital account as of the
Closing Date ("Book Value Capital Account") prepared in accordance with
generally accepted accounting principles (the "Statement"). Subject to Sections
6(b) and (c) hereof, the Company shall pay to Seller the Book Value Capital
Account as set forth in the Statement on or prior to May 15, 2003 (the "Payment
Date").
(b) Within twenty (20) days after the Statement is delivered
as set forth in the preceding paragraph (the "Review Period"), each of the
Purchaser and Seller shall complete their examination thereof and shall deliver
to the Company either (i) a written acknowledgment accepting the Statement or
(ii) a written report (the "Objection Report") setting forth in reasonable
detail any proposed objections to the Statement. A failure by the Purchaser or
Seller to deliver the Objection Report within the required twenty (20) day
period shall constitute an acceptance of the calculations set forth in the
Statement.
(c) During a period of twenty (20) days following the receipt
by Seller or Purchaser of an Objection Report, the Seller and Purchaser shall
attempt to resolve any differences they may have with respect to the matters
raised in the Objection Report. In the event the Seller and Purchaser fail to
agree on any of the proposed adjustments contained in the Objection Report
within such 20-day period, then the Firm shall designate an independent public
accounting firm that has no association whatsoever with Seller, Purchaser and
the Company (the "Independent Auditors") to make the final determination with
respect to the correctness of the proposed adjustments set forth in the
Objection Report. The decision of the Independent Auditors shall be final and
binding on the parties (the "Decision") and the Company shall remit
3
the Book Value Capital Account to Seller as finally determined by the
Independent Auditors within ten (10) days of its receipt of the Decision or, if
later, the Payment Date. The costs and expenses of the independent Auditors and
their services rendered pursuant to this subsection shall be borne equally by
the Seller and the Purchaser.
(d) To the extent that the Book Value Capital Account exceeds
$298,700, the payments due pursuant to the Media Agreement shall be reduced in
the order of maturity.
(e) There shall be an interim closing of the Company's books
on the Closing Date for purposes of determining the income, gain, loss,
deduction and credit attributable to the period commencing on January 1, 2003
and ending on the Closing Date and to the period after the Closing Date, subject
in all respects to the preparation and review of the Statement as provided in
this Section 6.
7. REPRESENTATIONS AND WARRANTIES BY SELLER.
(a) ORGANIZATION. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has full corporate power and authority to enter into this Agreement.
(b) EXECUTION, DELIVERY AND PERFORMANCE OF AGREEMENT. Neither
the execution, delivery nor performance of this Agreement by Seller will, with
or without the giving of notice or the passage of time, or both, conflict with,
result in a default, right to accelerate or loss of rights under, or result in
the creation of any lien, charge or encumbrance pursuant to any provision of
Seller's certificate of incorporation or by-laws or any franchise, mortgage,
deed of trust, lease, license, agreement, understanding, law, ordinance, rule or
regulation or any order, judgment or decree to which Seller is a party or by
which it may be bound or affected. There are no required third-party consents,
approvals or notifications to be obtained by Seller to effectuate the
transactions contemplated hereby. Seller has the full power and authority to
enter into this Agreement and to carry out the transactions contemplated hereby,
all proceedings required to be taken by Seller to authorize the execution,
delivery and performance of this Agreement have been properly taken, and this
Agreement constitutes the valid and binding obligation of Seller, enforceable in
accordance with its terms, except that such enforcement may be subject to the
effect of any applicable bankruptcy, insolvency, reorganization, moratorium and
similar law affecting creditors' rights generally.
(c) LITIGATION. There is no claim, legal action, suit,
arbitration, governmental investigation or other legal or administrative
proceeding, nor any order, decree or judgment in progress, pending or in effect
or, to Seller's knowledge, threatened against or relating to Seller in
connection with or relating to the transactions contemplated by this Agreement
and Seller does not know or have any reason to be aware of any basis for the
same.
(d) OWNERSHIP OF INTEREST. Seller is the lawful record and
beneficial owner of the Interest, free and clear of any liens, claims,
encumbrances or restrictions of any kind. Except for that certain Option to
Acquire Membership Interest of Traffix, Inc. in Montvale Management, LLC issued
by Seller to Home Star Mortgage Services, LLC (the "Option
4
Holder") dated October, 2001 (the "Option"), neither the Seller nor any of its
affiliates is a party to or otherwise subject to any agreement, understanding or
arrangement regarding the transfer, sale, disposition, purchase, acquisition or
voting of the Interest. Annexed hereto as EXHIBIT H is a true and correct copy
of a Termination Agreement between Seller and the Option Holder terminating the
Option, effective as of the Closing Date.
(e) DISCLOSURE. No representation or warranty by Seller
contained in this Agreement or in any other document furnished or to be
furnished by Seller in connection herewith or pursuant hereto contains or will
contain any untrue statement of a material fact, or omits or will omit to state
any material fact required to make the statements herein or therein contained
not misleading and Seller has disclosed to Purchaser in writing all material
adverse facts known to it related to same.
8. REPRESENTATIONS AND WARRANTIES BY PURCHASER. Purchaser represents
and warrants to Seller as follows:
(a) ORGANIZATION. Purchaser is a limited liability company
duly organized, validly existing and in good standing under the laws of the
State of New York and has full power and authority to enter into this Agreement.
(b) EXECUTION, DELIVERY AND PERFORMANCE OF AGREEMENT. Neither
the execution, delivery nor performance of this Agreement by Purchaser will,
with or without the giving of notice or the passage of time, or both, conflict
with, result in a default, right to accelerate or loss of rights under, or
result in the creation of any lien, charge or encumbrance pursuant to any
provision of Purchaser's certificate of incorporation or by-laws or any
franchise, mortgage, deed of trust, lease, license, agreement, understanding,
law, ordinance, rule or regulation or any order, judgment or decree to which
Purchaser is a party or by which it may be bound or affected. There are no
required third-party consents, approvals or notifications to be obtained by
Purchaser to effectuate the transactions contemplated hereby. Purchaser has the
full power and authority to enter into this Agreement and to carry out the
transactions contemplated hereby, all proceedings required to be taken by
Purchaser to authorize the execution, delivery and performance of this Agreement
have been properly taken, and this Agreement constitutes the valid and binding
obligation of Purchaser, enforceable in accordance with its terms, except that
such enforcement may be subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium and similar law affecting creditors'
rights generally.
(c) LITIGATION. There is no claim, legal action, suit,
arbitration, governmental investigation or other legal or administrative
proceeding, nor any order, decree or judgment in progress, pending or in effect
or, to Purchaser's knowledge, threatened against or relating to Purchaser in
connection with or relating to the transactions contemplated by this Agreement
and Purchaser does not know or have any reason to be aware of any basis for the
same.
(d) THIRD-PARTY DISCUSSIONS. As of the date hereof, the
Purchaser has not solicited or initiated any Acquisition Proposal (as
hereinafter defined) with, (ii) negotiated, discussed or otherwise communicated
with or furnish or cause to be furnished any information
5
to, or (iii) entered into any contract or agreement with, any person (other than
Seller) with respect to or for any Acquisition Proposal. As used herein,
"Acquisition Proposal" means the proposal for a merger, sale of membership or
other equity interests, sale of assets or other business combination involving
the Company or its assets not in the ordinary course of business.
(e) FINANCIAL STATEMENTS. Purchaser has delivered to Seller
copies of the balance sheet for the Company as of November 30, 2002 and August
31, 2002 and related statements of earnings and members' equity for the year and
nine months then ended included in a compilation report prepared by ▇▇▇▇▇
▇▇▇▇▇▇, Certified Public Accountant, which have been prepared from the books and
records of the Company and maintained throughout the periods indicated and
fairly present the financial condition of the Company as at their respective
dates and the results of its operations for the periods covered thereby, and
there has been no material change in the business, assets, or condition,
financial or otherwise, operations or prospects of the Company since November
30, 2002.
(f) DISCLOSURE. No representation or warranty by Purchaser
contained in this Agreement or in any other document furnished or to be
furnished by Purchaser in connection herewith or pursuant hereto contains or
will contain any untrue statement of a material fact, or omits or will omit to
state any material fact required to make the statements herein or therein
contained not misleading and Purchaser has disclosed to Seller in writing all
material adverse facts known to it related to same.
9. INDEMNIFICATION. (a) Seller hereby indemnifies and agrees to defend
and hold Purchaser harmless from, against and in respect of (and shall, subject
to the other provisions of this Agreement, on demand reimburse Purchaser for):
(i) any and all loss, liability or damage
suffered or incurred by Purchaser by reason of
any untrue representation, breach of warranty
or nonfulfillment of any covenant by Seller
contained herein or in any certificate,
document or instrument delivered by Seller to
Purchaser hereunder;
(ii) any and all actions, suits, proceedings,
claims, demands, assessments, judgments, costs
and expenses, including, without limitation,
reasonable legal fees and expenses, incident
to (i) above or (iii) below or incurred in
investigating or attempting to avoid the same
or to oppose the imposition thereof, or in
enforcing this indemnity; and
(iii) any and all loss, liability or damage
suffered or incurred by Purchaser by reason of
or in connection with any claim for finder's
fee or brokerage or other commission arising
by reason of any services alleged to have been
rendered to or at the instance of Seller with
respect to this Agreement or any of the
transactions contemplated hereby.
6
(b) Purchaser shall indemnify, defend and hold Seller harmless
from, against and in respect of (and shall, subject to the other provisions of
this Agreement, on demand reimburse Seller for):
(i) any and all actual loss, liability or
damage suffered or incurred by Seller by
reason of or resulting from any untrue
representation, breach of warranty or
non-fulfillment of any covenant or agreement
by Purchaser contained herein or in any
certificate, document or instrument delivered
to Seller hereunder;
(ii) any and all actions, suits, proceedings,
claims, demands, assessments, judgments, costs
and expenses, including, without limitation,
reasonable legal fees and expenses, incident
to the business and operations of the Company
following the Closing Date;
(iii) any and all actions, suits, proceedings,
claims, demands, assessments, judgments, costs
and expenses, including, without limitation,
reasonable legal fees and expenses, incident
to (i) or (ii) above or (iv) below or incurred
in investigating or attempting to avoid the
same or to oppose the imposition thereof, or
in enforcing this indemnity; and
(iv) any and all actual loss, liability or
damage suffered or incurred by Seller by
reason of or in connection with any claim for
finder's fee or brokerage or other commission
arising by reason of any services alleged to
have been rendered to or at the instance of
Purchaser with respect to this Agreement or
any of the transactions contemplated hereby.
(c) If a claim by a third party is made against a party hereto
(an "Indemnified Party"), and if an Indemnified Party intends to seek indemnity
with respect thereto under this Section 9, the Indemnified Party shall promptly
notify the party required to indemnify the Indemnified Party pursuant to this
Section 9 (an "Indemnifying Party") of such claim (the "Indemnity Notice");
PROVIDED, HOWEVER, that failure by an Indemnified Party to notify an
Indemnifying Party of such claim shall not affect the Indemnified Party's right
to seek indemnification so long as the Indemnifying Party is not materially
prejudiced by such failure to have been notified of such claim. The Indemnifying
Party shall have ten (10) days after receipt of the Indemnity Notice to
undertake, conduct and control, through counsel of its own choosing and at its
expense, but reasonably acceptable to the Indemnified Party, the settlement or
defense thereof, and the Indemnified Party shall cooperate with it in connection
therewith; PROVIDED, HOWEVER, that with respect to settlements entered into by
the Indemnifying Party, the
7
Indemnifying Party shall obtain the release of the claiming party in favor of
the Indemnified Party. If the Indemnifying Party undertakes, conducts and
controls the settlement or defense of such claim, the Indemnifying Party shall
permit the Indemnified Party to participate in such settlement or defense
through counsel chosen by the Indemnified Party, providing that the fees and
expenses of such counsel shall be borne by the Indemnified Party. With respect
to indemnification provided for hereunder, the Indemnified Party shall not pay
or settle any such claim so long as the Indemnifying Party is reasonably
contesting any such claim in good faith. Notwithstanding the immediately
preceding sentence, the Indemnified Party shall have the right to notify the
Indemnifying Party that it will undertake, conduct and control, through counsel
of its own choosing and at its own expense, the settlement or defense of any
such claims and in such event it shall waive any right to indemnity therefor by
the Indemnifying Party. If both the Indemnifying Party and the Indemnified Party
are named as parties or subject to a proceeding and either such party determines
with advice of counsel that a material conflict of interest between such parties
may exist in respect of such proceeding, the Indemnifying Party may decline to
assume the defense on behalf of the Indemnified Party or the Indemnified Party
may retain the defense on its own behalf, and, in either such case, after notice
to such effect is duly given hereunder to the other party, the Indemnifying
Party shall be relieved of its obligation to assume the defense on behalf of the
Indemnified Party, but shall be required to pay the out-of-pocket legal costs
and expenses (such as reasonable attorneys' fees and disbursements) of such
defense; provided, however, that the Indemnifying Party shall not be liable for
such expenses on account of more than one separate firm of attorneys (and, if
necessary, local counsel) at any time representing such Indemnified Party in
connection with any proceeding or separate proceedings in the same jurisdiction
arising out of or based upon substantially the same allegations or
circumstances. If the Indemnifying Party shall assume the defense of any
proceeding, the Indemnified Party, and the officers, directors, managers,
shareholders and other members of the Indemnified Party, shall cooperate fully
with the Indemnifying Party and shall appear and give testimony, produce
documents and other tangible evidence, allow the Indemnifying Party access to
the books and records of the Indemnified Party, and otherwise assist the
Indemnifying Party in conducting such defense.
(d) Subject to the limitations set forth in Section 9(c), in
the event that the Indemnifying Party does not notify the Indemnified Party
within fifteen (15) days after the receipt of the Indemnified Party's notice of
a claim of indemnity hereunder that it elects to undertake the defense thereof,
the Indemnified Party shall have the right to contest, settle or compromise the
claim in the exercise of its good faith reasonable judgment at the expense of
the Indemnifying Party subject to the other terms and provisions of this Section
9.
(e) Seller shall not be required to indemnify the Purchaser
under this Section 11 unless the aggregate amounts for which indemnity would
otherwise be due thereunder exceeds $10,000 (the "Indemnification Basket"), in
which case Seller shall be responsible for all such indemnifiable amounts in
excess of the Indemnification Basket.
10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All statements,
representations, warranties and indemnities made by each of the parties hereto
(and in any schedule or exhibit hereto) shall survive the Closing for a period
of twenty-four (24) months after the Closing Date (the "Survival Period");
PROVIDED, FURTHER, that all representations and warranties (and indemnity
8
claims based thereon) related to any claim asserted prior to the expiration of
the Survival Period shall survive the Closing Date until such claim shall be
resolved and payment in respect thereof, if any is owing, shall be made.
11. NOTICES. Any and all notices, demands or requests required or
permitted to be given under this Agreement shall be given in writing and sent,
by registered or certified U.S. mail, return receipt requested, by hand, or by
overnight courier, addressed to the parties hereto at their addresses set forth
above or such other addresses as they may from time-to-time designate by written
notice, given in accordance with the terms of this Section, together with copies
thereof as follows:
In the case of Purchaser or the Company, a copy simultaneously
by like means to:
▇▇▇▇▇▇▇▇ ▇▇▇▇ & Brandeis, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Esq.
In the case of Seller, a copy simultaneously by like means to:
Feder, Kaszovitz, Isaacson, Weber, ▇▇▇▇▇, Bass & Rhine, LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Notice given as provided in this Section shall be deemed effective: (i) on the
date hand delivered, (ii) on the first business day following the sending
thereof by overnight courier, and (iii) on the seventh calendar day (or, if it
is not a business day, then the next succeeding business day thereafter) after
the depositing thereof into the exclusive custody of the U.S. Postal Service.
12. MISCELLANEOUS. (a) This Agreement, including, without limitation,
the schedules and other documents referred to herein, constitutes the entire
agreement of the parties with respect to the subject matter hereof and
supersedes any and all prior agreements, arrangements or understandings with
respect hereto, and may not be modified or amended except by a written agreement
specifically referring to this Agreement signed by all of the parties hereto.
(b) No waiver of any breach or default hereunder shall be
considered valid unless in writing and signed by the party giving such waiver,
and no such waiver shall be deemed a waiver of any subsequent breach or default
of the same or similar nature.
(c) This Agreement shall be binding upon and inure to the
benefit of each party hereto, its successors and assigns, and each individual
party hereto and his heirs, personal representatives, successors and assigns.
9
(d) Effective as of the date hereof, the Operating Agreement
of Montvale Management, LLC, dated as of October 15, 1999, shall be null and
void and have no further force and effect.
(e) The section headings contained herein are for the purposes
of convenience only and are not intended to define or limit the contents of said
sections.
(f) Each party hereto shall cooperate, shall take such further
action and shall execute and deliver such further documents as may be reasonably
requested by any other party in order to carry out the provisions and purposes
of this Agreement.
(g) Except as otherwise provided herein or in agreements
delivered in connection with this Agreement, all legal, accounting and other
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party or parties incurring
the same.
(h) This Agreement may be executed and delivered in one or
more original or facsimile counterparts, each of which shall be deemed an
original but all of which taken together shall constitute one and the same
instrument.
(i) This Agreement and all amendments hereto shall be governed
by, construed and enforced in accordance with the internal laws of the State of
New York without reference to principles of conflict of laws.
(j) If any provision of this Agreement shall be held invalid
or unenforceable, such invalidity or unenforceability shall attach only to such
provision, only to the extent it is invalid or unenforceable, and shall not in
any manner affect or render invalid or unenforceable any other severable
provision of this Agreement, and this Agreement shall be carried out as if any
such invalid or unenforceable provision were not contained herein.
(k) Seller, on the one hand, and Purchaser, on the other hand,
agree that, without the prior written consent of the other, unless otherwise
required by law, it shall not make or permit to be made any announcement of any
kind about this Agreement or the transactions contemplated hereby, either prior
to the Closing Date or any time thereafter.
(l) Seller, on the one hand, and Purchaser, on the other hand,
represent and warrant to the other that there is no obligation to pay any
commission, finder's fee, broker's fee or similar charge in connection with the
transactions provided for in this Agreement, resulting from any agreements or
other action of such representing party.
(m) The parties hereto hereby irrevocably consent to the
exclusive jurisdiction of all Federal and State courts in New York County, New
York in connection with any proceedings brought by Seller, Purchaser or the
Company, or their successors or assigns, in connection with this Agreement.
10
(n) This Agreement is not intended to, and shall not confer
any rights upon, any parties other than the express parties hereto.
(o) All exhibits and schedules attached hereto shall be
incorporated by reference herein as if set forth herein in full.
11
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
MORTGAGE INDUSTRY CONSULTANTS, LLC
By: /s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager
TRAFFIX, INC.
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman & CEO
FOR PURPOSES OF AGREEING TO THE TERMS AND
CONDITIONS OF SECTION 6 ONLY:
MONTVALE MANAGEMENT, LLC
By: /s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager
12
EXHIBIT A
---------
PROMISSORY NOTE
$600,000
New York, New York
March 7, 2003
1. PROMISE TO PAY. Mortgage Industry Consultants, LLC ("MAKER"), a New
York limited liability company having an address at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ promises to pay to Traffix, Inc. ("Payee"), a Delaware
corporation, at its principal office located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as Payee may designate in writing,
in lawful money of the United States of America, the principal sum of the Six
Hundred Thousand Dollars ($600,000) without interest thereon. This Promissory
Note ("NOTE") is that certain Note referred to in the Agreement of Purchase and
Sale of Membership Interest dated as of March 7, 2003 between Maker, Payee and
Montvale Management, LLC (the "Agreement").
2. DEFINITIONS. For all purposes of this Note except as otherwise
expressly provided or unless the context otherwise requires, (i) the terms
defined in this Section have the meanings assigned to them in this Section and
include the plural as well as the singular, and (ii) the words "herein",
"hereof" and "hereunder" and other words of similar import refer to this Note as
a whole and not to any particular Section or other subdivision.
BUSINESS DAY. Each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which national banks in the City of New York, New York are
authorized, or obligated, by law or executive order, to close.
3. PRINCIPAL PAYMENTS. The principal amount due under this Note shall
be payable in twenty-four (24) equal monthly installments of Twenty-Five
Thousand Dollars ($25,000) payable on the first day of each month, with the
initial installment payment due and payable on April 1, 2003.
4. INTEREST. This Note does not provide for the payment of interest;
provided, however, in the event of a default hereunder of any monthly
installment payment as set forth in Section 3 hereof of twenty (20) or more
days, interest at the rate of 4.8% shall accrue thereon and be compounded
annually until such installment is paid.
5. METHOD OF PAYMENT. All payments to be paid by Maker to Payee under
this Note shall, unless otherwise specified in writing by Payee to Maker, be
paid through wire transfer of immediately available funds and shall be initiated
by Maker for payment on the day which such payment is due; provided, however, if
such day is not a Business Day, then payment shall be made on the next
succeeding day which is a Business Day. Payee shall provide Maker in writing
with appropriate wire transfer information. Once given, such information shall
remain in effect until changed by subsequent written instructions.
6. APPLICATION OF PAYMENTS. All payments received by Payee hereunder
shall be applied first against interest which has accrued and not been paid and
second to principal, with the balance applied against any other amounts which
may be owing to Payee hereunder.
7. NO USURY. In no event shall the interest rate in effect from time to
time under this Note exceed the highest rate allowed by law. Interest in excess
of the applicable legal rate shall be deemed to have been automatically and
immediately credited by Payee to the principal balance under this Note and shall
not be changed to interest.
8. ACCELERATION. In the case that (i) a default shall occur with
respect to the payment of any monthly installment payment as set forth in
Section 3 hereof, when and as the same shall become due and payable and such
default shall continue for a period of twenty (20) days after notice by Payee to
Maker of the default hereunder; (ii) a default shall occur by Montvale
Management, LLC (the "Company") with respect to the payment of any monthly
installment payment set forth in Section 3 of that certain Media Purchase
Agreement between the Company and Payee dated as of March 7, 2003, when and as
the same shall become due and payable and such default shall continue for a
period of twenty (20) days after notice by Payee to the Company; (iii) Maker
shall become insolvent or shall fail generally to pay its debts as they mature
or shall apply for, shall consent to, or shall acquiesce in the appointment of a
custodian, trustee or receiver for itself or for a substantial part of its
property; or, in the absence of such application, consent or acquiescence, a
custodian, trustee or receiver shall be appointed for Maker or for a substantial
part of Maker's property, or the Maker shall make an assignment for the benefit
of creditors; or (iv) Maker shall be voluntarily or involuntarily dissolved or
shall be the subject of any bankruptcy, reorganization, debt arrangement or
other proceedings under any bankruptcy or insolvency law; or any dissolution or
liquidation proceeding shall be instituted by or against Maker and, if
instituted against Maker, shall be consented to or acquiesced in by Maker, or
shall not have been dismissed within 60 days or an order for relief shall have
been entered against Maker; then, in each such event, the outstanding principal
of this Note, together with any unpaid interest thereon, shall become
immediately due and payable and the maturity date shall be accelerated, without
further notice, presentment or demand, together with reasonable attorney's fees
and disbursements in enforcing payment hereof.
9. NO WAIVER. Acceptance by Payee of any payment in an amount less than
the amount then due shall be deemed an acceptance on account only, and Payee's
acceptance of any such partial payment shall not constitute a waiver of Payee's
right to receive the entire amount due. Upon a default hereunder, neither the
failure of Payee to promptly exercise its right to declare the outstanding
principal and accrued unpaid interest hereunder to be immediately due and
payable, nor the failure of Payee to demand strict performance of any other
obligation of Maker or any other person who may be liable hereunder, shall
constitute a waiver of any such rights, nor a waiver of such rights in
connection with any future default on the part of Maker or any other person who
may be liable hereunder.
10. CHOICE OF LAW; VENUE; JURISDICTION; WAIVER OF JURY TRIAL. This Note
shall be governed and controlled as to validity, enforcement, interpretation,
construction, effect and in all other respects, by the statues, laws and
decisions of the State of New York. The exclusive venue and/or jurisdiction for
any proceeding which may be brought in connection with this Note shall
2
be any federal and state court located in New York County, New York and each of
the parties hereto irrevocably consents to such venue and/or jurisdiction. The
parties hereby waive the right to a trial by jury in any action or proceeding
arising out of this Note.
11. MISCELLANEOUS PROVISIONS.
11.1 This Note may not be amended or modified, and revision hereto
shall not be effective, except by an instrument in writing executed by Maker and
Payee.
11.2 If an action is instituted to collect on this Note, Maker promises
to pay all costs and expenses, including reasonable attorney's fees incurred in
connection with such action.
11.3 Any and all notices, demands or requests required or permitted to
be given under this Note shall be given in writing and sent, by registered or
certified U.S. mail, return receipt requested, by hand, or by overnight courier,
addressed to the parties hereto at their addresses set forth above or such other
addresses as they may from time-to-time designate by written notice, given in
accordance with the terms of this Section. A party may change its address for
notification purposes by giving the other parties notice of the new address and
the date upon which it shall become effective, which date must be at least ten
(10) days after notice of the change.
11.4 Maker hereby waives presentment, protest and demand, notice of
protest, dishonor and nonpayment of this Note, and expressly agrees that,
without in any way affecting the liability of Maker hereunder, Payee may extend
the time for payment of any amount due hereunder, accept additional security,
release any party liable hereunder and release any security now or hereafter
securing this Note without in any other way affecting the liability and
obligation of Maker.
11.5 This Note shall be non-transferable and non-negotiable.
11.6 Every provision of this Note is intended to be severable. In the
event any term or provision hereof is declared by a court of competent
jurisdiction to be illegal or invalid for any reason whatsoever, such illegality
or invalidity shall not affect the balance of the terms and provisions hereof,
which terms and provisions shall remain binding and enforceable.
11.7 Headings at the beginning of each numbered Section of this Note
are intended solely for convenience of reference and are not to be deemed or
construed to be a part of this Note.
3
IN WITNESS WHEREOF, Maker have executed this Promissory Note as of the
date first set forth above.
MORTGAGE INDUSTRY CONSULTANTS, LLC
By:
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager
4
EXHIBIT B
---------
GENERAL RELEASE
RELEASOR. Traffix, Inc., a Delaware corporation, having its principal office at
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Releasor"). RELEASEE.
Mortgage Industry Consultants, LLC, a New York limited liability company, having
its principal office at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and Montvale
Management, LLC, a Delaware limited liability company, having its principal
office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
(collectively, the "Releasee").
CONSIDERATION. This General Release is granted in consideration of ten dollars
($10.00) and other good and valuable consideration, the sufficiency of which is
hereby acknowledged. RELEASE. Releasor releases Releasee and all other persons,
firms or corporations liable or who might be claimed to be liable of all
actions, causes of action, suits, debts, guaranties, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments,
extents, executions, claims, and demands whatsoever, in law, admiralty or
equity, which Releasor and its assigns ever had, now or hereafter can, shall or
may have, known or unknown, against Releasee and all other persons, firms or
corporations liable or who might be claimed to be liable from the beginning of
time through March 7, 2003 with respect to the business and affairs of Montvale
Management LLC, excepting only those claims, rights or causes of action of
Releasor arising under the Agreement of Purchase and Sale of Membership Interest
by and among Releasor and Releasee dated as of the date hereof. BINDING EFFECT
ON SUCCESSORS AND ASSIGNS. This General Release shall be construed to bind and
benefit not only the named parties, but also their successors, subsidiaries,
affiliates, agents, present and former officers, directors, employees,
shareholders and assigns.
NON-MODIFIABILITY. This General Release shall not be modified, changed,
terminated, amended, superseded, waived, or extended except by written
instrument duly executed by Releasor and Releasee jointly. SECTION AND OTHER
HEADINGS. The section and other headings contained in this General Release are
for reference purposes only and will not in any way affect the meaning or
interpretation of the text of this General Release. GOVERNING LAW. This General
Release will be construed and enforced in accordance with the laws of the State
of New York, without giving effect to the principles of conflict of laws. Each
of the parties hereto irrevocably consent to the jurisdiction and venue of the
Federal and State Courts located in the State of New York, County of New York.
COUNTERPARTS. This Release may be executed in one or more counterparts, each of
which shall be deemed an original but all of which taken together shall
constitute one and the same instrument.
In Witness whereof, the parties hereto have executed this General
Release on March 7, 2003.
RELEASOR:
TRAFFIX, INC.
By:
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman & CEO
2
RELEASEES:
MONTVALE MANAGEMENT, LLC
By:
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager
MORTGAGE INDUSTRY CONSULTANTS, LLC
By:
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager
3
EXHIBIT C
---------
GENERAL RELEASE
1. RELEASOR. Mortgage Industry Consultants, LLC, a New York limited
liability company, having its principal office at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and Montvale Management, LLC, a Delaware limited
liability company, having its principal office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (collectively, the "Releasor").
3. RELEASEE. Traffix, Inc., a Delaware corporation, having its principal
office at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the
"Releasee").
4. CONSIDERATION. This General Release is granted in consideration of ten
dollars ($10.00) and other good and valuable consideration, the
sufficiency of which is hereby acknowledged.
RELEASE. Releasor releases Releasee and all other persons, firms or corporations
liable or who might be claimed to be liable of all actions, causes of action,
suits, debts, guaranties, dues, sums of money, accounts, reckonings, bonds,
bills, specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, executions, claims, and
demands whatsoever, in law, admiralty or equity, which Releasor and its assigns
ever had, now or hereafter can, shall or may have, known or unknown, against
Releasee and all other persons, firms or corporations liable or who might be
claimed to be liable from the beginning of time through March 7, 2003 with
respect to the business and affairs of Montvale Management LLC, excepting only
those claims, rights or
causes of action of Releasor arising under the Agreement of Purchase and Sale of
Membership Interest by and among Releasor and Releasee dated as of the date
hereof. BINDING EFFECT ON SUCCESSORS AND ASSIGNS. This General Release shall be
construed to bind and benefit not only the named parties, but also their
successors, subsidiaries, affiliates, agents, present and former officers,
directors, employees, shareholders and assigns.
NON-MODIFIABILITY. This General Release shall not be modified, changed,
terminated, amended, superseded, waived, or extended except by written
instrument duly executed by Releasor and Releasee jointly.
SECTION AND OTHER HEADINGS. The section and other headings contained in this
General Release are for reference purposes only and will not in any way affect
the meaning or interpretation of the text of this General Release.
GOVERNING LAW. This General Release will be construed and enforced in accordance
with the laws of the State of New York, without giving effect to the principles
of conflict of laws. Each of the parties hereto irrevocably consent to the
jurisdiction and venue of the Federal and State Courts located in the State of
New York, County of New York.
COUNTERPARTS. This Release may be executed in one or more counterparts, each of
which shall be deemed an original but all of which taken together shall
constitute one and the same instrument.
2
In Witness whereof, the parties hereto have executed this General
Release on March 7, 2003.
RELEASOR:
MONTVALE MANAGEMENT, LLC
By:
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager
MORTGAGE INDUSTRY
CONSULTANTS, LLC
By:
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager
RELEASEES:
TRAFFIX, INC.
By:
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman & CEO
3
EXHIBIT D
---------
MEDIA PURCHASE AGREEMENT
4
MEDIA PURCHASE AGREEMENT
This Agreement ("Agreement") is made and entered into as of March 7,
2003, by and between Traffix Inc., a Delaware corporation, with its principal
place of business located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(hereinafter "Traffix") and Montvale Management, LLC, a Delaware limited
liability company, with its principal place of business located at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter "Client"), and
hereafter sometimes referred to singly as a Party or collectively as the
"Parties".
WHEREAS, Traffix desires to sell and Client desires to buy certain
on-line media and related services, each in accordance with, and subject to, the
terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. MEDIA PURCHASE AND CONSULTING SERVICES. Client agrees to purchase from
Traffix and Traffix agrees to provide the on-line media and related
services from Traffix set forth in Section 2 below commencing on the date
hereof in consideration for payment by Client of the monthly fee set forth
in Section 3 below. It is the Client's objective to achieve from the media
services described in this Agreement at least 400 qualified leads for its
services each month during the Term (the "Marketing Objective"). Nothing
herein constitutes a guarantee or warranty by Traffix that the Marketing
Objective will be achieved.
2. MEDIA SALE & SERVICES. Traffix shall provide its experience and expertise
in assisting Client in the development and design of an on-line marketing
plan involving concept, imaging, copy and offers to consumers for the media
program (the "Marketing Plan") with the goal of optimizing the impact and
results of such Marketing Plan. As part of and subject to completion of the
Marketing Plan, Traffix agrees that it will send no less than 2 million
emails promoting the Client's services during each month of the Term. In
addition, Traffix agrees that it will send out additional emails or post
banner advertisements on its websites in an amount that it deems reasonably
necessary to assist Client in achieving the Marketing Objective consistent
with the Marketing Plan. Client will furnish to Traffix as part of the
Marketing Plan sufficient information and descriptions of the services to
be promoted to enable Traffix to prepare the content of the emails and
banner advertisements referred to in this paragraph.
3. PAYMENT. Client agrees to pay Traffix a fee equal to $40,000 per month
during the term of the Agreement for the media and related marketing
consulting services described in this Agreement; provided, however, such
payments shall be subject to reduction in the order of their priority and
in the amount set forth in Section 6(d) of that certain Agreement of
Purchase and Sale of Membership Interest by and among Traffix, Client and
Mortgage Industry Consultants, LLC dated as of the date hereof (the
"Purchase Agreement").
4. TERM. This Agreement shall have a term of two (2) years.
5. REPRESENTATIONS AND WARRANTIES.
(a) Client represents and warrants that: (i) it has the power and authority to
enter into and perform its obligations under this Agreement; (ii) its
performance hereunder will not violate federal, state or local laws,
regulations and ordinances; and (iii) the contents of the materials
provided or approved by Client for use by Traffix do not infringe on the
rights of any third party and do not violate any law, including, without
limitation, any FTC rules or regulations.
(b) Traffix represents and warrants that: (i) it has the power and authority to
enter into and perform its obligations under this Agreement; and (ii) its
performance hereunder will not violate federal, state or local laws,
regulations and ordinances.
6. INDEMNIFICATION. The Parties agree to indemnify and hold harmless one
another, and their respective affiliates, agents and representatives, and
the respective officers, directors and employees of the Parties and their
affiliates, agents and representatives from and against any and all losses,
damages, liabilities or costs (including reasonable legal fees and court
costs and disbursements) incurred in connection with any third party claims
arising out of the willful misconduct or gross negligence on the part of
the indemnifying Party, its affiliates, agents or representatives. Each
Party shall give prompt notice to the other after the Party receives notice
of any claim for which it claims to be entitled to indemnification under
this Agreement, and the Party obligated to provide indemnification shall
thereafter control the defense of such indemnified claim with counsel
selected by it, subject to the right of the indemnified Party to
participate in such defense at its expense. The indemnified Party shall,
and shall cause its officers, directors, and managers to cooperate fully
with the indemnifying Party and shall appear and give testimony, produce
documents and other tangible evidence, allow the indemnifying Party access
to the books and records of the indemnified Party, and otherwise assist the
indemnifying Party in conducting such defense.
7. GOVERNING LAW; JURISDICTION. This Agreement and all amendments hereto shall
be governed by, construed and enforced in accordance with the internal laws
of the State of New York without reference to principles of conflict of
laws. The parties hereto hereby irrevocably consent to the exclusive
jurisdiction of all Federal and State courts in New York County, New York
in connection with any proceedings brought by Traffix or Client, or their
successors or assigns, in connection with this Agreement.
8. LIMITATIONS OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR
ANY SPECIAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES INCURRED BY THE
OTHER PARTY AND ARISING OUT OF THE PERFORMANCE OF THIS AGREEMENT INCLUDING,
BUT NOT LIMITED TO, LOSS OF GOOD WILL, LOST PROFITS OR INCOME OR LOST
REVENUE WHETHER BASED IN CONTRACT, TORT OR ANY OTHER THEORY, EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCLUDING
DAMAGES ARISING FROM INTENTIONAL
2
MISCONDUCT OR GROSS NEGLIGENCE AND EXCLUDING CLAIMS FOR INDEMNIFICATION
DESCRIBED IN SECTION 6 OF THIS AGREEMENT.
9. NOTICES. Any and all notices, demands or requests required or permitted to
be given under this Agreement shall be given in writing and sent, by
registered or certified U.S. mail, return receipt requested, by hand, or by
overnight courier, addressed to the parties hereto at their addresses set
forth above or such other addresses as they may from time-to-time designate
by written notice, given in accordance with the terms of this Section,
together with copies thereof as follows:
In the case of Client, a copy simultaneously by like means to:
▇▇▇▇▇▇▇▇ ▇▇▇▇ & Brandeis, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Esq.
In the case of Traffix, a copy simultaneously by like means to:
Feder, Kaszovitz, Isaacson, Weber, ▇▇▇▇▇, Bass & Rhine, LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
NOTICE GIVEN AS PROVIDED IN THIS SECTION SHALL BE DEEMED EFFECTIVE: (I) ON
THE DATE HAND DELIVERED, (II) ON THE FIRST BUSINESS DAY FOLLOWING THE
SENDING THEREOF BY OVERNIGHT COURIER, AND (III) ON THE SEVENTH CALENDAR DAY
(OR, IF IT IS NOT A BUSINESS DAY, THEN THE NEXT SUCCEEDING BUSINESS DAY
THEREAFTER) AFTER THE DEPOSITING THEREOF INTO THE EXCLUSIVE CUSTODY OF THE
U.S. POSTAL SERVICE.
10. INDEPENDENT CONTRACTORS. The relationship of the parties created by this
Agreement is that of independent contractors and should not be interpreted
as creating that of employer/employee, principal/agent, partnership, joint
venture, representative of the other or any similar relationship of any
kind whatsoever and each Party is entering into this Agreement as a
principal and not as an agent of the other.
11. ENTIRE AGREEMENT. This Agreement supersedes all prior negotiations and
agreements between the parties, and together with the Purchase Agreement,
constitutes their entire understanding, with respect to the subject matter
contained herein. This Agreement may not be modified except by a subsequent
writing signed by both parties.
12. MODIFICATION/SEVERANCE/WAIVER. The terms of this Agreement may only be
amended
3
by a separate writing signed by the authorized representatives of both
parties, which makes specific reference to this Agreement. If any one or
more of the provisions of this Agreement shall for any reason be held by a
court of competent jurisdiction to be invalid, illegal or unenforceable,
the same shall not affect any of the other portions of this Agreement.
Failure or delay by either party in exercising any right or power hereunder
shall not operate as a waiver of such right or power. No waiver of any
breach of any provision of this Agreement shall constitute a waiver of a
prior, concurrent or subsequent breach of the same or any other provisions
hereof, and no waiver shall be effective unless made in writing and signed
by an authorized representative of the waiving party.
13. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which shall
together constitute one and the same agreement. A faxed signature shall
have the same legally binding effect as an original signature.
4
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Media Purchase Agreement as of the date first above written.
MONTVALE MANAGEMENT, LLC TRAFFIX, INC.
By: By:
--------------------- ---------------------
Name: Name:
--------------------- ---------------------
Title: --------------------- Title: ---------------------
5
EXHIBIT E
---------
NON-COMPETITION AND CONTINUITY OF BUSINESS DEALINGS
UNDERTAKING
UNDERTAKING (this "Undertaking") dated March 7, 2003 by TRAFFIX, INC.,
a Delaware corporation having its principal address at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Seller") in favor of MONTVALE MANAGEMENT, LLC, a
Delaware limited liability company having its principal office at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("Montvale") and MORTGAGE INDUSTRY
CONSULTANTS, LLC, a New York limited liability company, having its principal
office at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("MIC").
W I T N E S S E T H:
WHEREAS, Seller has entered into that certain Agreement of Purchase and
Sale of Membership Interest (the "Agreement"), dated as of the date hereof among
Seller, Montvale, and MIC pursuant to which MIC is to purchase from Seller, and
Seller is to sell to MIC, all of Seller's Rights, title and ownership interest
in the Company (the "Interest");
WHEREAS, Seller will benefit substantially from the sale of its
Interest;
WHEREAS, Seller acknowledges that any breach or threatened breach by it
of this Undertaking will cause irreparable harm which cannot be fully redressed
by the payment of damages; and
WHEREAS, because of the unique nature of Montvale's business, Seller is
required to execute and deliver this Undertaking pursuant to the Agreement in
order to preserve the goodwill and confidential information of the Company.
NOW, THEREFORE, in consideration of the purchase price paid under the
Agreement, the payment to the Seller by MIC of its book value capital account
(the "Book Value") and other good and valuable consideration, the receipt of
which is hereby acknowledged by Seller and in order to induce MIC to purchase
the Interest pursuant to the Agreement and for Montvale to pay the Book Value to
Seller, Seller hereby undertakes and agrees as follows:
1. Seller covenants and agrees that during the period commencing on the
date hereof and ending on November 30, 2003 (the "Limited Period"), Seller will
not, directly or indirectly, in the geographic areas consisting of New Jersey,
New York and South Carolina, engage in or become interested (whether as owner,
principal, agent, stockholder, member, partner, trustee, venturer, lender or
other investor, director, officer, employee, consultant or through the agency of
any corporation, limited liability company, partnership, association or agent or
otherwise), in any business that shall be engaged in the business of operating a
mortgage banking and brokerage business (the "Defined Business"); PROVIDED,
HOWEVER, that nothing contained herein shall prohibit Seller from owning not
more than one percent (1%) of the outstanding securities of
any class of any entity listed on a national securities exchange or traded in
the over-the-counter market or from conducting the business of its marketing
consulting and database development with mortgage banking and brokerage
businesses, including the development of leads for the origination of mortgage
loans by mortgage banks and brokers.
2. Seller agrees that during the Limited Period, Seller will not,
directly or indirectly, participate in the solicitation of any business
encompassed in whole or in part within the Defined Business from any person or
entity that was a client or customer of Montvale during the period that Seller
owned the Interest, subject to the exceptions provided for in Section 1 of this
Agreement.
3. Seller agrees that it shall not during the Limited Period, directly
or indirectly (without first obtaining the written permission of Montvale),
recruit for employment, or induce to terminate his or her employment with
Montvale, any person who was an employee of Montvale as of the date hereof or
any employee hired by Montvale during the Limited Period.
4. Seller agrees that it shall not during the Limited Period, directly
or indirectly, make use of or divulge to any other person, firm or corporation
any trade or business secret, process method or means or any other confidential
information concerning the business or policies of the Company or any subsidiary
thereof. The Seller's obligations shall not apply to any information which (i)
is known publicly; (ii) is in the public domain or hereafter enters the public
domain without the fault of the Seller in breach of this Agreement; (iii) is
known to the Seller prior to or independent of its receipt of such information
from the Company or any of its subsidiaries; (iv) is disclosed to Seller by a
third party not under an obligation of confidence to the Seller; or (v) is
required to be disclosed by law or legal proceeding, provided, however, that in
connection with any disclosure required by law or legal proceeding, Seller shall
provide the company with at least three (3) days prior written notice prior to
making such disclosure (or as promptly as possible should such disclosure be
required in less than three (3) days).
5. If any provision of this Undertaking is held to be unenforceable
because of the scope, duration or area of its applicability, the court making
such determination shall have the power to modify such scope, duration or area
or all of them, and such provision shall then be applicable in such modified
form, and this Undertaking shall be enforced and interpreted as broadly as
possible to give the maximum effect to the restrictive and other provisions of
this Undertaking. The provisions of this Undertaking are severable and the
unenforceability of any provisions herein shall not affect the enforceability of
the other provisions hereof.
6. In the event of a breach or threatened breach of the undertakings
and agreements contained herein, Seller agrees that the injury which would be
suffered by Montvale and MIC would be of a character which could not be fully
compensated for solely by a recovery of monetary damages. Accordingly, Seller
agrees that in the event of a breach or a threatened breach of the undertakings
and agreements contained in this Undertaking, in addition to and not in lieu of
any damages sustained by Montvale and MIC and any other remedies which Montvale
and MIC may pursue hereunder or under any applicable law, Montvale and MIC shall
have the right to equitable relief, including issuance of a temporary or
permanent injunction, by any court of competent jurisdiction against the
commission or continuance of any such breach or threatened breach, without the
necessity of proving any actual damages. In addition to, and not
2
in limitation of the foregoing, Seller understands and confirms that, in the
event of a breach or threatened breach of the undertakings and agreements
contained herein, Montvale and MIC may seek to hold Seller financially liable to
Montvale and MIC for any loss suffered by Montvale and MIC as a result.
7. In any action or proceeding to enforce this Undertaking, the
prevailing party shall be entitled to recover from the other party all
reasonable legal costs and expenses incurred by the prevailing party in such
action or proceeding, including, without limitation, reasonable attorneys' fees
and other legal costs and expenses.
8. This Undertaking shall inure to the benefit of Montvale and MIC and
their successors and assigns, shall be binding upon Seller and may not be
modified or terminated orally.
9. This Undertaking shall be governed by, construed and enforced in
accordance with the internal laws of the State of New York or such other state
where Seller may operate in violation of this Undertaking without reference to
principles of conflict of law.
10. Seller hereby irrevocably consents to the jurisdiction of all
Federal and State courts in New York, New York or such other jurisdiction where
Seller may operate in violation of this Undertaking in connection with any
proceedings brought by the Company, or its successors or assigns, to enforce the
provisions of this Undertaking.
11. This Undertaking may be executed in any number of original or
facsimile counterparts, each of which shall be deemed an original, but all of
which when taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned has caused this Undertaking to be
duly executed as of the date first above written.
TRAFFIX, INC.
By:
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman & CEO
3
EXHIBIT F
---------
PLEDGE AGREEMENT
PLEDGE AGREEMENT (this "Pledge Agreement") is made and entered into on
March 7, 2003 by Mortgage Industry Consultants, LLC, a New York limited
liability company, having its principal office at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Pledgor") in favor of Traffix, Inc., a Delaware
corporation, having its principal office at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Secured Party").
WITNESSETH:
WHEREAS, Pledgor, the Secured Party and Montvale Management, LLC, a
Delaware limited liability company (the "Company") have entered into that
certain Agreement of Purchase and Sale of Membership Interest dated the date
hereof (the "Purchase Agreement") pursuant to which Pledgor acquired on the date
hereof from Secured Party, a 51% membership interest in the Company (the
"Membership Interest");
WHEREAS, in connection with the consummation of the purchase of the
Membership Interest and as the consideration for the sale of the Membership
Interest, the Secured Party shall (i) have issued a Promissory Note of Pledgor,
of even date herewith, in the principal amount of $600,000, in favor of the
Secured Party (the "PROMISSORY NOTE") and (ii) be entitled to receive from the
Company its book value capital account, as set forth in Section 6 of the
Purchase Agreement (the "Capital Account Payment") and
WHEREAS, to induce Secured Party to enter into the Purchase Agreement
and sell the Membership Interest to Pledgor, the Pledgor hereby agrees to make
the pledge set forth herein to secure the obligations under the Promissory Note
and the obligation of the Company to make the Capital Account Payment.
NOW, THEREFORE, in consideration of the premises and in order to induce
the Secured Party to enter into the Purchase Agreement, the Pledgor hereby
agrees with the Secured Party as follows:
1. PLEDGE. The Pledgor hereby pledges to and for the benefit of the
Secured Party, and grants to the Secured Party, a security interest in, the
following collateral (the "Pledged Collateral"):
(i) all of Pledgor's right, title and interest in and
to the Membership Interest, (ii) all documents, instruments and certificates
representing or evidencing the Pledgor's Membership Interest in the Company and
(iii) all of the Pledgor's right as a member of the Company to receive, upon
complete or partial liquidation, distributions of the Company's assets.
2. SECURITY FOR OBLIGATIONS. This Pledge Agreement (and all of the
Pledged Collateral) secures the payment of the Promissory Note, and the
obligation of the Company to remit the Capital Account Payment, in each case
including any costs or expenses incurred in connection therewith and any other
liabilities arising pursuant thereto (including, without
limitation, any and all expenses (including attorneys fees and disbursements of
counsel) which may be paid or incurred by the Secured Party in enforcing any
rights with respect to, or collecting against, the Pledgor under this Pledge
Agreement, the Promissory Note, or the Purchase Agreement) and, without
duplication, all amounts which may become payable after the occurrence of any
default or breach under the Promissory Note owing to the Secured Party
(collectively, the "Secured Obligations").
3. DELIVERY OF PLEDGED COLLATERAL.
(a) All certificates or instruments, if any, representing or
evidencing the Pledged Collateral shall be delivered to and held by or on behalf
of the Secured Party pursuant hereto and shall be in suitable form for transfer
by delivery, or shall be accompanied by duly executed instruments of transfer or
assignment in blank, all in form and substance reasonably satisfactory to the
Secured Party.
(b) All certificates or instruments representing or evidencing the
Pledged Collateral shall, at all times, contain a legend to the effect as
follows:
"THE MEMBERSHIP INTEREST REPRESENTED HEREBY IS SUBJECT TO THAT CERTAIN
PLEDGE AGREEMENT DATED AS OF MARCH 7, 2003 (THE "PLEDGE AGREEMENT") BETWEEN
MORTGAGE INDUSTRY CONSULTANTS, LLC, AS PLEDGOR, AND TRAFFIX, INC., AS THE
SECURED PARTY, AND THE MEMBERSHIP INTEREST REPRESENTED HEREBY MAY NOT BE SOLD,
CONVEYED OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE PLEDGE
AGREEMENT, COPIES OF WHICH ARE AVAILABLE FROM MONTVALE MANAGEMENT, LLC."
In addition, the Secured Party shall have the right at any time, in
connection with exercising its rights hereunder, to exchange certificates or
instruments, if any, representing or evidencing Pledged Collateral for
certificates or instruments of smaller or larger denominations containing the
legend set forth above.
(c) The Secured Party shall have the right, at any time in its
reasonable discretion, following a Pledge Default (as defined herein), to
transfer to or to register in the name of the Secured Party or any of its
nominees any or all of the Pledged Collateral. As used herein, the term "Pledge
Default" shall mean the occurrence of any default under the Promissory Note or
under Section 6 of the Purchase Agreement, which default is not remedied within
twenty (20) days of Secured Party's written notice to Pledgor of such
occurrence.
4. NEGATIVE COVENANTS. Until the Pledge Termination Time (as defined in
SECTION 15 hereof), the Pledgor shall not create, incur, assume or suffer to
exist, any Lien or other type of encumbrance on any of the Pledged Collateral.
For purposes of this Pledge Agreement, "LIEN" shall mean any lien, claim,
charge, pledge, security interest, assignment, hypothecation, deed of trust,
mortgage, lease, conditional sale, retention of title, or other preferential
arrangement having substantially the same economic effect as any of the
foregoing, whether voluntary or imposed by law. Notwithstanding the foregoing to
the contrary, the Secured Party hereby agrees to subordinate its security
interest in the Pledged Collateral to any financial institution advancing
2
funds to the Pledgor, and shall enter into any agreements reasonably requested
by such financial institution to reflect such subordination, including, without
limitation, an intercreditor agreement pursuant to which it subordinates its
security interest in the Pledged Collateral to such financial institution.
5. REPRESENTATIONS AND WARRANTIES. The Pledgor represents and warrants
as follows:
(a) The Pledgor has the requisite power and authority to execute,
deliver and perform its obligations under this Pledge Agreement. All membership,
committee or other action on the part of the Pledgor necessary for the
execution, delivery and performance of this Pledge Agreement has been taken.
(b) This Pledge Agreement is the legal, valid and binding obligation
of the Pledgor, enforceable in accordance with its terms.
(c) The execution, delivery and performance of this Pledge Agreement
is not in contravention of any law, rule or regulation applicable to Pledgor or
any indenture, contract, lease, agreement, instrument or other commitment to
which the Pledgor is a party or by which the Pledgor or any of its properties
are bound and will not result in the imposition of any Lien or other type of
encumbrance upon any of the property of the Pledgor other than in favor of the
Secured Party.
(d) No consent of any other party (including, without limitation,
any equity holder or creditor of the Pledgor) and no governmental authorization,
consent, permit or filing which has not yet been obtained or made is required
either (i) for the pledge by the Pledgor of the Pledged Collateral pursuant to
this Pledge Agreement or for the execution, delivery or performance of this
Pledge Agreement by the Pledgor or (ii) under any agreement or document to which
the Pledgor is a party, for the exercise by the Secured Party of the voting or
other rights provided for in this Pledge Agreement or the remedies in respect of
the Pledged Collateral pursuant to this Pledge Agreement (except as may be
required in connection with such disposition by laws affecting the offering and
sale of securities generally or the Uniform Commercial Code as in effect in the
applicable jurisdiction).
6. FURTHER ASSURANCES. Subject to all of the terms and limitations set
forth herein, the Pledgor agrees that at any time and from time to time, at the
expense of the Pledgor, the Pledgor will promptly execute and deliver all
further instruments and documents, and take all further action, that may be
necessary or that the Secured Party may reasonably request, in order to perfect
and protect any security interest granted or purported to be granted hereby or
to enable the Secured Party to exercise and enforce its rights and remedies
hereunder with respect to any Pledged Collateral and to carry out the provisions
and purposes hereof.
7. VOTING RIGHTS: DIVIDENDS.
(a) So long as no Pledge Default shall have occurred, the Pledgor
shall be entitled to exercise any and all voting and other consensual rights,
including the right to distributions pertaining to the Pledged Collateral or any
part thereof.
3
(b) Upon the occurrence of and during the continuance of a Pledge
Default, all rights of the Pledgor to exercise the voting and other consensual
rights which it would otherwise be entitled to exercise pursuant to SECTION 7(A)
shall cease, and all such rights shall, upon written notice by the Secured Party
to the Pledgor, become vested in the Secured Party who shall thereupon have the
sole right to exercise such voting and other consensual rights until the Pledge
Default shall be cured.
8. SUBSEQUENT CHANGES AFFECTING COLLATERAL; TRANSFERS AND OTHER LIENS;
ADDITIONAL SHARES.
(a) The Pledgor agrees that it will not (i) sell or otherwise
dispose of, or grant any option with respect to, any of the Pledged Collateral,
or (ii) create or permit to exist any Lien upon or with respect to any of the
Pledged Collateral, except hereby or as set forth in Section 4 hereof.
(b) The Pledgor agrees that it will deliver hereunder, promptly upon
its acquisition (directly or indirectly) thereof, any and all writings
evidencing any Membership Interest.
9. SECURED PARTY APPOINTED ATTORNEY-IN-FACT. The Pledgor hereby
appoints the Secured Party the Pledgor's attorney-in-fact, effective only upon
the occurrence and during the continuance of a Pledge Default, with full
authority in the place and stead of the Pledgor and in the name of the Pledgor
or otherwise, from time to time to take any action and to execute any instrument
which the Secured Party may reasonably deem necessary or advisable to accomplish
the purposes of this Pledge Agreement, including, without limitation, to
receive, endorse and collect all instruments made payable to the Pledgor
representing any dividend or other distribution in respect of the Pledged
Collateral or any part thereof.
10. SECURED PARTY MAY PERFORM. If the Pledgor fails to perform any
agreement contained herein, the Secured Party may (but shall have no obligation
to) itself perform, or cause performance of, such agreement.
11. SECURED PARTY'S DUTIES: REASONABLE CARE. The powers conferred on
the Secured Party hereunder are solely to protect its interest in the Pledged
Collateral and shall not impose any duty on it to exercise any such powers.
Except for the safe custody of any Pledged Collateral in its possession and the
accounting for monies actually received by it hereunder, the Secured Party shall
have no duty as to any Pledged Collateral. The Secured Party shall be deemed to
have exercised reasonable care in the custody and preservation of the Pledged
Collateral in its possession if the Pledged Collateral is accorded treatment
that is not materially less protective to that which the Secured Party accords
its own property, it being expressly agreed that Secured Party shall have no
responsibility for taking any necessary steps to preserve rights against any
parties with respect to any Pledged Collateral, but the Secured Party may do so
at its option and all reasonable expenses incurred in connection therewith shall
be payable by and for the sole account of the Pledgor.
12. REMEDIES UPON PLEDGE DEFAULT. If any Pledge Default shall have
occurred and is continuing:
4
(a) Secured Party may exercise in respect of the Pledged Collateral,
subject to the notice specified below, in addition to other rights and remedies
provided for herein or otherwise available to it, all the rights and remedies of
a secured party under the Uniform Commercial Code (the "CODE") in effect in the
State of New York at that time, and the Secured Party may also, subject to
applicable laws affecting securities, sell the Pledged Collateral or any part
thereof at public or private sale, at any exchange, broker's board or at any of
the Secured Party's offices or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as the Secured Party may deem commercially
reasonable. The Pledgor acknowledges and agrees that any such private sale may
result in prices and other terms less favorable to the seller than if such sale
were a public sale. The Secured Party shall give Pledgor at least ten (10) days'
advanced written notice of any action it seeks to take with respect to the
Pledged Collateral hereunder, including, in respect of any public sale, the time
and place of any such proposed sale. The Secured Party shall not be obligated to
make any sale of Pledged Collateral regardless of notice of sale having been
given. The Secured Party may adjourn any public or private sale from time to
time by announcement at the time and place fixed therefore, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned.
(b) Any cash held by the Secured Party as Pledged Collateral and all
cash proceeds received by the Secured Party in respect of any sale of,
collection from, or other realization upon all or any part of the Pledged
Collateral shall be applied against all or any part of the Secured Obligations
in such order as the Secured Party shall elect. Any surplus of such cash or cash
proceeds held by the Secured Party and remaining after payment in full of all
the Secured Obligations shall be paid over to the Pledgor or to whomsoever may
be lawfully entitled to receive such surplus or as a court of competent
jurisdiction may direct.
13. REMEDIES CUMULATIVE, ETC. Each right, power and remedy of the
Secured Party provided in this Pledge Agreement or now or hereafter existing at
law or in equity or by statute or otherwise shall be cumulative and concurrent
and shall be in addition to every other right, power or remedy provided for in
this Pledge Agreement or now or hereafter existing at law or in equity or by
statute or otherwise. The exercise or partial exercise by the Secured Party of
any one or more of such rights, powers or remedies shall not preclude the
simultaneous or later exercise by the Secured Party of all such other rights,
powers or remedies, and no failure or delay on the part of the Secured Party to
exercise any such right, power or remedy shall operate as a waiver thereof.
14. SECURITY INTEREST ABSOLUTE. All rights of the Secured Party and
security interests hereunder, and all obligations of the Pledgor hereunder,
shall be absolute and unconditional irrespective of:
(i) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Secured Obligations, or any other
amendment or waiver of or any consent to any departure from the documents
evidencing the Secured Obligations;
(ii) any exchange, surrender, release or non-perfection of any
other collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Secured Obligations; or
5
(iii) any other circumstance which might otherwise constitute
a defense available to, or a discharge of, the Pledgor or a third party pledgor.
15. TERMINATION. Following the indefeasible payment in full in cash of
all Secured Obligations (such time, the "PLEDGE TERMINATION TIME"), this Pledge
Agreement shall automatically terminate and the Secured Party shall, immediately
execute and deliver to the Pledgor a proper instrument or instruments
acknowledging the termination of this Pledge Agreement and Secured Party shall
immediately deliver the Pledged Collateral to Pledgor.
16. AMENDMENTS. WAIVERS AND CONSENTS. No amendment, modification or
waiver of, or consent with respect to, any provision of this Pledge Agreement
shall be effective unless in writing referencing this Pledge Agreement and
signed by the Secured Party and the Pledgor.
17. CONTINUING SECURITY INTEREST: TRANSFER OF NOTES. This Pledge
Agreement shall create a continuing security interest in the Pledged Collateral
and shall (i) remain in full force and effect until the Pledge Termination Time,
(ii) be binding upon the Pledgor, the Secured Party and their permitted
successors and assigns, and (iii) inure, together with the rights and remedies
of the Secured Party hereunder, to the benefit of the Secured Party and its
permitted successors, transferees and assigns.
18. WAIVER. To the fullest extent it may lawfully so agree, the Pledgor
agrees that it will not at any time insist upon, claim, plead, or take any
benefit or advantage of any appraisement, valuation, stay, extension,
moratorium, redemption or similar law now or hereafter in force in order to
prevent, delay, or hinder the enforcement hereof or the absolute sale of any
part of the Pledged Collateral; the Pledgor for itself and all who claim through
it, so far as it or they now or thereafter lawfully may do so, hereby waives the
benefit of all such laws, and all right to have the Pledged Collateral
marshalled upon any foreclosure hereof, and agrees that any court having
jurisdiction to foreclose this Pledge Agreement may order the sale of the
Pledged Collateral in its entirety.
19. SEVERABILITY. The provisions of this Pledge Agreement are
severable, and if any clause or provision shall be held invalid or unenforceable
in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction and shall not in any manner affect such clause or provision in
any other jurisdiction, or any other clause or provision of this Pledge
Agreement in any jurisdiction.
20. SURVIVAL OF PROVISIONS. All representations, warranties and
covenants of the Pledgor contained herein shall survive the execution and
delivery of this Pledge Agreement, and shall terminate only upon the occurrence
of the Pledge Termination Time.
21. HEADINGS DESCRIPTIVE. The headings in this Pledge Agreement are for
purposes of reference only and shall not limit or otherwise affect the meaning
or construction or any provision of this Pledge Agreement.
22. ENTIRE AGREEMENT. This Pledge Agreement, together with any other
agreement executed in connection herewith, is intended by the parties as a final
expression of their agreement and is intended as a complete and exclusive
statement of the terms and conditions thereof with respect to the matters
covered hereby. Acceptance of or acquiescence in a course of
6
performance rendered under this Pledge Agreement shall not be relevant to
determine the meaning of this Pledge Agreement even though the accepting or
acquiescing party had knowledge of the nature of the performance and opportunity
for objection.
23. COUNTERPARTS. This Pledge Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall
together constitute one and the same agreement.
24. GOVERNING LAW. THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED BOTH AS TO VALIDITY AND ENFORCEABILITY IN ACCORDANCE WITH THE LAWS OF
NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS THEREOF THAT COULD
CAUSE THE LAW OF ANY STATE OTHER THAN THE STATE OF NEW YORK TO APPLY.
25. SUBMISSION TO JURISDICTION. THE PARTIES HERETO HEREBY IRREVOCABLY
CONSENT TO THE EXCLUSIVE JURISDICTION OF ALL FEDERAL AND STATE COURTS IN NEW
YORK COUNTY, NEW YORK IN CONNECTION WITH ANY PROCEEDINGS BROUGHT BY SELLER,
PURCHASER OR THE COMPANY, OR THEIR SUCCESSORS OR ASSIGNS, IN CONNECTION WITH
THIS AGREEMENT.
26. NOTICES. Any and all notices, demands or requests required or
permitted to be given under this Pledge Agreement shall be given in writing and
sent, by registered or certified U.S. mail, return receipt requested, by hand,
or by overnight courier, addressed to the parties hereto at their addresses set
forth above or such other addresses as they may from time-to-time designate by
written notice, given in accordance with the terms of this Section, together
with copies thereof as follows:
7
In the case of Pledgor, a copy simultaneously by like means to:
▇▇▇▇▇▇▇▇ ▇▇▇▇ & Brandeis, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Esq.
In the case of Secured Party, a copy simultaneously by like means to:
Feder, Kaszovitz, Isaacson, Weber, ▇▇▇▇▇, Bass & Rhine, LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Notice given as provided in this Section shall be deemed effective: (i) on the
date hand delivered, (ii) on the first business day following the sending
thereof by overnight courier, and (iii) on the seventh calendar day (or, if it
is not a business day, then the next succeeding business day thereafter) after
the depositing thereof into the exclusive custody of the U.S. Postal Service.
27. CONSENT TO TRANSFER. Montvale Management, LLC by its signature
below agrees and consents to the terms of this Agreement; and each of Montvale
Management, LLC and Pledgor further agrees that the Secured Party may exercise
its rights under this Agreement, including its right to transfer the Collateral
to itself or its nominees or to sell and transfer the Collateral to any other
party, without notice to the undersigned (except for any notice the Pledgor is
required to give under this Agreement or by law), and in the event of the
exercise of such rights by the Secured Party, each of the undersigned hereby
waives for itself and its successors and assigns any right of first refusal,
"come-along-take along" or similar right to acquire the Membership Interest or
sell any Membership Interest under the Certificate of Formation, Operating
Agreement or any other agreement, document or instrument to which the Membership
Interest may be subject now or after the date hereof.
8
IN WITNESS WHEREOF, the Pledgor has caused this Pledge Agreement to be
duly executed and delivered as of the date first above written.
MORTGAGE INDUSTRY CONSULTANTS, LLC
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager
TRAFFIX, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman & CEO
MONTVALE MANAGEMENT, LLC
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager
9
EXHIBIT G
---------
GUARANTY
FOR GOOD AND VALUABLE CONSIDERATION paid by Traffix, Inc., a Delaware
corporation having its principal office at One ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (the "GUARANTEED PARTY"), the receipt and sufficiency of which are
hereby acknowledged, Mortgage Industry Consultants, LLC, a New York limited
liability company, having its principal office at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ("GUARANTOR"), hereby unconditionally, absolutely and
irrevocably guarantees to the Guaranteed Party, its successors and assigns, the
obligation of Montvale Management, LLC, a Delaware limited company, having its
principal office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
(the "Company") to pay to the Guaranteed Party the Book Value Capital Account as
set forth in Section 6 of that certain Agreement of Purchase and Sale of
Membership Interest by and among the Guaranteed Party, the Company and the
Guarantor dated March 7, 2003 (the "Agreement"). Guarantor hereby covenants and
agrees that if the Company shall default in its obligations under Section 6 of
the Agreement, Guarantor shall and will forthwith pay to the Guaranteed Party
the amount due and owing under Section 6 of the Agreement. All terms utilized
herein and not otherwise defined shall have the same meaning as set forth in the
Agreement.
All of the Guaranteed Party's rights and remedies under this Guaranty
are intended to be distinct, separate and cumulative and no such right or remedy
herein mentioned is intended to be in exclusion of or waiver of any of the
others. This Guaranty and/or any of the provisions hereof cannot be modified,
waived or terminated unless such modification, waiver or termination is in
writing, signed by the Guaranteed Party and the Guarantor.
Guarantor covenants and agrees that in any action or proceeding brought
on, under or by virtue of this Guaranty, Guarantor shall and does hereby waive
(i) any defense of lack of consideration and (ii) trial by jury. This Guaranty
shall be enforced and construed in accordance with the internal laws of the
State of New York (without regard to principles of conflicts of law) and shall
be binding upon Guarantor, its successors and assigns and shall inure to the
benefit of the Guaranteed Party, its successors and assigns. The parties hereto
irrevocably consent to the exclusive venue and jurisdiction of all Federal and
State courts located in the State of New York, County of New York, in connection
with any proceedings brought by the parties in connection with this Guaranty.
Guarantor hereby guarantees that the Guarantor's obligations hereunder
will be paid in lawful currency of the United States of America and in
immediately available funds.
The Guaranteed Party shall be entitled to its reasonable attorneys'
fees in connection with the successful enforcement of this Guaranty.
Guarantor hereby irrevocably and expressly waives acceptance hereof,
diligence, presentment and protest and any requirement that at any time any
right or power be exhausted or any action be taken by any person against the
Company or any other person and all notices and demands whatsoever.
Any and all notices, demands or requests required or permitted to be
given under this Agreement shall be given in writing and sent, by registered or
certified U.S. mail, return receipt requested, by hand, or by overnight courier,
addressed to the parties hereto at their addresses set forth above or such other
addresses as they may from time-to-time designate by written notice, given in
accordance with the terms of this Section, together with copies thereof as
follows:
In the case of Purchaser or the Company, a copy simultaneously by like
means to:
▇▇▇▇▇▇▇▇ ▇▇▇▇ & Brandeis, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Esq.
In the case of Seller, a copy simultaneously by like means to:
Feder, Kaszovitz, Isaacson, Weber, ▇▇▇▇▇, Bass & Rhine, LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Notice given as provided in this Section shall be deemed effective: (i) on the
date hand delivered, (ii) on the first business day following the sending
thereof by overnight courier, and (iii) on the seventh calendar day (or, if it
is not a business day, then the next succeeding business day thereafter) after
the depositing thereof into the exclusive custody of the U.S. Postal Service.
2
IN WITNESS WHEREOF, the parties hereto have executed this Guaranty as of
March 7, 2003.
GUARANTOR:
MORTGAGE INDUSTRY CONSULTANTS, LLC
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager
GUARANTEED PARTY:
TRAFFIX, INC.
By:
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman & CEO
3
EXHIBIT H
---------
TERMINATION AGREEMENT
TERMINATION AGREEMENT (this "Termination Agreement") entered into as of
the __ day of March, 2003, by and among Home Star Mortgage Services, LLC, a
Delaware corporation having an address at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ("Home Star") and Traffix, Inc., a Delaware corporation, having an address
at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Traffix").
WHEREAS, as of October, 2001, Traffix granted to Home Star the option
to acquire the entire membership interest of Traffix in Montvale Management, LLC
(the "Company") pursuant to that certain Option to Acquire Membership Interest
of Traffix, Inc. in Montvale Management LLC (the "Option Agreement"); and
WHEREAS, Traffix and Home Star desire to terminate the Option
Agreement.
NOW THEREFORE, in consideration of the premises and mutual covenants
and agreements herein contained, the parties hereby covenant and agree as
follows:
1. Subject to Section 4 hereof, Traffix and Home Star hereby agree
that the Option Agreement shall be terminated.
2. This Termination Agreement may be executed in any number of
counterparts, each of which taken together shall be deemed to be one original.
3. This Termination Agreement shall be governed by, construed and
enforced in accordance with the internal laws of the State of New York, without
giving reference to principles of conflict of laws.
4. This Termination Agreement shall only be effective upon the
acquisition by Mortgage Industry Consultants, LLC ("MIC") of the entire
membership interest of Traffix in the Company pursuant to that certain Agreement
of Purchase and Sale of Membership Interest by and any Traffix, MIC and the
Company dated as of March 7, 2003 (the "Acquisition").
4
IN WITNESS WHEREOF, the parties hereto have caused this Termination
Agreement to be duly executed as of the date first above written.
HOME STAR MORTGAGE SERVICES, LLC
By:
-------------------------------
Name:
Title:
TRAFFIX, INC.
By:
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman & CEO
5