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EXHIBIT 10.22
ACQUISITION AGREEMENT
Agreement dated as of April 1, 1997 among Cash Back Acquisition Corp.,
a Delaware corporation ("Buyer"), and Cash Back Mortgage Corp., an Ohio
corporation ("Seller") and ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ (the "Stockholders").
WHEREAS, Seller is engaged in the business of originating
mortgage loans; and
WHEREAS, Buyer, a newly-organized wholly-owned subsidiary of Credit
Depot Corporation, desires to purchase and Seller desires to sell, all of the
assets, properties and business, except as otherwise set forth herein, of
Seller, on the terms and conditions hereinafter set forth; and
WHEREAS, the Stockholders own all of the issued and outstanding shares
of Seller and, in order to induce Buyer to enter this Agreement, have agreed to
enter into certain agreements with the Buyer;
WHEREAS, the parties intend that the transaction be treated as a
tax-free reorganization for Federal income tax purposes.
NOW, THEREFORE in consideration of the premises and the mutual
representations, warranties, covenants and agreements herein contained, the
parties, intending to be legally bound hereby, hereby agree as follows:
1. Definitions.
As used in this Agreement, the following terms have the meanings
specified or referred to in this Section 1.
"Assets" -- See Section 2.1.
"Assumption Agreement" -- See Section 2.5.
"Balance Sheets" -- See Section 5.7.
"Business and Condition" -- The business, operations, properties,
assets, material contracts, cash flow, revenues, net income, prospects or
condition (financial or otherwise) of the Seller.
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"Business Day" -- Any day that is not a Saturday or Sunday or a day on
which banks located in the City of Atlanta are authorized or required to be
closed.
"Buyer" -- See the first paragraph of this Agreement.
"Closing" -- See Section 4.1.
"Closing Date" -- The date and time of the Closing.
"Closing Price" -- The Closing Price shall be determined as
follows:
(a) If the Common Stock is listed on a national securities exchange or
admitted to unlisted trading privileges on such exchange or listed for trading
on the Nasdaq Stock Market system, the current market value shall be the last
reported sale price of the Common Stock on such exchange or system or if no such
sale is made, the average closing bid and asked prices; or
(b) If the Common Stock is not so listed or admitted to unlisted
trading privileges but bid and asked prices are reported by the National
Quotation Bureau, Inc., the current market value shall be the mean of the last
reported bid and asked prices reported by the National Quotation Bureau, Inc.;
or
(c) If the Common Stock is not so listed or admitted to unlisted
trading privileges and bid and asked prices are not so reported, the current
market value shall be an amount, not less than book value thereof as at the end
of the most recent fiscal year of Credit Depot, determined in such reasonable
manner as may be prescribed by the Board of Directors of Credit Depot. The
parties agree that if there is a dispute as to the determination of fair market
value under this subparagraph (c), such dispute shall be submitted to
arbitration by an arbitrator mutually agreeable to Seller and Buyer or if one
cannot be agreed upon, by an arbitrator appointed by the American Arbitration
Association.
"Code" -- The Internal Revenue Code of 1986, as amended.
"Contemplated Transactions" -- The sale of the Assets by Seller to
Buyer, the purchase of the Assets by Buyer from Seller, the operation of the
business conducted by Seller prior to the Closing by Buyer after the Closing,
and performance of and compliance with all agreements contained in this
Agreement.
"Damages" -- See Section 11.3.
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"Employment Agreements" -- The employment agreements
referred to in Section 9.10.
"Encumbrance" -- Any security interest, mortgage, lien, charge, adverse
claim or restriction of any kind, including, but not limited to, any restriction
on the use, voting, transfer, receipt of income or other exercise of any
attributes of ownership.
"Excluded Assets" -- See Section 2.2.
"GAAP" -- Generally accepted accounting principles of the
United States.
"Guaranty" -- The Guaranty of Guarantor attached to this
Agreement.
"Guarantor" -- Credit Depot Corporation.
"Interim Balance Sheet" -- See Section 5.7.
"Non-Competition Agreements" -- See Section 9.11.
"Person" -- Any individual, corporation, partnership, joint venture,
trust, association, unincorporated organization, other entity, or governmental
body.
"Plans" -- See Section 5.21(a).
"Proprietary Rights" -- All trademarks, tradenames, service marks,
brand marks, brand names, copyrights, know-how, names and likeness and other
proprietary rights.
"Related Party" -- (a) Seller, (b) Stockholders, (c) any individual who
is a director or officer of the Seller, (d) any member of the family (as defined
in section 267(c)(4) of the Code) of, or any individual who has the same home
as, any individual (or the spouse of any such individual) described in clause
(a), (b) or (c) of this section, or (e) any trust, estate or partnership of
which an individual described in clause (a), (b), (c) or (d) of this section is
a grantor, fiduciary, beneficiary or partner.
"Securities Act" -- the Securities Act of 1933, as amended.
"SEC" -- the Securities and Exchange Commission.
"Seller" -- See the first paragraph of this Agreement.
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"Stockholders" -- See the first paragraph of this Agreement.
"Taxes" -- All taxes, duties, charges, fees, levies, interest,
penalties, additions to tax or other assessments, including, but not limited to,
income, excise, employment, property, sales, withholding, use, value added and
franchise taxes and customs duties, imposed by any governmental body and any
payments with respect thereto required under any tax-sharing agreement.
"Tax Returns" -- Any return, report, information return or other
document (including any related or supporting information) filed or required to
be filed with any governmental body in connection with the determination,
assessment or collection of any Taxes or the administration of any laws,
regulations or administrative requirements relating to any Taxes.
2. The Acquisition.
2.1 Purchase and Sale of Assets. Subject to the terms and conditions of
this Agreement and the performance by the parties hereto of their respective
obligations hereunder, at the Closing (as defined in Section 4.1 hereof), Seller
shall sell, grant, transfer, convey, assign and deliver to Buyer, and Buyer
shall purchase, acquire and accept from the Seller, all of the Seller's right,
title and interest in and to all of the assets, properties and rights of Seller
of every kind and description, real, personal and mixed, tangible and
intangible, wherever situated, other than the Excluded Assets, including without
limitation, cash and cash equivalents, the business and operations of Seller as
a going concern, good will, causes of action, all other claims and rights of
every kind, insurance policies, Proprietary Rights, all licenses of the Seller
and all rights relating to or arising out of the business conducted by Seller,
all books and records, computers and computer software (including documentation
and related object and source codes), correspondence, employment records and
files of or relating to the business or assets of Seller and all of Seller's
right, title and interest in and to each lease, contract, agreement or
commitment to which Seller is a party or in which Seller has rights and the name
"Cash Back Mortgage Corp.", and all derivatives thereof and all goodwill
associated therewith (which business, assets, properties and rights, excepting
only those assets expressly excluded by Section 2.2 below, are herein referred
to as the "Assets").
2.2 Excluded Assets. It is hereby expressly acknowledged
and agreed that Seller is not selling, transferring or assigning
to Buyer, and that Buyer is not acquiring, the assets and
properties listed on Schedule 2.2 hereof.
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2.3 Transfer of Assets. The transfer of the Assets as herein provided
shall be effected by bills of sale, endorsements, assignments, drafts, checks
and other instruments of transfer and conveyance delivered by Seller to Buyer on
the Closing Date (as defined in Section 4.1 hereof) in form sufficient to
transfer good and marketable title to the Assets free and clear of all
Encumbrances and as shall be reasonably requested by Buyer. Seller and
Stockholders hereby covenant and agree that (i) they will, at any time and from
time to time after the Closing Date, do all such further acts and things as may
be reasonably requested by Buyer for the effective transferring and delivering
to Buyer, or for aiding and assisting Buyer in collecting and reducing to
possession, any and all of the Assets; (ii) Buyer, after the Closing Date, shall
have the right and authority to collect, for the account of Buyer, all checks,
notes and other evidences of indebtedness or obligations to make payment of
money and other items relating to the Assets as provided herein and to endorse
with the name of Seller, any such checks, notes or other instruments received
after the Closing Date; and (iii) Seller will transfer and deliver to Buyer any
cash or other property that Seller may receive after the Closing Date in respect
of or arising out of the Assets.
2.4 Third Party Consents. At the election of Buyer, the execution and
delivery of this Agreement by Seller shall not constitute an agreement to assign
any contract, license, lease, commitment, sales order, purchase order or other
agreement, or any claim, right or benefit thereunder, if the assignment thereof
requires the consent of any third party and such consent is not obtained. If any
such consent or approval is required to be obtained for Buyer to effectively
acquire all of the Assets and such consent is not obtained or to enable Buyer to
conduct the business conducted by Seller prior to the Closing, the Seller and
Stockholders, if requested by Buyer, shall cooperate with Buyer in any legal and
reasonable arrangement to provide for Buyer the benefits under any such
contract, license, lease, commitment, sales order, purchase order or other
agreement. The Seller and Stockholders covenant and agree that after the Closing
Date, if requested by Buyer, the Seller and Stockholders will use their best
efforts to obtain the consent and approvals of any parties to, and any
governmental agencies or other persons or entities concerned with, any material
contracts, licenses, leases, commitments, sales orders, purchase orders or other
agreements or rights being assigned by Seller to Buyer hereunder.
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2.5 Assumption of Liabilities.
(a) Liabilities Assumed by Buyer. Upon the Closing, Buyer
shall assume and become liable for the following obligations and liabilities,
provided however that in no event shall Buyer be deemed to assume any of the
obligations set forth in Section 2.5(b):
(i) All liabilities and obligations of Seller
which have been incurred with respect to the business of Seller and which are
reflected in the Recent Balance Sheet (as defined in Section 5.7) and which
continue to exist on the Closing Date;
(ii) Accounts payable which have been incurred in
connection with the business of Seller arising since the date of the Recent
Balance Sheet incurred in the ordinary course of business and consistent in type
and scope to those reflected in the Recent Balance Sheet, which may include
legal fees and disbursements and accounting fees and disbursements incurred in
connection with the Contemplated Transactions and which shall not include any
other fees and expenses relating to the Contemplated Transactions;
(iii) All liabilities and obligations under the
contracts and commitments listed in Schedule 2.5, but only to the extent that
the liabilities and obligations under such contracts and commitments arise out
of actions or events occurring after the Closing Date.
(b) Excluded Liabilities. Notwithstanding the provisions of
Section 2.5(a), Buyer does not assume or agree to pay, perform or discharge any
liability or obligations relating to (i) Taxes; (ii) any liabilities under
Section 2.5(a)(i) and (ii) in excess of $375,000 (and any such excess
liabilities shall be retained by Seller), provided that if the amount of such
liabilities is less than $375,000, the liabilities of Seller to be assumed by
Buyer shall include other liabilities of Buyer relating to, and arising in the
ordinary course of, the business of Seller, which should have been included on
the Recent Balance Sheet but were omitted therefrom, but only to the extent that
the total liabilities assumed under Sections 2.5(a)(i) and 2.5(a)(ii) and such
other liabilities do not exceed $375,000; (iii) any obligations of any kind
whatsoever incurred by Seller after the Closing Date (other than actions taken
in accordance with Section 2.6 of the Agreement); (iv) any and all liabilities
arising or resulting from Seller's defaults or breaches prior to the Closing
Date under any lease, sublease, contract or other agreements; (v) any
liabilities to any present or former stockholders of Seller, except that amounts
included in Section 2.5(a)(i) and
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(ii) which are due from the Company to stockholders to reimburse them for
amounts charged on their personal credit cards or loaned to the Company (in the
amount set forth in Schedule 2.5(b)), will be included as Assumed Liabilities,
provided that payment of any such amounts shall be subject to the limitations
set forth in Section 2.5(b); and (vi) any claims, liabilities, or other
obligations for violations of applicable law or regulation resulting from acts
or omissions prior to the Closing Date of Seller.
(c) Assumption Agreement; Effect. The assumption by Buyer of
the liabilities and obligations set forth in Section 2.5 hereof shall be
effected by such instrument or instruments of assumption delivered by Buyer to
Seller on the Closing Date as shall be reasonably requested by Seller
("Assumption Agreement"). Assumption by Buyer of the liabilities set forth in
Section 2.5 (hereinafter referred to as the "Assumed Liabilities") shall in no
way expand the rights or remedies of third parties against Buyer as compared to
the rights or remedies which such parties would have against Seller had this
Agreement not been consummated. Except as specifically set forth in Section 2.5,
Buyer does not and shall not assume or agree to pay, perform or discharge any
other obligations or liabilities of the Seller, whether or not related to the
Assets.
2.6 Transition Services. Seller agrees that until such time as Buyer is
licensed as a mortgage lender in each jurisdiction in which Seller is licensed,
Seller will continue to originate and hold mortgage loans in any jurisdiction in
which Seller is currently licensed and in which Buyer would be required to be
licensed to originate and/or hold mortgage loans. Buyer shall be entitled to the
profits and shall bear all of the expenses of Seller's operations relating to
the origination and holding of mortgage loans to the same extent as if Buyer had
originated such mortgage loans directly and Seller shall act, to the extent
permitted by law, subject to the direction and control of Buyer.
3. Purchase Price.
3.1 Purchase Price. Subject to the terms and conditions of
this Agreement, in reliance on the representations, warranties and agreements of
the Seller contained herein, and in full and complete consideration of the sale,
assignment, transfer and delivery of the Assets referred to in Section 2.1
hereof, the aggregate purchase price for the Assets shall be:
(a) 150,000 shares of Common Stock of Guarantor which
shall be issuable to Seller at the closing; and
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(b) 600,000 shares of Common Stock of Guarantor which shall be
held in escrow by Seller's counsel pursuant to the Escrow Agreement attached
hereto as Exhibit 3.1(b) and shall only be released to Buyer on the terms set
forth in Section 3.4.
(c) an additional purchase price equal to the number of
additional shares of Common Stock of Guarantor determined as set forth in
Section 3.2 to the extent, if any, that the shares of Common Stock of Guarantor
issuable pursuant to Section 3.2(b) exceed 600,000 shares, and which shall be
issuable at the time set forth in Section 3.4.
3.2 Determination of Shares to be Released From Escrow and Additional
Purchase Price. The number of shares of the Common Stock of Guarantor to be
released from escrow and the number of shares of Common Stock to be issued as
additional purchase price payable pursuant to Section 3.1(b) shall be determined
as follows:
(a) The number of shares of Common Stock
to be released from escrow and/or issued as additional purchase price shall
equal (X) (i) the sum of the "Annual Accrual" (as defined below), if any, for
each of the first three "Contract Years" (as defined below), minus (ii) the
Annual Deficit, if any, for each such Contract Year minus (Y) 150,000
(representing the shares issued at the Closing Date) multiplied by the "Value"
(as defined in Section 3.2(c)) at the Closing Date of the Common Stock issued
pursuant to Section 3.1(a) divided by the average Closing Price of the Common
Stock of Guarantor for the 15 trading days preceding the last day of the final
Contract Year for which the Annual Accrual (or Annual Deficit) is determined. If
the Value of the Common Stock (determined in accordance with Section 3.2(c))
after the third Contract Year is less than $4 million, then the determination of
the number of shares of Common Stock of Guarantor to be released from escrow
and/or issuable as additional purchase price shall be made based on the Annual
Accrual (or Annual Deficit) for the four Contract Years after the Closing, and,
if the Value of Common Stock of Guarantor issued to Seller (as so determined) is
less than $4 million after the fourth Contract Year, based on the Annual Accrual
(or Annual Deficit) for the five Contract Years after the Closing.
Notwithstanding anything else to the contrary contained herein, if the Value of
the shares of Common Stock of Guarantor issuable to Seller based on the accrual
through the third Contract Year is less than $4 million at the end of the third
Contract Year after the Closing, the aggregate Value of the shares of Common
Stock issued to Seller shall not exceed $4 million and Buyer shall not be
entitled to receive any shares from escrow or as additional purchase price based
on any Annual Accrual in the fourth or fifth
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Contract Year which would result in the value of the Shares exceeding $4
million.
(b) Notwithstanding anything to the contrary contained herein,
the aggregate number of shares of the Common Stock of Guarantor issuable to
Seller pursuant to Section 3.1(a) plus the number of shares of Common Stock of
Guarantor to be released from escrow and issuable as additional purchase price
determined pursuant to Section 3.2(a) shall not exceed 1,500,000 shares.
(c) The shares of Common Stock issued pursuant to Section 3.1
shall be valued for purposes hereof (the "Value") as follows: the shares issued
at the Closing shall be valued at the average of the Closing Price of the Common
Stock of Guarantor for the 15 trading days preceding the Closing Date, and the
shares of Common Stock accrued for any Contract Year shall be valued for
purposes hereof at the average of the Closing Price of the Common Stock for the
15 trading days preceding the first day of the Contract Year.
(d) "Contract Year" shall mean a year commencing on the first
day of the first calendar month commencing after the Closing Date or any
anniversary date thereof and ending on the day preceding the next anniversary
thereof.
(e) The "Annual Accrual" shall equal (x) four times the amount
by which the Net Income for a Contract Year exceeds the Prior Year Net Income
(y) divided by the average of the Closing Price of the Common Stock for the 15
trading days preceding the commencement of the Contract Year; provided that if
Buyer has incurred a Net Loss in any prior Contract Year and thereafter Buyer
has Net Income for a Contract Year which at least equals the Prior Year Net
Income, then there shall be added to the Net Income for purposes of determining
the Annual Accrual for such Contract Year an amount equal to the Net Loss in
such prior Contract Year.
(f) The "Annual Deficit" shall equal four times the amount of
the Net Loss for a Contract Year divided by the average of the Closing Price of
the Common Stock for the 15 trading days preceding the Commencement of the
Contract Year.
(g) "Net Income" or "Net Loss" for the Contract Year shall
equal the net income (or net loss), after taxes, of Buyer determined in
accordance with GAAP on the same basis as used in determining net income in
Guarantor and its subsidiaries' regularly prepared audited financial statements;
provided that only one-fourth of interest paid or accrued on loans made by
Guarantor or its subsidiaries to Buyer shall be deducted and
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there shall be no allocation of parent or related company overhead in
determining Net Income.
(h) The "Prior Year Net Income" shall equal zero for the first
Contract Year, and for each subsequent Contract Year shall equal the highest Net
Income for any preceding Contract Year; provided that in no event shall the
Prior Year Net Income for any year be less than zero.
3.3 Procedures for Determining Number of Shares to be
Released from Escrow and Additional Purchase Price.
(a) Within 120 days after the end of each Contract Year, Buyer
shall furnish to Seller a statement setting forth in reasonable detail the
calculation of Net Income for the Contract Year. Seller shall be deemed to have
agreed to and accepted such calculation unless no later than 30 days after the
delivery of the calculation by Buyer to Seller, the Seller shall give notice to
Buyer objecting to the calculation and setting forth in reasonable detail the
basis for such objection. Seller shall be given a reasonable opportunity to
review the Buyer's books and records relating to the calculation of Net Income
to determine the accuracy of such calculation. In the event of any adjustments
in any of the revenues or expenses of Buyer in connection with the annual audit
of the consolidated financial statements of Guarantor and its subsidiaries, the
Net Income of Buyer for purposes of this Section 3 shall be recalculated to
reflect such adjustments.
(b) If Seller furnishes a notice of objection, Seller and
Buyer agree to use their best efforts, in good faith, during the 30 day period
following the furnishing of such notice of objection to resolve the
disagreement. If the parties are unable to agree on Net Income for the Fiscal
Years during such 30 day period, the amount of the Revenues shall be determined
by an accounting firm (the "Accountants") agreed to by Buyer and Seller. The
losing party shall bear the fees of the Accountants, in connection with such
determination; provided that the fees of such Accountants shall be borne 50% by
Seller and 50% by Buyer if the arbitration results in a decrease in Net Income
that is less than 5% and neither party shall be deemed to be a losing party, and
Seller shall be deemed to be the losing party unless such arbitration does not
result in a decrease in Net Income; and Buyer shall be deemed to be the losing
party if such arbitration results in a decrease in Net Income of more than 5%.
In no event shall the costs incurred by Buyer in connection with any such
arbitration proceeding be treated as an expense in determining Net Income under
this Section 3.
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3.4 Release of Shares of Common Stock from Escrow and
Issuance of Additional Shares of Common Stock.
(a) Within 10 days following a final determination (whether as
a result of Seller not furnishing written notice of any disagreement with
Buyer's determination, a resolution by Buyer and Seller of any disagreement, or
a determination by the Accountants selected to resolve any disagreement between
the parties) of the number of shares of Common Stock of Guarantor to be released
from escrow or issuable to Seller after the third, fourth or fifth Contract
Year, whichever is the final Contract Year in which the number of shares
issuable to Seller is to be determined pursuant to Section 3.2, there shall be
released from escrow or Buyer shall issue to Seller, as the case may be, the
number of shares of Common Stock of Guarantor determined pursuant to Section
3.2, provided that, in the event of a dispute as to Buyer's determination of Net
Income, there shall be released from escrow, or the Buyer shall deliver to the
Seller, as the case may be, the undisputed amount of the shares of Common Stock
of Guarantor within ten days of Seller's furnishing a written notice of
disagreement and the balance following the final determination, as set forth
above.
(b) The shares of Common Stock of Guarantor held in escrow
pursuant to Section 3.1(b) (together with any dividends paid thereon or cash or
other securities received in connection therewith or in exchange therefor, and
any interest or other income earned with respect thereto) shall be released to
Seller if, and only to the extent that, Seller is entitled to be issued shares
of Common Stock pursuant to Section 3.2 in accordance with the procedures set
forth in Section 3.4(a). Any shares of Common Stock of Guarantor (together with
any dividends paid thereon or cash or other securities received in connection
therewith or in exchange therefor, and any interest or other income earned with
respect thereto) held in escrow in excess of the number of shares of Common
Stock to be released to Seller pursuant to the preceding sentence shall be
distributed to Buyer and shall be cancelled. Each of Seller and Buyer agrees to
give to the Escrow Agent all notices required under the Escrow Agreement in
connection with the release of the shares of Common Stock from escrow in
accordance with this Section 3.4(b).
3.5 Adjustment of Common Stock.
(a) If, as a result of any recapitalization, reclassification,
stock dividend, stock split, reverse stock split or other similar transaction,
(i) the outstanding shares of Common Stock are increased, decreased or exchanged
for a different number or kind of shares or other securities of
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Guarantor, or (ii) additional shares or new or different shares or other
non-cash assets are distributed with respect to such shares of Common Stock or
other securities, an appropriate and proportionate adjustment shall be made in
the kind of shares issuable to Seller pursuant to this Section 3.
(b) If there shall be any reorganization, merger or
consolidation of Guarantor with one or more other corporations or Guarantor
shall be acquired in a transaction in which the stockholders of Guarantor are
issued cash, property or securities of another company, Seller shall be entitled
to receive in lieu of Common Stock of Guarantor the securities, property or cash
to which a holder of Common Stock of Guarantor received pursuant to such
reorganization, merger, consolidation or acquisition.
4. The Closing.
4.1 Closing. The Closing will take place at the offices of Bachner,
Tally, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00
A.M. (New York City time), on April 1, 1997 (or, if later, the second Business
Day following the satisfaction or waiver of the conditions set forth in Sections
9 and 10) or at such other place, date and time as the parties may agree in
writing. The date of the Closing is herein referred to as the "Closing Date."
4.2 Items to be delivered at Closing by Seller and Stockholders. At the
Closing, Seller and Stockholders shall deliver to Buyer the following:
(a) The bills of sale with covenants of warranty, assignments,
endorsements, and other good and sufficient instruments and documents of
conveyance and transfer, in form attached hereto as Exhibit 4.2, as shall be
necessary and effective to transfer and assign to, and vest in, Buyer all of
Seller's right, title and interest in and to the Assets;
(b) The documents contemplated by Sections 3, 4, and 9; and
(c) All other documents, instruments and writings required by this
Agreement to be delivered by the Seller and Stockholders at the Closing.
4.3 Items to be Delivered at Closing by Buyer. At the Closing, Buyer
shall deliver to Seller and Stockholders the following:
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(a) the shares of Common Stock issuable to Seller at
the Closing, which shall bear the legend referred to in
Section 5.26;
(b) the Assumption Agreement;
(c) The documents contemplated by Sections 3, 4, and
10; and
(d) All other documents, instruments and writings
required by this Agreement to be delivered by Buyer at the
Closing.
4.4 Allocation of Purchase Price. The Purchase Price shall be allocated
among the Assets acquired hereunder in accordance with Schedule 4.4, it being
agreed that no portion of the consideration shall be allocated to Seller and
Shareholders' covenant not to compete. Seller, Stockholders and Buyer each
hereby covenant and agree not to take a position on any income tax return,
before any governmental agency charged with the collection of any income tax, or
in any judicial proceeding that is in any way inconsistent with the provisions
of this Section 4.4.
5. Representations and Warranties of Seller and Stockholders.
Seller and Stockholders, jointly and severally, represent and warrant
(both as of the date of this Agreement and as of the Closing Date) to, and agree
with, Buyer as follows:
5.1 Authorization.
(a) Stockholders are of full age and have full right, power,
legal capacity and authority to execute and deliver this Agreement and to
perform their obligations hereunder. The execution, delivery and performance of
this Agreement and the performance of Stockholders' obligations hereunder
constitute valid and binding obligations of Stockholders, enforceable against
them in accordance with its terms.
(b) The Seller has the corporate power and authority to execute
and deliver this Agreement and to perform its obligations hereunder. The
execution, delivery and performance of this Agreement and the performance of the
Seller's obligations hereunder have been duly authorized by all necessary
corporate action of the Seller (including, but not limited to, approval by
Seller's Board of Directors and Shareholders) and this Agreement
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constitutes a valid and binding obligation of Seller, enforceable against it in
accordance with its terms.
5.2 Capitalization of Seller.
(a) Stockholders own all of the outstanding shares of common
stock of the Seller, of record and beneficially, free and clear of all
Encumbrances.
(b) There are no outstanding options, rights, conversion
rights, agreements or commitments of any kind relating to the issuance, sale,
purchase, redemption, voting or transfer of any equity securities or other
securities of the Seller. None of the outstanding equity securities was issued
in violation of the Securities Act of 1933, as amended or any state securities
laws. Seller has delivered to Buyer true and complete copies of their respective
Certificates of Incorporation and By-Laws (or other governing instrument), as
currently in effect, and of any agreements referred to in this Section 5.2(b).
5.3 Organization of Seller. The Seller is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation, with full corporate power and authority to own its properties and
to engage in its business as presently conducted or contemplated, is duly
qualified and in good standing as a foreign corporation under the laws of each
jurisdiction in which the ownership of its property or the conduct of its
business requires such qualification. Schedule 5.3 sets forth the jurisdictions
in which the Seller is qualified to do business. Except as set forth in Schedule
5.3, Seller has no subsidiaries, nor does it own any equity interest in, or
control directly or indirectly, any other entity. The Seller is not a party to
any joint venture or partnership agreement.
5.4 No Conflict as to Seller and Stockholders. Neither the execution
and delivery of this Agreement nor the consummation of any or all of the
Contemplated Transactions will (a) violate any provision of the Certificate of
Incorporation or By-Laws of the Seller or (b) violate, or be in conflict with,
or constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) under, or result in the termination of, or
accelerate the performance required by, or excuse performance by any Person of
any of its obligations under, or cause the acceleration of the maturity of any
debt or obligation pursuant to, or result in the creation or imposition of any
Encumbrance upon any property or assets of the Seller or the Stockholders under,
any agreement or commitment to which the Seller or either of the Stockholders is
a party or by which any
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of their respective property or assets is bound, or to which any of the property
or assets of Seller or either of the Stockholders is subject, or (c) to the best
of Seller's and Stockholders' knowledge, violate any statute or law or any
judgment, decree, order, regulation or rule of any court or other governmental
body applicable to the Seller or the Stockholders.
5.5 Consents and Approvals of Governmental Authorities. Except as set
forth in Schedule 5.5, to the best of Seller's and Stockholders' knowledge, no
notice to, consent, approval or authorization of, declaration, filing or
registration with, or license from, any governmental body is required (a) in
connection with the execution, delivery and performance of this Agreement or the
consummation of the Contemplated Transactions, or (b) to enable the Buyer
subsequent to the Closing to conduct its business in the manner conducted by
Seller prior to the Closing.
5.6 Other Consents. Except as set forth in Schedule 5.6, no consent of,
or notice to, any Person is necessary in connection with the execution, delivery
and performance of this Agreement or the consummation of the Contemplated
Transactions, including, but not limited to, parties to leases or other
agreements or commitments.
5.7 Financial Statements. Seller has delivered to Buyer: (a) unaudited
consolidated balance sheets of the Seller as at December 31 for each of the
years 1994 through 1996 (the "Balance Sheets"), and the related unaudited
statements of income and retained earnings and cash flows for each of the fiscal
years then ended, and (b) an unaudited consolidated balance sheet of the Seller
as at February 28, 1997 (the "Interim Balance Sheet") and the related unaudited
statements of income and retained earnings and cash flow for the two months then
ended, including in each case the notes thereto. The balance sheet of the Seller
at December 31, 1996 is individually referred to herein as the "Recent Balance
Sheet". Such financial statements and notes are true, complete and correct and
fairly present the financial condition and results of operations of the Seller
as at the respective dates thereof and for the periods therein referred to
(subject, in the case of the interim statements, to normal year-end
adjustments).
5.8 No Undisclosed Liabilities. Except as set forth in Schedule 5.8,
the Seller has no liabilities or obligations of any nature (absolute, accrued,
contingent or otherwise that were not fully reflected or reserved against in the
Balance Sheets and the Interim Balance Sheet, except for liabilities and
obligations incurred in the ordinary course of business and consistent with past
practice (in nature and scope) since the respective dates
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thereof, and Seller has no obligations or liabilities (whether absolute,
accrued, contingent or otherwise) to repurchase and/or indemnify for losses or
breaches of representations and warranties in connection with mortgage loans
originated, purchased or arranged by Seller.
5.9 Absence of Certain Changes. Except as set forth in Schedule 5.9,
since the date of the Recent Balance Sheet, there has not been, occurred or
arisen, with respect to the Seller:
(a) any change or amendment in the Seller's Certificate of
Incorporation or By-Laws;
(b) any declaration, setting aside, or payment of any dividend
or other distribution in respect of equity securities of the Seller or any
direct or indirect redemption, purchase or acquisition by any person of any such
securities or of any interest in or right to acquire any such securities.
(c) any damage, destruction or loss of any of the Assets
(whether or not covered by insurance);
(d) any incurrence or assumption of any indebtedness for money
borrowed or the guaranty of any indebtedness or other obligation by the Seller;
(e) any of the Assets being subjected to any Encumbrance by
reason of any action by Seller or Stockholders or, to the best of Seller's and
Stockholders' knowledge, any other Encumbrances;
(f) the cancellation of any debts or waiver of any claims or
rights of value of the Seller;
(g) transfer or other disposition or lease of any of the
Seller's assets, except in the ordinary course of business;
(h) any loan or advance by the Seller, other than mortgage
loans made in the ordinary course of business;
(i) any increase by the Seller in the compensation of their
officers or employees (including any such increase pursuant to any of the Plans)
of the Seller;
(j) the purchase of any properties or assets, other than in
the ordinary course of business and consistent with past practice;
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(k) any capital expenditures or additions to property, plant
or equipment or the acquisition of any other property or assets, at a cost in
excess of $2,500 in the aggregate, by the Seller, other than purchases of
supplies in the ordinary course of business;
(l) any payment, loan or advance made by the Seller of any
amount to, or the lease by the Seller of any of the properties or assets to or
from, or the entering into any other agreement or arrangement with, any Related
Party;
(m) any sale, transfer, assignment or conveyance of any
property or asset to, or the purchase or acquisition of any property or assets
from, or any other transaction or commitment with, any Related Party;
(n) any write-off or write-down of any of the Assets or any
determination to write-off or write-down any of the Assets;
(o) any agreement or commitment, whether in writing or
otherwise, to do any of the foregoing.
5.10 No Material Adverse Change. Since the date of the Recent Balance
Sheet, there has not been any material adverse change in the Business and
Condition or any event, condition or contingency that might result in such a
material adverse change, provided that the continuation of the losses being
incurred by Seller in the ordinary course of business shall not be deemed to be
such a material adverse change.
5.11 Title to Properties; Encumbrances; Condition.
(a) The Seller does not own any real property. Schedule 5.11
describes all real property leased by the Seller and all personal property or
interests therein owned or leased by the Seller and included in the Assets
(specifying whether such property is owned or leased). The Seller has good,
valid and marketable title to all of the assets (personal and mixed, tangible
and intangible) that it purports to own. The equipment of the Seller is in good
operating condition and repair, ordinary wear and tear excepted.
(b) The Assets include all rights, properties and other assets
used in and necessary to permit the Buyer to conduct the Seller's business in
all material respects in the same manner as such business was conducted prior to
the date of this Agreement and the Seller owns, or has the right to use under
contracts, agreements or understandings which are included in the
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Assets, all rights, properties and other assets presently used in the conduct of
such business.
5.12 Litigation. Except as set forth in Schedule 5.12, there is no
action, suit, inquiry, proceeding or investigation by or before any court or
governmental body pending or, to the best knowledge of Seller and Stockholders,
filed but not yet served or threatened against or involving the Seller or the
Assets and neither the Seller nor Stockholders have received any notice of any
event or occurrence which could result in any such action, suit, inquiry,
proceeding or investigation nor to Seller's or Shareholders' knowledge is there
any valid basis for any such action, suit, inquiry, proceeding or investigation.
Except as set forth in Schedule 5.12, the Seller is not subject to any judgment,
order or decree.
5.13 Taxes.
Schedule 5.13 is a true, correct and complete list of all of
the taxing authorities with which the Seller is required to file any Tax
Returns in connection with the conduct of its business. The Seller has timely
filed all Tax Returns required to be filed by it as of the date hereof and has
paid in full all Taxes due as of the date hereof. Neither the Seller nor the
Stockholders know of any audit, assessment, notice of deficiency, claim or
demand for Taxes or proposed deficiency against its for any Taxes. The Seller
has not consented to a waiver or extension of the statute of limitations for
assessments of any tax liability for any year with any taxing authority. The
federal income tax returns of the Seller have never been examined by the
Internal Revenue Service.
5.14 Trademarks, Trade Names, Etc. The Seller owns, or is licensed or
to the best knowledge of Seller and Shareholder, otherwise has the full rights
to use, all Proprietary Rights used in or necessary for the conduct of the
business of the Seller as heretofore conducted, and as presently contemplated to
be conducted. Schedule 5.14 contains an accurate and complete list of all
Proprietary Rights owned, used or proposed to be used by the Seller, all
licenses or other agreements with respect thereto, and all applications
therefor. Except as set forth in Schedule 5.14, to the best of Seller's and
Stockholders' knowledge: the Seller has the sole and exclusive right to use the
Proprietary Rights referred to therein, all of such Proprietary Rights are
included in the Assets and the consummation of the Contemplated Transactions
will not alter or impair any such rights; no claims have been asserted by any
Person to the use of any such Proprietary Rights or challenging or questioning
the validity or effectiveness of any such Proprietary Rights,
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licenses or agreements, and there is no valid basis for any such claim; and the
use of such Proprietary Rights by the Seller does not violate or infringe the
rights of any Person. Neither the Seller nor, to the best knowledge of Seller
and Stockholders, any other Person is in default under any license or other
agreement relating to such Proprietary Rights, and all such licenses and
agreements are valid, enforceable and in full force and effect.
5.15 Banking Relationships. Schedule 5.15 sets forth the names and
locations of all banks, trust companies, savings and loan associations and other
financial institutions at which the Seller maintain safe deposit boxes or
accounts of any nature and the names of all persons authorized to have access
thereto, draw thereon or make withdrawals therefrom.
5.16 Contracts and Commitments. (a) Schedule 5.16 contains a true and
complete and accurate list of the following contracts, agreements,
understandings or other obligations (whether written or oral) to which the
Seller is a party or by which any of the Assets are bound, true, complete and
correct copies of which have previously been delivered by Seller to Buyer:
(i) contracts, agreements, commitments or other
obligations with officers, employees, agents, consultants, advisors, or salesmen
or under which Seller may have any obligation to pay commissions or similar
payments;
(ii) leases, subleases or rental or use agreements,
contracts, covenants or obligations;
(iii) contracts, agreements, commitments or other
obligations under which Seller has any obligation to repurchase mortgage loans
or indemnify any person in connection with any losses or breaches of
representations and warranties relating to mortgage loans.
(iv) contracts, agreements, commitments or other
obligations with any Person containing any provision or covenant limiting the
ability of the Seller to engage in any line of business or to compete with any
Person.
(v) contracts, agreements or commitments relating
to the origination, purchase or sale of mortgage loans; and
(vi) all other contracts, agreements, commitments,
or other obligations (written or oral) whether or not made in the ordinary
course of business which either (i) may involve the expenditure by the Seller of
funds in excess of $5,000 per commitment (or under a group of similar
commitments), (ii) do not
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terminate or expire or are not terminable within 30 days from the date hereof
without penalty, premium or other liability or obligation, or (iii) are
otherwise material to the Seller.
(b) There are no existing material defaults (or events which,
with notice or lapse of time or both, would constitute a default) by the Seller,
or to the best knowledge of the Seller and the Stockholders, any other party,
under any of the material agreements or commitments required to be included in
Schedule 5.16.
5.17 Mortgage Loans.
(a) The origination of Mortgage Loans by Seller complied in
all material respects with applicable laws or regulation of any governmental
body, including, without limitation, usury, equal credit opportunity, real
estate settlement procedures, truth-in-lending and disclosure laws relating to
the origination of mortgage loans. The mortgage loans originated by Seller did
not include prepayment premiums or penalties or any other provisions which
violate applicable laws or regulations of any governmental body or would
adversely affect the enforceability thereof.
(b) Except as set forth in Schedule 5.17(b), no complaints
have been asserted in writing, no action has been commenced or threatened
against, and no counterclaim has been made against, the Seller, by any Person
who is the borrower under a mortgage loan originated by or through Seller or by
any Person to which the Seller has sold mortgage loans.
(c) Set forth in Schedule 5.17(c) is a true and complete
schedule of mortgage loans originated by Seller during each month during the 12
months ended December 31, 1996.
5.18 Insurance. Schedule 5.18 contains an accurate and complete
description of all policies of insurance of any kind or nature, including but
not limited to, fire, liability, workmen's compensation, liability and other
forms of insurance owned or held by or covering the Seller, its operations or
all or any portion of the Assets. All such policies are in full force and
effect, and the Company is not in default with respect to its obligations under
any insurance policy maintained by it.
5.19 Labor Relations. Schedule 5.19 lists the employees of the Seller,
including their current positions and compensation (and any increases in wage
rate or compensation of which such employees have been notified). Except as set
forth in Schedule 5.19, the Seller is not obligated under any employment
contract,
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and none of its current or former employees are covered by, and the Seller has
no obligation with respect to, any bonus, deferred compensation, pension,
profit-sharing, retirement, insurance, stock purchase, stock option, or other
fringe benefit plan, arrangement or practice, or any other employee benefit plan
(as defined in section 3(3) of ERISA), whether formal or informal (collectively,
"Plans"). The Seller is not liable for any severance pay or other payments on
account of termination of any former employee. Except as set forth in Schedule
5.19, (a) the Seller is in compliance with all applicable laws respecting
employment and employment practices, terms and conditions of employment and
wages and hours, and the Seller is not nor has been engaged in any unfair labor
practice, (b) there is no unfair labor practice complaint against the Seller
pending before the National Labor Relations Board, (c) there is no labor strike,
dispute, slowdown or stoppage actually pending or threatened against or
affecting the Seller, (d) no labor union representation question exists
respecting the employees of the Seller, (e) the Seller's relations with its
employees are satisfactory, and (f) the Seller is not a party to, or subject to,
a collective bargaining agreement, and no collective bargaining agreement
relating to employees of the Seller is currently being negotiated.
(b) To the best knowledge of Seller and Stockholders, the
Seller has performed and complied with all of its obligations under or with
respect to such Plans and such Plans have operated in accordance with their
terms. The Seller does not have any commitment, whether formal or informal and
whether legally binding or not, to create any additional Plan. The Plans have
operated in accordance with the applicable requirements of ERISA and the Code,
to the extent applicable. The Seller does not have any current or projected
liability in respect of post-employment or post-retirement benefits for retired
or former employees of the Seller.
5.20 Compliance with Law. Schedule 5.20 is a true and complete list,
together with a brief description of each license, permit, order or approval of
governmental bodies held or obtained by the Seller and its employees, including,
but not limited to, all licenses relating to the conduct of the Seller's
business relating to mortgage lending and mortgage brokerage. The Seller and its
employees have all license, permits, orders or approvals from governmental
bodies required for the conduct of its business. The operations of the Seller
have been conducted in accordance with all applicable laws, regulations and
other requirements of all governmental bodies having jurisdiction over the
Seller and all licenses, permits, orders or approvals held by Seller applicable
to the Seller's mortgage lending operations and
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to the best knowledge of Seller and Stockholders, all other laws, regulations
and other requirements, including, without limitation, all such laws,
regulations and requirements relating to truth-in lending, lending practices,
consumer protection, equal opportunity, health and occupational safety matters.
Neither the Seller nor the Stockholders has received any notification of any
asserted present or past failure to comply with any such laws, rules,
regulations or licenses or of any threatened suspension or cancellation thereof.
5.21 Related Party Transactions and Interests.
Except as set forth in Schedule 5.21, (i) no Related Party has
any material interest in any property, real or personal, tangible or intangible,
used in or pertaining to the business of the Seller, (ii) no Related Party is
indebted to the Seller, (iii) the Seller is not indebted to any Related Party;
and (iv) no Related Party is a party to any lease, agreement or commitment with
the Seller or owns any direct or indirect interest of any kind in, a competitor,
supplier, customer, landlord, tenant, creditor or debtor of the Seller.
5.22 No Brokers or Finders. Neither the Seller nor the Stockholders, or
any of their respective officers, directors or employees, has employed any
broker or finder or incurred any liability for any brokerage or finder's fees or
commissions or similar payments in connection with any of the Contemplated
Transactions.
5.23 Books and Records. The books of account, minute books, stock
record books and other records of the Seller, all of which have been made
available to Buyer, are complete and correct in all material respects and have
been maintained in all material respects in accordance with sound business
practices and accurately reflect in all material respects the Business and
Condition of the Seller.
5.24 Investment Representations. Seller understands that the Common
Stock of Credit Depot has not been registered under the Securities Act of 1933,
as amended (the "Securities Act"), by reason of its issuance in a transaction
exempt from the registration requirements of the Securities Act pursuant to the
exemption provided in Section 4(2) thereof, that the Common Stock has not been
registered under applicable state securities laws by reason of its issuance in a
transaction exempt from such registration requirements, and that the Common
Stock may not be sold or otherwise disposed of unless registered under the
Securities Act and applicable state securities laws (the Seller being under no
obligation so to register such Common Stock
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except as set forth in Section 13) or exempted from registration, and that the
certificates representing the Common Stock will bear a legend to this effect.
5.25 Seller's Acknowledgment as to Information. Seller acknowledges
that it has had the opportunity to receive from Credit Depot such information
with respect to Credit Depot as Seller has deemed necessary and relevant in
connection with the transactions contemplated by this Agreement, and Seller has
had the opportunity, directly or through representatives, to ask questions of
and receive answers from persons acting on behalf of Credit Depot necessary to
verify the information so obtained.
5.26 Disclosure. No representations or warranties by Seller in this
Agreement and no statement contained in any document (including, without
limitation, financial statements, certificates, or other writing furnished or to
be furnished to Buyer or any of its representatives pursuant to the provisions
hereof or in connection with the Contemplated Transactions), contains or will
contain any untrue statement of material fact or omits or will omit to state any
material fact necessary, in light of the circumstances under which it was made,
in order to make the statements herein or therein not misleading. Documents
delivered or to be delivered to Buyer pursuant to this Agreement are or will be
true and complete copies of what they purport to be. To the best knowledge of
Seller and Stockholders, Seller and Stockholders have disclosed to Buyer all
facts known to Seller or the Stockholders that may affect or does affect in a
materially adverse manner the Seller's Business and Condition.
6. Representations and Warranties of Buyer. Buyer represents and
warrants (both as of the date of this Agreement and as of the Closing Date) to,
and agrees with, Seller and Stockholders, as follows:
6.1 Organization of Buyer; Authorization. Buyer and Guarantor are
corporations duly organized, validly existing and in good standing under the
laws of the State of Delaware, with full corporate power and authority to
execute and deliver this Agreement and to perform their obligations hereunder.
The execution, delivery and performance of this Agreement have been duly
authorized by all necessary corporate action (including, but not limited to,
approval by the Board of Directors) of Buyer and Guarantor and this Agreement
constitutes a valid and binding obligation of Buyer and Guarantor, enforceable
against it in accordance with its terms.
6.2 No Conflict as to Buyer. Neither the execution and delivery of
this Agreement or the Guaranty nor the performance of
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Buyer's obligations hereunder will (a) violate any provision of the certificate
of incorporation or by-laws (or other governing instrument) of Buyer or
Guarantor, (b) violate, be in conflict with, or constitute a default (or an
event which, with notice or lapse of time or both, would constitute a default)
under any agreement or commitment to which Buyer or Guarantor is party or (c)
violate any statute or law or any judgment, decree, order, regulation and rule
of any court or other governmental body applicable to Buyer or Guarantor.
6.3 Capitalization . The authorized capital stock of Guarantor consists
of 37,000,000 shares, consisting of (a) 2,000,000 shares of a class designated
as preferred stock, par value $ per share ("Preferred Stock"), and (b)
35,000,000 shares of Common Stock. As of the date hereof, (i) 310,000 shares of
Preferred Stock are issued and outstanding,(ii) 3,741,861 shares of Common Stock
were issued and outstanding, and (iii) 12,285,118 shares of Common Stock were
reserved for issuance on conversion or exercise of outstanding convertible
securities, warrants and options.
6.4 SEC Reports. The Buyer has heretofore delivered to the Seller, in
the form filed with the SEC true and complete copies (including any amendments
thereto) of Guarantor's Annual Report on Form 10-KSB for the Year Ended June 30,
1996, Quarterly Report on Form 10-QSB for the Quarters Ended September 30, 1996
and December 31, 1996 and Proxy Statement dated December 17, 1996.
6.5 No Brokers or Finders. Neither Buyer nor Guarantor, nor any of
their officers, directors or employees, has employed any broker or finder or
incurred any liability for any brokerage or finder's fees or commissions or
similar payments in connection with any of the Contemplated Transactions.
6.6 Disclosure. No representations or warranties by Buyer in this
Agreement and no statement contained in any document (including, without
limitation, certificates or other writing furnished or to be furnished by Buyer
or any of its representatives pursuant to the provisions hereof or in connection
with the Contemplated Transactions), contains or will contain any untrue
statement of material fact or omits or will omit to state any material fact
necessary, in light of the circumstances under which it was made, in order to
make the statements herein or therein not misleading. Documents delivered or to
be delivered to Seller or Stockholders pursuant to this Agreement are or will be
true and complete copies of what they purport to be.
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7. Covenants of Seller and Buyer.
7.1 Regulatory Matters. Seller, Stockholders and Buyer shall (a) file
with applicable regulatory authorities the applications and related documents
required to be filed by them (and prosecute diligently any related proceedings)
in order to consummate the Contemplated Transactions, and (b) use their best
efforts to obtain any necessary consents of regulatory authorities and cooperate
with the others as they may reasonably request in connection with the foregoing.
7.2 Publicity. Except as required by law or to comply with applicable
securities law requirements, prior to the Closing, neither the Buyer, the Seller
nor the Stockholders will make any public disclosure of the execution of this
Agreement or of the terms hereof without the prior written consent of the other
party of such disclosure and the form thereof. Nothing herein shall prevent any
disclosure of the execution or terms of this Agreement in connection with
financings or potential financings for Credit Depot.
7.3 Access Following Closing. Following the Closing Date, (a) Seller
shall give Buyer, and its authorized representatives, (i) access to its books
and records (and permit Buyer to make copies thereof) to the extent relating to
the Seller, as Buyer may reasonably request and (ii) assistance with the audit
of the financial statements of the Seller, any proceedings relating to Tax
Returns or any investigations by governmental bodies, to the extent relating to
periods prior to the Closing Date, as Buyer may reasonably request.
(b) Following the Closing, Buyer shall give Seller, and their
authorized representatives, access to its books and records (and permit Seller
to make copies thereof) to the extent relating to periods prior to the Closing
Date as Seller may reasonably request for purposes of preparing Tax Returns and
conducting proceedings relating to Taxes or investigations by governmental
bodies.
7.4 Confidentiality. Prior to the Closing Date (or at any time if the
Closing does not occur), Buyer shall keep confidential and not disclose to any
Person (other than its employees, attorneys, accountants and advisers) or use
(except in connection with the Contemplated Transactions) all non-public
information obtained by Buyer in connection with the Contemplated Transactions.
Prior to and following the Closing, Seller and Stockholders shall, keep
confidential and not disclose to any Person (other than its employees,
attorneys, accountants and advisers) or use (except in connection with preparing
Tax
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Returns, conducting proceedings relating to Taxes and, prior to the Closing
Date, as required in the conduct of the business of the Seller in the ordinary
course and consistent with past practice) any non-public information relating to
the Seller's business or the Assets. This Section 7.4 shall not be violated by
disclosure pursuant to court order or as otherwise required by law, on condition
that notice of the requirement for such disclosure is given to the other parties
prior to making any disclosure and the party subject to such requirement
cooperates as the others may reasonably request in resisting it. Seller and
Buyer shall cause their respective representatives, employees, attorneys,
accountants and advisers to whom information is disclosed in connection with the
Contemplated Transactions to comply with the provisions of this Section 7.4.
7.5 Tax Matters.
Between the date of this Agreement and the Closing Date, Seller
shall file on a timely basis all Tax Returns required to be filed by them.
Seller shall deliver or cause to be delivered to Buyer at least 30 days prior
to the filing thereof a copy of each Tax Return to be filed on or before the
Closing Date by the Seller with respect to any period ended on or before the
Closing Date. Any such Tax Return shall be prepared in a manner that, to the
extent consistent with applicable laws and regulations, is consistent with the
positions taken and accounting methods employed by the Seller in the preparation
of similar Tax Returns for prior periods. Seller shall be responsible for filing
all Tax Returns, and payment of all Tax liabilities of the Seller whether
relating to periods prior to or subsequent to the Closing.
7.6 Change of Corporate Name. From and after the Closing, Seller and
the Stockholders will discontinue using in the conduct of their business or
otherwise, the words constituting the present name of Seller or any words or
expression bearing any resemblance to or likely to be confused with its present
name or names and will promptly change the corporate names of Seller. Seller and
Stockholders will execute or obtain such consents and documents as Buyer shall
request in order to enable Buyer to use as it may desire the aforesaid name as
its corporate name and for all other purposes to the extent it shall deem
desirable.
7.7 Right of First Refusal on Mortgage Loans. Buyer and Seller agree
that after the execution of this Agreement and until the expiration of the third
Contract Year (or the fourth or fifth Contract Years, to the extent that Seller
is entitled to be paid additional purchase price pursuant to Section 3.2 based
on the Net Income in such Contract Year), Buyer shall be permitted
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to sell mortgage loans to third parties other than Guarantor and its
subsidiaries, provided that Buyer offers Guarantor a right of first refusal with
respect to such mortgage loans in accordance with the provisions of this Section
7.7. If Buyer receives a bona fide offer from a third party to purchase any
mortgage loan held by Buyer or any mortgage loans to be originated by Buyer
(provided that, with respect to mortgage loans to be originated, the maximum
amount of such mortgage loans subject to any single commitment or related
commitments (provided that any commitment entered into more than 25 days after a
prior commitment shall not be deemed to be related to such prior commitment)
shall not exceed one month's loan production and the aggregate commitment of
Buyer pursuant to any such offer shall not exceed Buyer's average loan
production for the three calendar months preceding such offer), Buyer will offer
such mortgage loan or mortgage loans to Guarantor on the same terms and
conditions as such third party has offered. Buyer will provide Guarantor with
such information and documentation as Guarantor shall reasonably request to
determine whether to exercise its right of first refusal hereunder. The right of
first refusal granted to Guarantor hereunder with respect to a particular
mortgage loan is conditioned on (i) Buyer having an on-site underwriter (who
shall be an employee of Guarantor (and will be paid by Guarantor) and not of
Buyer) at its premises during its normal hours (provided that no on-site
underwriter need be present during periods when the on-site underwriter is not
present for normal business reasons, such as vacation, sick or personal time and
periods reasonably necessary to replace an on-site underwriter after termination
or resignation) and (ii) Guarantor providing conditional pre-approval of such
mortgage loan within four working hours from the request for pre-approval,
provided documents reasonably required by Guarantor in connection with such
pre-approval are submitted by Buyer prior to 12:00 noon on a business day.
7.8 Acquisition of Guarantor. If any person or group of related persons
not affiliated with Credit Depot shall acquire all or substantially all of the
assets of Credit Depot or more than 50% of the voting stock of Credit Depot or
if Credit Depot shall merge with or into another company in a transaction in
which the stockholders of Credit Depot immediately before the merger do not own
at least 50% of the voting securities of the surviving corporation after the
merger, then any shares of Common Stock of Credit Depot which have been accrued
pursuant to Section 3.2 with respect to a prior Contract Year and based on an
interim calculation of the Annual Accrual (or Annual Deficit) for the Contract
Year in which the transaction occurs, but which have not yet been issued, shall
immediately vest and be issuable on the closing of such transaction. The
consummation of such transaction
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shall not otherwise affect the terms on which the additional purchase price
pursuant to Section 3.2 shall accrue and be paid, except for the adjustments
provided in Section 3.5(b) and the acquiring or surviving entity shall continue
to be bound by the same obligations with respect to the operations of the
business of Buyer, including obligations under Section 3, as were required prior
to the consummation of the transaction.
7.9 Bankruptcy of Guarantor. If Guarantor commences (as the debtor)
any case in bankruptcy or consents to or admits the material allegations
against it in any such case or proceeding against it or a case in bankruptcy is
commenced against Guarantor, as the debtor, and a court having jurisdiction
enters an order for relief against Credit Depot in such case or proceeding and
such case remains undismissed for 180 days, then Seller shall have an option to
purchase the Buyer by returning all of the Common Stock of Guarantor previously
received by Seller, less an amount of Common Stock (determined based on the
Value of the Common Stock at the date of the exercise of the option) equal to
the Buyer's Net Income prior to the exercise of said option, provided that in
no event, however, shall the value of the consideration paid by Sellers be
less than $10,000.00.
7.10 Loan to Buyer. After the Closing, Credit Depot shall loan to Buyer
up to $500,000, as, and to the extent, reasonably requested by Buyer to meet the
requirements of its business. Nothing herein shall restrict Credit Depot from
making other loans to Buyer which Credit Depot determines to be necessary or
useful in connection with Buyer's business. Such loans shall bear interest at
the rate of 10% per annum and shall be on commercially reasonable terms.
7.11 Operations of Buyer. (a) Buyer agrees that, during the term of
their employment pursuant to their Employment Agreements, Stockholders shall be
entitled to day-to-day operational control of the Buyer, subject to oversight by
the Buyer's Board of Directors of Buyer and compliance with reasonable policies
established by the Buyer's Board of Directors; provided that Stockholders comply
in material respects with the agreements contained in this Section 7.11, and
provided further that nothing herein shall give Stockholders the authority to
take any action outside of the ordinary course of Buyer's business.
(b) Stockholders agree to: (i) conduct the business of Buyer
in a commercially reasonable manner and consistent with good industry practice;
(ii) comply, in all material respects, with all laws, statutes, ordinances,
rules, regulations, orders, writs, injunctions, decrees, awards or other
requirements of any court or other governmental body applicable to Buyer or the
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conduct of Buyer's business; (iii) cause Buyer to perform all of its material
obligations under all material contracts, agreements, licenses, permits,
instruments, or undertakings; (iv) not cause the Buyer to engage in any business
other than the business of originating mortgage loans, and, specifically,
Stockholders shall not cause the Buyer to purchase any mortgage loans (which
shall not preclude repurchases of mortgage loans under warehouse loan agreements
entered into with the approval of Buyer's Board of Directors); (v) not enter
into on behalf of Buyer, without the approval of Buyer's Board of Directors, any
agreement or commitment for the purchase or sale of mortgage loans, except for
sales of mortgage loans held by the Buyer on the date of such agreement or
commitment or commitments to sell mortgage loans which do not exceed Buyer's
mortgage loan production for one month (provided that with respect to mortgage
loans to be originated, the maximum amount of such mortgage loans subject to any
single commitment or related commitments (provided that any commitment entered
into more than 25 days after a prior commitment shall not be deemed to be
related to such prior commitment) shall not exceed Buyer's average loan
production for the three calendar months preceding such commitment); (vi) not
enter into loan or warehouse agreements without the approval of Buyer's Board of
Directors, which approval shall not be unreasonably withheld; (vii) not cause
Buyer to enter into any transaction with the Stockholders or members of their
families without the approval of Buyer's Board of Directors; (viii) not to cause
Buyer to enter into any agreement which is not cancelable without penalty or
premium on 30 days notice or which provides for aggregate payments by Buyer
(individually or together with any related matters) of more than $50,000,
without the approval of Buyer's Board of Directors, which approval shall not be
reasonably withheld if the expenditures pursuant to such agreement do not exceed
the amounts contained in the Buyer's budget as described in subparagraph (ix)
below; and (ix) operate the Buyer's business in accordance with the budget
attached hereto as Schedule 7.11(b) through March 31, 2000 and thereafter in
accordance with a budget reasonably agreed to by Stockholders and the Buyer's
Board of Directors which shall provide for aggregate expenditures not in excess
of 10% of the budget for the prior year.
(c) Seller agrees that its Board of Directors will make any
determination required by this Section 7.11(c) promptly.
7.12
8. Covenants of Seller. Buyer shall reimburse Seller for amounts paid
under the settlement agreement with Results Technology to the extent that such
payments and other Assumed
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Liabilities and payments subject to the $375,000 limit referred to in Section
2.5(b)(ii) do not exceed $375,000.
8.1 Access. Between the date of this Agreement and the Closing Date,
Seller shall (a) give Buyer and its authorized representatives full access to
all plants, offices, warehouses and other facilities and properties of the
Seller and to the books and records of the Seller (and permit Buyer to make
copies thereof), (b) permit Buyer to make inspections thereof, and (c) cause its
officers and its advisers (including, without limitation, its auditors,
attorneys, financial advisors and other consultants, agents and advisors) to
furnish Buyer with such financial and operating data and other information with
respect to the Assets, and to discuss with Buyer and its authorized
representatives the affairs of the Seller, all as Buyer may from time to time
reasonably request.
8.2 Updating of Representations and Warranties. Between the date of
this Agreement and the Closing Date, Seller and Stockholders shall give notice
to Buyer promptly upon Seller or the Stockholders becoming aware of (a) any
inaccuracy of a representation or warranty set forth in Section 5 or in the
Schedules hereto or (b) any event or state of facts that, if it had occurred or
existed on or prior to the date of this Agreement, would have caused any such
representation and warranty to be inaccurate, any such notice to describe such
inaccuracy, event or state of facts shall be in reasonable detail.
8.3 No Solicitation. Following the execution of this Agreement, neither
Seller nor the Stockholders, nor any of Seller's affiliates nor any of such
Persons' directors, officers, employees, agents or representatives will directly
or indirectly, (a) solicit or encourage any inquiries, discussions or proposals
for, (b) continue, propose or enter into negotiations or discussions with
respect to, or (c) enter into any agreement or understanding providing for, any
acquisition of the capital stock, assets or business of the Seller; nor shall
any such persons or entities provide any information to any person (other than
the Buyer and its representatives) for the purpose of evaluating or determining
whether to make or pursue any inquiries or proposal with respect to any such
transaction. Seller will immediately advise the Buyer of, and communicate to the
Buyer the terms of, any such inquiry or proposal that any of Seller or such
persons may receive or of which any of them may become aware, including the
identity of the person making such inquiry or proposal.
8.4 Operation in Ordinary Course. Between the date of this
Agreement and the Closing Date, Seller shall (a) conduct its
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business only in the ordinary course and consistent with past practice, (b)
maintain the Assets in good working order and condition, ordinary wear and tear
excepted, (c) maintain in full force and effect all fire, liability and other
insurance policies and (d) continue all current marketing and selling activities
relating to the business, operations or affairs of the Seller.
8.5 Business Organization. Between the date of this Agreement and the
Closing Date, Seller shall (a) preserve substantially intact the business
organization of the Seller and keep available the services of the present
officers and employees of the Seller, (b) preserve in all material respects the
present business relationships of Seller, (c) maintain in full force and effect
all licenses from governmental bodies applicable to the Seller and its employees
and comply, in all material respects, with all laws, statutes, ordinances,
rules, regulations, orders, writs, injunctions, decrees, awards or other
requirements of any court or other governmental body applicable to it or the
conduct of its business, and (d) perform all of its material obligations under
all material contracts, agreements, licenses, permits, instruments, or
undertakings.
8.6 Other Restrictions. Between the date of this Agreement
and the Closing Date, Seller shall not:
(a) take any action which would render any of its
representations or warranties contained in Section 5.9 untrue or
inaccurate in any material respect;
(b) enter into any agreement or commitment or engage in any
activity or transaction other than agreements, commitments, and transactions in
the ordinary course of business and consistent with past practice;
(c) enter into any agreement or commitment for the purchase or
sale of mortgage loans, except for sales of mortgage loans held by the Seller on
the date of such agreement or commitment, without the prior written consent of
Buyer.
(d) agree or otherwise commit, whether in writing or
otherwise, to do any of the foregoing.
8.7 Other Actions by the Seller. (a) Between the date of this Agreement
and the Closing Date, Seller and Buyer shall not, take or omit to take any
action, the result of which would be the failure to satisfy any condition
specified in Section 8 or 9, as applicable.
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(b) Subject to the terms and conditions of this Agreement,
Seller and Stockholders shall use their best efforts to take, or cause to be
taken, all action, and to do, or cause to be done, all things necessary, proper
or advisable under applicable laws and regulations to cause the conditions
specified in Section 9 to be satisfied, the transactions under Section 2 to be
effected simultaneously with the Closing, and otherwise to consummate and make
effective the transactions contemplated by this Agreement.
(c) Between the date of this Agreement and the Closing, Seller
may settle liabilities of Seller with the prior written consent of Buyer, which
consent shall not be unreasonably withheld.
8.8 Legal Fees. The Seller agrees that the legal fees and
disbursements incurred by Seller in connection with the
Contemplated Transactions will not exceed $25,000.
8.9 Resolution of Dispute. Prior to the Closing, Seller shall cause any
claims which Results Technologies, Inc. may have against Seller to be released
without further liability. Any payments made by Seller in connection therewith
shall be included in Seller's liabilities under Section 2.5(a)(ii) and shall be
subject to the limitation in Section 2.5(b).
9. Conditions to Buyer's Obligations. The obligations of Buyer to
effect the Closing shall be subject to the satisfaction at or prior to the
Closing of the following conditions, any one or more of which may be waived by
Buyer:
9.1 No Injunction. There shall not be in effect any injunction, order
or decree of a court of competent jurisdiction that prohibits or materially
delays consummation of any or all of the Contemplated Transactions, and Buyer
shall have received a certificate to that effect signed by the President of the
Seller.
9.2 Representations, Warranties and Agreements. (a) The
representations and warranties of Seller and Stockholders set forth in this
Agreement shall be true and correct in all material respects as of the date of
this Agreement and as of the Closing Date with the same force and effect as
though made at such time (such representations and warranties not being
affected by any updating information furnished pursuant to Section 8.2 or any
other provision of this Agreement), (b) Seller shall have performed and
complied in all material respects with the agreements contained in this
Agreement required to be performed and complied with by it at or prior to the
Closing and (c) Buyer
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shall have received a certificate to that effect signed by the President of the
Seller and the Stockholders.
9.3 Legal Opinion. Buyer shall have received an opinion from counsel to
Seller, dated the Closing Date and in substantially the form of Exhibit 9.3.
9.4 Litigation. No action or proceeding shall be pending or threatened
by or before any Person, court or other governmental body to restrain or
prohibit or to recover damages in respect of any or all of the Contemplated
Transactions or to revoke or suspend any license, permit, order or approval by
reason of any or all of the Contemplated Transactions; nor shall there be any
other action or proceeding pending or threatened which action, or other
proceeding may, in the reasonable opinion of Buyer, result in a decision,
ruling, or finding that individually or in the aggregate has or may reasonably
be expected to have a material adverse effect on the validity or enforceability
of this Agreement, or on the ability of the Seller or Stockholders to perform
their obligations under this Agreement.
9.5 Regulatory Approvals. All licenses, authorizations, consents,
orders and regulatory approvals of governmental bodies necessary for the
consummation of the Contemplated Transactions shall have been obtained on terms
satisfactory to Buyer and shall be in full force and effect.
9.6 Other Consents. Consents or waivers from parties other than
governmental bodies that are required in connection with the consummation of the
Contemplated Transactions shall have been obtained on terms satisfactory to
Buyer and shall be in full force and effect and signed copies thereof shall have
been delivered to Buyer.
9.7 Secretary of State Certificates. Buyer shall have received a
Certificate of the Secretary of State of the State of Ohio, with respect to the
Seller, and of each state in which the Seller is qualified to do business as a
foreign corporation as of a recent date showing Seller to be validly existing or
qualified as a foreign corporation in its state of existence and qualification,
as the case may be, and in good standing and that all franchise taxes required
to be paid and all reports required to be filed have been duly paid and filed,
and with respect to the Certificates of the Secretary of State of the State of
[ ], listing all documents filed and attaching certified copies thereof.
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9.8 Secretary's Certificate of the Seller. Buyer shall have received a
Certificate of the Secretary of the Seller stating that (i) no document has been
filed relating to or affecting the Certificates of Incorporation of the Seller,
after the date of the Certificate of the Secretary of State of the state of its
incorporation furnished pursuant to Section 9.7, and (ii) attached to the
Certificate is a true and complete copy of By-Laws of the Seller, as in full
force and effect at the date of the Closing.
9.9 Resolutions. Buyer shall have received certified copies of
resolutions duly adopted by the Seller's Board of Directors and Stockholders
authorizing the execution of this Agreement and the performance by Seller of the
transactions contemplated hereby.
9.10 Employment Arrangements. Each of the Stockholders shall have
entered into employment agreements effective as of the Closing Date with Buyer,
in substantially the form of Exhibits 9.10A and 9.10B, respectively.
9.11 Non-Competition Agreement. Each of the Stockholders shall have
entered into non-competition agreements (the "Non- Competition Agreements")
effective as of the Closing Date, substantially in the form of Exhibit 9.11.
9.12 Stock Option Letter. Buyer shall have received an executed copy of
a Stock Option Letter executed by the Seller and each of the Stockholders.
9.13 Proxy. Seller shall deliver to Buyer, in form reasonably
satisfactory to Buyer, an irrevocable proxy to vote the shares of Common Stock
held in escrow and not yet released pursuant to Section 3.4 in the discretion of
the Company's Board of Directors.
9.14 Compliance Evidence. Buyer shall have received such certificates,
opinions, documents and information as it may reasonably request in order to
establish satisfaction of the conditions set forth in this section 9.
9.15 Proceedings Satisfactory. All certificates, opinions and other
documents to be delivered by Seller and all other matters to be accomplished
prior to or at the Closing shall be satisfactory in the reasonable judgment of
Buyer and its counsel.
10. Conditions to Seller's Obligations.
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The obligations of Seller to effect the Closing shall be subject to the
satisfaction at or prior to the Closing of the following conditions, any one or
more of which may be waived by Seller:
10.1 No Injunction. There shall not be in effect any injunction, order
or decree of a court of competent jurisdiction that prohibits or delays the
consummation of any or all of the Contemplated Transactions and Seller shall
have received a certificate to that effect signed by the chief executive officer
of Buyer.
10.2 Representations, Warranties and Agreements. (a) The
representations and warranties of Buyer set forth in this Agreement shall be
true and correct in all material respects as of the date of this Agreement and
as of the Closing Date as though made at such time, (b) Buyer shall have
performed and complied in all material respects with the agreements contained in
this Agreement required to be performed and complied with by it prior to the
Closing and (c) Seller shall have received a certificate to that effect signed
by the chief executive officer of Buyer.
10.3 Legal opinion. Seller shall have received an opinion from Bachner,
Tally, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to Buyer, dated the Closing Date and in
substantially the form of Exhibit 10.3.
10.4 Secretary of State Certificate. Seller shall have received a
Certificate of the Secretary of State of the State of Delaware with respect to
the Buyer and of each state in which the Buyer is qualified to do business as a
foreign corporation as of a recent date showing the Buyer to be validly existing
or qualified as a foreign corporation in its states of existence and
qualification, as the case may be, and in good standing and that all franchise
taxes required to be paid and all reports required to be filed have been duly
paid and filed, and with respect to the Certificate of the Secretary of State of
Delaware, listing all documents filed and attaching certified copies thereof.
10.5 Secretary's Certificate of Buyer. Seller shall have received a
Certificate of the Secretary of Buyer, stating that (i) no document has been
filed relating to or affecting the Certificate of Incorporation of Buyer, after
the date of the Certificates of the Secretary of State of Delaware furnished
pursuant to Section 10.4, and (ii) attached to the Certificate is a true and
complete copy of the Certificate of Incorporation and By-Laws of the Buyer as in
full force and effect at the date of the Closing.
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10.6 Resolutions. Seller shall have received certified copies of
resolutions duly adopted by the Buyer's Board of Directors authorizing the
purchase of the Assets by the Buyer and the performance of the transactions
contemplated hereby.
10.7 Employment Arrangements. Buyer shall have entered into employment
agreements effective as of the Closing Date with each of the Stockholders in
substantially the form of Exhibits 9.10A and 9.10B, respectively.
11. Survival of Representations and Warranties; Indemnification.
11.1 Survival. All representations, warranties and agreements contained
in this Agreement or in any certificate delivered pursuant to this Agreement
shall survive the Closing for the time period set forth in Section 11.2 below
notwithstanding any investigation conducted with respect thereto.
11.2 Time Limitations. If the Closing occurs, Seller shall have no
liability (for indemnification or otherwise) with respect to any representation
or warranty, or agreement to be performed and complied with prior to the Closing
Date, other than those set forth in Sections 5.11(a), 5.15 (as to which Seller
and Stockholders shall only be liable for out-of-pocket expenses, liabilities
and damages incurred as a result of the breach thereof), 5.20, and 5.22, unless
on or before 18 months from of the Closing Date, Seller is given notice
asserting a claim with respect thereto. A claim with respect to Sections 5.11(a)
5.13, 5.20, and 5.22 may be made at any time. If the Closing occurs, Buyer shall
have no liability (for indemnification or otherwise) with respect to any
representation or warranty, or agreement to be performed and complied with prior
to the Closing Date, unless on or before the third anniversary of the Closing
Date, Buyer is given notice of a claim with respect thereto. However, the
provisions of this Section 11.2 shall not apply to any liability resulting from
any intentional misrepresentation or breach of warranty or any intentional
failure to perform or comply with any agreement.
11.3 Indemnification by Seller and Stockholders. Seller and
Stockholders shall jointly and severally indemnify and hold harmless Buyer, and
shall reimburse Buyer for, any loss, liability, claim, damage, expense
(including, but not limited to, costs of investigation and defense and
reasonable attorneys' fees, provided that the reimbursement of costs of
investigation, defense and reasonable attorneys' fees shall be subject to
Section 11.7) or diminution of value (collectively, "Damages") arising from or
in connection with (a) any inaccuracy in any of
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the representations and warranties of Seller or Stockholders in this Agreement
or in any certificate delivered by Seller or Stockholders pursuant to this
Agreement, or any actions, omissions or statements of facts inconsistent with
any such representation or warranty, (b) any failure by Seller or Stockholders
to perform or comply with any agreement in this Agreement, (c) any and all
liabilities and obligations of Seller that are not expressly assumed by Buyer
under the terms of this Agreement, (d) any claim by any person based on any act
or omission occurring prior to the Closing Date, except for claims base on
Buyer's failure to pay or perform the Assumed Liabilities, (e) any claims by
creditors of Seller (including any taxing authority) under any applicable bulk
sales laws (it being understood that neither Seller nor Buyer shall require
compliance with any such bulk transfer laws), (f) any claim by any Person for
brokerage or finder's fees or commissions or similar payments based upon any
agreement or understanding alleged to have been made by any such Person with the
Seller or the Stockholders (or any Person acting on their behalf) in connection
with any of the Contemplated Transactions, (g) claims by any taxing authorities
with respect to Taxes with respect to the period prior to the Closing, (h) any
claims made against the Seller alleging violation of ERISA or otherwise premised
on an ERISA claim or (i) any claims relating to the dispute listed on Schedule
5.8, provided that any damages or amount payable in settlement in such claim
shall be paid by Buyer to the extent that such amount does not result in the
liabilities set forth in Section 2.5(a)(i) and (ii) plus additional liabilities
referred to in Section 2.5(b) (ii) and (v) exceeding $375,000.
11.4 Indemnification by Buyer. Buyer shall indemnify and hold harmless
Seller and Stockholders, and shall reimburse Seller and Stockholders for, any
Damages arising from or in connection with (a) any inaccuracy in any of the
representations and warranties of Buyer in this Agreement or in any certificate
delivered by Buyer pursuant to this Agreement, or any actions, omissions or
statements of facts inconsistent with any such representation or warranty, (b)
any failure by Buyer to perform or comply with any agreement in this Agreement,
(c) any and all liabilities expressly assumed by Buyer pursuant to Section 2.5
hereof; (d) any claim by any Person for brokerage or finder's fees or
commissions or similar payments based upon any agreement or understanding
alleged to have been made by such Person with Buyer (or any Person acting on its
behalf) in connection with any of the Contemplated Transactions and (e) any
claim arising out of the performance of Seller of the service pursuant to
Section 2.6, unless such liability results from the bad faith or willful
misconduct of Seller.
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11.5 Limitations as to Amount -- Seller. Seller shall have no liability
(for indemnification or otherwise) with respect to the matters described in
clause (a) of Section 11.3 as to any matter or series of related matters as to
which the total Damages is less than $1,000 and until the total of all Damages
with
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respect to matters described in Section 11.3(a) exceeds $35,000 and then only
for the amount by which such Damages exceed $35,000.
11.6 Limitations as to Amount -- Buyer. Buyer shall have no liability
(for indemnification or otherwise) with respect to the matters described in
clause (a) of Section 11.4 as to any matter or series of related matters as to
which the total Damages is less than $1,000 and until the total of all Damages
with respect to matters described in Section 11.4(a) exceeds $35,000 and then
only for the amount by which such Damages exceed $35,000.
11.7 Procedure for Indemnification. Promptly after receipt by an
indemnified party under Sections 11.3 or 11.4 of notice of the commencement of
any action for which indemnification is available under Sections 11.3, 11.4,
11.5 and 11.6, such indemnified party shall, if a claim in respect thereof is to
be made against an indemnifying party under such section, give notice to the
indemnifying party of the commencement thereof, but the failure so to notify the
indemnifying party shall not relieve it of any liability that it may have to any
indemnified party except to the extent the indemnifying party demonstrates that
the defense of such action is prejudiced thereby. In case any such action shall
be brought against an indemnified party and it shall give notice to the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, to assume
the defense thereof with counsel satisfactory to such indemnified party and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such section for any fees of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party in connection with the defense thereof, if the indemnified
party and the indemnifying party are both parties to the action and the
indemnified party has been advised by counsel that there may be one or more
defenses available to it and not available to the indemnifying party. If an
indemnifying party assumes the defense of such an action, (a) no compromise or
settlement thereof may be effected by the indemnifying party without the
indemnified party's consent (which shall not be unreasonably withheld) unless
(i) there is no finding or admission of any violation of law or any violation of
the rights of any Person and no effect on any other claims that may be made
against the indemnified party and (ii) the sole relief provided is monetary
damages that are paid in full by the indemnifying party and (b) the indemnifying
party shall have no liability with respect to any compromise or
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settlement thereof effected without its consent (which shall not be unreasonably
withheld). If notice is given to an indemnifying party of the commencement of
any action and it does not, within ten days after the indemnified party's notice
is given, give notice to the indemnified party of its election to assume the
defense thereof, the indemnifying party shall be bound by any determination made
in such action or any compromise or settlement thereof effected by the
indemnified party.
12. Termination.
12.1 Termination. This Agreement may be terminated before
the Closing occurs only as follows:
(a) By written agreement of Seller and Buyer at any time.
(b) By Seller, by notice to Buyer at any time, if one or
more of the conditions specified in Section 10 is not satisfied at the time at
which the Closing would otherwise occur or if satisfaction of such a condition
is or becomes impossible.
(c) By Buyer, by notice to Seller at any time, if one or
more of the conditions specified in Section 9 is not satisfied at the time at
which the Closing would otherwise occur or if satisfaction of such a condition
is or becomes impossible.
(d) By Buyer or Seller, by notice to the other at any time
after June 30, 1997.
12.2 Effect of Termination. In the event that this Agreement is
terminated pursuant to Section 12.1, this Agreement shall terminate without any
liability or further obligation of any party to another, except for Sections 7.2
and 7.4, which shall survive termination. However, a termination under Section
12.1 shall not relieve any party of liability for any failure to perform or
comply with any agreement prior to the date of termination or any
misrepresentation or breach of warranty or constitute a waiver of any claim with
respect thereto.
13. Registration Rights.
Credit Depot covenants and agrees as follows:
13.1 Registration. Credit Depot will use its best efforts to file a
registration statement covering the shares of Common Stock of Credit Depot with
the SEC (i) no later than 75 days after the Closing Date, with respect to the
shares of Common Stock of Credit Depot issued to Seller at the Closing and (ii)
no
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later than 75 days after the date on which the remaining Common Stock of Credit
Depot is issued to Seller pursuant to Section 3.4, with respect to such
remaining shares.
13.2 Obligations of Credit Depot. Whenever required under Section 13.1
to effect the registration of any Common Stock of Credit Depot, Credit Depot
shall:
(a) Prepare and file with the SEC a registration
statement with respect to such Credit Depot Common Stock and use its best
efforts to cause such registration statement to become effective and keep such
registration statement effective for up to 180 days or until Seller has
completed the distribution described in the registration statement, whichever
occurs first.
(b) Prepare and file with the SEC such
amendments and supplements to such registration statement and the prospectus
used in connection with such registration statement as may be necessary to
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement.
(c) Furnish to Seller such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, all other documents filed with or
correspondence with the SEC relating to the registration of the Credit Depot
Common Stock, and such other documents as they may reasonably request in order
to facilitate the disposition of Credit Depot Common Stock owned by them.
(d) Use its best efforts to register and qualify
the securities covered by such registration statement under such other
securities or Blue Sky laws of such states as shall be reasonably requested by
Seller; provided, that Credit Depot shall not be required to qualify to do
business or to file a general consent to service of process in any such states
or jurisdictions.
(e) Notify Seller at any time when a prospectus
relating thereto is required to be delivered under the Securities Act of the
happening of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing.
(f) Credit Depot shall bear all fees and
expenses in connection with the registration of the Credit Depot Common
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Stock pursuant to this Agreement (excluding commissions, discounts, expenses of
the broker or placement agent and transfer taxes.
13.3 Furnish Information. It shall be a condition precedent to the
obligations of Credit Depot to take any action pursuant to this Section 13 that
the Seller shall furnish to Credit Depot such information regarding Seller, the
Credit Depot Common Stock held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of the Credit
Depot Common Stock.
13.4 Blackout Periods. Credit Depot shall have the right to postpone
the filing of a Registration Statement or the distribution pursuant thereto for
a reasonable period or periods if the Board of Directors of Credit Depot has
determined, in its good faith judgment, that it would materially interfere with
any financing, acquisition, corporate reorganization or other material
transaction involving Credit Depot, or would require premature disclosure of any
material non-public information.
14. Miscellaneous.
14.1 Notices. All notices, consents and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given when
(a) delivered by hand, (b) sent by telex or telecopier (with receipt confirmed),
provided that a copy is mailed by registered mail, return receipt requested, or
(c) when received by the addressee, if sent by Express Mail, Federal Express or
other express delivery service (receipt requested), in each case to the
appropriate addresses, telex numbers and telecopier numbers set forth below (or
to such other addresses, telex numbers and telecopier numbers as a party may
designate as to itself by notice to the other parties):
(a) If to Buyer:
c/o Credit Depot Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Sr.
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with a copy to:
Bachner, Tally, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
(b) If to Seller:
Cash Back Mortgage Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇
The Illuminating Building
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(c) If to Stockholders:
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇
The Illuminating Building
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
14.2 Expenses. Each party shall bear its own expenses incident to the
preparation, negotiation, execution and delivery of this Agreement and the
performance of its obligations hereunder.
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14.3 Payment. A wire transfer or delivery of a check shall not operate
to discharge any obligation of payment under this Agreement and is accepted
subject to collection.
14.4 Specific Performance. The parties acknowledge that the subject
matter of this Agreement (i.e., the Assets of the Seller) is unique and that no
adequate remedy of law would be available for breach of this Agreement.
Accordingly, each party agrees that the other parties will be entitled to an
appropriate decree of specific performance or other equitable remedies to
enforce this Agreement (without any bond or other security being required) and
each party waives the defense in any action or proceeding brought to enforce
this Agreement that there exists an adequate remedy at law.
14.5 Captions. The captions in this Agreement are for convenience of
reference only and shall not be given any effect in the interpretation of this
Agreement.
14.6 No Waiver. The failure of a party to insist upon strict adherence
to any term of this Agreement on any occasion shall not be considered a waiver
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing.
14.7 Exclusive Agreement; Amendment. This Agreement supersedes all
prior agreements among the parties with respect to its subject matter
(including, but not limited to, the letter of intent among Credit Depot, Seller
and Stockholders dated _______, 1997), is intended (with the documents referred
to herein) as a complete and exclusive statement of the terms of the agreement
among the parties with respect thereto and cannot be changed or terminated
except by a written instrument executed by the party or parties against whom
enforcement thereof is sought.
14.8 Payment of Sales Taxes, etc. All filing fees and sales, use,
transfer, document, recording (real estate or otherwise), gross receipts and
similar taxes of any nature whatsoever, applicable to, or resulting from, the
sale and purchase of the Assets shall be borne 50% by Seller and 50% by Buyer.
Seller shall be responsible for filing all returns required in connection
therewith.
14.9 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be considered an original, but all of which
together shall constitute the same instrument.
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14.10 Governing Law. This Agreement and (unless otherwise provided) all
amendments hereof and waivers and consents hereunder shall be governed by the
internal law of the State of Delaware, without regard to the conflicts of law
principles thereof.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
CASH BACK MORTGAGE CORP.
By: /S/
---------------------------------
CASH BACK ACQUISITION CORP.
By: /S/
---------------------------------
/s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
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Guaranty
Credit Depot Corporation ("Credit Depot") hereby agrees to be bound by
Section 13 of the Asset Purchase Agreement (the "Acquisition Agreement") dated
as of April 1, 1997, between Cash Back Acquisition Corp. ("Buyer"), Cash Back
Mortgage Corp. ("Seller") and ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ ("Stockholders"), and
unconditionally guarantees to Seller full and punctual payment when due of the
amounts due from Buyer pursuant to Section 3 of the Acquisition Agreement and
payment of any liabilities of Buyer as a result of inaccuracies or breaches of
representations, warranties or covenants in the Acquisition Agreement (the
"Buyer Obligations"). This is a guaranty of payment and not of collection and
the Seller shall not be obligated to proceed first against the Buyer before
proceeding against Credit Depot.
Credit Depot shall be entitled to assert any defense which would be
available to the Buyer, except for any defense based on Buyer's insolvency,
bankruptcy, reorganization or other similar proceeding. Credit Depot shall have
the right to offset against any amounts payable by the Buyer to Seller any
amounts owed by Seller or Stockholders to Buyer, to the same extent as if such
amount was payable directly by Credit Depot to Sellers.
Credit Depot waives any and all notice of the creation, renewal,
extension or accrual of any of the Buyer Obligations, present or future, and
further waives notice of or proof of reliance by Seller or Stockholders upon
this guaranty or acceptance of this guaranty. Credit Depot waives acceptance
hereof, diligence, presentment, demand, protest and any notice not provided for
herein, and any defense that may arise by reason of lack of authority of any
person signing on behalf of Credit Depot or the lack of authority, death or
disability of any other person or entity.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of
this 1st day of April, 1997.
CREDIT DEPOT CORPORATION
By: /s/
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