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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement") is made and entered into as
of the 30th day of August, 1997, by and between The Real Estate Office
Software Company, a Nevada corporation ("Seller"), with its principal
office located at ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
and Finet Holdings Corporation, a Delaware corporation ("Buyer"), with its
principal office located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
This Agreement is made with reference to the following facts:
A. Seller is engaged in several distinct business enterprises, one of
which is the development, production and sale of computer software products
for use in the residential real estate industry.
▇. ▇▇▇▇▇ is in the business of delivering homeownership services,
including loan origination, processing and various settlement services in
the residential real estate industry.
C. Buyer desires to purchase from Seller all of the assets of Seller
which are related to the development, production and sale of computer
software products for use in the residential real estate industry,
including but not limited to all fixtures, tangible and intangible personal
property, inventory, goodwill and other assets, which are more specifically
described herein.
D. Subject to the terms and conditions contained in this Agreement,
Seller desires to sell to Buyer, and Buyer agrees to purchase from Seller,
all of the Software Assets of Seller.
Now therefore, in consideration of the foregoing and of the covenants,
representations and warranties set forth in this Agreement, the parties
hereto, agree as follows:
1. PURCHASE AND SALE OF ASSETS:
A. Seller shall sell, assign, and deliver to Buyer and Buyer shall
purchase and accept, on the Closing Date, as defined in this Agreement all
the assets and properties owned by Seller or in which Seller has any right,
title, or interest, of every kind and description, wherever located, used
by Seller in connection with its real estate software business or products,
including, without limitation, the following (collectively the "Software
Assets"):
(a) All personal property tangible or intangible, furniture, fixtures,
equipment, machinery, parts, accessories, inventory and any other property,
all as is more specifically described and set forth in Exhibit A, which is
attached and incorporated by reference (the "Personal Property").
(b) All accounts receivable, bank accounts, cash, securities, claims,
contract rights, equipment leases, warranties, and other rights or
agreements, whether written or oral, the right to use any and all names
that are associated with the real estate software business engaged in by
Seller, all as is more specifically described and set forth in Exhibit A,
which is attached and incorporated by reference (the "Contracts and
Accounts").
(c) All processes, research and development projects, designs,
patents, copyrights, source codes, tradenames, logos, trademarks,
servicemarks, licenses and goodwill associated with the real estate
software business, all as is more specifically described and set forth in
Exhibit A, which is attached and incorporated by reference (the "Intangible
Software Assets").
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B. The Software Assets shall not include, and Buyer shall not acquire
any interest in, the assets of Seller that are not specifically described
herein and specifically those assets and liabilities related to the
business enterprise operated under the fictitious business name "Seminars
in Excellence" ("Excluded Assets and Liabilities").
C. Seller shall convey title to the Software Assets to Buyer free and
clear of all liens, security interests, and encumbrances of any kind or
nature, other than those items specifically described and set forth in
Exhibit B, which is attached and incorporated by reference (the "Permitted
Liens").
D. Seller assumes all risk of loss or damage to the Software Assets
prior to the Closing Date. In the event there is any material loss or
damage to all or any portion of the Software Assets prior to the Closing
Date, Buyer may either terminate this Agreement or negotiate with Seller
for a proportionate reduction in the Purchase Price to reflect any loss or
damage. For the purposes of this section, the term "material loss or
damage" shall mean any loss or damage to the Software Assets with an
aggregate cost of five hundred ($500.00) dollars or more.
2. CONSIDERATION; ASSUMPTION OF LIABILITIES:
In consideration of the sale of the Software Assets under this
Agreement and of all other things done and agreed to be done by Seller,
Buyer shall pay to the Seller, on or before the Closing Date, the Purchase
Price which shall be composed of the following consideration:
A. Cash in the sum of four hundred forty thousand seven hundred
seventy nine ($440,779.00)
dollars ("Cash Payment"), which sum shall be comprised of the following:
(a) Retirement of the Finet Bridge Loan, including the Note dated
March 5, 1997, with all associated interest and costs in the sum of two
hundred eleven thousand seven hundred seventy two ($211,772.00) dollars.
(b) Funds advanced by Buyer to Seller during the calendar year 1997
for real estate software research and development, in the sum of two
hundred twenty nine thousand ($229,000.00) dollars.
B. As additional consideration of the sale of the Software Assets
under this Agreement, Buyer shall provide funds and Seller shall use its
best efforts to settle or retire the itemized research and development
liabilities, the total of which shall not exceed two hundred thousand
($200,000.00) dollars, as is more specifically set forth in Exhibit D,
which is attached and incorporated by reference ("Addititional R & D
Expense"). The remaining balance of the Additional R & D Expense
liabilites, if any shall be "Audit Deductions", settled or retired as part
of the Post-Closing Audit process, as is more specifically described in
Paragraph 2., D., herein below.
However, the liabilities so settled and retired shall not include:
(a) Any liabilities accrued after June 30, 1997, the date of the
Balance Sheet set out in Exhibit C, that were not incurred in the ordinary
course of the real estate software business for research and development.
(b) Any liabilities whenever accrued for federal or state income
taxes, sales taxes or interest or penalties.
(c) Any liabilities not reflected in Exhibit C, for expenses incurred
in connection with the audit of income and payroll tax returns, for
reporting periods prior to June 30,1997.
(d) Any liabilities of any person or firm other than those specified
in this Agreement.
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C. As additional consideration of the sale of the Software Assets
under this Agreement, Buyer shall cause to be issued to Seller through an
escrow Retention Account, two hundred thousand shares of the common stock
of Seller, par value $.01 per share which shares shall, for purposes of
this Agreement, be valued at $2.50 per share (" Finet Stock") and subject
to the provisions contained in Paragraphs 2. D., E., and F., herein.
D. Post-Closing Audit Adjustment to Purchase Price:
(a) The Purchase Price to be paid to Seller by Buyer shall be reduced,
as provided herein, to reflect changes in the value and content of the
Software Assets, the value and content of liabilities, including, but not
limited to the remaining balance of the Additional R & D Expense
liabilites, if any and any costs, expenses or claims resulting from the
breach of any provision of this Agreement by Seller, as may be established
by Buyer during the course of conducting a Post-Closing Audit.
(b) Eighty seven thousand five hundred (87,500) shares of the Finet Stock
to be issued to Seller by Buyer for the purchase of the Software Assets
will be escrowed in a Retention Account. While performing the Post-Closing
Audit, Buyer shall provide Seller with two Interim Audit Reports, including
the transfer of an adjusted portion of the escrowed Finet Stock, the first
on April 30, 1998, at which time a maximum of thirty seven thousand five
hundred (37,500) shares of the Finet Stock will be subject to release and
the second on October 31, 1998, at which time a maximum of twenty five
thousand (25,000) shares of the Finet Stock will be subject to release.
The Final Post-Closing Audit Report and the transfer of the remaining
balance of Finet Stock, if any, shall be completed by Buyer not later than
April 30, 1999.
(c) At the time of each of the three Audits, two Interim and one Final,
the Retention Account ledger balance, with an initial value of zero at the
time of the first Interim Audit, shall be adjusted downward for (i) any
adverse change in the value and content of the Software Assets, without
regard to a change in value of the Intangible Software Assets included
therein; (ii) any adverse change in the value and content of the
liabilities including but not limited to the remaining balance of the
Additional R & D Expense liabilites, if any; (iii) any liabilities that are
not reflected on the balance sheets of Seller, provided on the Closing Date
and attached hereto, or are not otherwise disclosed in writing as part of
this Agreement and to cover any and all damages, costs and expenses that
may arise out of the violation(s) by Seller, if any, of its representations
and warranties contained in this Agreement; and (iv) any expenses incurred
for payment of delinquent taxes, additional taxes incurred by Seller as a
result of capital gains associated with the purchase of the Software
Assets, that would not have been assessed in a "Stock Purchase" and/or
other assessments discovered during the preceding period of the Post-
Closing Audit ("Audit Deductions").
(d) Upon the completion of each of the three Audits, the balance of
the Retention Account shall b calculated and, if said balance is negative,
the equivalent number of Finet Stock, valued at $2.50 per share, shall be
deducted from amount of shares then subject to distribution, retained by
Buyer and the remaining shares of Finet Stock, if any, shall be transferred
to Seller. In the event the amount of shares to be deducted exceeds the
amount of shares subject to distribution at the time of an Interim Audit,
the negative balance shall be carried forward to the subsequent audit. It
is understood that for the purpose of the Post-Closing Audit calculations,
as is set forth herein, the same accounting methods currently used by
Seller and Buyer, shall be employed.
E. Seller has requested and Buyer has agreed to provide a mechanism which
will allow Seller to obtain the maximum amount of the escrowed shares of
Finet Stock, by reducing or eliminating Audit Deductions, during the
calculation of each Audit.
(a) As part of the Audit process, Buyer will confer with Seller in an
effort to identify and resolve any items that may be the subject of an
Audit Deduction. In addition, on or before each Audit date, Buyer shall
provide Seller with written notice of each identified Audit Deduction, if
any, which will be included as part of the calculation of the current Audit
Report.
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(b) Seller shall have forty five (45) days from the receipt of notice
in which to reduce or settle the reported Audit Deductions, at no cost to
Buyer ("Notice Period"). Buyer shall adjust the amount of the reported
Audit Deductions to reflect the timely receipt of commercially acceptable
written confirmation of reduction or settlement, provided by Seller during
the Notice Period and release the corresponding number of shares of Finet
Stock.
F. Additional Rights and Restrictions:
(a) Seller shall not receive an ownership interest in any of the Finet
Stock escrowed in the Retention Account, unless and until it is released by
Finet in accordance with the Escrow provisions contained herein. Without
limiting the foregoing, Seller shall have no right to "vote" the Finet
Stock until it has been actually received by Seller, at the conclusion of
the Audit process.
(b) Upon the completion of each Audit and the receipt of Finet Stock,
Seller shall be entitled to "Piggy Back" registration rights on
registrations of Finet subject to the right, however, of Finet and its
underwriters to reduce the number of shares proposed to be registered by
Seller in view of market conditions.
3. INSTRUMENTS OF TRANSFER:
The sales, assignments, and deliveries to be made to Buyer pursuant to
this Agreement shall be effected by bills of sale, endorsements, checks,
assignments and other instruments of transfer in such form as Buyer shall
reasonably request. Seller shall prepare appropriate forms of instruments
of transfer and conveyance in conformity with this Agreement and shall
submit them to Buyer for examination on or before the Closing Date. Any
time and from time to time after the Closing Date, on Buyer's request,
Seller will do, execute, acknowledge, and deliver all such further acts,
deeds, assignments, transfers, and powers of attorney as may be required in
conformity with this Agreement for the adequate assigning, transferring,
granting, and confirming to Buyer of the assets and properties sold to
Buyer.
4. ASSIGNMENT OF CONTRACT RIGHTS:
If any contract, license, lease, commitment, or sales or purchase order
assignable to Buyer under this Agreement may not be assigned without the
consent of the other party thereto, Seller will use its best efforts to
obtain the consent of the other party to the assignment. If any such
consent cannot be obtained, the Purchase Price under this Agreement shall
be adjusted downward by the amount allocated to the affected asset(s) in
Exhibit A.
5. ACCOUNTS RECEIVABLE:
After the Closing Date, Buyer shall have the authority to collect all
receivables transferred to Buyer under this Agreement and to endorse
without recourse and without warranties of any kind the name of Seller on
any checks or evidence of indebtedness received by Buyer on account of any
receivables. Seller will transfer and deliver to Buyer any cash or other
property that Seller may receive in respect to any receivables.
6. BOOKS AND RECORDS:
Seller shall have the right to retain minute books, stock books, and
other corporate records of Seller having to do with a corporate
organization or capitalization, as well as the general business operating
and accounting records of Seller. All other records and books of account
of every kind and nature relating to the Software Assets shall be delivered
to, and become the property of Buyer, on or before the Closing Date. At
any time contemplated herein, each party shall have reasonable access to
and the right to make exact copies of all books, records, and documents
referred to in this Agreement that are in the possession of the other
party.
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7. CLOSING:
A. Subject to fulfillment of the conditions to Closing specified in
this Agreement and pursuant to the other terms and conditions hereof, the
closing for the purchase and sale of the Software Assets (the "Closing")
shall be held at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, on December _____, 1997, at 2:00 PM or at such other time and place
as the parties may mutually agree in writing (the "Closing Date"). At
Closing, Seller shall convey title to the Software Assets to Buyer as
provided in this Agreement, subject only to the Permitted Liens.
B. The obligations of Buyer to purchase the Software Assets and to
settle or retire, when due, the R & D Expense, and of Seller to sell,
transfer and assign the Software Assets as provided in this Agreement are
subject to the satisfaction, at the Closing (except where specifically
required or permitted to be satisfied prior to or after the Closing), of
all of the respective obligations of Buyer and Seller set forth below:
(1) Delivery of Purchased Software Assets to Buyer. At Closing,
Seller shall deliver the Software Assets, including the source code for all
software which is more specifically described in Paragraph 8. F. herein, by
duly executed ▇▇▇▇ of Sale and assignments or other instruments of transfer
and documents which conform to the requirements of the Agreement.
Simultaneously with the consummation of the transfer, Seller, through its
officers, agents, and employees, will put Buyer into full possession and
enjoyment of all Software Assets to be conveyed and transferred by this
Agreement.
(2) Delivery of Purchase Price and Settlement of Liabilities. Buyer
shall deliver to Seller funds in the amount of the Purchase Price and other
appropriate instruments or documents which conform to the requirements of
the Agreement.
C. Certificate from Seller. Seller shall deliver to Buyer a
certificate, dated the Closing Date, signed by two duly authorized officers
of Seller certifying that:
(1) The representations and warranties made by Seller herein or in any
Exhibit or Schedule hereto remain true in all material respects on the
Closing Date as though made on such date except for changes contemplated by
the Agreement.
(2) Seller has performed and complied in all material respects with
all agreements, covenants and conditions required by the Agreement to be
performed or complied with by Seller on or prior to the Closing.
(3) No litigation, proceedings or other actions are pending against or
affecting the Seller which have resulted or reasonably could be expected to
result either in an action to enjoin or the prevention of the successful
consummation of the transactions contemplated by the Agreement.
(4) Seller has received all consents required by the federal
government, any state or local governmental body or any foreign government
to the transactions contemplated by the Agreement, and such consents are in
full force and effect.
(5) That from the date of this Agreement through the Closing Date,
Seller has managed and conducted the Business in the ordinary course as
heretofore managed and conducted as though no change of ownership of the
Business were contemplated, and has used commercially reasonable efforts to
preserve all employee, vendor and customer relationships.
D. Certificate of Buyer. Buyer shall deliver to Seller a certificate,
dated the Closing Date, signed by two duly authorized officers of Buyer
certifying that:
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(1) The representations and warranties made by Buyer herein or in any
Exhibit or Schedule hereto remain true in all material respects on the
Closing Date as though made on such date except for changes contemplated by
the Agreement.
(2) Buyer has performed and complied in all material respects with all
agreements, covenants and conditions required by the Agreement to be
performed or complied with by Buyer on or prior to the Closing.
(3) No litigation, proceedings or other actions are pending against or
affecting the Buyer which have resulted or reasonably could be expected to
result either in an action to enjoin or the prevention of the consummation
of the transactions contemplated by the Agreement.
(4) Buyer has received all consents required by the federal
government, any state or local governmental body or any foreign government
to the transactions contemplated by the Agreement, and such consents are in
full force and effect.
E. Corporate Resolutions. Buyer and Seller shall each deliver to the
other certified copies of their respective corporate resolutions, certified
by the appropriate corporate officers, authorizing the execution and
delivery of the Agreement and the consummation of the transactions
contemplated hereby.
F. Other Agreements. Buyer and Seller shall enter into such other
agreements, or execute and deliver such documents or items, as may be
reasonably contemplated by the Agreement to effect the transactions
contemplated hereby.
G. Government Consents. Buyer and Seller shall each deliver to the
other copies of any governmental consents required to be obtained pursuant
to the Agreement.
8. REPRESENTATIONS AND WARRANTIES OF SELLER:
Seller makes the following representations and warranties to Buyer,
each of which is true and correct as of the date of this Agreement, and
shall be true and correct as of the Closing Date:
A. The Real Estate Office Software Company ("Seller or REOS"), is a
corporation duly organized, existing, and in good standing under the laws
of the State of Nevada, and is authorized and entitled to carry on its
business in said state and the State of California. REOS has no
subsidiaries. Its capital stock authorized and outstanding consists of
(i) 2,000,000 shares of Common Stock, $ .01 par value, of which 1,863,419
shares are to be issued and outstanding on the Closing Date; (ii) 80,000
shares of Series A Convertible Preferred Stock, $ 3.20 par value, of which
78,125 shares are to be issued and outstanding on the Closing Date; (iii)
320,000shares of Series B Convertible Preferred Stock, $ 3.20 par value, of
which -0- shares are to be issued and outstanding on the Closing Date. No
other classes of stock have been issued or authorized. All of such issued
shares will have been duly authorized and validly issued and fully paid and
non-assessable, on the Closing Date.
B. The execution and the delivery of this Agreement by REOS, and the
consummation of the transactions contemplated by this Agreement have been
duly authorized by its board of directors and by a majority of its
shareholders. Each Officer of REOS that executes this Agreement, has full
power and authority to enter into this Agreement and to carry out all the
terms and provisions hereof to be carried out by each of them, and all
authorizations and consents necessary for the execution and delivery of
this Agreement by said Officers have been given. This Agreement, assuming
due authorization, execution, and delivery by the Buyer, constitutes a
legal, valid, and binding Agreement of Seller, enforceable against Seller
in accordance with its terms.
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C. The financial statements of REOS relating to the twelve months
ending 6/30/97, and the financial statements relating to the twelve months
ending 8/30/97, each prepared by REOS and delivered to and reviewed by
public accountants for Buyer during the course of the negotiations
regarding this Agreement, fairly reflect the financial position of REOS as
of the end of those periods and the result of operations during those
periods.
D. REOS has good and marketable title to all of the personal property
tangible or intangible, furniture, fixtures, equipment, machinery, parts,
accessories, inventory and any other property, all as is more specifically
described and set forth in Exhibit A, the Personal Property, all of which
are free and clear of all mortgages, liens, and encumbrances, except the
Permitted Liens, as is more specifically described and set forth in Exhibit
B.
E. All of the Software Assets that were used in the business of REOS
on the date of this Agreement, or that were reflected in the balance sheet
dated 6/30/97, which are described and set forth in Exhibit C, are owned by
Seller, free and clear of all mortgages, liens, and encumbrances, except
the Permitted Liens, as is more specifically described and set forth in
Exhibit B.
F. REOS is the owner of the real estate office software, with the
exception of those components which are owned by and properly licensed from
third parties and as is more specifically described and set forth in
Exhibit E, which software is commonly known as the "Agent Connector", free
and clear of any liens, encumbrances or claims, except that of Buyer. REOS
has no knowledge of pending or threatened claims of infringement, violation
or interference involving said software.
G. REOS is not a party to any employment agreement, labor union
agreement, agreement for the future purchase of materials, supplies, or
equipment, sales agreement, pension, profit-sharing, or retirement plan or
agreement, distributorship or sales agreement, or lease agreement that
could effect the Software Assets and which relates to any period beyond the
Closing Date, whether written or oral, except as listed in Exhibit F.
Copies of all such written agreements have been supplied to Buyer, and
Buyer has been advised of the terms of all such oral agreements.
H. REOS enjoys a very good relationship with Van Hindorff, employed as
a software engineer, and there have been no significant difficulties
experienced that would indicate that this good relationship will not
continue past the Closing Date. REOS, its Officers, Directors and
Mangement, do not now have, or have ever had, any agreement, arrangement,
or understanding with Van Hindorff with respect to the Software Assets or
the sale of the Software Assets and nothing has been done or said by REOS,
its Officers, Dirctors and Management, to cause Van Hindorff to expect or
require any consideration, as a prerequisite for or a condition to the
performance of REOS under the terms and provisions of this Agreement,
except that which is disclosed and more specifically described and set
forth in Exhibit G, which is attached and incorporated by reference.
I. REOS is not in default under any contract, agreement, lease, or
other document relating to the Software Assets, to which it is a party, and
has complied with all laws, regulations, and ordinances applicable to its
business as of the date of this Agreement and the Closing Date.
J. Since 6/30/97, the date of the balance sheet set out in Exhibit C,
REOS has not issued any stock, bonds, or other corporate securities,
incurred any obligations or liability except current liabilities in the
ordinary course of business, declared or made any payment or distribution
to stockholders, purchased or redeemed any shares of capital stock,
mortgaged or pledged any of its assets, tangible or intangible, sold or
transferred any assets or canceled any debts or claims except in the
ordinary course of business, sold, assigned, or licensed any patents,
trademarks, or tradenames, suffered any extraordinary losses or waived any
rights except in the ordinary course of business, or entered into any other
transaction except in the ordinary course of business.
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K. Since 6/30/97, the date of the balance sheet set out in Exhibit C,
there has been no substantial change in the financial policies, account
relations, or marketing activities of REOS.
L. Since 6/30/97, the date of the balance sheet set out in Exhibit C,
there has been no significant change in the accounts payable of REOS, which
for the purposes of this provision shall mean any increase in excess of one
thousand ($1,000.00) dollars.
M. The REOS accounts receivable as reflected in its balance sheet as
of 6/30/97, set forth in Exhibit C, and as thereafter acquired prior to the
Closing Date, will be collectible to the extent that they are so identified
in Exhibit C, prior to Closing.
N. Since 6/30/97, the date of the balance sheet set out in Exhibit C,
there has been no substantial loss of value in any of the physical assets
or properties of REOS which are included in the Software Assets herein,
ordinary wear and tear excepted.
9. INDEMNIFICATION BY SELLER:
Seller shall indemnify, defend and hold harmless Buyer against and in
respect of any and all liabilities, expenses, costs, claims and actions,
including interest, penalties and reasonable attorneys' fees, that Buyer
shall incur or suffer, which arise or result from, or relate to:
(a) Any breach by the Seller of any of its representations or
warranties contained in this Agreement, or the failure of the Seller to
perform any covenant or agreement contained in this Agreement, or in any
schedule, certificate, exhibit or other instrument furnished or to be
furnished by Seller under this Agreement.
(b) Any and all claims of whatever nature, asserted with or without
the commencement of legal action against Buyer with respect to the
Excluded Assets and Liabilities.
10. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS:
The obligations of Buyer under this Agreement are conditioned on the
following all having occurred on or before the Closing Date:
(a) All actions, proceedings, instruments, and documents required of
Seller under this Agreement shall be in a form approved by counsel for
Buyer, provided that such approval shall not be unreasonably withheld.
(b) The representations and warranties made by Seller in this
Agreement shall be substantially correct on the Closing Date, except as
affected by transactions contemplated in this Agreement and changes
occurring in the ordinary course of business, with the same force and
effect as though the representations and warranties had been made on the
Closing Date.
(c) The instruments executed and delivered to Buyer by Seller pursuant
to this Agreement are valid in accordance with their terms and effectively
vest in Buyer good and marketable title to the Software Assets as
contemplated by this Agreement, free and clear of any liabilities,
obligations, and encumbrances, except those liabilities and obligations
which are to be expressly settled or retired by Buyer as provided in this
Agreement.
11. EXPENSES OF NEGOTIATION, SALE AND TRANSFER:
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(a) Except as is otherwise specifically set forth herein, each party
shall pay the party's own expenses, taxes, attorney's fees and other costs
incident to or resulting from this Agreement, whether or not the
transactions contemplated herein are consummated.
(b) The costs of Seller shall include the preparation of documents of
transfer and documentary stamp taxes. Buyer's costs shall include fees for
the filing or recording of instruments of transfer.
(c) Upon Closing, Buyer shall pay to attorney's and/or accountants
designated by Seller the sum of fifteen thousand ($15,000.00) dollars, for
services associated with the consummation of the transactions contemplated
herein. Seller shall pay any and all additional fees and costs for
attorney's and/or accountants employed by Seller.
12. ASSIGNMENT:
The respective rights and obligations of the parties to this Agreement
may not be assigned by any party without the prior written consent of the
other, which consent may not be unreasonably withheld or delayed. The
terms and provisions of this Agreement shall be binding upon and inure to
the benefit of the successors and assigns of the parties.
13. ENTIRE AGREEMENT:
This Agreement constitutes the entire agreement between the parties
with respect to the subject matter of this Agreement and supersedes all
prior agreements, oral and written, between the parties with respect to the
subject matter of this Agreement. However, in the event of a breach of
this Agreement by Seller, nothing herein shall limit or effect the rights
and remedies of Buyer contained in the Bridge Financing Agreement, dated as
of March 5, 1997, including the Note, Pledge and Security Agreement and
Personal Guaranty.
14. MODIFICATION AND WAIVER:
This Agreement may not be amended, modified or supplemented except by a
written agreement signed by the party against which the enforcement of such
amendment, modification or supplement is sought. No waiver of any of the
provisions of this Agreement shall be deemed, or shall constitute, a waiver
of any other provision. No waiver shall be binding unless executed in
writing by the party making the waiver.
15. ATTORNEY FEES:
If any legal action or other proceeding is brought to enforce the
provisions of this Agreement, the prevailing party shall be entitled to
recover reasonable attorney fees and other costs incurred in the action or
proceeding, in addition to any other relief to which the prevailing party
may be entitled.
16. NOTICES:
All notices, requests, demands, and other communications required by
this Agreement shall be in writing and shall be delivered in person or by
courier, or mailed by first class registered or certified mail, as follows,
or to such other address as a party may designate to the other in writing:
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(a) If to Seller:
The Real Estate Office Software Company
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
(b) If to Buyer:
Finet Holdings Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
The date on which the notice, request, instruction or document is
actually delivered shall be the date on which such Notice is deemed to have
been given for the purposes of this Agreement.
17. HEADINGS:
All paragraph, section, exhibit and title headings contained in this
Agreement are for convenience of reference only, do not form a part of this
Agreement and shall not affect in any way the meaning or interpretation of
this Agreement.
18. COUNTERPARTS:
This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement, and shall become
effective when one counterpart has been signed by each party and delivered
to the other party to this Agreement.
19. TIME OF ESSENCE:
Time shall be of the essence with respect to the obligations of the
parties to this Agreement.
20. GOVERNING LAW:
This Agreement shall be governed by and construed under the laws of the
State of California.
21. SEVERABILTY:
In the event any provision of this Agreement is deemed to be invalid,
illegal or unenforceable, all other provisions of the Agreement which are
not affected by such invalidity, illegality or unenforceability shall
remain in full force and effect.
22. CONFIDENTIALITY AND NONDISCLOSURE:
All confidential information which shall have been furnished or
disclosed by Buyer or Seller to the other pursuant to this Agreement shall
be held in confidence and shall not be disclosed to any person other than
their respective employees, directors, legal counsel, accountants or
financial advisors, with a need to have access to such information.
208
In witness whereof the parties have executed this Agreement as of the
day and year first above written.
SELLER
The Real Estate Office Software Company
By: ______________________ By: _____________________
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇,
President Secretary
BUYER
Finet Holdings Corporation
By: ______________________ By: ______________________
L. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇▇▇,
Chief Executive Officer Secretary