1
EXHIBIT 10.3
NON-COMPETITION AGREEMENT
THIS NON-COMPETITION AGREEMENT is made effective as of this 26
day of February, 1999, by and between BNC Mortgage, Inc., a Delaware corporation
("BNC") and Mortgage Xxxxx.xxx, Inc., a California corporation ("Purchaser" and
together with BNC, the "BNC Parties"), on the one hand, and America's Lender,
Inc. ("Seller"), SHL Holdings, Inc., a California corporation ("SHL"), and Xxxxx
Xxx, an individual ("Guy"), on the other, (Seller, SHL and Guy are known
together as the "Seller Parties"), with reference to the following facts:
R E C I T A L S
WHEREAS, Purchaser is purchasing certain assets (and assuming certain
liabilities) pursuant to that certain Agreement for the Purchase of Certain
Assets and the Assumption of Certain Liabilities of America's Lender, Inc. dated
as of December 14, 1998 (the "Purchase Agreement");
WHEREAS, Guy is the sole Shareholder of Seller and of TrueLink, Inc., a
California corporation ("TrueLink");
WHEREAS, Seller has well established business relationships and contacts
in its business which includes, but is not limited to, originating, selling and
servicing mortgage loans and mortgage lending (the "Business");
WHEREAS, after the Closing Date (as defined in the Purchase Agreement)
the BNC Parties will own and operate the Business and the BNC Parties expect to
receive all benefits thereof;
WHEREAS, Seller's trade secrets include confidential information
concerning product and service marketing plans and strategy, customer needs and
peculiarities, and customer lists and detail information (the "Trade Secrets");
WHEREAS, the BNC Parties would not enter into the Purchase Agreement
unless it is assured that it will be able to operate the Business in the United
States without competition from the Seller Parties except as provided herein.
WHEREAS, it is a condition precedent to the consummation of the
transactions contemplated by the Purchase Agreement that the Seller Parties
enter into this Agreement;
WHEREAS, each of the Seller Parties has agreed not to compete with the
BNC Parties except as provided herein or use any confidential and/or proprietary
business information regarding the Business to the detriment of the BNC Parties
during the term of this Agreement in order to induce the BNC Parties to enter
into the Purchase Agreement and to perform its obligations thereunder;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, and for other good and valuable consideration, it is
hereby agreed by and between the parties hereto as follows:
1. Non-Competition
(a) Each of the Seller Parties agrees that for a period of
four (4) years from the date hereof (the "Non-Compete Term"), neither of the
Seller Parties nor their affiliates will directly or indirectly, engage or
participate in, prepare or setup, assist or have any interest in any person,
partnership, corporation, firm, association, or other business organization,
entity or enterprise (whether as an agent, security holder, creditor, consultant
or otherwise) that engages in (i) mortgage loan origination, selling, servicing
or lending activities of any type whatsoever or (ii) activities similar to or
which are otherwise in competition with the Business as such had been conducted
at any time prior to one year from the date hereof;
(b) the limitations set forth in Section 1(a) herein shall
not apply to the foregoing:
2
(i) TrueLink may use, distribute, disseminate,
license, resell, exploit, upload, display, copy
and store data submitted on any person or entity
(so long as such activities do not violate
subsection (i) of Section 1(a) herein or Section
2 herein) that is not a customer, borrower or
loan applicant of any of the BNC Parties or any
affiliate thereof, or any of their customers or
brokers; provided, however, that TrueLink may
use, distribute, disseminate, license, resell,
exploit, upload, display, copy and store data of
any borrower or loan applicant of any of the BNC
Parties or any affiliate thereof, or any of
their customers or brokers, provided that such
data (A) either (I) consists solely of that raw
credit data regarding the creditworthiness of
such borrower or loan applicant as provided by
third party credit repositories which currently
consists of TransUnion Credit Information
Services, Equifax Credit Information Services or
Experien Information Services ("Credit Data")
that is submitted, transmitted or in any way
sent through the Interface and is the later of
(aa) the later of 31 days old from the date of
receipt thereof by TrueLink or that date on
which such data is "archived" pursuant to
TrueLink's internal operating procedures
consistently applied or (bb) such date as may be
agreed to between Purchaser and Guy, provided
that such parties acknowledge that they will
discuss a date on which such data is similarly
"archived" by third party repositories as
referenced in this subsection (i) or (II) is
independently obtained by TrueLink from any
source not under a duty of confidentiality to
any of the BNC Parties and (B) is not combined,
compared with or against, integrated or
presented in any way with any Client Proprietary
Information as that term is defined in that
certain Licensing and Web Site Hosting Agreement
by and between the Purchaser and TrueLink of
even date herewith (the "Web Site Agreement"):
provided however, that notwithstanding the
foregoing, TrueLink may not use, distribute,
disseminate, license, resell, exploit, upload,
display, copy or store any Credit Data for a
period of one hundred eighty (180) days from the
date hereof;
(ii) subject to the limitations set forth in
paragraph 2 of this Agreement, TrueLink, may
develop, distribute and sell software which
allows for automated loan origination and
underwriting, credit reporting and document
preparation and provide related website
development and support services to unaffiliated
third parties or other entities in which none of
the Seller Parties has a financial interest,
which may be in competition with the Business
(by way of example only, the type and nature of
services TrueLink may undertake are those
services TrueLink provides Purchaser pursuant to
the Web Site Agreement); and
(iii) Guy may broker a maximum of ten mortgage loans
per year, which amount shall not be carried over
to subsequent years if Guy does not broker a
maximum of ten mortgage loans in any given year,
provided further that any and all of such loans
will first be offered to BNC and/or its
affiliates for funding.
(b) The parties intend that the covenant contained in this
Section 1 shall be construed as a series of separate covenants, one for each
county specified in Exhibit "A" hereto. Except for geographic coverage, each
such separate covenant shall be deemed identical in terms to the covenant
contained in this Section 1. If, in any judicial proceedings, a court shall
refuse to enforce any of the separate covenants deemed included in this
paragraph, then this unenforceable covenant shall be deemed eliminated from
these provisions for the purpose of those proceeding to the extent necessary to
permit the remaining separate covenants to be enforced.
(c) Nothing contained in this Agreement shall be deemed to
preclude the Seller Parties from purchasing or owning in the aggregate, directly
or beneficially, TrueLink or, as a passive investment, five percent (5%) or less
of any class of a publicly traded securities or any entity if it does not
actively participate in or control, directly or indirectly, any investment or
other decisions with respect to such entity.
-2-
3
2. Solicitation.
In connection with and in addition to the foregoing during the
Non-Compete Term, Seller Group agrees not to: (i) use or otherwise exploit,
directly or indirectly, the name "America's Lender," or any trademark, trade
name, service xxxx or logo used in connection with the Business, whether
registered or unregistered; (ii) directly or indirectly solicit, cause, or
induce, or attempt to solicit, cause or induce, any current or future employee
of the BNC Parties to terminate his or her employment with the BNC Parties;
(iii) request, advise or in any manner attempt to influence, directly or
indirectly, any customer or client, or prospective customer or client, of the
BNC Parties, or any person who had previously been a customer or client of the
BNC Parties, or who becomes a customer or client of the BNC Parties, to modify,
terminate or alter an existing relationship or not enter into a prospective
relationship with any BNC Party; or (iv) hire, retain or otherwise employ any
person or party who was an employee or consultant of Seller on or prior to a
date which is thirty (30) days from the date hereof.
3. Trade Secrets.
Each of the Seller Parties recognizes and acknowledges that the
Trade Secrets are valuable, special and unique assets of the Business. Each of
the Seller Parties shall keep all Trade Secrets confidential and not disclose
such Trade Secrets or any part thereof to any person, firm, corporation,
association or other entity for any reason or purpose whatsoever.
4. Acknowledgment.
Each of the Seller Parties acknowledges and agrees that the
covenants referred to in Sections 1 and 2 hereof are given in consideration of
the purchase by the BNC Parties of the Purchased Assets and assumption of the
Assumed Obligations (as those terms are defined in the Purchase Agreement)
pursuant to the Purchase Agreement.
5. Injunctive Relief
Each of the Seller Parties hereby acknowledges and agrees that
it would be difficult to fully compensate BNC for damages resulting from the
breach or threatened breach of Sections 1 and 2, herein and, accordingly, that
BNC shall be entitled to temporary and injunctive relief, including temporary
restraining orders, preliminary injunctions and permanent injunctions, to
enforce such Sections without the necessity of proving actual damages therewith.
This provision with respect to injunctive relief shall not, however, diminish
BNC's right to claim and recover damages or enforce any other of its legal
and/or equitable rights or defenses.
6. Severable Provisions
The provisions of this Agreement are severable and if any one or
more provisions may be determined to be illegal or otherwise unenforceable, in
whole or in part, the remaining provisions, and any partially unenforceable
provisions to the extent enforceable, shall nevertheless be binding and
enforceable.
7. Reference Provision
(a) Each controversy, dispute or claim between the parties
arising out of or relating to this Agreement, which controversy, dispute or
claim is not settled in writing within thirty (30) days after the "Claim Date"
(defined as the date on which a party subject to the Agreement gives written
notice to the other that a controversy, dispute or claim exists), will be
settled by binding arbitration in Los Angeles, California in accordance with the
provisions of the American Arbitration Association, which shall constitute the
exclusive remedy for the settlement of any controversy, dispute or claim, and
the parties waive their rights to initiate any legal proceedings against each
other in any court or jurisdiction. Any decision rendered by the arbitrator and
such arbitration will be final, binding and conclusive and judgment shall be
entered pursuant to CCP Section 644 in any court in the State of California
having jurisdiction.
(b) Except as expressly set forth in this Agreement, the
arbitrator shall determine the manner in which the proceeding is conducted,
including the time and place of all hearings, the order of presentation of
evidence, and all
-3-
4
other questions that arise with respect to the course of the proceeding. All
proceedings and hearings conducted before the arbitrator, except for trial,
shall be conducted without a court reporter, except that when any party so
requests, a court reporter will be used at any hearing conducted before the
arbitrator. The party making such a request shall have the obligation to arrange
for any pay for the court reporter. The costs of the court reporter shall be
borne equally by the parties.
(c) The arbitrator shall be required to be determined in all
issues in accordance with existing case law and the statutory laws of the State
of California. The rules of evidence applicable to proceedings at law in the
state of California will be applicable to the referenced proceeding. The
arbitrator shall be empowered to enter equitable as well as legal relief, to
provide all temporary and/or provisional remedies and to enter equitable orders
that will be binding upon the parties. The arbitrator shall issue a single
judgement at the close of the proceeding which shall dispose of all of the
claims of the parties that are the subject of the proceeding. The parties hereto
expressly reserve the right to contest or appeal from the final judgment or any
appealable order or appealable judgement entered by the arbitrator. The parties
hereto expressly reserve the right to findings of fact, conclusions of law, a
written statement of decision, and the right to move for a new trial or a
different judgment, which new trial, if granted, is also to be a proceeding
governed under this provision.
8. Binding Agreement
This Agreement shall inure to the benefit of and shall be
binding upon the parties hereto and their successors and assigns.
9. Captions
The Section captions are inserted only as a matter of
convenience and reference and in no way define, limit or describe the scope of
this Agreement or the intent of any provisions hereof.
10. Entire Agreement
This Agreement contains the entire agreement of the parties
relating to the subject matter hereof, and the parties hereto have made no
agreements, representations or warranties relating to the subject matter of this
Agreement that are not set forth otherwise herein. This Agreement supersedes any
and all prior agreements, written or oral, between the parties hereto. No
modification of this Agreement shall be valid unless made in writing and signed
by the parties hereto and unless such writing is made by an executive officer of
each of the parties hereto. The parties hereto agree that in no event shall an
oral modification of this Agreement be enforceable or valid.
11. Governing Law
This Agreement shall be governed and construed in accordance
with the laws of the State of California.
12. Notices.
All notices and other communications under this Agreement shall
be in writing (including, without limitation, telegraphic, telex, telecopy or
cable communication) and mailed, telegraphed, telexed, telecopied, cabled or
delivered by hand or by a nationally recognized courier service guaranteeing
overnight delivery to a party at the following address (or to such other address
as such party may have specified by notice given to the other party pursuant to
this provision):
If to any of the Seller Parties, to:
America's Lender, Inc. c/o TrueLink
0000 Xxxxx Xxxxxxx Xxxxxx
-0-
0
Xxx Xxxx Xxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxx
-5-
6
If to BNC or Purchaser to:
BNC Mortgage, Inc.
0000 XxXxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxx, President
with a copy to:
Freshman, Marantz, Orlanski, Xxxxxx & Xxxxx
Eighth Floor, East Tower
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
All such notices and communications shall, when mailed, telegraphed, telexed,
telecopied, cabled or delivered, be effective three days after deposit in the
mails, delivered to the telegraph company, confirmed by telex answerback,
telecopied with confirmation of receipt, delivered to the cable company,
delivered by hand to the addressee or one day after delivery to the courier
service.
13. Attorney's Fees.
In the event that any party shall bring an action or proceeding
in connection with the performance, breach or interpretation hereof, then the
prevailing party in such action as determined by the court or other body having
jurisdiction shall be entitled to recover from the losing party in such action,
as determined by the court or other body having jurisdiction, all reasonable
costs and expense of litigation or arbitration, including reasonable attorney's
fees, court costs, costs of investigation and other costs reasonably related to
such proceeding.
-6-
7
IN WITNESS WHEREOF, this Non-Competition Agreement is executed
as of the day and year first above written.
"BNC" "Seller"
BNC Mortgage, Inc. America's Lender, Inc.
a Delaware corporation a California corporation
By: By:
-------------------------------- -------------------------------------
Name: Name:
Title: Title:
"Purchaser" "Guy"
Mortgage Xxxxx.xxx, Inc.
a California corporation
By:
-------------------------------- ----------------------------------------
Name: Xxxxx Xxx
Title:
"SHL"
SHL Holdings, Inc.
By:
--------------------------------
Name:
Title:
-7-
8
EXHIBIT "A"
The geographic areas to which the non-competition provisions of Section
1 apply are as follows:
