EXHIBIT 4.3
AGREEMENT
This Agreement ("Agreement") is entered into by and among Availent
Financial, Inc., a Delaware Corporation with its principal places of business
located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000,
the surviving corporation resulting from a merger between Availent Financial,
Inc., ("Availent Financial") a Texas Corporation, and SeaCrest Industries, Inc.
("Seacrest"), a Delaware Corporation which was finalized on December 4, 2002,
("Availent"), Xxxxxxxx Xxxxxxxx XxXxxxxx ("X. XxXxxxxx"), Xxxxxxx X. XxXxxxxx
("X. XxXxxxxx") (collectively, "McGeeneys") and Xxxxxxxxx Investment Management,
L.L.C. ("Xxxxxxxxx"); a Delaware Limited Liability Company whose address is 000
Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 as follows:
RECITALS:
WHEREAS, Availent Financial, Availent and Xxxxxxxxx have heretofore
entered into certain loan agreements and amendments to such loan agreements
pursuant to which Xxxxxxxxx has lent to Availent Financial or Availent the sum
of One Million Three Hundred Fifty Five Thousand Dollars ($1,355,000); and,
WHEREAS, in consideration for such loans by Xxxxxxxxx and the renewal
and extension of such loans, Avalient has delivered to Xxxxxxxxx certain
promissory notes and renewal and extension promissory notes ("Xxxxxxxxx Notes")
which Notes are held by Xxxxxxxxx and are more specifically described on EXHIBIT
"A" attached hereto and incorporated herein for all purposes and, in addition to
payment of certain interest, commitment fees, extension fees, attorneys fees and
travel expenses, and other charges and expense related to the Xxxxxxxxx Notes
Availent further agreed to issue and has issued, certain shares of Availent's
common stock and has issued warrants for Xxxxxxxxx to purchase additional shares
of Availent's common stock at certain prices as described on EXHIBIT "B"
attached hereto; and,
WHEREAS, as collateral to secure repayment of the Renewal And Extension
Promissory Note dated December 27, 2002, described on EXHIBIT "A" in the
principal amount of Five Hundred Thousand and No/100 Dollars ($500,000.00),
pursuant to the provisions of a Limited Guaranty dated February 26, 2002, X.
XxXxxxxx granted Xxxxxxxxx a Collateral Assignment in a certain Annuity issued
by Sun America, Sun America Annuity Contract No. P15A1021155 ("Sun America");
and,
WHEREAS, as collateral to secure repayment of the Renewal And Extension
Promissory Note dated December 27, 2002, described on, EXHIBIT "A" in the
principal amount of Seventy-Five Thousand and No/100 Dollars ($75,000.00),
Availent as provided Xxxxxxxxx a security interest in Availent's bank account
with First Union / Wachovia ("Bank") pursuant to the terms of an agreement
regarding checking account dated November 4, 2002; and,
WHEREAS, as collateral to secure repayment of the Renewal, Extension
And Modified
AGREEMENT - PAGE 1 1
Promissory Note dated December 27, 2002, described on EXHIBIT "A" in the
principal amount of Seven Hundred Eighty Thousand and No/100 Dollars
($780,000.00), pursuant to the provisions of Limited Guaranty Agreements dated
December 27, 2002, X. XxXxxxxx and X. XxXxxxxx granted Xxxxxxxxx a Second Lien
against real property located at 000 Xxxxxxx Xxxxxx, Xxxxx Xx, Xxx Xxxxxx 00000
("New Mexico Property"); and
WHEREAS, the Promissory Notes described on EXHIBIT "A" mature on April
30, 2003, but Availent has the legal right to renew and extend the Promissory
Notes through prepayment of interest on such date; and,
WHEREAS, Availent has an obligation to another lender or investor,
Xxxxx Xxxx ("Xxxx") in the original amount of Three Hundred Seventy Five and
No/100 Dollars ($375,000); and,
WHEREAS, Availent is in the process of registering certain shares of
its common stock with the Securities And Exchange Commission ("S.E.C.") for
sale to the public ("SB-2 Registration") and has become listed with the National
Association of Securities Dealers ("NASD"); and,
WHEREAS, Availent is in need of additional financing with which to
provide working capital prior to the receipt of proceeds from a SB-2
Registration and public offering of its shares of stock;
WHEREAS, pursuant to the terms of this Agreement, as set forth below,
Xxxxxxxxx has agreed to provide Availent an additional principal amount of
$300,000.
Now therefore, in consideration of the promises, covenants and
considerations hereinafter expressed, the parties hereto agree as follows:
1. RENEWAL AND EXTENSION PROMISSORY NOTE: $500,000. All parties agree
that immediately following the execution of this Agreement by all parties,
Xxxxxxxxx shall have the right to make demand for payment of the Sun America
Annuity pursuant to the provisions of the Collateral Assignment of which
Xxxxxxxxx is the holder and assignee. Upon receipt of the proceeds there from,
such amount shall be immediately applied in payment of all amounts owed pursuant
to the terms of the Renewal And Extension Promissory Note dated December 27,
2002, in the principal amount of Five Hundred Thousand and No/100 Dollars
($500,000.00) described on EXHIBIT "A". Any balance of the proceeds from the Sun
America Annuity remaining after application of the proceeds in payment of the
amounts owed on the said Note (including without limitation, principal,
interest, and attorney's fees) and after payment of any other fees or charges
(but not principal or interest) owed to Xxxxxxxxx on the $780,000 or $75,000
Notes shall be immediately paid to X. XxXxxxxx along with, a written accounting
of the proceeds received and the application of such proceeds. In the event the
proceeds of the Sun America Annuity are insufficient to liquidate and pay the
outstanding balance of all amounts owed pursuant to the terms of said Note,
Xxxxxxxxx agrees that such Note shall be renewed, modified and extended
AGREEMENT - PAGE 2 2
upon such reasonable terms as may be negotiated by Availent and Xxxxxxxxx.
Simultaneous herewith, XxXxxxxx and X. XxXxxxxx shall deliver to Xxxxxxxxx a
letter addressed to Sun America authorizing Xxxxxxxxx to immediately draw all
proceeds from the account. They also agree to execute any additional
documentation required by Sun America to effectuate such release of proceeds to
Xxxxxxxxx.
2. RENEWAL AND EXTENSION PROMISSORY NOTE: $780,000; RENEWAL AND
EXTENSION PROMISSORY NOTE: $75,000. Xxxxxxxxx agrees to renew and extend the
Renewal And Extension Promissory Note in the principal amount of Seven Hundred
Eighty Thousand and No/100 Dollars ($780,000) and renew and extent the Renewal
and Extension Promissory Note in the principal amount of Seventy Five Thousand
and No/100 Dollars ($75,000) through accepting Renewal, Modified and Extension
Promissory Notes ("$855,000 Notes") (copies of which are attached), provided
that Availent shall hereby be released from personal corporate liability for
payment of such Notes through executing a Release of any liability by Availent
on such $855,000 Notes. In consideration of such renewal, modification and
extension, the parties agree as follows:
[a] Availent agrees to issue 1,700,000 shares of its Common
Stock ("Common Shares") to a mutually agreeable Escrow Agent [who must have or
establish an escrow account with a mutually acceptable brokerage firm] who shall
hold such shares as collateral to secure repayment of the $855,000 Notes.
Xxxxxxxxx agrees to convey or assign, in trust for its benefit pending
payment of the $780,000 Note and subject to subsection (h) below to the Escrow
Agent the Second Lien covering the New Mexico property which Xxxxxxxxx holds as
collateral to secure payment of the $780,000 promissory note.;
[b] Availent agrees to include the Common Shares held in
escrow within the anticipated SB-2 with the proceeds of the sale of such shares
to be paid to the Escrow Agent. Upon receipt of the proceeds of such sale, the
Escrow Agent, pursuant to the terms of this Agreement and the Escrow Agreement
entered into of even date herewith shall be instructed to pay to Xxxxxxxxx all
principal, interest and other charges that have accrued as of the date of the
payment on the $855,000 Notes;
[c] Upon payment of the amounts owed on the $855,000 Notes,
the balance of the proceeds, if any, after deducting any escrow fees or other
expenses relating to the expenses of the transactions covered by the Escrow
Agreement, shall be paid to Availent;
[d] Additionally, upon payment of the amounts owed Xxxxxxxxx
on the $855,000 Notes, the Escrow Agent shall transfer or assign to Availent the
Second Lien covering the New Mexico Property;
[e] X. XxXxxxxx and X. XxXxxxxx agree to convey, subject to
the outstanding balance of the first lien mortgage, title and ownership of the
New Mexico Property to Availent at such time as the Escrow Agent pays to
Xxxxxxxxx the amounts owed on the $855,000 Notes and transfers or assigns the
Second Lien to Availent.
AGREEMENT - PAGE 3 3
[f] Availent agrees from the date hereof to timely pay the
monthly payments required by an owner of the New Mexico Property, including but
not necessarily limited to the monthly mortgage payment, insurance, taxes,
maintenance and other costs or expenses associated with ownership, as well as
any additional ownership, as well as any additional title insurance or
endorsements deemed by Xxxxxxxxx to be reasonably necessary. Further, the
parties agree to execute ownership, as well as any additional title insurance or
endorsements deemed by Xxxxxxxxx to be reasonably necessary. Further, the
parties agree to execute any additional documentation deemed by Xxxxxxxxx to be
reasonably necessary to perfect or evidence perfection of its lien thereon:
[g] Subject to subsection (h) below, Availent further agrees
that McGeeneys shall have an option to repurchase the New Mexico Property which
shall continue for a period of 120 days following McGeeneys' piggy back
registration of the 500,000 Shares of Availent Common Stock referred to in
Paragraph 3 below or December 31, 2003, whichever shall last occur. The option
price shall be an amount equivalent to the total amount paid to Xxxxxxxxx of
$855,000 plus legal, plus interest, plus loan fees and accepting conveyance of
the said Property from Availent subject to the first lien mortgage and other
exceptions to the title that exists as of the date the title and ownership of
the said Property is conveyed by X. XxXxxxxx and X. XxXxxxxx.
[h] In the event Availent Common Shares referred to in (a)
above are not sold pursuant to a SB-2 offering or the $855,000 Notes are not
otherwise paid prior to the 30th day of September, 2003, the Escrow Agreement
shall terminate, the Availent Common Shares shall be returned to Availent and
the Second Lien covering the New Mexico Property shall be re-conveyed and
re-assigned to Xxxxxxxxx, X. XxXxxxxx and X. XxXxxxxx shall not be required to
convey title and ownership of the said Property to Availent and the option to
repurchase shall terminate.
[i] Although Xxxxxxxxx agrees to release Availent from any
further corporate liability with regard to the obligations arising out of the
$855,000 Notes, to the extent that X. XxXxxxxx and/or X. XxXxxxxx have
personally guaranteed payment of the $500,000, $780,000 or $75,000 Notes, such
guaranties shall not be terminated but shall continue and apply as well to the
$855,000 Notes, notwithstanding the release of Availent and modification of the
said notes to eliminate any corporate liability of Availent for payment of any
amounts owed pursuant to the terms of said Notes.
3. ISSUANCE TO XXXXXXXX OF AVAILENT COMMON STOCK. In consideration for
the transfer of the Sun America Annuity to Xxxxxxxxx and the agreement to
transfer to Availent ownership of the New Mexico Property, Availent agrees to
issue to XxXxxxxx 1,000,000 Shares of Availent Common Stock which shall be
restricted shares pursuant in the provisions of Rule 144 and shall not be among
the Availent shares of Common Stock included in the anticipated SB-2
Registration; however, Availent agrees that McGeeneys shall have "piggyback"
registration rights attached to 500,000 shares of such stock to enable McGeeneys
to cause the shares subject
AGREEMENT-PAGE 4 4
to such rights to be included in any subsequent registration of Availent's
Common Stock, including a SB-3 Registration pursuant to a demand for
registration by Xxxxxxxxx of Shares of Availent Common Stock purchased through
Availent Common Stock Warrants as provided in Paragraph 6 below.
4. REGISTRATION OF XXXXXXXXX'X SHARES OF AVAILENT COMMON STOCK.
Availent agrees that all 856,000 of the shares of Availent Common Stock owned
by Xxxxxxxxx as of the date hereof shall be included in the anticipated SB-2;
5. PRIORITY OF PAYMENTS FROM PROCEEDS OF SB-2. Availent agrees that,
with the following exception, no shares of Availent's Common Stock included in
the anticipated SB-2 may be sold by any person or entity other than Xxxxxxxxx
and another investor, Xxxxx Xxxx, until all the financial obligations then owed
to Xxxxxxxxx as a result of his loans to Availent shall have been paid in full,
including the $855,000 Notes which are being modified as of the date hereof to
eliminate any further corporate liability by Availent. Notwithstanding the
foregoing and as an exception to the foregoing, whether or not the financial
obligations owed Xxxxxxxxx as a result of his loans to Availent have been paid
in full, Availent shall be entitled to sell at the beginning of each month
following the SB-2 Registration of shares of Availent Common Stock included in
the Registration which have a fair market value at that time of $200,000, which
shares are necessarily available for sale to enhance the public market's
recognition of the value of Availent's Common Shares of Stock.
6. DEMAND REGISTRATION OF AVAILENT COMMON SHARES OF STOCK. Availent
agrees to issue to Xxxxxxxxx the right to demand registration of 490,000 Shares
of Common Stock which Xxxxxxxxx shall be authorized to purchase pursuant in
Availent Common Stock Warrants. Additionally, McGeeneys shall have the right of
"piggy back" registration of 500,000 Shares of Availent Common Stock. Such
demands can be made at any time following the SB-2 Registration and Availent
shall utilize its "reasonable best commercial efforts" to comply with such
demands through filing such a registration statement (S-3) which the parties
agree way take 45 to 60 days from the date Availent receives such demand.
7. XXXXXXXXX'X INVESTMENT. Subject to the conditions set forth below,
Xxxxxxxxx agrees to pay to Availent the sum of a maximum of $300,000 in
consideration of the benefits conveyed by the foregoing provisions of this
Agreement and the following considerations:
[a] Issuance to Xxxxxxxxx by Availent of 600,000 Shares of
Availent's Common Stock which Availent agrees to include in the anticipated SB-2
Registration;
[b] Issuance to Xxxxxxxxx of Availent Common Stock Warrants
authorizing Xxxxxxxxx to purchase 60,000 Shares of Availent Common Stock at any
time for a period of five (5) years from the date of the Warrants at a purchase
price of $1.00 per share with such Warrants containing substantially similar
terms and conditions as other Warrants heretofore issued to Xxxxxxxxx;
AGREEMENT-PAGE 5 5
[c] Availent's commitment that it will make good faith,
commercially reasonable efforts to obtain an additional investor or lender to
match Xxxxxxxxx'x payment of $300,000 by no later than April 28, 3003, with the
first $100,000 of such matching funds to be made available to Availent by no
later than Friday, April 18, 2003, and the reaming $200,000 available by April
28, 2993; and
[d] Availent does hereby agree to repurchase Xxxxxxxxx'x
600,000 (six hundred thousand) Common Shares for $0.67 per share, should, if and
when Availent collects any equity or debt financing over and above the $600,000
(six hundred thousand dollars) referred to in this Agreement. Availent agrees to
repurchase the aforesaid Common Shares in the amount of 50% (fifty percent) of
all cash debt and equity raised into Availent up to $402,000.
Xxxxxxxxx agrees to find $200,000 of such purchase price through a wire transfer
of such sum to an account of the law firm of Xxxxxxx & Xxxxxxx for immediate
release to Availent by no later than the end of the business day on Monday,
April 14, 2003, conditioned upon to following:
[a] Availent causing: A Public Relations Company, Inc.: Xxxxx
X. Xxxxxx - 472,489 - #919; Consolidated American Energy Resources, Inc.:
Malina-472,489 - 9l7; Consolidated American Financial Services Group,
Inc.-472,489 - #918 Meadow Holdings Corp. - Xxxxxx Xxxxxx - 708,733 - #915; SOS
Resources Services, Inc. - Xxxxxxxxx Xxxxx - 708,733 - #916 to deposit
certificates representing 2,834,933 shares of Availent Common Stock with the
Escrow Agent described in Paragraph 2(a) above which shares shall be retained in
escrow as additional collateral to secure payment of the $855,000 Notes held by
Xxxxxxxxx. Availent shall include such shares among the shares to be included in
the anticipated SB-2 Registration. To the extent the $855,000 Notes are not paid
in full from the proceeds of the sale of the 1,700,000 Shares of Availent Common
Stock deposited with the Escrow Agent as described in Paragraph 2(a), the
proceeds of the sale of the shares pledged by Malina and Xxxxx shall be utilized
for such purposes.
[b] Availent agreeing to disburse the $200,000 portion of the
Xxxxxxxxx investment to the payees and for the purposes described on EXHIBIT "C"
attached hereto and incorporated herein for all purposes;
[c] Availent's agreement to provide Xxxxxxxxx monthly
financial statements until the anticipated SB-2 becomes effective, with such
financial statements to be provided within a reasonable thee following the last
day of the month for which the financial statements are prepared. However, when
the SB-2 registration statement is deemed effective by the SEC, Availent will no
longer provide Xxxxxxxxx with financial statements
[d] Availent entering into a "Standstill Agreement" with Xxxx
containing terms whereby Xxxx agrees not to initiate litigation or file any
administrative or regulatory complaint against Availent or its officers, former
officers or Availent's agents or representatives for a period of three (3)
months.
AGREEMENT-PAGE 6 6
Xxxxxxxxx agrees to fund in a like manner the additional $100,000 portion of the
purchase price, if and only if, Availent has obtained funding from another
investor and/or lender in the amount of $100,000 and is continuing its good
faith, commercially reasonable efforts to obtain an additional equity
contribution or loan by no later than the end of the business day on Friday,
April 18, 2003.
THE SECOND $600,000 RAISED IN CASH EQUITY OR DEBT FINANCING OVER AND ABOVE THIS
$600,000 IS TO BE PAID BACK TO XXXX AND XXXXXXXXX ON A PARI PASSU (50% EACH)
BASIS ON XXXX'X $375,000 INVESTMENT AND XXXXXXXXX'X ADDITIONAL $300,000 EQUITY
INVESTMENT.
8. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties, their successors, assigns and/or affiliates.
9. ARBITRATION; VENUE; JURISDICTION. The parties acknowledge and agree
that this Agreement is being entered into in Dallas County, Texas and that venue
over any disputes shall be in Dallas County, Texas and that the laws of the
State of Texas shall apply to the construction, interpretation, and/or
application of this Agreement. The parties agree that any disputes that may
arise concerning the construction, interpretation or application of this
Agreement which cannot be amicably resolved between the parties shall be
resolved through mandatory arbitration conducted by three arbitrators in
accordance with the rules and pursuant to the administration of the American
Arbitration Association. Such arbitration shall be conducted in Dallas County,
Texas and shall be final and binding upon the parties. Any party seeking to
reduce an award to a final judgment shall do so through initiating litigation in
a Dallas County Judicial District Court located in Dallas County, Texas.
10. NOTICES. All notices required by this Agreement shall be effective
if provided in writing and mailed to the other party by certified mail, return
receipt requested to the following address or such other address as either party
may provide to the other party in writing in the manner required by this
paragraph:
A. IF TO XXXXXXXXX
Xxxxxxxxx Investment Management, L.L.C.
Xx. Xxxxxx Xxxxxxxxx
President
000 Xxxxx Xxx.
Xxxxxxxxxx, XX. 00000
B. IF TO AVAILENT
Xx. Xxxxxxx X. XxXxxxxx
President
0000 Xxxxxxxx
Xxxxx 000
AGREEMENT-PAGE 7
Xxxxxx, Xxxxx 00000
C. IF TO X. XXXXXXXX:
Xx. Xxxxxxxx Xxxxxxxx XxXxxxxx
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
P. IF TO X. XXXXXXXX:
Xx. Xxxxxxx X. XxXxxxxx
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
11. RATIFICATION. Other than to the extent of the provisions contained
in this Agreement which conflict with the provisions of any Loan Agreements or
Amendments to Loan Agreements, heretofore entered into between the parties or
any of the documents, including, but not limited to, promissory notes and
amendments and modifications thereto and any common stock warrants, limited
guaranties and stock pledge agreements, the provisions of such documents are
hereby ratified and confirmed.
12. WAIVER. Except to the extent of the liabilities, obligations, and agreements
hereby contained or any prior liabilities, obligations, and agreements herein
intended (or implied) to be hereby ratified and carried forward, the parties
hereto, for themselves, their heirs, successors and assigns, do hereby waive,
release, and discharge each other, their heirs, successors and assigns and their
agents, employees, officers, directors, and attorneys (collectively, the
"Released Parties") from any and all duties, obligations, and liabilities
arising out of any prior transactions or events, or the acts, actions, or
omissions of the Released Parties in connection therewith, existing as of the
date hereof whether known or unknown, asserted or un-asserted, equitable or at
law, arising under or pursuant to common or statutory law, rules, or
regulations and agree that the foregoing waiver, release, and discharge
constitutes an inducement for each of the parties to enter into this Agreement.
13. MULTIPLE COUNTERPARTS. This Agreement may be executed in multiple
counterparts, any of which shall be deemed an original.
THIS SPACE INTENTIONALLY LEFT BLANK
AGREEMENT-PAGE 8
THIS AGREEMENT IS EXECUTED ON THE 14TH DAY OF APRIL , 2003.
XXXXXXXXX INVESTMENT MANAGEMENT, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
BY: /s/ XXXXX X. XXXXXXXXX
----------------------------
XXXXX X. XXXXXXXXX
PRESIDENT
AVAILENT FINANCIAL, INC.,
A DELAWARE CORPORATION
BY: /s/ XXXXXXX X. XXXXXXXX
----------------------------
XXXXXXX X. XXXXXXXX
PRESIDENT
AVAILENT MORTGAGE, INC.,
A DELAWARE CORPORATION
BY: /s/ XXXXXXX XXXXX
----------------------------
XXXXXXX XXXXX
PRESIDENT
/s/ XXXXXXX X. XXXXXXXX
--------------------------------
XXXXXXX X. XXXXXXXX
/s/ XXXXXXX XXXXXXXX XXXXXXXX
--------------------------------
XXXXXXX XXXXXXXX XXXXXXXX
AGREEMENT-PAGE 9
