STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE by and among a Nevada Corporation and a Maryland Corporation effective as of January 15, 2007
by
and
among
MD
HOLDINGS CORP.
a
Nevada
Corporation
and
MD Mortgage
Corporation
a
Maryland Corporation
effective
as of January 15, 2007
1
THIS
STOCK PURCHASE
AGREEMENT AND SHARE EXCHANGE, made and entered into
this 15th
day of
January, 2007 by and among MD Holdings Corp, a Nevada corporation ("MD
Holdings"), and MD Mortgage Corporation, a Maryland corporation ("MD Mortgage"),
and the shareholders of MD Mortgage Corporation.
Premises
A. This
Agreement provides for the acquisition of MD Mortgage whereby MD Mortgage shall
become a wholly owned subsidiary of MD Holdings and in connection therewith,
the
issuance of a total of 27,515,000 shares of MD Holdings to the
Shareholders.
B.
The boards of directors of MD Mortgage and MD Holdings have determined, subject
to the terms and conditions set forth in this Agreement, that the transaction
contemplated hereby is desirable and in the best interests of their
stockholders, respectively. This Agreement is being entered into for the purpose
of setting forth the terms and conditions of the proposed
acquisition.
Agreement
NOW,
THEREFORE, on the stated premises
and for and in consideration of the mutual covenants and agreements hereinafter
set forth and the mutual benefits to the parties to be derived here from, it
is
hereby agreed as follows:
ARTICLE
I
MD
HOLDINGS, INC.
As
an inducement to and to obtain the
reliance of MD Mortgage, MD Holdings represents and warrants as
follows:
Section
1.1 Organization. MD
Holdings is a corporation duly organized, and validly existing under the laws
of
Nevada and has the corporate power and is duly authorized, qualified, franchised
and licensed under all applicable laws, regulations, ordinances and orders
of
public authorities to own all of its properties and assets and to carry on
its
business in all material respects as it is now being conducted, including
qualification to do business as a foreign corporation in the jurisdiction in
which the character and location of the assets owned by it or the nature of
the
business transacted by it requires qualification. Included in the
Schedules attached hereto (hereinafter defined) are complete and correct copies
of the articles of incorporation, bylaws and amendments thereto as in effect
on
the date hereof. The execution and delivery of this Agreement does
not and the consummation of the transactions contemplated by this Agreement
in
accordance with the terms hereof will not violate any provision of MD Holdings’
articles of incorporation or bylaws. MD Holdings has full power,
authority and legal right and has taken all action required by law, its articles
of incorporation, its bylaws or otherwise to authorize the execution and
delivery of this Agreement.
Section
1.2 Capitalization. The
authorized capitalization of MD Holdings consists of 100,000,000 Common Shares,
$0.001 par value per share, and 10,000,000 shares of preferred. As of
the date hereof, MD Holdings has no common shares issued and
outstanding.
2
All
issued and outstanding shares are
legally issued, fully paid and nonassessable and are not issued in violation
of
the preemptive or other rights of any person.
Section
1.3 Subsidiaries. MD
Holdings has no subsidiaries.
Section
1.4 Tax Matters: Books and
Records.
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(a)
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The
books and records, financial and others, of MD Holdings are in all
material respects complete and correct and have been maintained in
accordance with good business accounting practices;
and
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(b)
|
MD
Holdings shall remain responsible for all debts incurred by MD Holdings
prior to the date of closing.
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Section
1.5 Litigation
and
Proceedings. Other than set forth in the documents filed with
the Securities and Exchange Commission (the “SEC documents”), there are no
actions, suits, proceedings or investigations pending or threatened by or
against or affecting MD Holdings or its properties, at law or in equity, before
any court or other governmental agency or instrumentality, domestic or foreign
or before any arbitrator of any kind that would have a material adverse affect
on the business, operations, financial condition or income of MD
Holdings. MD Holdings is not in default with respect to any judgment,
order, writ, injunction, decree, award, rule or regulation of any court,
arbitrator or governmental agency or instrumentality or of any circumstances
which, after reasonable investigation, would result in the discovery of such
a
default.
Section
1.6
Material Contract
Defaults. MD Holdings is not in default in any material
respect under the terms of any outstanding contract, agreement, lease or other
commitment which is material to the business, operations, properties, assets
or
condition of MD Holdings, and there is no event of default in any material
respect under any such contract, agreement, lease or other commitment in respect
of which MD Holdings has not taken adequate steps to prevent such a default
from
occurring.
Section
1.7 Information. The
information concerning MD Holdings as set forth in this Agreement and in the
attached Schedules is complete and accurate in all material respects and does
not contain any untrue statement of a material fact or omit to state a material
fact required to make the statements made in light of the circumstances under
which they were made, not misleading.
Section
1.8 Title
and Related
Matters. MD Holdings has good and marketable title to and is
the sole and exclusive owner of all of its properties, inventory, interest
in
properties and assets, real and personal (collectively, the “Assets”) free and
clear of all liens, pledges, charges or encumbrances. MD Holdings
owns free and clear of any liens, claims, encumbrances, royalty interests or
other restrictions or limitations of any nature whatsoever and all procedures,
techniques, marketing plans, business plans, methods of management or other
information utilized in connection with MD Holdings’
business. No third party has any right to, and MD Holdings has
not received any notice of infringement of or conflict with asserted rights
of
others with respect to any product, technology, data, trade secrets, know-how,
proprietary techniques, trademarks, service marks, trade names or copyrights
which, singly on in the aggregate, if the subject of an unfavorable decision
ruling or finding, would have a materially adverse affect on the business,
operations, financial conditions or income of MD Holdings or any material
portion of its properties, assets or rights.
3
Section
1.9 Compliance
With Laws and
Regulations. To the best of MD Holdings’ knowledge and belief,
MD Holdings has complied with all applicable statutes and regulations of any
federal, state or other governmental entity or agency thereof, except to the
extent that noncompliance would not materially and adversely affect the
business, operations, properties, assets or condition of MD Holdings or would
not result in MD Holdings incurring material liability.
Section
1.10 Insurance. All
of
the insurable properties of MD Holdings are insured for MD Holdings’ benefit
under valid and enforceable policy or policies containing substantially
equivalent coverage and will be outstanding and in full force at the Closing
Date.
Section
1.11 Approval
of
Agreement. The directors of MD Holdings have authorized the
execution and delivery of the Agreement by and have approved the transactions
contemplated hereby.
Section
1.12 No
Conflict With Other
Instruments. The execution of this Agreement and the
consummation of the transactions contemplated by this Agreement will not result
in the breach of any term or provision of, or constitute an event of default
under, any material indenture, mortgage, deed of trust or other material
contract, agreement or instrument to which MD Holdings is a party or to which
any of its properties or operations are subject.
Section
1.13 Governmental
Authorizations. MD Holdings has all licenses, franchises,
permits or other governmental authorizations legally required to enable it
to
conduct its business in all material respects as conducted on the date
hereof. Except for compliance with federal and state securities and
corporation laws, as hereinafter provided, no authorization, approval, consent
or order of, or registration, declaration or filing with, any court or other
governmental body is required in connection with the execution and delivery
by
MD Holdings of this Agreement and the consummation of the transactions
contemplated hereby.
ARTICLE
II
REPRESENTATIONS,
COVENANTS AND WARRANTIES
OF
MD MORTGAGE
As
an inducement to, and to obtain the
reliance of MD Holdings, MD Mortgage represents and warrants as
follows:
Section
2.1 Organization. MD
Mortgage is a corporation duly organized, validly existing and in good standing
under the laws of Florida and has the corporate power and is duly authorized,
qualified, franchised and licensed under all applicable laws, regulations,
ordinances and orders of public authorities to own all of its properties and
assets and to carry on its business in all material respects as it is now being
conducted, including qualification to do business as a foreign entity in the
country or states in which the character and location of the assets owned by
it
or the nature of the business transacted by it requires
qualification. Included in the Attached Schedules (as hereinafter
defined) are complete and correct copies of the articles of incorporation,
bylaws and amendments thereto as in effect on the date hereof. The
execution and delivery of this Agreement does not and the consummation of the
transactions contemplated by this Agreement in accordance with the terms hereof
will not, violate any provision of MD Mortgage's certificate of incorporation
or
bylaws. MD Mortgage has full power, authority and legal right and has
taken all action required by law, its articles of incorporation, bylaws or
otherwise to authorize the execution and delivery of this
Agreement.
4
Section
2.2 Capitalization. The
authorized capitalization of MD Mortgage consists of 25,000 shares, $0.001
par
value and no preferred shares. As of the date hereof, there are
22,025 shares issued and outstanding.
All
issued and outstanding common
shares have been legally issued, fully paid, are nonassessable and not issued
in
violation of the preemptive rights of any other person. MD Mortgage
has no other securities, warrants or options authorized or issued.
Section
2.3 Subsidiaries. MD
Mortgage has no subsidiaries.
Section
2.4 Tax Matters; Books &
Records.
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(a)
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The
books and records, financial and others, of MD Mortgage are in all
material respects complete and correct and have been maintained in
accordance with good business accounting practices;
and
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(b)
|
MD
Mortgage has no liabilities with respect to the payment of any country,
federal, state, county, local or other taxes (including any deficiencies,
interest or penalties).
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(c)
|
MD
Mortgage shall remain responsible for all debts incurred prior to
the
closing.
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Section
2.5 Information. The
information concerning MD Mortgage as set forth in this Agreement and in the
attached Schedules is complete and accurate in all material respects and does
not contain any untrue statement of a material fact or omit to state a material
fact required to make the statements made, in light of the circumstances under
which they were made, not misleading.
Section
2.6 Title
and Related
Matters. MD Mortgage has good and marketable title to and is
the sole and exclusive owner of all of its properties, inventory, interests
in
properties and assets, real and personal (collectively, the "Assets") free
and
clear of all liens, pledges, charges or encumbrances. Except as set
forth in the Schedules attached hereto, MD Mortgage owns free and clear of
any
liens, claims, encumbrances, royalty interests or other restrictions or
limitations of any nature whatsoever and all procedures, techniques, marketing
plans, business plans, methods of management or other information utilized
in
connection with MD Mortgage's business. Except as set forth in the
attached Schedules, no third party has any right to, and MD Mortgage has not
received any notice of infringement of or conflict with asserted rights of
others with respect to any product, technology, data, trade secrets, know-how,
proprietary techniques, trademarks, service marks, trade names or copyrights
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a materially adverse affect on the business,
operations, financial conditions or income of MD Mortgage or any material
portion of its properties, assets or rights.
Section
2.7 Litigation
and
Proceedings. There are no actions, suits or proceedings
pending or threatened by or against or affecting MD Mortgage, at law or in
equity, before any court or other governmental agency or instrumentality,
domestic or foreign or before any arbitrator of any kind that would have a
material adverse effect on the business, operations, financial condition, income
or business prospects of MD Mortgage. MD Mortgage does not have any
knowledge of any default on its part with respect to any judgment, order, writ,
injunction, decree, award, rule or regulation of any court, arbitrator or
governmental agency or instrumentality.
5
Section
2.8 Contracts. On
the
Closing Date:
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(a)
|
There
are no material contracts, agreements, franchises, license agreements,
or
other commitments to which MD Mortgage is a party or by which it
or any of
its properties are bound;
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(b)
|
MD
Mortgage is not a party to any contract, agreement, commitment or
instrument or subject to any charter or other corporate restriction
or any
judgment, order, writ, injunction, decree or award which materially
and
adversely affects, or in the future may (as far as MD Mortgage can
now
foresee) materially and adversely affect, the business, operations,
properties, assets or conditions of MD Mortgage;
and
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(c)
|
MD
Mortgage is not a party to any material oral or written: (i)
contract for the employment of any officer or employee; (ii)
profit sharing, bonus, deferred compensation, stock option, severance
pay,
pension, benefit or retirement plan, agreement or arrangement covered
by
Title IV of the Employee Retirement Income Security Act, as amended;
(iii)
agreement, contract or indenture relating to the borrowing of
money; (iv) guaranty of any obligation for the borrowing of
money or otherwise, excluding endorsements made for collection and
other
guaranties of obligations, which, in the aggregate exceeds
$1,000; (v) consulting or other contract with an
unexpired term of more than one year or providing for payments in
excess
of $10,000 in the aggregate; (vi) collective
bargaining agreement; (vii) contract, agreement, or other
commitment involving payments by it for more than $10,000 in the
aggregate.
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Section
2.9 No
Conflict With Other
Instruments. The execution of this Agreement and the
consummation of the transactions contemplated by this Agreement will not result
in the breach of any term or provision of, or constitute an event of default
under, any material indenture, mortgage, deed of trust or other material
contract, agreement or instrument to which MD Mortgage is a party or to which
any of its properties or operations are subject.
Section
2.10 Material
Contract
Defaults. To the best of MD Mortgage's knowledge and
belief, it is not in default in any material respect under the terms of any
outstanding contract, agreement, lease or other commitment which is material
to
the business, operations, properties, assets or condition of MD Mortgage, and
there is no event of default in any material respect under any such contract,
agreement, lease or other commitment in respect of which MD Mortgage has not
taken adequate steps to prevent such a default from occurring.
Section
2.11 Governmental
Authorizations. To the best of MD Mortgage’s knowledge, MD
Mortgage has all licenses, franchises, permits and other governmental
authorizations that are legally required to enable it to conduct its business
operations in all material respects as conducted on the date
hereof. Except for compliance with federal and state securities or
corporation laws, no authorization, approval, consent or order of, or
registration, declaration or filing with, any court or other governmental body
is required in connection with the execution and delivery by MD Mortgage of
the
transactions contemplated hereby.
Section
2.12 Compliance
With Laws and
Regulations. To the best of MD Mortgage's knowledge and belief, MD
Mortgage has complied with all applicable statutes and regulations of any
federal, state or other governmental entity or agency thereof, except to the
extent that noncompliance would not materially and adversely affect the
business, operations, properties, assets or condition of MD Mortgage or would
not result in MD Mortgage 's incurring any material liability.
6
Section
2.13 Approval
of
Agreement. The directors of MD Mortgage have authorized the
execution and delivery of the Agreement and have approved the transactions
contemplated hereby.
ARTICLE
III
EXCHANGE
PROCEDURE AND OTHER CONSIDERATION
Section
3.1 Share
Exchange/Delivery of MD
Mortgage Securities. On the Closing Date, the holders of all
of the MD Mortgage Common Shares shall deliver to MD Holdings certificates
or
other documents evidencing all of the issued and outstanding MD Mortgage Common
Shares, duly endorsed in blank or with executed power attached thereto in
transferable form. On the Closing Date, all previously issued and
outstanding Common Shares of MD Mortgage shall be transferred to MD Holdings,
so
that MD Mortgage shall become a wholly owned subsidiary of MD
Holdings.
Section
3.2 Issuance
of MD Holdings Common
Shares. In exchange for all of the MD Mortgage Common Shares
tendered pursuant to Section 3.1, MD Holdings shall issue to the Shareholders
a
total of 27,515,000 shares in the following manner. The 27,515,000 MD
Holdings common shares which are restricted in accordance with Rule 144 of
the
1933 Securities Act:
Xxxxxxxx
Xxxxx – 25,000,000
Xxxxxxx
X. Xxxxxx- 625,000 shares
Xxxxx
X.
Xxxxxx- 625,000 shares
Goldco
Properties Limited Partnership - 1,250,000 shares
Xxxxxxxx
Xxxxxxx -25,000 shares
Section
3.3 Events
Prior to
Closing. Upon execution hereof or as soon thereafter as
practical, management of MD Holdings and MD Mortgage shall execute, acknowledge
and deliver (or shall cause to be executed, acknowledged and delivered) any
and
all certificates, opinions, financial statements, schedules, agreements,
resolutions rulings or other instruments required by this Agreement to be so
delivered, together with such other items as may be reasonably requested by
the
parties hereto and their respective legal counsel in order to effectuate or
evidence the transactions contemplated hereby, subject only to the conditions
to
Closing referenced herein below.
Section
3.4 Closing. The
closing ("Closing") of the transactions contemplated by this Agreement shall
be
on or about December 13, 2006 ("Closing Date").
Section
3.5 Termination.
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(a)
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This
Agreement may be terminated by the board of directors or majority
interest
of Shareholders of either MD Holdings or MD Mortgage, respectively,
at any
time prior to the Closing Date if:
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(i)
|
there
shall be any action or proceeding before any court or any governmental
body which shall seek to restrain, prohibit or invalidate the transactions
contemplated by this Agreement and which, in the judgment of such
board of
directors, made in good faith and based on the advice of its legal
counsel, makes it inadvisable to proceed with the exchange contemplated
by
this Agreement; or
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7
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(ii)
|
any
of the transactions contemplated hereby are disapproved by any regulatory
authority whose approval is required to consummate such
transactions.
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In
the event of termination pursuant to
this paragraph (a) of this Section 3.5, no obligation, right, or liability
shall
arise hereunder and each party shall bear all of the expenses incurred by it
in
connection with the negotiation, drafting and execution of this Agreement and
the transactions herein contemplated.
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(b)
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This
Agreement may be terminated at any time prior to the Closing Date
by
action of the board of directors of MD Holdings if MD Mortgage shall
fail
to comply in any material respect with any of its covenants or agreements
contained in this Agreement or if any of the representations or warranties
of MD Mortgage contained herein shall be inaccurate in any material
respect, which noncompliance or inaccuracy is not cured after 20
days
written notice thereof is given to MD Mortgage. If this
Agreement is terminated pursuant to this paragraph (b) of this Section
3.5, this Agreement shall be of no further force or effect and no
obligation, right or liability shall arise
hereunder.
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(c)
|
This
Agreement may be terminated at any time prior to the Closing Date
by
action of the board of directors of MD Mortgage if MD Holdings shall
fail
to comply in any material respect with any of its covenants or agreements
contained in this Agreement or if any of the representations or warranties
of MD Holdings contained herein shall be inaccurate in any material
respect, which noncompliance or inaccuracy is not cured after 20
days
written notice thereof is given to MD Holdings. If this
Agreement is terminated pursuant to this paragraph (d) of this Section
3.5, this Agreement shall be of no further force or effect and no
obligation, right or liability shall arise
hereunder.
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In
the event of termination pursuant to
paragraph (b) or (c) of this Section 3.5, the breaching party shall bear all
of
the expenses incurred by the other party in connection with the negotiation,
drafting and execution of this Agreement and the transactions herein
contemplated.
Section
3.6 Officers
and Directors of MD Holdings
and of MD Mortgage After Acquisition. After the Closing Date,
the officers and directors of MD Holdings and MD Mortgage shall remain
unchanged.
ARTICLE
IV
SPECIAL
COVENANTS
Section
4.1 Access
to Properties and
Records. Prior to closing, MD Holdings and MD Mortgage will
each afford to the officers and authorized representatives of the other full
access to the properties, books and records of each other, in order that each
may have full opportunity to make such reasonable investigation as it shall
desire to make of the affairs of the other and each will furnish the other
with
such additional financial and operating data and other information as to the
business and properties of each other, as the other shall from time to time
reasonably request.
8
Section
4.2 Availability
of Rule
144. MD Holdings and MD Mortgage shareholders holding
"restricted securities," as that term is defined in Rule 144 promulgated
pursuant to the Securities Act will remain as “restricted
securities.” MD Holdings is under no obligation to register such
shares under the Securities Act, or otherwise. The stockholders of MD Holdings
and MD Mortgage holding restricted securities of MD Holdings and MD Mortgage
as
of the date of this Agreement and their respective heirs, administrators,
personal representatives, successors and assigns, are intended third party
beneficiaries of the provisions set forth herein. The covenants set
forth in this Section 4.2 shall survive the Closing and the consummation of
the
transactions herein contemplated.
Section
4.3 Special
Covenants and Representations
Regarding the MD Holdings Common Shares to be Issued in the
Exchange. The consummation of this Agreement, including the
issuance of the MD Holdings Common Shares to the Shareholder of MD Mortgage
as
contemplated hereby, constitutes the offer and sale of securities under the
Securities Act, and applicable state statutes. Such transaction shall
be consummated in reliance on exemptions from the registration and prospectus
delivery requirements of such statutes which depend, interalia,
upon the
circumstances under which the MD Mortgage Shareholders acquire such
securities.
Section
4.4 Third
Party
Consents. MD Holdings and MD Mortgage agree to cooperate with
each other in order to obtain any required third party consents to this
Agreement and the transactions herein contemplated.
Section
4.5 Actions Prior and Subsequent
to
Closing.
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(a)
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From
and after the date of this Agreement until the Closing Date, except
as
permitted or contemplated by this Agreement, MD Holdings and MD Mortgage
will each use its best efforts to:
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(i)
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maintain
and keep its properties in states of good repair and condition as
at
present, except for depreciation due to ordinary wear and tear and
damage
due to casualty;
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(ii)
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maintain
in full force and effect insurance comparable in amount and in scope
of
coverage to that now maintained by
it;
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(iii)
|
perform
in all material respects all of its obligations under material contracts,
leases and instruments relating to or affecting its assets, properties
and
business;
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(b)
|
From
and after the date of this Agreement until the Closing Date, MD Mortgage
will not, without the prior consent of MD
Holdings:
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(i)
|
except
as otherwise specifically set forth herein, make any change in its
articles of incorporation or
bylaws;
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(ii)
|
declare
or pay any dividend on its outstanding Common Shares, except as may
otherwise be required by law, or effect any stock split or otherwise
change its capitalization, except as provided
herein;
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(iii)
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enter
into or amend any employment, severance or agreements or arrangements
with
any directors or officers;
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9
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(iv)
|
grant,
confer or award any options, warrants, conversion rights or other
rights
not existing on the date hereof to acquire any Common Shares;
or
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(v)
|
purchase
or redeem any Common Shares.
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Section
4.6 Indemnification.
|
(a)
|
MD
Holdings hereby agrees to indemnify MD Mortgage, each of the officers,
agents and directors and current shareholders of MD Mortgage as of
the
Closing Date against any loss, liability, claim, damage or expense
(including, but not limited to, any and all expense whatsoever reasonably
incurred in investigating, preparing or defending against any litigation,
commenced or threatened or any claim whatsoever), to which it or
they may
become subject to or rising out of or based on any inaccuracy appearing
in
or misrepresentation made in this Agreement. The
indemnification provided for in this paragraph shall survive the
Closing
and consummation of the transactions contemplated hereby and termination
of this Agreement; and
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(b)
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MD
Mortgage hereby agrees to indemnify MD Holdings, each of the officers,
agents and directors and current shareholders of MD Holdings as of
the
Closing Date against any loss, liability, claim, damage or expense
(including, but not limited to, any and all expense whatsoever reasonably
incurred in investigating, preparing or defending against any litigation,
commenced or threatened or any claim whatsoever), to which it or
they may
become subject to or rising out of or based on any inaccuracy appearing
in
or misrepresentation made in this Agreement. The
indemnification provided for in this paragraph shall survive the
Closing
and consummation of the transactions contemplated hereby and termination
of this Agreement; and
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ARTICLE
V
CONDITIONS
PRECEDENT TO OBLIGATIONS OF MD MORTGAGE
The
obligations of MD Mortgage under
this Agreement are subject to the satisfaction, at or before the Closing Date,
of the following conditions:
Section
5.1 Accuracy
of
Representations. The representations and warranties made by MD
Holdings in this Agreement were true when made and shall be true at the Closing
Date with the same force and effect as if such representations and warranties
were made at the Closing Date (except for changes therein permitted by this
Agreement), and MD Holdings shall have performed or compiled with all covenants
and conditions required by this Agreement to be performed or complied with
by MD
Holdings prior to or at the Closing. MD Mortgage shall be
furnished with a certificate, signed by a duly authorized officer of MD Holdings
and dated the Closing Date, to the foregoing effect.
Section
5.2 Director
Approval. The Board of Directors of MD Holdings shall have
approved this Agreement and the transactions contemplated herein.
10
Section
5.3 Officer's
Certificate. MD Mortgage shall have been furnished with a
certificate dated the Closing Date and signed by a duly authorized officer
of MD
Holdings to the effect that: (a) the representations and warranties
of MD Holdings set forth in the Agreement and in all Exhibits, Schedules and
other documents furnished in connection herewith are in all material respects
true and correct as if made on the Effective Date; (b) MD Holdings
has performed all covenants, satisfied all conditions, and complied with all
other terms and provisions of this Agreement to be performed, satisfied or
complied with by it as of the Effective Date; (c) since
such date and other than as previously disclosed to MD Mortgage, MD
Holdings has not entered into any material transaction other than transactions
which are usual and in the ordinary course if its business;
and (d) no litigation, proceeding, investigation or inquiry is
pending or, to the best knowledge of MD Holdings, threatened, which might result
in an action to enjoin or prevent the consummation of the transactions
contemplated by this Agreement or, to the extent not disclosed in the MD
Holdings Schedules, by or against MD Holdings which might result in any material
adverse change in any of the assets, properties, business or operations of
MD
Holdings.
Section
5.4 No
Material Adverse
Change. Prior to the Closing Date, there shall not have
occurred any material adverse change in the financial condition, business or
operations of nor shall any event have occurred which, with the lapse of time
or
the giving of notice, may cause or create any material adverse change in the
financial condition, business or operations of MD Holdings.
Section
5.5 Other
Items. MD
Mortgage shall have received such further documents, certificates or instruments
relating to the transactions contemplated hereby as MD Mortgage may reasonably
request.
ARTICLE
VI
CONDITIONS
PRECEDENT TO OBLIGATIONS OF MD HOLDINGS
The
obligations of MD Holdings under
this Agreement are subject to the satisfaction, at or before the Closing date
(unless otherwise indicated herein), of the following conditions:
Section
6.1 Accuracy
of
Representations. The representations and warranties made by MD
Mortgage in this Agreement were true when made and shall be true as of the
Closing Date (except for changes therein permitted by this Agreement) with
the
same force and effect as if such representations and warranties were made at
and
as of the Closing Date, and MD Mortgage shall have performed and complied with
all covenants and conditions required by this Agreement to be performed or
complied with by MD Mortgage prior to or at the Closing. MD Holdings
shall have been furnished with a certificate, signed by a duly authorized
executive officer of MD Mortgage and dated the Closing Date, to the foregoing
effect.
Section
6.2 Director
Approval. The Board of Directors of MD Mortgage shall have
approved this Agreement and the transactions contemplated herein.
Section
6.3 Officer's
Certificate. MD Holdings shall be furnished with a certificate
dated the Closing date and signed by a duly authorized officer of MD Mortgage
to
the effect that: (a) the representations and warranties of MD
Mortgage set forth in the Agreement and in all Exhibits, Schedules and other
documents furnished in connection herewith are in all material respects true
and
correct as if made on the Effective Date; and (b) MD Mortgage had performed
all
covenants, satisfied all conditions, and complied with all other terms and
provisions of the Agreement to be performed, satisfied or complied with by
it as
of the Effective Date.
Section
6.4 No
Material Adverse
Change. Prior to the Closing Date, there shall not have
occurred any material adverse change in the financial condition, business or
operations of nor shall any event have occurred which, with the lapse of time
or
the giving of notice, may cause or create any material adverse change in the
financial condition, business or operations of MD Mortgage.
11
ARTICLE
VII
MISCELLANEOUS
Section
7.1 Brokers
and
Finders. Each party hereto hereby represents and warrants that
it is under no obligation, express or implied, to pay certain finders in
connection with the bringing of the parties together in the negotiation,
execution, or consummation of this Agreement. The parties each agree
to indemnify the other against any claim by any third person for any commission,
brokerage or finder's fee or other payment with respect to this Agreement or
the
transactions contemplated hereby based on any alleged agreement or understanding
between the indemnifying party and such third person, whether express or implied
from the actions of the indemnifying party.
Section
7.2 Law,
Forum and
Jurisdiction. This Agreement shall be construed and
interpreted in accordance with the laws of the State of New Jersey, United
States of America.
Section
7.3 Notices. Any
notices or other communications required or permitted hereunder shall be
sufficiently given if personally delivered to it or sent by registered mail
or
certified mail, postage prepaid, or by prepaid telegram addressed as
follows:
|
If
to MD Holdings :
|
MD
Holdings, Inc.
|
|
|
c/o
Anslow & Xxxxxx, LLP
|
|
|
000
Xxxxx 0 Xxxxx, Xxxxx 000
|
|
|
Xxxxxxxxx,
XX 00000
|
|
If
to MD Mortgage:
|
MD
Mortgage Corporation
|
|
|
000
Xxxxx 0 Xxxxx, Xxxxx 000
|
|
|
Xxxxxxxxx,
XX 00000
|
or
such
other addresses as shall be furnished in writing by any party in the manner
for
giving notices hereunder, and any such notice or communication shall be deemed
to have been given as of the date so delivered, mailed or
telegraphed.
Section
7.4 Attorneys'
Fees. In
the event that any party institutes any action or suit to enforce this Agreement
or to secure relief from any default hereunder or breach hereof, the breaching
party or parties shall reimburse the non-breaching party or parties for all
costs, including reasonable attorneys' fees, incurred in connection therewith
and in enforcing or collecting any judgment rendered therein.
Section
7.5 Confidentiality. Each
party hereto agrees with the other party that, unless and until the transactions
contemplated by this Agreement have been consummated, they and their
representatives will hold in strict confidence all data and information obtained
with respect to another party or any subsidiary thereof from any representative,
officer, director or employee, or from any books or records or from personal
inspection, of such other party, and shall not use such data or information
or
disclose the same to others, except: (i) to the extent
such data is a matter of public knowledge or is required by law to be published;
and (ii) to the extent that such data or information must be used or
disclosed in order to consummate the transactions contemplated by this
Agreement.
12
Section
7.6 Schedules;
Knowledge. Each party is presumed to have full knowledge of
all information set forth in the other party's schedules delivered pursuant
to
this Agreement.
Section
7.7 Third
Party
Beneficiaries. This contract is solely between MD Holdings and
MD Mortgage and except as specifically provided, no director, officer,
stockholder, employee, agent, independent contractor or any other person or
entity shall be deemed to be a third party beneficiary of this
Agreement.
Section
7.8 Entire
Agreement. This Agreement represents the entire agreement
between the parties relating to the subject matter hereof. This
Agreement alone fully and completely expresses the agreement of the parties
relating to the subject matter hereof. There are no other courses of
dealing, understanding, agreements, representations or warranties, written
or
oral, except as set forth herein. This Agreement may not be amended
or modified, except by a written agreement signed by all parties
hereto.
Section
7.9 Survival;
Termination. The representations, warranties and covenants of
the respective parties shall survive the Closing Date and the consummation
of
the transactions herein contemplated for 18 months.
Section
7.10 Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original and all of which taken together shall be but a single
instrument.
Section
7.11 Amendment
or
Waiver. Every right and remedy provided herein shall be
cumulative with every other right and remedy, whether conferred herein, at
law,
or in equity, and may be enforced concurrently herewith, and no waiver by any
party of the performance of any obligation by the other shall be construed
as a
waiver of the same or any other default then, theretofore, or thereafter
occurring or existing. At any time prior to the Closing Date, this
Agreement may be amended by a writing signed by all parties hereto, with respect
to any of the terms contained herein, and any term or condition of this
Agreement may be waived or the time for performance hereof may be extended
by a
writing signed by the party or parties for whose benefit the provision is
intended.
Section
7.12 Expenses. Each
party herein shall bear all of their respective costs and expenses incurred
in
connection with the negotiation of this Agreement and in the consummation of
the
transactions provided for herein and the preparation thereof.
Section
7.13 Headings;
Context. The headings of the sections and paragraphs contained
in this Agreement are for convenience of reference only and do not form a part
hereof and in no way modify, interpret or construe the meaning of this
Agreement.
Section
7.14 Benefit. This
Agreement shall be binding upon and shall inure only to the benefit of the
parties hereto, and their permitted assigns hereunder. This Agreement
shall not be assigned by any party without the prior written consent of the
other party.
13
Section
7.15 Public
Announcements. Except as may be required by law, neither party
shall make any public announcement or filing with respect to the transactions
provided for herein without the prior consent of the other party
hereto.
Section
7.16 Severability. In
the event that any particular provision or provisions of this Agreement or
the
other agreements contained herein shall for any reason hereafter be determined
to be unenforceable, or in violation of any law, governmental order or
regulation, such unenforceability or violation shall not affect the remaining
provisions of such agreements, which shall continue in full force and effect
and
be binding upon the respective parties hereto.
Section
7.17 Failure
of Conditions;
Termination. In the event of any of the conditions specified
in this Agreement shall not be fulfilled on or before the Closing Date, either
of the parties have the right either to proceed or, upon prompt written notice
to the other, to terminate and rescind this Agreement. In such event,
the party that has failed to fulfill the conditions specified in this Agreement
will be liable for the other party’s legal fees. The election to
proceed shall not affect the right of such electing party reasonably to require
the other party to continue to use its efforts to fulfill the unmet
conditions.
Section
7.18 No
Strict
Construction. The language of this Agreement shall be
construed as a whole, according to its fair meaning and intendment, and not
strictly for or against either party hereto, regardless of who drafted or was
principally responsible for drafting the Agreement or terms or conditions
hereof.
Section
7.19 Execution
Knowing and
Voluntary. In executing this Agreement, the parties severally
acknowledge and represent that each: (a) has fully and carefully read
and considered this Agreement; (b) has been or has had the
opportunity to be fully apprized by its attorneys of the legal effect and
meaning of this document and all terms and conditions hereof; (c) is
executing this Agreement voluntarily, free from any influence, coercion or
duress of any kind.
Section
7.20 Amendment. At
any time after the Closing Date, this Agreement may be amended by a writing
signed by both parties, with respect to any of the terms contained herein,
and
any term or condition of this Agreement may be waived or the time for
performance hereof may be extended by a writing signed by the party or parties
for whose benefit the provision is intended.
Section
7.21 Conflict of
Interest. Both MD Mortgage and MD Holdings understand that
Xxxxxx & Xxxxxx, LLP is representing both parties in this transaction which
represents a conflict of interest. Both MD Mortgage and MD Holdings
have the right to different counsel due to this conflict of
interest. Notwithstanding the above, both MD Mortgage and MD Holdings
agree to waive this conflict and have Xxxxxx & Jaclin, LLP represent both
parties in the above-referenced transaction. Both MD Mortgage and MD
Holdings agree to hold this law firm harmless from any and all liabilities
that
may occur or arise due to this conflict.
14
IN
WITNESS WHEREOF, the
corporate parties hereto have caused this Agreement to be executed by their
respective officers, hereunto duly authorized, and entered into as of the date
first above written.
|
ATTEST:
|
MD
HOLDINGS
CORP.
|
_________________________ By:
/s/Xxxxxxxx Xxxxx
Xxxxxxxx
Xxxxx
President
ATTEST:
MD MORTGAGE
CORPORATION
|
_________________________
|
By:
/s/Xxxxxxxx Xxxxx
|
Xxxxxxxx
Xxxxx
President
|
WITNESS:
|
MD
MORTGAGE
CORPORATION SHAREHOLDERS
|
___________________________ /s/Xxxxxxxx
Xxxxx
Xxxxxxxx
Xxxxx
___________________________
/s/
Xxxxxxx X. Xxxxxx
Xxxxxxx
X. Xxxxxx
___________________________
/s/
Xxxxx X. Xxxxxx
Xxxxx
X. Xxxxxx
Goldco
Properties Limited
Partnership
___________________________
/s/
Xxxxx Xxxxxxxxx
Xxxxx
Xxxxxxxxx
___________________________ /s/
Xxxxxxxx Xxxxxxx
Xxxxxxxx
Xxxxxxx
15
