AMENDED AND RESTATED OPTION AND WARRANT AGREEMENT
THIS AMENDED AND RESTATED OPTION AND WARRANT AGREEMENT ("this
Agreement") is made this 19th day of December, 1995 by and among X.X. Xxxxxxx,
Xx., an individual ("Xxxxxxx"), National Consumer Services Corp., L.L.C., a
Georgia limited liability company ("NCS"), National Consumer Services, Corp. II,
L.L.C., a Georgia limited liability company ("NCS II"), and Block Financial
Corporation, a Delaware Corporation ("BFC") and is amended and restated as of
January 1, 1996.
Recitals
A. Pursuant to that certain Operating Agreement for NCS dated
as of September 15, 1995, as amended by the First Amendment to Operating
Agreement of NCS (as amended, the "NCS Operating Agreement"), Xxxxxxx owns a
Company Interest (as such term is defined in the NCS Operating Agreement) in NCS
equal to a 66% Percentage Interest (as such term is defined in the NCS Operating
Agreement).
B. Pursuant to that certain Operating Agreement for NCS II
dated as of December 19, 1995 (the "NCS II Operating Agreement"), Xxxxxxx owns a
Company Interest (as such term is defined in the NCS II Operating Agreement) in
NCS equal to a 66% Percentage Interest (as such term is defined in the NCS II
Operating Agreement).
C. In reliance upon, and in consideration of, the agreements
of Xxxxxxx, NCS and NCS II under this Agreement to grant options to BFC with
respect to the purchase by BFC of a Company Interest in NCS and NCS II, BFC has
agreed to (i) extend certain financial accommodations to NCS and NCS II pursuant
to that certain Credit Agreement by and between NCS, NCS II and BFC dated even
date herewith (the "Credit Agreement") and (ii) purchase certain mortgage loans
from NCS and NCS II pursuant to that certain Loan Purchase Agreement by and
between NCS, NCS II and BFC dated even date herewith.
Agreements
IN CONSIDERATION of the premises, and of the mutual promises,
obligations and agreement contained herein, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto, intending to be legally bound, do
hereby agree as follows:
1. Option. (a) Xxxxxxx hereby grants to BFC the
right and option to purchase from Xxxxxxx a Company Interest in each of NCS and
NCS II equal to a 40% Percentage Interest in each of NCS and NCS II, at an
aggregate purchase price of $4,000,000 and in the manner and on the terms and
conditions as hereinafter set forth.
(b) The option granted by Xxxxxxx to BFC hereunder may be
exercised by BFC at any time during (and only during) the three-year period
commencing on December 19, 1995 (the "Option Period"); provided, however, that
in the event BFC's obligations to make Loans (as such term is defined in the
Credit Agreement ) under the Credit Agreement is terminated for any reason, such
option shall terminate upon the earlier of (i) the expiration of the Option
Period or (ii) the date 90 days after the date on which BFC's obligations to
make Loans under the Credit Agreement is terminated. BFC shall exercise such
right, if at all, by giving Xxxxxxx, NCS and NCS II written notice of exercise.
Such notice of exercise shall specify a date for closing of the purchase, which
date shall not be more
than 15 days after the date of such notice of exercise. Any exercise of the
option granted to BFC hereunder shall be with respect to both NCS and NCS II.
(c) The closing of any purchase and sale of Company Interests
under this Section 1 shall be held at the principal office of NCS (or such other
place as agreed upon by Xxxxxxx and BFC) on such date set forth in Section 1 (b)
of this Agreement; provided, however, that if the closing is scheduled for a day
that is not a business day in the State of Georgia, the closing shall occur on
the next business day thereafter. At the closing, the purchase price shall be
paid by federal wire transfer of funds immediately available at such domestic
account designated by Xxxxxxx, against delivery of a written instrument of
transfer of the applicable Company Interests executed by Xxxxxxx (or his
applicable legal representative) and in form and substance satisfactory to BFC.
2. Restrictions on Transfer. During the period commencing on
the date hereof and ending on the date of the closing of any purchase and sale
of Company Interests under Section 1 of this Agreement, Xxxxxxx shall not make,
and NCS and NCS II shall not suffer to occur, any Transfer (as such term is
defined in the NCS Operating Agreement) of Xxxxxxx'x Company Interests in NCS
and/or NCS II that results in Xxxxxxx owning after such Transfer a Percentage
Interest in NCS or NCS II that is less then 40%.
3. Failure to Transfer Company Interest. (a) If Xxxxxxx or his
legal representative is not present at the time and place designated for a
closing pursuant to Section 1 of this Agreement, or, if present, fails to
execute and deliver to BFC a written instrument of transfer of the applicable
Company Interests as required by Section 1 of this Agreement, or fails to
satisfy any other obligation to be satisfied at the closing, as aforesaid, for
any reason whatsoever or no reason (any such foregoing events is hereinafter
referred to as a "Closing Failure"), then the purchase price and any document
required of BFC at the closing ( such purchase price and documents are
hereinafter referred to as the "Closing Documentation") shall be deposited with
the Manager of NCS. The foregoing shall constitute valid payment even though
Xxxxxxx has attempted to encumber or dispose of any of such Company Interests
contrary to the provisions of this Agreement and irrespective of the fact that
any pledge, transferee or other person may thereby have attempted to acquire an
interest in any of such Company Interests or the fact any of such Company
Interests may have been Transferred to any such person.
(b) If the Closing Documentation is deposited with the Manager
of NCS as provided herein, then from and after the date of such deposit and even
if the written instrument of transfer as required by Section 1 of this Agreement
has not been delivered to BFC, the purchase of such Company Interests shall be
deemed to have been fully effected and all title and interest in and to such
Company Interests shall be deemed to have been vested in BFC, and all rights of
Xxxxxxx or of any purported transferee, assignee or any other person purporting
to have an interest therein, as a Member (as defined in the NCS Operating
Agreement and NCS II Operating Agreement, as the case may be) or otherwise,
shall terminate except for the right to receive the Closing Documentation, but
without interest; and the Manager of NCS and the Manager of NCS II, as
attorney-in-fact for and in the name of Xxxxxxx, shall cause such applicable
Company Interest to be transferred on the books of NCS and NCS II to BFC.
Xxxxxxx does hereby irrevocably appoint and designate the Manager of NCS and the
Manager of NCS II and their successors in office as his attorney-in-fact, for
and on his behalf, to receive, receipt for, hold and collect the Closing
Documentation, and to effect the transfer of the Company Interests on the books
of NCS and NCS II. Xxxxxxx shall be entitled to receive the Closing
Documentation upon delivery to NCS of the written instruments of transfer as
required by Section 1 of this Agreement, as aforesaid.
4. Warrant. (a) NCS and NCS II each hereby agree, that in the
event a Closing Failure occurs and continues until the closing of the purchase
of Company Interest pursuant to this Section 4, BFC shall be entitled to
subscribe for and purchase from NCS and NCS II Company Interests in NCS and NCS
II equal to a 40% Percentage Interest in each of NCS and NCS II, at an aggregate
purchase price of $4,000,000 and in the manner, and on, and subject to, the
terms and conditions set forth in this Section 4 at any time during the one-year
period commencing on the date of deposit of the Closing Documentation with NCS.
(b) BFC shall exercise its right to subscribe for and purchase
Company Interests pursuant to this Section 4, if at all, by giving Xxxxxxx, NCS
and NCS II written notice of exercise. Upon receipt of such notice of exercise,
NCS and NCS II shall be entitled to retain (as payment by BFC of the purchase
price for the Company Interests purchase pursuant to this Section 4) the
purchase price deposited with NCS pursuant to Section 3 of this Agreement, and
the closing of the purchase of Company Interests under this Section 4 shall be
deemed to have occurred on the date such notice was received by NCS. NCS and NCS
II hereby agree that the aggregate purchase price shall be remitted by BFC
solely to NCS and that such aggregate purchase price shall be allocated between
NCS and NCS II as determined by NCS and NCS II.
5. Assignments and Transfers; Binding Effect. This Agreement
shall not be assigned by any party hereto without the prior written consent of
the other parties hereto, and the options herein granted shall not be
transferable and shall be exercisable only by BFC and shall not be transferred,
assigned, pledged or hypothecated by BFC; provided, however, that BFC may assign
this agreement or transfer the options herein granted to any Affiliate (as
defined in the NCS Operating Agreement) of BFC. All rights and obligations
pursuant to this Agreement shall adhere to and be binding upon the parties
hereto and their permitted heirs, administrators, executors, successors and
assigns.
6. Entire Agreement; Amendments. This Agreement cancels and
supersedes all previous agreements relating to the subject matter of this
agreement, written or oral, between the parties hereto and contains the entire
understanding of the parties hereto and shall not be amended, modified or
supplemented in any manner whatsoever except as otherwise provided herein or in
writing signed by each of the parties hereto. No waiver or any provision hereof
will be valid or binding on the parties hereto, unless such waiver is in writing
and signed by or on behalf of the parties hereto, and no waiver on one occasion
shall be deemed to be a waiver of the same or any other provision hereof in the
future.
7. NCS and NCS II's Right to Refuse Transfer. NCS and NCS II
are hereby irrevocably authorized by Xxxxxxx to refuse to accommodate or
recognize any Transfer of a Company Interest that would not be in accordance
with the terms hereof, and NCS and NCS II and the Manager and the other Members
of NCS and NCS II are hereby released and relieved from any and all liability
that might arise from the refusal to accommodate or recognize such Transfer.
8. Severability. If for any reason any one or more provisions
or parts of a provision hereof shall be determined to be invalid or
unenforceable in any respect, such invalidity or unenforceability shall not
affect any other provision or part of a provision herein, and such provision or
part shall be reformed so that it would be valid, legal and enforceable to the
maximum extent permitted.
9. Notices. All notices required or permitted to be given
under this Agreement shall be in writing and shall be given by registered or
certified mail, return receipt requested, or by nationally recognized overnight
courier, by first-class mail, or by facsimile transmission (with confirmation in
writing mailed first-class or sent by such overnight courier) or by personal
delivery, addressed as follows:
If to BFC, to:
Block Financial Corporation
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X Xxxxx, Xx.
Facsimile: 000-000-0000
If to Xxxxxxx, to:
X.X. Xxxxxxx, Xx.
0000 X. Xxxxxxxxxx
X.X. Xxx 000
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
If to NCS or NCS II, to:
National Consumer Services Corp., L.L.C.
00 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
Any party may change the address to which it desires notices
to be sent giving the other party ten (10) days' prior notice of any such
change. Any notices shall be deemed effective on the earliest to occur of
receipt, telephone confirmation of receipt of facsimile transmission, one
business day after delivery to a nationally-recognized overnight courier, or
three business days after deposit in the mail.
10. Law Governing. This Agreement shall be governed by
and construed and interpreted in accordance with the laws of the State of
Missouri applicable to agreements made and to be performed entirely within such
state, including all matters of enforcement, validity and performance.
11. Specific Performance. Xxxxxxx, NCS and NCS II each hereby
acknowledge and agree that the remedy at law available to BFC would be
inadequate for any breach of this Agreement whereby (i) a person or his legal
representative would refuse to transfer a Company Interest in NCS or NCS II in
accordance with the terms of this Agreement, or (ii) Xxxxxxx would attempt to
transfer a Company Interest in NCS or NCS II not in accordance with the terms of
this Agreement. In recognition of that fact, Xxxxxxx, NCS and NCS II each hereby
agree that, in addition to any other available remedies, BFC shall be entitled
to specific performance of all
affirmative duties with respect to the transfer of a Company Interest in NCS or
NCS II and to an injunction, restraining order or other form of equitable relief
prohibiting violation of any of the restrictive covenants with respect to the
Transfer of Company Interests hereunder.
12. Subrogation of BFC's Rights. In the event BFC exercises
its rights under Section 4 of this Agreement and shall have purchased a Company
Interest from NCS and/or NCS II pursuant to such Section 4, NCS and NCS II, as
the case may be, shall be subrogated as to BFC's right under Sections 1, 2, 3
and 11 of this Agreement and, accordingly, shall be entitled to enforce such
rights against Xxxxxxx.
13. Headings Section headings contained in this Agreement are
for Reference purposes only and are in no way intended to define, interpret,
describe or limit the scope, extent or intent of this Agreement or any
provision hereof.
14. Counterparts. This Agreement may be executed in
counterparts, each of which shall for all purposes be deemed an original, and
all of such counterparts shall together constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
/s/ X.X. Xxxxxxx, Xx.
---------------------------------------
X.X. Xxxxxxx, Xx.
BLOCK FINANCIAL CORPORATION
By Xxxxxxxx X.Xxxxx, Xx.
-----------------------------------
Xxxxxxxx X.Xxxxx, Xx. Vice President
Finance and Corporate Development
NATIONAL CONSUMER SERVICES
CORP., L.L.C.
By Xxxx X. Xxxxxxxxx
----------------------------------
Xxxx X. Xxxxxxxxx
Manager
NATIONAL CONSUMER SERVICES
CORP. II, L.L.C.
By Xxxx X. Xxxxxxxxx
--------------------------------
Xxxx X. Xxxxxxxxx
Manager
