AGREEMENT
This AGREEMENT (the "Agreement"), dated as of November 20, 1998, by and
among Credit Suisse First Boston Mortgage Capital, LLC, a Delaware limited
liability company ("CSFB" or "Lender"), as successor-by-merger to CS First
Boston Mortgage Capital Corp., CarLoanCo, Inc., a Virginia corporation formerly
known as AutoInfo Finance of Virginia, Inc. ("CarLoanCo-VA" or the "Borrower"),
and AutoInfo, Inc., a Delaware corporation ("AutoInfo") as Guarantor of the
Borrower's obligations to Lender. CarLoanCo-VA and AutoInfo are sometimes
referred to herein collectively as the "Company".
W I T N E S S E T H:
WHEREAS, Lender, Car Loan Co., Inc. ("Car Loan-CT") and Borrower are
parties to a certain Amended and Restated Loan, Security and Servicing Agreement
dated as of October 21, 1997 (the "Loan Agreement"); and
WHEREAS, Car Loan-CT was merged into CarLoanCo-VA on or about October 13,
1998; and
WHEREAS, Lender and CarLoanCo-VA, as borrowers, and Crestar Bank, a
Virginia banking corporation as Custodian ("Custodian"), are parties to a
certain Custody Agreement dated as of December 9, 1996 (the "Custody
Agreement"); and
WHEREAS, the aggregate outstanding principal amount of all Advances is
$4,490,574.73; and
WHEREAS, Lender and the Company desire to terminate the commercial
relationship between the parties; and
WHEREAS, in furtherance thereof, the parties have negotiated and agreed to
the terms and conditions contained in the Amendment and Forbearance Agreement in
the form annexed hereto as Exhibit A (the "Amendment and Forbearance
Agreement"); and
WHEREAS, the Amendment and Forbearance Agreement provides for, inter alia,
"Contingent Debt Forgiveness" (as defined therein) upon the fulfillment of
certain conditions therein; and
WHEREAS, Lender desires to be paid, and the Company desires to pay to
Lender, the sum of $2,440,786.34 (the "Payoff Amount"), constituting all amounts
due and owing under the Loan Agreement, net of the "Contingent Discount" (as
defined in the Amendment and Forbearance Agreement) by wire transfer to CitiBank
NYC, ABA #000000000, for credit to
the account of CS First Boston Corp., Account #00000000 (the "Designated
Account") simultaneous with the execution and exchange of this Agreement; and
WHEREAS, the Lender and the Company desire to provide for the application
of the Contingent Discount and the orderly termination of the debtor/creditor
relationship between the Lender and the Company, subject to the fulfillment by
the Company of the conditions set forth herein.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which the parties hereto hereby acknowledge, the parties hereto
agree as follows:
1. Payment. Simultaneous with the execution and exchange hereof, the
Company has directed the payment of the Payoff Amount by wire transfer to the
Designated Account. Subject to the fulfillment by the Company of the conditions
set forth in Section 2 below, the Payoff Amount shall constitute full and final
payment by the Company and any of its affiliates of all amounts due and owing to
the Lender and any of its affiliates on account of or in connection with the
Loan Agreement. If the Company fails to fulfill such conditions, the unpaid
Advances shall remain owing.
2. Conditions for Debt Forgiveness. The Contingent Discount shall be
applied to the account of the Borrower, and no further sums shall be due and
owing under or relating to the Loan Agreement provided that, on or before
December 15, 1998, the Company delivers to Xxxxxxx Xxxxxxxx & Xxxx, attention
Xxxxxxx Xxxxxx, Esq., as attorneys for the Lender, the following documents:
(a) Four (4) executed counterparts of the Amendment and
Forbearance Agreement in substantially the form of Exhibit A
hereto;
(b) an original executed Common Stock Purchase Warrant to purchase
125,000 shares of AutoInfo Common Stock in substantially the
form of Exhibit B hereto at the price called for in the term
sheet between the parties;
(c) an original executed Common Stock Purchase Warrant to purchase
1,357,467 shares of AutoInfo Common Stock in substantially the
form of Exhibit C hereto at the price called for in the term
sheet between the parties;
(d) the opinion of Morse, Zelnick, Rose & Lander, LLP, or such
other firm reasonably acceptable to Xxxxxxx Xxxxxxxx & Xxxx,
in substantially the form of Exhibit D hereto;
(e) the opinion of Xxxxxxx & Savage, PC, or such other firm
reasonably acceptable to Xxxxxxx Xxxxxxxx & Xxxx, in
substantially the form of Exhibit E hereto;
(f) two (2) duly executed copies of the AutoInfo, Inc. Officer's
Certificate and Incumbency and Documentation Certificate, in
substantially the form of Exhibit F hereto;
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(g) two (2) duly executed copies of the CarLoanCo, Inc. Officer's
Certificate and Incumbency and Documentation Certificate, in
substantially the form of Exhibit G hereto;
(h) two (2) duly executed copies of the Certificate of Xxxxx X.
Xxxxxx, in substantially the form of Exhibit H hereto; and
(i) a fully executed General Release by the Company of the Lender,
in substantially the form of Exhibit I hereto.
Xxxxxxx Xxxxxxxx & Xxxx shall hold each of the foregoing documents
delivered to it by or on account of the Company in escrow pending its delivery
to Morse, Zelnick, Rose & Lander, LLP, attention Xxxxxxx X. Xxxx, Esq., as
attorneys for the Company, of the following documents:
(a) two (2) fully executed counterparts of the Amendment and
Forbearance Agreement;
(b) a fully executed General Release by the Lender of the Company,
in substantially the form of Exhibit J hereto; and
(c) the original Common Stock Purchase Warrant No. M-1 previously
issued by AutoInfo to the Lender.
3. Binding Effect; Survival of Provisions. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
4. Captions. The section headings contained in this Agreement are and shall be
without substantive meaning or content of any kind whatsoever and are not part
of the agreement between the parties hereto or thereto.
5. Amendments and Waivers. This Agreement shall not be amended, modified or
waived except by written consent of all of the parties hereto.
6.. Governing Law; Severability. This Agreement shall be a contract made under
and governed by, and construed in accordance with, the laws of the State of New
York without regard to conflict of laws principles. Whenever possible, each
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
shall be prohibited by or unenforceable or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition,
unenforceability or invalidity, without invalidating the remainder of such
provision or the remaining provisions of the Agreement.
7. Execution in Counterparts. The Agreement may be executed in any number of
counterparts, by original or facsimile signature, each of which shall be deemed
to be an original and all of which together shall be deemed to be one and the
same instrument.
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8. Full Agreement. This Agreement, together with the Loan Agreement, contains
the entire agreement of the parties with respect to the subject matter hereof
and supersedes and cancels all prior or contemporaneous understandings,
agreements, writings (including but not limited to that certain letter dated
November 18, 1998 from Xxxxxxx A, Commaroto, Vice President of Lender to Xxxxx
Xxxxxx, President of AutoInfo) and discussions between the parties. Accordingly,
the parties do hereby agree that in any arbitration, mediation or court
proceeding in which the interpretation or enforcement of this Agreement is
sought or requested, or otherwise at issue, No prior or subsequent oral
representations, warranties or agreements shall be admissible or otherwise
binding on the parties except as expressly set forth herein. No modification,
amendment or waiver of any provisions of this Agreement shall in any event be
effective unless the same shall be in writing and duly executed by all of the
parties hereto.
[THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
executed by their respective officers or members thereunto duly authorized as of
the date and year first above written.
CREDIT SUISSE FIRST BOSTON MORTGAGE
CAPITAL, LLC
By:
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
CARLOANCO, INC.
By:
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Name: Xxxxx Xxxxxx
Title: Chief Executive Officer
AUTOINFO, INC.
By:
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Name: Xxxxx Xxxxxx
Title: Chief Executive Officer
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