EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
BY AND AMONG
INSIGNIA FINANCIAL GROUP, INC.
INSIGNIA ESG, INC.
INSIGNIA RO, INC.
AND
REAL LIVING, INC.
DATED AS OF DECEMBER 31, 2001
TABLE OF CONTENT
PAGE
1. DEFINITIONS.............................................................................................2
2. PURCHASE AND SALE OF THE SHARES; CLOSING; AGREEMENTS...................................................16
2.1 Purchase and Sale; Effective Time.............................................................16
2.2 Purchase Price................................................................................16
2.3 Closing.......................................................................................20
2.4 Closing Obligations...........................................................................20
2.5 Adjustment to the Purchase Price; Closing Date Statement; Closing
Payables/Liabilities; and Closing Receivables/Current Assets;.................................21
2.6 Disputed Matters; Dispute Resolution..........................................................24
2.7 Payment of Certain Obligations; Reimbursement for January 2002 Losses.........................25
2.8 Non-Solicitation..............................................................................26
2.9 Tax Returns...................................................................................27
2.10 Continuing Accounting Services................................................................30
2.11 Trade Names...................................................................................30
2.12 Continuing Liabilities........................................................................31
2.13 Certain Employment Matters....................................................................31
2.14 Re/Max Orders.................................................................................31
2.15 Subsequent Sales of the Realty One Companies..................................................31
2.16 PowerChooser, VPA and CARS Licenses...........................................................32
2.17 Assumption or Replacement of Certain Existing Debt............................................33
3. REPRESENTATIONS AND WARRANTIES OF SELLER AND INSIGNIA..................................................33
3.1 Organization and Good Standing................................................................33
3.2 Authority; No Conflict........................................................................34
3.3 Capitalization................................................................................35
3.4 Financial Statements..........................................................................36
3.5 Books and Records.............................................................................37
3.6 Title to Properties; Encumbrances.............................................................37
3.7 Ownership of Assets; Condition and Sufficiency of Assets......................................38
3.8 Accounts Receivable...........................................................................38
3.9 Accounts Payable..............................................................................38
3.10 No Undisclosed Liabilities....................................................................39
3.11 Taxes.........................................................................................39
3.12 No Material Adverse Change....................................................................40
3.13 Employees and Employee Benefit Plans..........................................................40
3.14 Compliance With Legal Requirements; Governmental Authorizations...............................41
3.15 Legal Proceedings; Orders.....................................................................43
3.16 Absence of Certain Changes and Events.........................................................44
3.17 Contracts; No Defaults........................................................................45
3.18 Insurance.....................................................................................49
3.19 Environmental Matters.........................................................................50
3.20 Employees.....................................................................................50
3.21 Labor Relations; Compliance...................................................................51
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TABLE OF CONTENTS
(CONTINUED)
PAGE
3.22 Intellectual Property.........................................................................52
3.23 Certain Payments..............................................................................54
3.24 Realty One Services Agreements................................................................54
3.25 Disclosure....................................................................................54
3.26 Relations with Related Persons................................................................54
3.27 Brokers or Finders............................................................................55
3.28 First Ohio Mortgage; Loan Purchase Agreements.................................................55
4. REPRESENTATIONS AND WARRANTIES OF BUYER................................................................55
4.1 Organization..................................................................................55
4.2 Authority; No Conflict........................................................................56
4.3 Investment Intent.............................................................................57
4.4 Brokers or Finders............................................................................57
5. COVENANTS OF SELLER AND INSIGNIA PRIOR TO CLOSING DATE.................................................57
5.1 Required Approvals............................................................................57
5.2 Current Information...........................................................................57
5.3 Operations Prior to Closing Date..............................................................57
5.4 Miscellaneous Agreements and Consents.........................................................59
5.5 Access and Investigation; Delivery............................................................59
5.6 Notification..................................................................................60
5.7 No Negotiation................................................................................61
6. COVENANTS OF BUYER PRIOR TO CLOSING DATE...............................................................61
6.1 Approvals of Governmental Bodies..............................................................61
6.2 Miscellaneous Agreements and Consents.........................................................61
6.3 Notification..................................................................................61
6.4 Termination of IFG Guaranty...................................................................62
7. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE....................................................62
7.1 Accuracy of Representations...................................................................62
7.2 Performance...................................................................................62
7.3 [Intentionally Omitted].......................................................................62
7.4 Additional Documents..........................................................................62
7.5 No Proceedings................................................................................63
7.6 No Claim Regarding Stock Ownership or Sale Proceeds...........................................63
8. CONDITIONS PRECEDENT TO SELLER'S AND INSIGNIA'S OBLIGATION TO CLOSE....................................63
8.1 Accuracy of Representations...................................................................63
8.2 Buyer' s Performance..........................................................................63
8.3 [Intentionally Omitted].......................................................................64
8.4 Additional Documents..........................................................................64
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TABLE OF CONTENTS
(CONTINUED)
8.5 No Proceedings................................................................................64
8.6 Release of Insignia Guaranty..................................................................64
9. TERMINATION............................................................................................65
9.1 Termination Events............................................................................65
9.2 Effect of Termination.........................................................................65
9.3 Financing Contingency.........................................................................65
10. INDEMNIFICATION; REMEDIES..............................................................................69
10.1 Survival; Right to Indemnification Not Affected By Knowledge..................................69
10.2 Indemnification by Seller and Insignia........................................................70
10.3 Indemnification by Buyer......................................................................71
10.4 Procedure for Indemnification--Third Party Claims.............................................72
10.5 Procedure for Indemnification--Other Claims...................................................73
10.6 Indemnity Limitations--Seller and Insignia....................................................73
10.7 Indemnity Limitations--Buyer..................................................................74
10.8 Effect of Insurance Proceeds Received; Subrogation; Indemnification Payment as
Adjustment to Purchase Price..................................................................74
10.9 Certain Continuing Litigation.................................................................75
10.10 Time Limitation...............................................................................75
11. GENERAL PROVISIONS.....................................................................................75
11.1 Expenses......................................................................................75
11.2 Mandatory Arbitration.........................................................................76
11.3 Confidentiality; Public Announcement..........................................................76
11.4 Notices.......................................................................................77
11.5 Jurisdiction..................................................................................78
11.6 Further Assurances............................................................................78
11.7 Waiver........................................................................................78
11.8 Entire Agreement; Modification................................................................79
11.9 Assignments; Successors; No Third-Party Rights................................................79
11.10 Severability..................................................................................79
11.11 Section Headings; Exhibits; Construction......................................................79
11.12 Governing Law.................................................................................80
11.13 Counterparts..................................................................................80
SIGNATURE PAGES.................................................................................................81
INDEX OF EXHIBITS...............................................................................................83
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT is made and entered into as of December 31,
2001, by and among INSIGNIA FINANCIAL GROUP, INC., a Delaware corporation
("IFG"), INSIGNIA ESG, INC., a Delaware corporation ("ESG"), INSIGNIA RO, INC.,
a Delaware corporation ("Seller"), and REAL LIVING, INC. an Ohio corporation
("Buyer"). (IFG and ESG are sometimes referred to collectively as "Insignia.")
RECITALS:
A. IFG owns all of the outstanding shares of the capital stock of
ESG.
B. ESG owns all of the outstanding shares of the capital stock of
Seller.
C. Seller owns all of the outstanding shares of the capital stock of
the following corporations:
(i) FIRST OHIO ESCROW CORPORATION, INC., an Ohio corporation
("First Ohio Escrow"), is authorized by its Organizational Documents to issue up
to 750 shares of common stock, without par value, of which 500 shares are issued
and outstanding, all of which are owned by Seller (the "First Ohio Escrow
Shares");
(ii) INSIGNIA RELOCATION MANAGEMENT, INC., an Ohio corporation
("Insignia Relocation"), is authorized by its Organizational Documents to issue
up to 750 shares of common stock, without par value, of which 500 shares are
issued and outstanding, all of which are owned by Seller (the "Insignia
Relocation Shares").
(iii) FIRST OHIO MORTGAGE CORPORATION, INC., an Ohio
corporation ("First Ohio Mortgage"), is authorized by its Organizational
Documents to issue up to 750 shares of common stock, without par value, of which
500 shares are issued and outstanding, all of which are owned by Seller (the
"First Ohio Mortgage Shares"); and
(iv) REALTY ONE, INC., an Ohio corporation ("Realty One"), is
authorized by its Organizational Documents to issue up to 200,000 shares of
common stock, without par value, of which 10,000 shares are voting shares, and
190,000 are non-voting shares, all of which shares are issued and outstanding
and owned by Seller (the "Realty One Shares");
(First Ohio Escrow, Insignia Relocation, First Ohio Mortgage, and Realty One are
sometimes referred to collectively as the "Realty One Companies.")
D. Realty One owns 49.9% of the membership interests (the "Insignia
Title Member Interests") in INSIGNIA TITLE AGENCY, LTD., an Ohio limited
liability company ("Insignia Title").
E. The Realty One Companies are engaged in the business of providing
real estate brokerage services, mortgage services, escrow services, relocation
services, and related real estate services, primarily in the single family
residential real estate market in northeast Ohio.
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F. As of the date of this Agreement, Xxxxxx X. Xxxxx, Xx., who is the
President and Chief Executive officer of HER, INC., an Ohio corporation ("HER"),
is the sole shareholder of Buyer. HER is engaged in the business of providing
real estate brokerage services, mortgage services, escrow services, relocation
services, and related real estate services, primarily in the single family
residential real estate market in central Ohio. At or prior to the Closing, HER
will transfer either all or substantially all of its capital stock or all or
substantially all of its assets and business to Buyer.
G. Seller desires to sell, and Buyer desires to purchase, the Realty
One Shares, the First Ohio Escrow Shares, the First Ohio Mortgage Shares, and
the Insignia Relocation Shares (collectively, the "Shares") for the
consideration and on the terms set forth in this Agreement.
AGREEMENT:
The parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
For purposes of this Agreement, the following terms have the meanings specified
or referred to in this Section 1:
"AAA"--as defined in Section 2.6.
"Accounts Payable"--as defined in Section 3.9(a).
"Accounts Receivable"--as defined in Section 3.8(a).
"Agreement"--this Stock Purchase Agreement.
"Applicable Contract"--any Contract, including any Realty One Services
Agreements presently in effect, (i) under which the Realty One Companies have or
may acquire any rights, or (ii) under which the Realty One Companies have or may
become subject to any obligation or liability, or (iii) by which the Realty One
Companies or any of the assets owned or used by them are or may become bound, or
(iv) to which Seller is a party that restricts the right or ability of any
Realty One Company to engage in Residential Real Estate Services.
"Arbitrator"--as defined in Section 2.6.
"Best Efforts"--the efforts that a prudent Person desirous of achieving
a result would use in similar circumstances to ensure that such result is
achieved as soon as reasonably and practicably possible; provided, however, that
an obligation to use Best Efforts under this Agreement does not require the
Person subject to that obligation to incur any expense or liability or take
actions that would result in a materially adverse change in the benefits to such
Person of this Agreement and the Contemplated Transactions.
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"Breach"--a "Breach" of a representation, warranty or covenant of this
Agreement or any instrument delivered pursuant to this Agreement will be deemed
to have occurred if there is or has been (i) any inaccuracy in or breach of,
such representation or warranty set forth in this Agreement or (ii) failure to
perform or comply with any covenant or agreement set forth in this Agreement,
subject to applicable grace or cure periods, and the term "Breach" means any
such inaccuracy, breach or failure.
"Buyer"--as defined in the preamble of this Agreement.
"Buyer Indemnified Persons"--as defined in Section 10.2.
"Buyer Loss"--as defined in Section 10.2.
"Buyer New Developments"--as defined in Section 2.16(b).
"Buyer's Advisors"--as defined in Section 5.5(a).
"Buyer's Closing Certificate"--as defined in Section 2.4(b)(ii).
"Buyer's Closing Documents"--as defined in Section 2.4(b).
"CARS"--Computer Implemented Marketing System described in Patent No.
U.S. 6,236,977 B1 issued May 22, 2001.
"CARS/VPA"--as defined in Section 2.16(b).
"CARS/VPA License"--as defined in Section 2.16(b).
"Change of Control Payments"--any obligations, amounts payable, paid,
owed, or owing to Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx Xxxxxx, and Xxxxxxx
Xxxxxxxx under the terms of four letter agreements, each dated as of October 26,
2001, among Insignia and Realty One and each of Xxxxxxx Xxxxxxx, Xxxxxxx
Xxxxxxxx, Xxxxxxx Xxxxxx, and Xxxxxxx Xxxxxxxx, relating to a Potential
Transaction Involving Change in Control of the Realty One Companies
"Closing"--as defined in Section 2.3.
"Closing Amount"--as defined in Section 2.2(a)(i).
"Closing Date"--the date and time as of which the Closing actually
takes place.
"Closing Date Statement"--as defined in Section 2.5(b).
"Closing Payables/Liabilities"--shall mean the Accounts Payable, Notes
Payable (to the extent continued by Buyer after the Closing Time), Accrued and
Sundry Liabilities (excluding Insurance Reserves and the Accrued
Contingencies/Legal), Accrued Incentives, and the First Ohio Warehouse Line (if
continued after the Closing Time) of the Realty One Companies, as accruing and
determined in accordance with GAAP (and as consistently applied by Seller and
the Realty One Companies in connection with preparation of balance sheets of the
Realty One Companies since January 1, 2000) as of the Closing Time and neither
discharged nor paid as of
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the Closing Time, as adjusted for the resolution of Disputed Matters, with the
terms used in this subparagraph (a) being used in the same manner as in the
Insignia Financial Group, Inc. Financial Reporting Package - Realty One
Operations, Date: September 30, 2001, including the nine Schedules included
therewith; provided, however, that Closing Payables/Liabilities shall not
include: (i) commissions and obligations (other than bonuses or other incentive
compensation included in Accrued Incentives) payable by Realty One to
brokers/sales agents/sales associates or to any other Person pursuant to Realty
One Closing Real Estate Sales Contracts; (ii) Taxes of the Realty One Companies
for the period prior to and ending with the Closing Time, which Taxes are
payable by Seller in accordance with Section 2.9(a) hereof; (iii) the $5,500,000
principal indebtedness (and any accrued/unpaid interest) of Realty One payable
to National City Bank, which loan Seller shall pay in its entirety at the time
of the Closing from the Closing Amount; (iv) the line of credit financing in
favor of First Ohio Mortgage made by Key Bank, unless Buyer arranges for such
credit line to continue after the Closing Time; and (v) the Insignia Relocation
Loan.
"Closing Receivables/Current Assets"--shall mean the Accounts
Receivable, Cash and Cash Equivalents, Mortgage Loans Held for Sale, the
Investment in National City Bank (in the amount of $2,083), Security Deposits,
and Prepaids of the Realty One Companies as of the Closing Time, as determined
in accordance with GAAP (as consistently applied by Seller and the Realty One
Companies in connection with the preparation of balance sheets of the Realty One
Companies since January 1, 2000), as adjusted for the resolution of Disputed
Matters, with the terms used in this subparagraph (a) being used in the same
manner as in the Insignia Financial Group, Inc. Financial Reporting Package -
Realty One Operations, Date: September 30, 2001, including the nine Schedules
included therewith; provided, however, that Closing Receivables/Current Assets
shall not include any commissions (or related record retention fees) payable to
Realty One pursuant to Realty One Closing Real Estate Sales Contracts, or the
Insignia Relocation Accounts Receivable.
"Closing Time"--except as otherwise expressly agreed in a writing
signed by all of the parties hereto, and subject to the occurrence of the
Closing, the end of the day on the Closing Date.
"Consent"--any approval, consent, ratification, waiver, or other
authorization (including any Governmental Authorization).
"Contemplated Transactions"--all of the transactions contemplated by
this Agreement, including:
(a) the sale by Seller to Buyer and the purchase by Buyer from
Seller of the Shares and the exercise of control by Buyer over Realty
One, First Ohio Escrow, First Ohio Mortgage, and Insignia Relocation;
(b) the delivery of the Closing Amount, the Holdback Amount,
and the Contingent Amount in accordance with the terms of this
Agreement;
(c) the license and purchase option between Seller and Buyer
respecting PowerChooser;
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(d) the performance by Buyer, Insignia, and Seller of their
respective covenants and obligations under this Agreement; and
(e) the satisfaction and discharge of the Closing
Payables/Liabilities by Buyer as they become due and payable; and
(f) the performance (including performance by Persons who are
not parties hereto) or occurrence of the actions, transactions, events,
or obligations necessary to satisfy the conditions set forth in
Sections 7 and 8 hereof.
"Contingent Amount"--as defined in Section 2.2(c).
"Continuing Liabilities"--the following:
(a) the Closing Payables/Liabilities;
(b) the Realty One Services Agreements, to the extent that
they are payable or performable, or accrue after the Closing Time;
(c) all Governmental Authorizations to which one or more of
the Realty One Companies are bound or subject;
(d) the Applicable Contracts, to the extent that they are
payable, performable, or accrue after the Closing Time and to the
extent that they are either listed in Exhibits 3.17(a)(i) through
3.17(a)(xvi) or, if they are not required to be listed on such Exhibits
pursuant to the terms hereof, to the extent they were entered into in
the Ordinary Course of Business and were entered into in good faith, on
an arm's-length basis;
(e) compliance after the Closing Time with the Orders
referenced in Section 2.14 hereof in accordance with Section 2.14
hereof;
(f) Continuing Ordinary Course Applicable Contracts, to the
extent that they are payable, performable, or
accrue after the Closing Time;
(g) obligations which this Agreement expressly requires Buyer
or one or more of the Realty One Companies to pay or perform after the
Closing Time; and
(h) the Insignia Relocation Loan;
provided, however, that Continuing Liabilities shall not include (i) any Change
of Control Payments, (ii) Taxes of the Realty One Companies for the period prior
to and ending with the Effective Time, or (iii) obligations which this Agreement
expressly requires Seller to pay or perform.
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"Continuing Ordinary Course Applicable Contracts"--any Applicable
Contract in effect at the Closing Time that satisfies all of the following
criteria:
(a) was/is entered into prior to the Closing Time in the
Ordinary Course of Business;
(b) is, at any time after the Closing Time, terminable upon
not greater than 35 days notice by the Realty One Company which is a
party thereto or bound thereby;
(c) Buyer fails to determine by written notice to Seller prior
to the earlier of December 31, 2002, or 90 days after the Realty One
Company makes its first payment after the Closing Time under such
Applicable Contract that such Applicable Contract is not necessary to
the operation of the business of the Realty One Company which is a
party to or bound by such Applicable Contract;
(d) the termination of which Applicable Contract by the
applicable Realty One Company, together with any other terminations of
other Continuing Ordinary Course Applicable Contracts, does not result
in damages, penalties, or accelerated payments payable by the Realty
One Company which is a party to or bound by such Continuing Ordinary
Course Applicable Contracts in the aggregate exceeding $50,000;the
aggregate payments due under such Applicable Contract by the Realty One
Company which is a party or bound thereby that will become due and
payable after the Closing Time in accordance with its terms and
conditions, in the absence of renewals, defaults, or Breaches by any
party thereto, are not material in amount considering all other
liabilities and obligations of the Realty One Companies taken as a
whole; and
(e) default or Breach by any party to such Applicable Contract
will not cause a Material Adverse Effect after the Closing Time.
"Contract"--any agreement, contract, obligation, promise, or
undertaking (whether written or oral and whether express or implied) that is
legally binding upon a Person.
"Control Affiliate"--any Person (other than an individual) which is,
through one or more tiers, a wholly owned subsidiary of another Person (other
than an individual), a wholly owned subsidiary of the parent of such Person, or
the parent of such Person (for purposes hereof, the parent of another Person
means any Person or Persons (other than an individual) which wholly owns such
Person through one or more tiers).
"Copyrights"--as defined in Section 3.22(a)(iii).
"Disputed Matters"--as defined in Section 2.6.
"Draft Closing Date Statement"--as defined in Section 2.5(b).
"Draft January 0000 X&X Statement"--as defined in Section 2.7(d).
"Effective Time"--the end of the day on December 31, 2001.
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"Encumbrance"--any charge, claim, community property interest,
condition, equitable interest, lien, option, pledge, security interest, right of
first refusal, or restriction of any kind, including any restriction on use,
voting, transfer, receipt of income, or exercise of any other attribute of
ownership.
"Environment"--soil, land surface or subsurface strata, surface waters
(including navigable waters, ocean waters, streams, ponds, drainage basins, and
wetlands), groundwaters, drinking water supply, stream sediments, ambient air
(including indoor air), plant and animal life, and any other environmental
medium or natural resource.
"Environmental, Health, and Safety Liabilities"--any cost, damages,
expense, liability, obligation, or other responsibility arising from or under
Environmental Law or Occupational Safety and Health Law and consisting of or
relating to:
(a) the regulation of any environmental, health, or safety
matters or conditions (including on-site or off-site contamination,
occupational safety and health, and regulation of chemical substances
or products);
(b) fines, penalties, judgments, awards, settlements, legal or
administrative proceedings, damages, losses, claims, demands and
response, investigative, remedial, or inspection costs and expenses
arising under Environmental Law or Occupational Safety and Health Law;
(c) financial responsibility under Environmental Law or
Occupational Safety and Health Law for cleanup costs or corrective
action, including any investigation, cleanup, removal, containment, or
other remediation or response actions ("Cleanup") required by
applicable Environmental Law or Occupational Safety and Health Law
(whether or not such Cleanup has been required or requested by any
Governmental Body or any other Person) and for any natural resource
damages; or
(d) any other compliance, corrective, investigative, or
remedial measures required under Environmental Law or Occupational
Safety and Health Law.
(e) The terms "removal," "remedial," and "response action,"
include the types of activities covered by the United States
Comprehensive Environmental Response, Compensation, and Liability Act,
42 U.S.C.ss.9601 et seq., as amended ("CERCLA").
"Environmental Law"--any Legal Requirement that requires or relates to:
(a) advising appropriate authorities, employees, and the
public of intended or actual Releases of pollutants or hazardous
substances or materials, violations of discharge limits, or other
prohibitions and of the commencements of activities, such as resource
extraction or construction, that could have significant impact on the
Environment;
(b) preventing or reducing to acceptable levels the Release of
pollutants or hazardous substances or materials into the Environment;
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(c) reducing the quantities, preventing the Release, or
minimizing the hazardous characteristics of wastes
that are generated;
(d) assuring that products are designed, formulated, packaged,
and used so that they do not present unreasonable risks to human health
or the Environment when used or disposed of;
(e) protecting resources, species, or ecological amenities;
(f) reducing to acceptable levels the risks inherent in the
transportation of hazardous substances, pollutants, oil, or other
potentially harmful substances;
(g) cleaning up pollutants that have been Released, preventing
the Threat of Release, or paying the costs of such clean up or
prevention; or
(h) making responsible parties pay private parties, or groups
of them, for damages done to their health or the Environment, or
permitting self-appointed representatives of the public interest to
recover for injuries done to public assets.
"ERISA"--the Employee Retirement Income Security Act of 1974 or any
successor law, and regulations and rules issued pursuant to that Act or any
successor law.
"ERISA Affiliate"--as defined in Section 3.13(h).
"ESG"--as defined in the preamble of this Agreement.
"Exchange Act"--the Securities Exchange Act of 1934 or any successor
law, and regulations and rules issued pursuant to that Act or any successor law.
"Final Closing Adjustment Amount"--as defined in Section 2.5(b).
"Final Closing Date Statement"--as defined in Section 2.5(b).
"Final January 0000 X&X Statement"--as defined in Section 2.7(d).
"First Ohio Escrow"--as defined in the Recitals of this Agreement.
"First Ohio Escrow Shares"--as defined in the Recitals of this
Agreement.
"First Ohio Mortgage"--as defined in the Recitals of this Agreement.
"First Ohio Mortgage Shares"--as defined in the Recitals of this
Agreement.
"GAAP"--generally accepted accounting principles in the United States.
"Governmental Authorization"--any approval, consent, license, permit,
waiver, or other authorization issued, granted, given, or otherwise made
available by or under the authority of any Governmental Body or pursuant to any
Legal Requirement.
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"Governmental Body"--any:
(a) nation, state, county, city, town, village, district, or
other governmental jurisdiction of any nature;
(b) federal, state, local, municipal, foreign, or other
government;
(c) governmental or quasi-governmental authority of any nature
(including any governmental agency, branch, department, official, or
entity and any court or other tribunal);
(d) body exercising, or entitled to exercise, any
administrative, executive, judicial, legislative, police, regulatory,
or Taxing authority or power of any nature.
"Guaranty"--as defined in Section 6.4 hereof.
"Hazardous Activity"--the distribution, generation, handling,
importing, management, manufacturing, processing, production, refinement,
Release, storage, transfer, transportation, treatment, or use (including any
withdrawal or other use of groundwater) of Hazardous Materials in, on, under,
about, or from a property owned by one or more of the Realty One Companies or
any part thereof into the Environment, and any other act, business, operation,
or thing that materially increases the danger, or risk of danger, or poses an
unreasonable risk of harm to persons or property on or off a property owned by
one or more of the Realty One Companies, or that may affect the value of a
property of the Realty One Companies.
"Hazardous Materials"--any waste or other substance that is listed,
defined, designated, or classified as, or otherwise determined to be, hazardous,
radioactive, or toxic or a pollutant or a contaminant under or pursuant to any
Environmental Law, including any admixture or solution thereof, and specifically
including petroleum and all derivatives thereof or synthetic substitutes
therefor and asbestos or asbestos-containing materials.
"HCIC"--The Huntington Capital Investment Company, of Columbus, Ohio.
"HCIC Commitment"--the commitment letter from HCIC to HER, dated
December 28, 2001, relating to certain financing to be provided by HCIC to Buyer
in order to finance Buyer's performance of the Contemplated Transactions.
"HCIC Financing"--the financing to be provided by HCIC to Buyer
pursuant to the HCIC Commitment.
"HCIC Financing Documents"--the subordinated notes, warrants, and
related agreements and other documents as may be executed in connection with the
provision of the HCIC Financing.
"HER"--as defined in the Recitals of this Agreement.
"HNB"--The Huntington National Bank, of Columbus, Ohio.
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"HNB Commitment"--the commitment letter from HNB to HER, dated December
___, 2001, relating to two loans to be made by HNB to Buyer in order to finance
Buyer's performance of the Contemplated Transactions.
"HNB Loan"--collectively, the loans to be made by HNB to Buyer pursuant
to the HNB Commitment.
"HNB Loan Documents"--the loan agreement, promissory notes, security
agreement or agreements, and such other collateral documents as may be executed
in connection with the making of the HNB Loan.
"Holdback Amount"--as defined in Section 2.2(a)(iii).
"Holdback Period"--as defined in Section 2.5(e).
"IFG"--as defined in the preamble of this Agreement.
"Independent Contractor Agreements"--as defined in Section 3.17(a)(vi).
"Indemnified Person"--a Buyer Indemnified Person and/or a Seller's
Indemnified Person, as the context shall apply.
"Insignia"--as defined in the preamble of this Agreement.
"Insignia Relocation"--as defined in the Recitals of this Agreement.
"Insignia Relocation Accounts Receivable"--the Accounts Receivable of
Insignia Relocation on the books of Insignia Relocation as of the Closing Time.
"Insignia Relocation Accounts Receivable Percentage"--as defined in
Section 2.5(h).
"Insignia Relocation Loan"--the line of credit financing in favor of
Insignia Relocation made by National City Bank.
"Insignia Relocation Shares"--as defined in the Recitals of this
Agreement.
"Insignia Title"--as defined in the Recitals of this Agreement.
"Insignia Title Member Interests"--as defined in the Recitals of this
Agreement.
"Intellectual Property Assets"--as defined in Section 3.22(a).
"Interim 2001 Balance Sheets"--as defined in Section 3.4.
"Interim 2001 Financial Statements"--as defined in Section 3.4.
"IRC"--the Internal Revenue Code of 1986 or any successor law, and
regulations issued by the IRS pursuant to the Internal Revenue Code of 1986 or
any successor law.
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"IRS"--the United States Internal Revenue Service or any successor
agency, and, to the extent relevant, the United States Department of the
Treasury.
"Knowledge"--an individual will be deemed to have "Knowledge" of a
particular fact or other matter if such individual is actually aware of such
fact or other matter. A Person (other than an individual) will be deemed to have
"Knowledge" of a particular fact or other matter if any individual who is
serving as a director, executive officer, partner, executor, or trustee of such
Person (or in any similar capacity) has Knowledge of such fact or other matter,
and, without limiting the foregoing, Seller will be deemed to have "Knowledge"
of a particular fact or other matter in respect of a Realty One Company if any
of the Realty One Companies Executive Officers serving as an officer of such
Realty One Company has Knowledge of such fact or other matter. Notwithstanding
the foregoing, Seller will be deemed to have "Knowledge" of a particular fact or
other matter in respect of Insignia Title only if Xxxxx X. Xxxxxxxx, Xxxxxx X.
Xxxx, or Xxxxxxx Xxxxxx has Knowledge of such fact or other matter.
"Legal Requirement"--any federal, state, local, municipal, or other
administrative order, constitution, law, ordinance, principle of common law,
regulation, statute, or treaty.
"Litigation Reserve"--the allowance or reserve, as of a certain date
and/or as set forth on a designated balance sheet, for settlement or discharge
of any pending or Threatened claim, demand, cause of action, litigation,
complaint or other dispute or any other Proceeding, involving the business of
Realty One, of a nature for which Realty One has historically maintained such a
reserve.
"Marks"--as defined in Section 3.22(a)(i).
"Material Adverse Effect"--a material adverse effect on the financial
condition, business relationships or economic prospects of any of the Realty One
Companies or of the Realty One Companies taken as a whole.
"Modification Notice"--as defined in Section 5.6 and referenced in
Section 6.3.
"Occupational Safety and Health Law"--any Legal Requirement designed to
provide safe and healthful working conditions and to reduce occupational safety
and health hazards.
"Order"--any award, decision, injunction, judgment, order, ruling,
subpoena, or verdict entered, issued, made, or rendered by any court,
administrative agency, or other Governmental Body or by any arbitrator.
"Ordinary Business IP Assets"--All Intellectual Property Assets not
including Intellectual Property Assets related to CARS, VPA and PowerChooser.
"Ordinary Course of Business"--an action taken by a Person will be
deemed to have been taken in the "Ordinary Course of Business" only if:
(a) such action is consistent with the past practices of such
Person and is taken in the ordinary course of the normal day-to-day
operations of such Person; and
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(b) such action is not required to be authorized by the board
of directors of such Person (or by any Person or group of Persons
exercising similar authority).
"Organizational Documents"--(i) the articles or certificate of
incorporation and the bylaws or code of regulations of a corporation; (ii) the
articles or certificate of association or organization and the operating
agreement of a limited liability company; (iii) the partnership agreement and
any statement of partnership of a general partnership; (iv) the limited
partnership agreement and the certificate of limited partnership of a limited
partnership; (v) any charter or similar document adopted or filed in connection
with the creation, formation, or organization of a Person; and (vi) any
amendment to any of the foregoing.
"Patents"--as defined in Section 3.22(a)(ii).
"Permitted Encumbrances"--as defined in Section 3.7.
"Person"--any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, labor union, or other entity
or Governmental Body.
"Plan or Plans"--as defined in Section 3.13(a).
"Post-Closing Time Realty One Employees"--employees of any of the
Realty One Companies as of the Closing Date who remain employees of any of the
Realty One Companies or become employees of Buyer or a Related Person thereof at
or after the Closing Time.
"PowerChooser"--a web-based exchange of requirements and bids for
professional real estate services aimed at creating an e-Commerce real estate
market space. The PowerChooser application is built on the CARS framework.
"PowerChooser License Agreement"--as defined in Section 2.16(a).
"Preliminary Adjustment Amount"--as defined in Section 2.5(a).
"Preliminary Closing Date Statement"--as defined in Section 2.5(a).
"Proceeding"--any action, arbitration, audit, hearing, investigation,
litigation, or suit (whether civil, criminal, administrative, investigative, or
informal) commenced, brought, conducted, or heard by or before, or otherwise
involving, any Governmental Body or arbitrator.
"Proprietary Rights Agreement"--as defined in Section 3.20(b).
"Purchase Price"--as defined in Section 2.2(a).
"Realty One"--as defined in the Recitals of this Agreement.
"Realty One Buyer Agency Agreement" or "Realty One Buyer Agency
Agreements"--as defined in Section 3.17(a)(i)(A).
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"Realty One Closing Real Estate Sales Contract"--an agreement for the
sale and purchase of residential real estate, signed by both a buyer and seller
prior to the Effective Time, which provides for the payment by seller and/or
buyer of a commission payable to Realty One (and its broker(s)/sales
agent(s)/sales associates) upon the closing of the purchase/sale, which closing
has not occurred prior to the Effective Time.
"Realty One Companies Executive Officers"--the individuals listed on
Exhibit 1.
"Realty One Companies"--as defined in the Recitals of this Agreement.
"Realty One Company"--any one of the Realty One Companies.
"Realty One Counties"--the counties of [Ashtabula, Cuyahoga, Erie,
Geauga, Lake, Lorain, Lucas, Medina, Portage, Seneca, Xxxxx, Summit, Trumbull,
and Xxxxx, Ohio].
"Realty One Listing Agreement or Realty One Listing Agreements"--as
defined in Section 3.17(a)(i)(A).
"Realty One Services Agreement"--any Contract pursuant to which any of
the Realty One Companies receives revenues and/or provides or is obligated to
provide any Residential Real Estate Services, including without limitation the
Residential Sales Contracts.
"Realty One Shares"--as defined in the Recitals of this Agreement.
"Related Person"--with respect to a particular individual:
(a) each other member of such individual's Family;
(b) any Person that is directly or indirectly controlled by
such individual or one or more members of such individual's Family;
(c) any Person in which such individual or members of such
individual's Family hold (individually or in the aggregate) a Material
Interest; and
(d) any Person with respect to which such individual or one or
more members of such individual's Family serves as a director, officer,
partner, executor, or trustee (or in a similar capacity).
With respect to a specified Person other than an individual:
(e) any Person that directly or indirectly controls, is
directly or indirectly controlled by, or is directly or indirectly
under common control with such specified Person;
(f) any Person that holds a Material Interest in such
specified Person;
(g) any successor by merger, consolidation, or other
combination with such specified Person;
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(h) any assignee or transferee of all or substantially all of
the assets of such specified Person;
(i) each Person that serves as a director, officer, partner,
executor, or trustee of such specified Person (or in a similar
capacity);
(j) any Person in which such specified Person holds a Material
Interest;
(k) any Person with respect to which such specified Person
serves as a general partner or a trustee (or in a similar capacity);
and
(l) any Related Person of any individual described in clause
(b) or (c).
For purposes of this definition, (i) the "Family" of an individual includes the
individual, the individual's spouse, the individual's parents, children, and
step-children, and any other natural person who resides with such individual,
and (ii) "Material Interest" means direct or indirect beneficial ownership (as
defined in Rule 13d-3 under the Exchange Act and the regulations promulgated
thereunder) of voting securities or other voting interests representing at least
5% of the outstanding voting power of a Person or equity securities or other
equity interests representing at least 5% of the outstanding equity securities
or equity interests in a Person.
"Re/Max Litigation"--the Proceedings of: (i) Re/Max International,
Inc., et al v. Realty One, Inc., et al, U.S. District Court, Northern District
of Ohio, Eastern Division, Case No. 1:94-CV-0062 (as appealed); and (ii) Xxxxxx
Xxxx v. Xxxxxxx Xxxxx, et al, Cuyahoga County, Xxxx Xxxxx xx Xxxxxx Xxxxx, Xxxx
Xx. XX000000; and (iii) the Ohio Attorney General's Office in connection with or
related to the subject matter of the foregoing cases based on the operation of
Realty One's business in accordance with policies adopted and in effect prior to
the Closing Time.
"Re/Max Orders"--as defined in Section 2.14.
"Release"--any spilling, leaking, emitting, discharging, depositing,
escaping, leaching, dumping, or other releasing into the Environment, whether
intentional or unintentional.
"Representative"--with respect to a particular Person, any director,
officer, consultant, advisor, or other representative of such Person, including
legal counsel, accountants, and financial advisors.
"Residential Real Estate Services"--as defined in Section 2.8(a).
"Residential Sales Contracts"--as defined in Section 3.17(a)(i)(A).
"Securities Act"--the Securities Act of 1933 or any successor law, and
regulations and rules issued pursuant to that Act or any successor law.
"Seller"--as defined in the preamble to this Agreement.
"Seller Financing"--as defined in Section 2.3(e).
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"Seller Indemnified Person"--as defined in Section 10.3
"Seller Loss"--as defined in Section 10.3.
"Seller New Developments"--as defined in Section 2.16(b).
"Seller's Closing Certificate"--as defined in Section 2.4(a)(ii).
"Seller's Closing Documents"--as defined in Section 2.4(a).
"Shares"--as defined in the Recitals of this Agreement.
"Special Rules"--as defined in Section 11.2(b).
"Subsequent Sale Transaction"--as defined in Section 2.15.
"Subsidiary"--with respect to any Person (the "Owner"), any corporation
or other Person of which securities or other interests having the power to elect
a majority of that corporation's or other Person's board of directors or similar
governing body, or otherwise having the power to direct the business and
policies of that corporation or other Person (other than securities or other
interests having such power only upon the happening of a contingency that has
not occurred) are held by the Owner or one or more of its Subsidiaries.
"Tax" or "Taxes"--any or all U.S. federal, state, local or foreign
Taxes, including, but not limited to, income (whether net or gross), excise,
property, sales, transfer, gains, gross receipts, occupation, privilege,
payroll, wage, unemployment, workers' compensation, social security, use, value
added, capital, gross receipts, franchise, license, severance stamp, premium,
windfall profits, environmental, capital stock, profits, withholding,
disability, real property, personal property, registration, customs duties,
alternative or add-on minimum, estimated or other Tax of any kind whatsoever
(whether disputed or not) imposed by any Governmental Body, including any
related charges, fees, interest, penalties, additions to Tax or other
assessments.
"Tax Proceeding"--any audit, other administrative proceeding, or
judicial proceeding involving Taxes.
"Tax Return"--any return (including any information return), report,
statement, schedule, notice, form, or other document or information filed with
or submitted to, or required to be filed with or submitted to, any Governmental
Body in connection with the determination, assessment, collection, or payment of
any Tax or in connection with the administration, implementation, or enforcement
of or compliance with any Legal Requirement relating to any Tax.
"Threat of Release"--a substantial likelihood of a Release that may
require action in order to prevent or mitigate damage to the Environment that
may result from such Release.
"Threatened"--a claim, Proceeding, dispute, action, or other matter
will be deemed to have been "Threatened" if any demand or statement has been
made or any notice has been given
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(i) orally or in writing to Seller or to the Realty One Companies Executive
Officers, or (ii) in writing to an employee of any of the Realty One Companies.
"Trade Secrets"--as defined in Section 3.22(a)(iv).
"2000 Balance Sheets"--as defined in Section 3.4.
"2000 Financial Statements"--as defined in Section 3.4.
"2001 Revenues"--as defined in Section 2.2(d).
"2002 Contingent Amount"--as defined in Section 2.2(c)(i).
"2002 Revenues"--as defined in Section 2.2(d).
"2003 Contingent Amount"--as defined in Section 2.2(c)(ii).
"2003 Revenues"--as defined in Section 2.2(d).
"VPA"--also known as Virtual Personal Assistant, a set of web-based
agent productivity tools built on the CARS framework.
2. PURCHASE AND SALE OF THE SHARES; CLOSING; AGREEMENTS
2.1 PURCHASE AND SALE; EFFECTIVE TIME
Subject to the terms and conditions of this Agreement, at the Closing,
Seller will sell and transfer the Shares to Buyer, and Buyer will purchase the
Shares from Seller. The purchase, sale, and transfer of the Shares shall be
effective for economic purposes and for purposes of the risk of profit and loss
as of the Effective Time, subject to the terms and conditions of this Agreement.
2.2 PURCHASE PRICE
(a) The total purchase price for the Shares (the "Purchase Price"), is
equal to the sum of the following amounts, subject to adjustment as provided
herein:
(i) Twenty Eight Million Seven Hundred Fifty Thousand Dollars
($28,750,000) (the "Closing Amount");
(ii) the Contingent Amount, as defined in Section 2.2(c)
below; plus
(iii) Two Hundred Fifty Thousand Dollars ($250,000) (the
"Holdback Amount").
(b) Except as otherwise provided in Section 2.2(e) below, the Purchase
Price will be payable as follows:
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(i) Buyer will pay the Closing Amount, plus or minus the
Preliminary Adjustment Amount, as applicable, to Seller at Closing in
cash, by wire transfer of funds to an account specified by Seller;
(ii) Buyer shall pay the Contingent Amount to Seller as
provided in Section 2.2(c) below; and
(iii) Buyer shall hold and disburse the Holdback Amount as
provided in Section 2.5 below.
(c) The "Contingent Amount" is equal to the sum of the 2002 Contingent
Amount and the 2003 Contingent Amount, which will be determined and paid as
follows:
(i) $1,000,000 times the 0000 Xxxxxxxx divided by the 2001
Revenues (the "2002 Contingent Amount"), which amount shall be paid
immediately upon the determination of the 2002 Revenues, as provided in
Section 2.2(d) below; and
(ii) $1,000,000 times the 0000 Xxxxxxxx divided by the 2001
Revenues (the "2003 Contingent Amount"), which amount shall be paid
immediately upon the determination of the 2003 Revenues, as provided in
Section 2.2(d) below; provided, however, that the 2003 Contingent
Amount will be reduced by $200,000 (but not below $0.00) if, on or
before the date that is two years and three months after the Effective
Time, Buyer provides written notice to Seller of its intention to
exercise the purchase option provided under the PowerChooser License
Agreement.
(d) The "2001 Revenues" shall mean the gross revenues of the Realty One
Companies for the twelve-month period ending at the Effective Time; the "2002
Revenues" shall mean the gross revenues of the Realty One Companies for the
period commencing on the day after the Effective Time and ending one year after
the Effective Time; and the "2003 Revenues" shall mean the gross revenues of the
Realty One Companies for the period commencing on the day after the date that is
one year after the Effective Time and ending two years after the Effective Time.
(i) In determining the 2001 Revenues, the 2002 Revenues, and
the 2003 Revenues, the gross revenues of the Realty One Companies shall
be determined in accordance with GAAP, applied consistently from period
to period, by reference to the year-end financial statements of the
Realty One Companies and shall be determined by the independent
certified public accountants who are retained to audit or review the
financial statements of the Realty One Companies; provided, however,
that any and all amounts paid or payable to Seller pursuant to Section
2.5(g) or Section 2.5(h) shall not be deducted from the gross revenues
of the Realty One Companies for purposes of determining the 2002
Revenues or the 2003 Revenues. Buyer agrees that it will cause the
Realty One Companies to be accounted for separately from any other
affiliates or operations of Buyer until the second anniversary of the
Effective Time and that it will cause the independent certified public
accountants who are retained to audit the financial statements of the
Realty One Companies to determine the amounts of the 2001 Revenues,
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2002 Revenues, and 2003 Revenues, on or before the date that is four
months after the end of the period for which such revenues are to be
determined.
(ii) Buyer shall provide Seller with a detailed statement of
the basis for the determination of the 2002 Contingent Amount and the
2003 Contingent Amount provided to Buyer by the certified public
accountants who have made such determination at the time Buyer makes
the payment of such amounts. At the request of Insignia and/or Seller,
Buyer will provide to Insignia and/or Seller and their respective
advisors access to the records and documents related to the calculation
of the 2002 Contingent Amount and/or the 2003 Contingent Amount,
including without limitation records and documents related to (A) the
revenues and expenses of the Realty One Companies, and to the extent
reasonable and necessary for a review of the Contingent Amount,
revenues and expenses of Buyer and its other affiliates and businesses,
(B) the classification of gross revenues as gross revenues of the
Realty One Companies or as gross revenues of Buyer or affiliates of
Buyer other than the Realty One Companies.
(iii) For and during the period of two years after the
Effective Time, Buyer shall continue to operate the businesses being
operated by the Realty One Companies as of the Closing Time in a
commercially reasonable manner, making good faith efforts to collect
the revenues of the Realty One Companies; provided, however, that Buyer
may decide to terminate, abandon, sell, or otherwise transfer the
business of Insignia Title and/or the business of First Ohio Mortgage
at any time during such period, or otherwise fundamentally change the
business of either such entity in such a way as to have a substantial
impact on the revenue generating capability of such entity, whereupon
the revenues generated by such entity or entities, as applicable, that
are included in the 2001 Revenues shall also be included in the 2002
Revenues and/or 2003 Revenues, as applicable, as if such revenues had
also been generated in the applicable periods for the determination of
the 2002 Revenues and/or 2003 Revenues for purposes of determining the
Contingent Amount payable for the period or periods following any such
termination; and provided, further, that if Buyer may decide to combine
the operations of First Ohio Mortgage with other mortgage operations of
Buyer at any time during such period, whereupon the revenues generated
by such combined mortgage operations in relation to properties located
in any of the Realty One Counties shall be included in the 2002
Revenues and/or 2003 Revenues, as applicable, for purposes of
determining the Contingent Amount payable for the period or periods
following any such combination.
(iv) During the period from the Closing Time until the second
anniversary of the Effective Time, Buyer shall, and shall cause its
Control Affiliates to, act in good faith in any decisions concerning
classification of revenue as revenue of the Realty One Companies or
revenue of Buyer and/or its Control Affiliates other than the Realty
One Companies, and such decisions shall not be based upon a bad faith
attempt to reduce the Contingent Amount or otherwise violate the
express terms of this Agreement.
(v) Any dispute in connection with the classification of
revenues, the calculation of the 2001 Revenues, the 2002 Revenues,
and/or the 2003 Revenues and/or the calculation or amount of the
Contingent Amount shall be treated as Disputed Matters and settled in
the manner set forth in Section 2.6 hereof. In the event of a dispute
by
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Seller as to the amount of either Contingent Amount, Buyer shall pay
the undisputed amount of such Contingent Amount as set forth herein,
and shall pay any further amount in accordance with Section 2.6. Any
amount not timely paid in accordance with the provisions hereof and any
additional amount required to be paid to Seller as an additional
Contingent Amount as a result of an arbitrator's decision shall be
subject to interest from the date on which such payment was required to
be made, at an annual rate equal to the 30-day LIBOR plus 200 basis
points, as such LIBOR is reported in The Wall Street Journal as of the
date of the arbitrator's decision.
(e) Pursuant to the terms of the HNB Commitment, HNB has committed to
make the HNB Loan to Buyer, in the aggregate amount of $21,000,000, in order to
finance Buyer's performance of the Contemplated Transactions, provided, among
other things, that either Seller or a financial institution acceptable to HNB
participates in the HNB Loan in an amount of not less than $5,000,000. Buyer
will use its Best Efforts to arrange for such an acceptable financial
institution to participate in the HNB Loan, but if Buyer is unable to make such
arrangements before January 31, 2002, Seller will participate in the HNB Loan in
an amount up to Five Million Dollars ($5,000,000) (the "Seller Financing"), upon
the following terms:
(i) Except as otherwise set forth in items (ii) through (iv)
below, the Seller Financing will be on and subject to the same terms as
those of the HNB Loan;
(ii) If Buyer does not pay off the full amount of the Seller
Financing on or before July 31, 2002, Buyer shall pay to Seller, on or
before August 31, 2002, as a loan fee, an amount equal to 18% of the
principal amount of the Seller Financing then outstanding, less the
amount of interest paid or payable to Seller on the Seller Financing
pursuant to the terms of the Huntington Loan for the six-month period
ending on July 31, 2002, such fee to be payable out of "Net Cash
Available after Debt Service" (as such term is defined in the HNB Loan
Documents) for such six-month period, except that, for purposes hereof,
the Net Cash Available after Debt Service shall be determined for such
six-month period based on the monthly unaudited financial statements of
Buyer, rather than on an annual basis based on the annual audited
financial statements of Buyer. If Buyer does not pay off the full
amount of the Seller Financing on or before October 31, 2002, or on or
before the last days of January, April, July, and October of 2002 and
successive years, Buyer shall pay to Seller, on or before the last day
of the next succeeding month, as an additional loan fee, an amount
equal to 18% of the principal amount of the Seller Financing then
outstanding, plus an additional 1% of such amount for each successive
three-month period after the six-month period ending on July 31, 2002,
through January 31, 2005, and thereafter an additional 10% of such
amount, less the amount of interest paid or payable to Seller on the
Seller Financing pursuant to the terms of the Huntington Loan for such
three-month period, such fee to be payable out of "Net Cash Available
after Debt Service," as such term is defined in the HNB Loan Documents,
for each such three-month period, as such Net Cash Available after Debt
Service is determined based on the monthly unaudited financial
statements of Buyer.
(iii) If there is no Net Cash Available after Debt Service for
an applicable period or if the Net Cash Available after Debt Service is
insufficient to pay such fee, then
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such fee shall accrue (without interest) until such time as Net Cash
Available after Debt Service for a subsequent period is sufficient to
pay such fee.
(iv) Seller shall not assign or otherwise transfer all or any
part of its interest in the Seller Financing to any Person other than a
Control Affiliate of Seller without the prior written consent of HNB,
which consent shall not be unreasonably withheld, and provided that
Seller shall be entitled to pledge its interest in the Seller Financing
to secure any debt of Insignia.
2.3 CLOSING
Unless this Agreement is terminated in accordance with Section 9
hereof, the closing of the Contemplated Transactions (the "Closing") will take
place at the Columbus, Ohio, offices of Porter, Wright, Xxxxxx & Xxxxxx llp,
counsel to Buyer, at 00 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxx, at 10:00 a.m.
(Eastern Standard Time) on January 31, 2002 (the "Closing Date"), provided that
all of the conditions set forth in Sections 7 and 8 have been fulfilled or
waived on or before such date, or (ii) at such other time and place as Buyer and
Seller may agree. The parties contemplate that closing conditions may be
satisfied and closing documents may be signed prior to the Closing Date and held
in escrow by the respective counsel for the parties until receiving
authorization from each of the parties on the Closing Date to release such
documents and to complete the Closing, which will then become effective as of
the Closing Time. Subject to the provisions of Section 9, failure to consummate
the Contemplated Transactions on the date and time and at the place determined
pursuant to this Section 2.3 will not result in the termination of this
Agreement and will not relieve any party of any obligation under this Agreement.
2.4 CLOSING OBLIGATIONS
(a) At the Closing, Insignia and Seller will deliver to Buyer:
(i) certificates representing the Shares, duly endorsed (or
accompanied by duly executed stock powers) for transfer to Buyer;
(ii) a certificate executed by each of IFG, ESG, and Seller
certifying to Buyer that: (A) all of IFG's, ESG's, and Seller's
representations and warranties in this Agreement (considered
collectively) and each of IFG's, ESG's, and Seller's representations
and warranties in this Agreement (considered individually) was accurate
in all material respects as of the date of this Agreement and is
accurate in all material respects as of the Closing Date as if made on
the Closing Date (giving full effect to any Modification Notices); and
(B) each of IFG, EFG, and Seller has performed its obligations under
Section 5 hereof and that all conditions in Section 7 hereof have been
satisfied (the "Seller's Closing Certificate").
The documents referenced in items (i) and (ii) of this Section 2.4(a) are
collectively referred to as "Seller's Closing Documents."
(b) At the Closing, Buyer will deliver to Seller:
(i) the Closing Amount;
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(ii) a certificate executed by Buyer certifying to IFG, ESG,
and Seller that: (A) all of Buyer's representations and warranties in
this Agreement (considered collectively) and each of Buyer's
representations and warranties in this Agreement (considered
individually) was accurate in all material respects as of the date of
this Agreement and is accurate in all material respects as of the
Closing Date as if made on the Closing Date (giving full effect to any
Modification Notices); and (B) Buyer has performed its obligations
under Section 6 hereof and that all conditions in Section 8 hereof have
been satisfied ("Buyer's Closing Certificate");
The documents referenced in item (ii) of this Section 2.4(b) are collectively
referred to as "Buyer's Closing Documents."
2.5 ADJUSTMENT TO THE PURCHASE PRICE; CLOSING DATE STATEMENT; CLOSING
PAYABLES/LIABILITIES; CLOSING RECEIVABLES/CURRENT ASSETS
(a) Seller will deliver to Buyer no later than five business days prior
to the Closing Date materially accurate summary lists of all Closing
Payables/Liabilities and Closing Receivables/Current Assets as of the Effective
Time (as if such time were the Closing Time) (the "Preliminary Closing Date
Statement"). The "Preliminary Adjustment Amount" (which may be a positive or
negative number) will be equal to the amount of the Closing Receivables/Current
Assets (as shown on the Preliminary Closing Date Statement) less the Closing
Payables/Liabilities (as shown on the Preliminary Closing Date Statement). If
the Preliminary Adjustment Amount is a positive number, the Purchase Price and
the Closing Amount shall be increased by such amount, and if the Preliminary
Adjustment Amount is a negative number, the Purchase Price and the Closing
Amount shall be decreased by such amount.
(b) Within 75 days after the Closing Date, Buyer shall prepare a draft
statement detailing, as of the Closing Time, the Closing Receivables/Current
Assets and the Closing Payables/Liabilities (the "Draft Closing Date Statement")
and will provide promptly (in no event later than the seventy-fifth day after
the Closing Date) a copy thereof to Seller and Insignia. Buyer will within five
business days after the date of delivery of the Draft Closing Date Statement to
Seller and Insignia make available to Seller and Insignia during normal business
hours all financial records and documentation related to the analysis of the
receivables and payables of the Realty One Companies and necessary or useful to
determine the Closing Receivables/Current Assets and Closing
Payables/Liabilities as of the Closing Time, and within 15 business days after
the date of Buyer's delivery of the Draft Closing Date Statement, Seller and
Insignia will complete a review of the financial information provided and
prepare the final statement detailing, as of the Closing Time, the Closing
Receivables/Current Assets and the Closing Payables/Liabilities (the "Final
Closing Date Statement") and deliver a copy thereof to Buyer. If Buyer shall
notify Seller and Insignia within 15 days after the receipt of the Final Closing
Date Statement that Buyer disputes any matters with respect to such Final
Closing Date Statement, then any such matters shall be treated as Disputed
Matters and shall be resolved in the manner described in Section 2.6 below. The
"Final Closing Adjustment Amount" (which may be a positive or negative number)
will be, subject to final determination upon resolution of any Disputed Matters,
equal to the amount of the Closing Receivables/Current Assets (as shown on the
Final Closing Date Statement) less the Closing Payables/Liabilities (as shown on
the Final Closing Date Statement); provided, however, that if there is any
change (excluding depreciation)
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in the fixed assets (including software, if applicable) shown on the books of
any of the Realty One Companies as of the Closing Time from those shown on the
books of such company as of the Effective Time, a positive adjustment will be
made to the Final Closing Adjustment Amount for any net increase in such fixed
assets, and a negative adjustment will be made to the Final Closing Adjustment
Amount for any net decrease in such fixed assets. If the Final Closing
Adjustment Amount varies from the Preliminary Adjustment Amount, the Purchase
Price shall be further adjusted and the Seller or Buyer, as the case may be,
shall owe to the other the differential amount. If Seller owes an amount to
Buyer as a result of any variance between the Final Closing Adjustment Amount
and the Preliminary Adjustment Amount, Buyer shall first deduct the amount of
the variance from the Holdback. If Seller owes to Buyer an amount in excess of
the Holdback Amount, Seller shall pay such excess amount to Buyer within ten
days after the final determination thereof. If Buyer owes an amount to Seller as
a result of any variance between the Final Closing Adjustment Amount and the
Preliminary Adjustment Amount, Buyer shall promptly pay such amount to Seller
within ten days after the final determination thereof.
(c) Seller shall bear the risk of uncollectibility of that portion of
the Closing Receivables/Current Assets consisting of the accounts receivable of
the Realty One Companies (the "Closing A/R's") and the Purchase Price shall be
subject to subsequent adjustments in amounts equal to the uncollected amount of
the Closing A/R's in accordance with the provisions of this subparagraph (c).
Buyer agrees to collect the Closing A/R's, using commercially reasonable Best
Efforts, and to pay the Closing Payables/Liabilities. Seller shall cooperate
with Buyer in the collection of the Closing A/R's. Prior to any assignment by
Buyer to Seller of any uncollected Closing A/R, each of Seller and Insignia
shall promptly remit to Buyer any proceeds of any of the Closing A/R's received
or otherwise realized after the Closing Date by Seller or Insignia. Buyer may
for a bona fide business purpose settle or compromise any Closing A/R's on
commercially reasonable terms, but only with the consent of Seller, which
consent will not be unreasonably withheld, delayed, or conditioned. Any
reduction in the amount of the Closing Receivables/Current Assets resulting from
such settlement or compromise shall constitute a reduction in the Purchase Price
for which Seller shall promptly pay Buyer. Buyer may, upon notice to Seller, for
a bona fide business reason and after exerting its commercial Best Efforts,
decline to pursue collection of any Closing A/R's, in which event, Buyer shall
write-off such Closing A/R's and sell and assign, without recourse, any right,
title, and interest in such Closing A/R's to Seller. At any time after June 30,
2002, Seller may request assignment of identified Closing A/Rs, and at Seller's
request, Buyer shall write-off any Closing A/R's identified by Seller and sell
and assign, without recourse, any right, title, and interest in such Closing
A/R's to Seller. Buyer shall write-off and sell and assign to Seller any
uncollected Closing A/R's remaining unpaid or otherwise not settled or
compromised on December 31, 2002. The assignee Seller shall thereupon pay to
Buyer, as an adjustment to the Purchase Price, the face amount of such assigned
Closing A/R's. The assignee Seller may, using commercially reasonable methods,
pursue collection of such assigned Closing A/R's and retain any proceeds
thereof.
(d) Buyer shall maintain detailed records of the collection,
compromises, settlements and write-off of the Closing A/R's and shall provide
monthly reports to Seller through June 2002 of such activities respecting the
Closing A/R's. Thereafter, Seller shall provide quarterly reports for the
calendar quarters ended September 30, 2002 and December 31, 2002.
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(e) The "Holdback Period" shall be the period from the Closing Date to
and through the one hundred twentieth (120th) day after the Closing Date. On the
first business day following the end of the Holdback Period, Buyer shall deliver
to Seller or Insignia (as directed by Seller) by wire transfer of funds, to an
account designated by Seller, the remaining amount of the Holdback Amount, if
any.
(f) Any amount not timely paid in accordance with the foregoing
provisions of this Section 2.5 shall be subject to interest from the date on
which such payment was required to be made, at an annual rate equal to the
30-day LIBOR plus 200 basis points, as such LIBOR is reported in The Wall Street
Journal on the date such payment was required to be made.
(g) Seller shall be entitled to receive and retain the entire economic
benefit of the commission revenues (and related record retention fee revenues)
of Realty One attributable to the Realty One Closing Real Estate Sales Contracts
(including but not limited to such contracts listed on Exhibit 2.5(g) hereto)
(collectively, for a specified period, the "ROCRESC Revenues") that are received
at any time after the Effective Time and through the Closing Time. Buyer shall
be entitled to receive and retain the entire economic benefit of the ROCRESC
Revenues that are received at any time after the Closing Time; provided,
however, that Buyer shall pay to Seller an amount equal to thirty-five percent
(35%) of the total amount by which the ROCRESC Revenues that are closed at any
time after the Effective Time and prior to April 1, 2002 (net of any referral or
other similar fees paid or payable under or on account of any such Realty One
Closing Real Estate Sales Contracts to any third party other than brokers/sales
agents/sales associates of Realty One, Buyer, or any Control Affiliate of Buyer
or any of the Realty One Companies, or any director, officer, employee, or agent
of Realty One, Buyer, or any Control Affiliate of Buyer or any of the Realty One
Companies) exceed $7,000,000. On or before April 15, 2002, Buyer shall (i)
provide to Seller a detailed accounting of all ROCRESC Revenues attributable to
all Realty One Closing Real Estate Sales Contracts closed prior to Xxxxx 0,
0000, (xx) provide to Seller, upon request, a list of all Realty One Closing
Real Estate Sales Contracts that did not close prior to April 1, 2002, showing
the status or disposition of such contracts, and (iii) remit any amount payable
to Seller pursuant to this Section 2.5(g) to an account designated by Seller.
Buyer shall bear the liability for all commissions and obligations payable by
Realty One to brokers/sales agents/sales associates or to any other Person
pursuant to all Realty One Closing Real Estate Sales Contracts and any and all
administrative costs and other expenses related to such contracts. Buyer agrees
to use Best Efforts to take, and to cause the Realty One Companies to use Best
Efforts to take, the actions within their respective control and influence to
cause all of the Realty One Closing Real Estate Sales Contracts to close prior
to April 1, 2002, subject to the fiduciary obligations of Buyer and the Realty
One Companies to the parties to the Realty One Closing Real Estate Sales
Contracts, and Buyer will take, and will cause the Realty One Companies to take,
no action to delay the closing of any of the Realty One Closing Real Estate
Sales Contracts other than action in the Ordinary Course of Business required by
Legal Requirements or pursuant to the fiduciary obligations of Buyer and the
Realty One Companies to the parties to the Realty One Closing Real Estate Sales
Contracts. Any disputes between Seller and Buyer respecting the subject matter
of this Section 2.5 shall be regarded as a Disputed Matter and shall be resolved
in accordance with the provisions of Section 2.6 hereof.
(h) Seller shall be entitled to receive and retain the entire economic
benefit of the revenues generated by the collection of the Insignia Relocation
Accounts Receivable
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(determined as of the Effective Time as if such time were the Closing Time) to
the extent such Insignia Relocation Accounts Receivable are collected by
Insignia Relocation at any time after the Effective Time and through the Closing
Time. Buyer shall be entitled to receive and retain the entire economic benefit
of the revenues generated by the collection of the Insignia Relocation Accounts
Receivable to the extent such Insignia Relocation Accounts Receivable are
collected by Insignia Relocation at any time after the Closing Time; provided,
however, that Buyer shall pay to Seller an amount equal to a percentage of the
amount of such Insignia Relocation Accounts Receivable that are collected by
Insignia Relocation at any time prior to January 31, 2004, such percentage to be
equal to the amount of the Insignia Relocation Accounts Receivable divided by
the amount outstanding on the Insignia Relocation Loan at the Closing Time
(times 100% to convert to a percentage) (the "Insignia Relocation Accounts
Receivable Percentage"). Buyer shall pay such amount to Seller on a monthly
basis, on or before the fifteenth day of each month for revenues generated by
the collection of such Insignia Relocation Accounts Receivable during the
preceding month, through January 2003, and thereafter on a quarterly basis (for
the three-month periods ending on the last days of April, July, October, and
January), on or before the fifteenth day of the month following the end of each
such three-month period. Buyer agrees to cause Insignia Relocation to attempt to
collect all such Insignia Relocation Accounts Receivable promptly, using
commercially reasonable Best Efforts. Buyer shall maintain detailed records of
the collection of the Insignia Relocation Accounts Receivable and shall provide
to Seller monthly or quarterly reports, as applicable, of such activities at the
times when payments are due under this Section 2.5(h). If Buyer desires to cease
collecting the Insignia Relocation Accounts Receivables at any time after
January 31, 2004, Buyer shall transfer any remaining Insignia Relocation
Accounts Receivable to Seller and Seller shall thereafter attempt to collect
such Insignia Relocation Accounts Receivable and shall be entitled to receive
and retain the entire economic benefit of the revenues generated by the
collection of such Insignia Relocation Accounts Receivable; provided, however,
that Seller shall pay to Buyer a percentage of the amount of such Insignia
Relocation Accounts Receivable that are collected by Seller at any time
thereafter, such percentage to be equal to 100% less the Insignia Relocation
Accounts Receivable Percentage.
(i) Examples showing the effects of the provisions of Sections 2.2(a),
(b), (c), and (d), and 2.5(a), (b), (c), (g), and (h), and 2.7(d) under certain
circumstances are set forth on Exhibit 2.5(i) hereto.
2.6 DISPUTED MATTERS; DISPUTE RESOLUTION
Any disputed matters that are, pursuant to this Agreement, made subject
to this Section 2.6 shall be "Disputed Matters." Disputed Matters shall be
submitted to arbitration in Chicago, Illinois, within 30 days after the notice
from either party to the other of a Disputed Matter unless the parties agree in
writing to extend such 30-day period in an attempt to negotiate a settlement of
such Disputed Matters. The Arbitrator ("Arbitrator") shall be any one of the
nationally recognized independent accounting firms (or any member or employee of
such a firm who is a certified public accountant designated by such firm) which
is on the date hereof among the ten largest such firms and is other than any
firm then employed by any of Insignia, Seller, or Buyer mutually agreed to by
Seller and Buyer. If Seller and Buyer shall have failed to agree upon the
selection of the Arbitrator or any such Arbitrator selected by them shall not
have agreed to perform such services, the Arbitrator shall thereupon be selected
in accordance with the rules of
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the American Arbitration Association ("AAA"), with preference being given to any
nationally recognized accounting firm (or CPA member or employee thereof) other
than any firm then employed by any of Insignia, Seller, or Buyer. The Arbitrator
shall consider only the Disputed Matters and the arbitration shall be conducted
in accordance with the rules of the AAA then in effect. The Arbitrator shall act
promptly to resolve all Disputed Matters and its decision with respect to all
Disputed Matters shall be final and binding upon the parties hereto and shall
not be appealable to any court. The costs and expenses of the Arbitrator and
reasonable costs and expenses of all parties to such arbitration, including
professional fees, shall be borne by the party or parties determined by the
Arbitrator, who shall, in making such determination, take account of the
relative merits of the positions contended by the parties and the good faith
efforts of the parties in attempting to settle the matter without resort to
arbitration, but the Arbitrator shall not take into consideration the relative
ability of the parties to pay such fees, costs, and expenses. In the event that
the Arbitrator's decision requires payment by one party or the other, such party
shall make the required payment owing to the other of them within ten days after
the Arbitrator's final decision in accordance with the decision of the
Arbitrator.
2.7 PAYMENT OF CERTAIN OBLIGATIONS; REIMBURSEMENT FOR JANUARY 2002
LOSSES
(a) Pre-Closing Liabilities. Prior to the Closing Time, Seller shall
cause the Realty One Companies to pay their respective Accounts Payables and the
obligations and liabilities of the Realty One Companies of which Seller or
Insignia has Knowledge as such Accounts Payable, obligations and liabilities
become due.
(b) Bonus Payments for 2001. Buyer shall cause the applicable Realty
One Companies to pay "year end" bonuses to officers, employees, and sales
agents/sales associates of the Realty One Companies attributable to such
individuals' performance during 2001 in an aggregate amount equal to the amount
accrued for Accrued Incentives on the Closing Date Statement. Buyer shall
deliver such payments to the designated individuals no later than March 11,
2002. Buyer shall make the bonus payments in the amounts and to the individuals
designated by Seller pursuant to a written 2001 Bonus Allocations Notice, which
Seller shall deliver to Buyer no later than March 1, 2001. Seller shall consult
with the Chief Executive Officer of Buyer prior to the completion of Seller's
2001 Bonus Allocations Notice and Seller shall consider in good faith the
suggestions of Buyer's Chief Executive Officer.
(c) Change of Control Payments. Seller shall pay the Change of Control
Payments as they become due.
(d) Reimbursement for January 2002 Losses. The parties desire to make
the Closing of the Contemplated Transactions effective as of the Effective Time
for economic purposes, such that Buyer will have the risk of profit or loss for
the businesses of the Realty One Companies for the period commencing as of the
Effective Time. The parties project that the Realty One Companies will operate
at a loss in the approximate amount of $1,000,000, in the aggregate, for the
month of January 2002. Accordingly, Buyer shall pay to Seller at the Closing,
the sum of $1,000,000 in order to reimburse Seller for the projected amount of
such loss and, upon a final determination of the actual amount of such loss for
January 2002, if the actual loss is greater than $1,050,000, then Buyer shall
pay to Seller one-half of the amount by which such actual loss exceeds
$1,000,000, and, conversely, if the actual loss is less than $950,000, then
Seller shall pay
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to Buyer one-half of the amount by which such actual loss is less than
$1,000,000; provided, however, that, neither party shall be required to pay more
than $100,000 to the other party on account of any such difference. The amount
of the actual loss (or profit) for January 2002 shall be determined by
consistently applying, in connection with preparation of an operating statement
and EBITDA calculation for the Realty One Companies for January 2002, the same
accounting practices and policies used by the Realty One Companies since
December 2000. Within 75 days after the Closing Date, Buyer shall prepare a
draft operating/EBITDA statement for January 2002 detailing the loss (or profit)
of the Realty One Companies for such month (the "Draft January 0000 X&X
Statement") and will provide promptly (in no event later than the seventy-fifth
day after the Closing Date) a copy thereof to Seller and Insignia. Buyer will
within five business days after the date of delivery of the Draft January 0000
X&X Statement to Seller and Insignia make available to Seller and Insignia
during normal business hours all financial records and documentation necessary
or useful to determine the amount of the loss or profit of the Realty One
Companies for January 2002 and, within 15 business days after the date of
Buyer's delivery of the Draft January 0000 X&X Statement, Seller and Insignia
will complete a review of the financial information provided and prepare the
final statement detailing, the actual loss or profit of the Realty One Companies
for January 2002 (the "Final January 0000 X&X Statement") and deliver a copy
thereof to Buyer. If Buyer shall notify Seller and Insignia within 15 days after
the receipt of the Final January 0000 X&X Statement that Buyer disputes any
matters with respect to such Final January 0000 X&X Statement, then any such
matters shall be treated as Disputed Matters and shall be resolved in the manner
described in Section 2.6 above.
2.8 NON-SOLICITATION
(a) As an inducement for Buyer to enter into this Agreement and as
additional consideration for the consideration to be paid to Seller hereunder,
Insignia and Seller agree that:
(i) For a period of five years after the Closing Date, none of
Insignia, Seller, nor any Control Affiliate of Seller will, directly or
indirectly, either for itself or any other Person, (A) induce or
attempt to induce any Person who was an employee, independent
contractor, sales agent, sales associate or broker of any of the Realty
One Companies, Insignia Title, Buyer, or any currently existing Control
Affiliate of Buyer, as of December 1, 2001, or at any time thereafter
until the fifth anniversary of the Closing Date, to leave such
employment or relationship, (B) in any way interfere with the
relationship between any of the Realty One Companies, Insignia Title,
Buyer, or any currently Existing Control Affiliate of Buyer, and any
Person employed by any of the Realty One Companies, Insignia Title,
Buyer, or any currently existing Control Affiliate of Buyer, as of
December 1, 2001, or at any time thereafter until the fifth anniversary
of the Closing Date, or (C) employ, or otherwise engage as an employee,
independent contractor, sales agent, sales associate, broker, or
otherwise, any Person employed by any of the Realty One Companies,
Insignia Title, Buyer, or any currently existing Control Affiliate of
Buyer as of December 1, 2001, or at any time thereafter until the fifth
anniversary of the Closing Date, provided, however, that Insignia,
Seller and any Control Affiliate of Seller may, without violating this
Section 2.8, employ or otherwise engage as an employee, independent
contractor, sales agent, sales associate, broker or otherwise, any such
Person whose employment with a Realty One Company, Buyer or a Control
Affiliate of Buyer has been terminated (1) at any time after the
termination of
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employment (i) if such Person's employment with a Realty One Company,
Buyer or a Control Affiliate of Buyer is involuntarily terminated or
(ii) if such Person's employment with a Realty One Company, Buyer or a
Control Affiliate of Buyer is voluntarily terminated and such Person
has relocated outside the State of Ohio, and (2) at any time later than
six months after the termination of such Person's employment if such
Person's employment with a Realty One Company, Buyer or any Control
Affiliate of Buyer is voluntarily terminated and such Person remains
located in the State of Ohio.
(ii) At any time after the Closing Date, none of Insignia,
Seller, nor any Control Affiliate of Seller will, directly or
indirectly, either for itself or any other Person, disclose or use for
its own benefit or for the benefit of any other Person any Trade
Secrets or any Intellectual Property Assets of the Realty One
Companies, to the extent it has Knowledge of the Realty One Companies'
interest in such Trade Secrets or Intellectual Property Assets, other
than as expressly authorized by Realty One or Buyer in writing on or
after the Closing Date.
(iii) At any time after the Closing Date, neither Insignia,
Seller, nor any Control Affiliate of Seller will, directly or
indirectly, ever use the name, trade name, trademark, or symbol "Realty
One", "Realty 1", or any derivative thereof in connection with any
Residential Real Estate Services, other than as expressly authorized by
Realty One or Buyer in writing after the Closing Date.
(iv) Insignia and Seller acknowledge that any violation of any
of the restrictive covenants contained in this Section 2.8 will cause
continuing and irreparable harm to Buyer for which monetary damages
would not be adequate compensation. Insignia and Seller, therefore,
agree that, if either of them or any Control Affiliate of Seller
violates or threatens to violate any of these restrictive covenants,
Buyer shall be entitled, in addition to any other legal or equitable
remedies available to it, to entry of an injunction, temporary and
permanent, enjoining such breach and securing specific performance of
this Agreement.
(b) If any term of this Section 2.8 is held to be unreasonable,
arbitrary, against public policy, or otherwise unenforceable, such term will be
considered divisible with respect to scope, time, and geographic area, and in
such lesser scope, time, and geographic area as may be determined to be
reasonable and enforceable in the circumstances of the Contemplated
Transactions, will be effective, binding, and enforceable against Seller
pursuant to applicable Ohio law.
(c) The restrictions of Section 2.8(a) shall not apply to any actions
taken by any Person at any time prior to becoming a Control Affiliate of Seller.
2.9 TAX RETURNS
(a) Seller (or Insignia, as appropriate) shall, at its expense, file or
cause to be filed all federal, state, local, and foreign Tax Returns which are
required to be filed by, or with respect to, each of the Realty One Companies
for all periods prior to and ending with the Effective Time and shall timely pay
all Taxes required to be paid in accordance with such Tax Returns. (As a
- 27 -
result, no liability for Taxes shall be included as Closing Payables/Liabilities
for purposes of the Preliminary Closing Date Statement, the Draft Closing Date
Statement or the Closing Date Statement. Without in any way limiting the
generality of the immediately preceding sentence, and in addition thereto,
Seller (or Insignia, as appropriate) shall pay any and all Tax liabilities
imposed on any of the Realty One Companies under Section 1374 of the IRC as a
result of the consummation of this Agreement and the Contemplated Transactions.
Buyer and the Realty One Companies shall provide Seller and Insignia with
access, at all reasonable times following the Closing Time, to any and all
records and other information in the possession of Buyer or any of the Realty
One Companies that may be necessary to enable Seller or Insignia to prepare and
file all such Tax Returns and Seller and Insignia shall be entitled to make
photocopies, at their sole cost, of any such records and information. In
addition, Buyer and the Realty One Companies shall cooperate with Seller and
Insignia as may be necessary to assist Seller or Insignia to prepare and file
such Tax Returns; provided that, to the extent that such cooperation will
require more than ten man-hours hours on the part of any employees of Buyer or
any of the Realty One Companies, in the aggregate, Seller or Insignia shall
reimburse Buyer or the Realty One Companies for the cost of such work, at a rate
that will cover the full cost of such employees' time.
(b) Buyer shall file or cause to be filed such Tax Returns for each of
the Realty One Companies for the period after the Effective Time other than in
respect of Taxes arising out of this transaction.
(c) If any state or local Tax Return is required to be filed on behalf
of any of the Realty One Companies and such Tax Return is required to include
periods ending both on and after the Effective Time, Seller (or Insignia, as
appropriate) and Buyer shall each pay a pro rata portion of the liability shown
on such Tax Return based on the relative income earned during the two respective
periods.
(d) Seller (or Insignia, as appropriate) agrees that, at the option of
Buyer, it will fully cooperate in accordance with all reasonable directions
provided by Buyer in the making and filing of the election described in Section
338(h)(10) of the IRC with respect to any one or more of the Realty One
Companies as designated by Buyer, thereby enabling Buyer to treat the purchase
of the Realty One Companies (or any one or more of them) as asset purchases for
certain Tax and accounting purposes; provided, however, that Buyer agrees that
it will not make the election described in Section 338(h)(10) of the IRC with
respect to any Realty One Company unless Seller makes an election for tax
purposes, or takes some other action with respect to the tax basis of any of the
assets of any of the Realty One Companies, that causes the aggregate basis of
the assets of such corporation for federal income tax purposes on the Closing
Date to be less than the portion of the Purchase Price allocated to such Realty
One Company. In furtherance thereof, Buyer shall prepare, execute and timely
file, and Seller (or Insignia, as appropriate) shall cooperate with Buyer in
connection therewith, with respect to each of the Realty One Companies
designated by Buyer, IRS Form 8023 (or such other forms as may be necessary to
make the election described in Section 338(h)(10) of the IRC) and all schedules
thereto in accordance with the instructions to such forms. Any information on
such forms allocating the purchase price to separately identifiable assets and
categories thereof shall be consistent with the method of purchase price/asset
allocation set forth on Exhibit 2.9 hereof. Upon the making of the Section
338(h)(10) election, Insignia and Seller covenant and agree that, with respect
to the preparation
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and filing of any federal, state, local, or foreign income Tax Return, Seller
(or Insignia, as appropriate) shall prepare and file all such Tax Returns on a
basis consistent with the principles illustrated in Treasury Regulations ss.
1.338(h)(10)-1 and the information contained in Exhibit 2.9. Insignia and Seller
covenant and agree that, except as set out on Exhibit 2.9, none of the Realty
One Companies will incur any Tax liability under Section 1374 of the IRC as a
result of the consummation of the Contemplated Transactions. Seller (or
Insignia, as appropriate) will provide to Buyer, in form and medium satisfactory
to Buyer, all information necessary for the preparation of Tax Returns for which
Buyer will be responsible. Seller (or Insignia, as appropriate) and Buyer will,
no later than 15 days prior to the due date for the filing of a Tax Return,
subject to extensions permitted by Legal Requirements required by this Section
2.9 to be filed by Seller, Insignia, or Buyer respecting any of the Realty One
Companies, provide a copy to Insignia, Seller, or Buyer, as applicable, of the
proposed completed form of Tax Return.
(e) Prior to and after the Closing Date, Buyer, the Realty One
Companies, Seller, and Insignia shall cooperate (and make available
knowledgeable employees) in the preparation of all Tax Returns relating in whole
or in part to Taxable periods ending on or before or including the Effective
Time that are required to be filed after such date. Such cooperation shall
include, but not be limited to, furnishing prior years' Tax Returns or return
preparation packages illustrating previous reporting practices or containing
historical information relevant to the preparation of such Tax Returns, and
furnishing such other information within such parties' possession requested by
the party filing such Tax Returns as is relevant to their preparation. In the
case of any state, local or foreign joint, consolidated, combined, unitary or
group relief system Tax Returns, such cooperation shall also relate to any other
Taxable periods in which one party could reasonably require the assistance of
the other party in obtaining any necessary information.
(f) Without the prior written Consent of Buyer, which Consent shall not
be unreasonably withheld, neither Insignia, Seller, nor any of the Realty One
Companies shall, to the extent it may affect or relate to the Realty One
Companies, make or change any Tax election, change any annual Tax accounting
period, adopt or change any method of Tax accounting, file any amended Tax
Return, enter into any closing agreement, settle any Tax claim or assessment,
surrender any right to claim a Tax refund, consent to any extension or waiver of
the limitations period applicable to any Tax claim or assessment or take or omit
to take any other action, if any such action or omission would have the effect
of increasing the Tax liability or reducing any Tax asset of any of the Realty
One Companies or Buyer.
(g) Without the prior written Consent of Insignia, which Consent shall
not be unreasonably withheld, neither Buyer nor any of the Realty One Companies
shall, to the extent it may affect or relate to the Realty One Companies, make
or change any Tax election, change any annual Tax accounting period, adopt or
change any method of Tax accounting, file any amended Tax Return, enter into any
closing agreement, settle any Tax claim or assessment, surrender any right to
claim a Tax refund, consent to any extension or waiver of the limitations period
applicable to any Tax claim or assessment or take or omit to take any other
action, if any such action or omission would have the effect of increasing the
Tax liability of Insignia or Seller.
(h) Seller (or Insignia, as appropriate) shall be liable for any state
or local sales, use, or other transfer Taxes imposed as a result of the
consummation of the Contemplated Transactions.
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(i) The Purchase Price shall be allocated and reported for income Tax
purposes by the parties as set forth on Exhibit 2.9.
2.10 CONTINUING ACCOUNTING SERVICES
Buyer agrees to cause the Realty One Companies to continue to provide
to Xxxxxxx Xxxxxxx, Inc. and Insignia Residential Group, Inc., Subsidiaries of
ESG (the "ESG Subsidiaries"), on an interim basis, for a period of up to 18
months following the Closing Date, the accounting services it has provided to
the ESG Subsidiaries prior to the date hereof, for a payment of $29,000 per
month for the first nine months, $31,900 per month for the next three months,
and $34,800 per month for the final six months of such period; provided,
however, that Seller shall use commercially reasonable Best Efforts to obtain
replacement accounting services for such ESG Subsidiaries, and that, upon
Seller's giving 30 days' written notice to Buyer of Seller's having obtained
such replacement services, the Realty One Companies shall no longer be required
to provide such accounting services to the ESG Subsidiaries and Seller shall no
longer be required to pay the amounts provided in this Section 2.10 for such
services.
2.11 TRADE NAMES
(a) Seller and Insignia acknowledge that, as a result of the
Contemplated Transactions, the interests of the Realty One Companies (or any of
them) in all trade names associated as of the Closing Date with the business of
the Realty One Companies (other than "Insignia" or any derivative thereof),
including without limitation the trade names set forth on Exhibit 2.11(a)
hereto, to the extent any of the Realty One Companies has an interest in such
trade names associated with its business, will be retained by the applicable
Realty One Company. Each of Seller and Insignia agrees that, following the
Closing Date, it shall not use or consent to the use by any other Person of the
trade names associated with the business of the Realty One Companies as of the
Closing Date, to the extent it has Knowledge of the interest of the Realty One
Companies in such trade names, including those specifically listed in this
Section 2.11.
(b) None of the Realty One Companies, HER, or any Control Affiliate of
any of them shall, after the Closing Date, have any interest in or any right to
use the name "Insignia" or any derivative thereof other than the transitional
use specifically agreed upon in subsection (c) of this Section 2.11. Insignia
Relocation shall assign to Insignia, effective immediately prior to the Closing
Time, any and all right it may have to use the name "Insignia" or any derivative
thereof.
(c) Buyer agrees not to use and to take all steps necessary to cause
the Realty One Companies and all other Control Affiliates of Buyer not to use,
from and after the Closing Date, the name "Insignia" or any derivative thereof
in connection with any business or business activity. Without limiting the
foregoing, (i) Buyer shall prepare and shall file with the Secretary of State of
Ohio, within five business days after the Closing Date, all documents necessary
to change the name of Insignia Relocation to a name not containing the word
"Insignia" or any derivative thereof and shall, within 15 business days after
the Closing Date, take, or cause to be taken, all other action necessary to
change the name of Insignia Relocation with all licensing agencies and on all
other public records of which Buyer has Knowledge and will, in the Ordinary
Course of Business or as required by applicable Legal Requirements, notify all
third parties doing business with Insignia Relocation of its name change, and
(ii) within 30 days after the
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Closing Date, Buyer shall cause the Realty One Companies to remove all
references to "Insignia" in advertising material and any Web sites of any of the
Realty One Companies. Buyer acknowledges that Insignia will, as of the Closing
Date or as soon as practicable thereafter, remove references to the Realty One
Companies from its Web site and terminate any links between its Web site and the
Web sites of any of the Realty One Companies.
(d) Buyer acknowledges that Insignia will, effective as of the Closing
Date, terminate the License Agreement, dated as of September 1, 1999, between
Insignia and Insignia Title, thus terminating all right of Insignia Title to use
the name "Insignia" and all derivatives thereof.
2.12 CONTINUING LIABILITIES
The Realty One Companies shall retain the liability and responsibility
for the payment and performance of the Continuing Liabilities after the Closing
Time.
2.13 CERTAIN EMPLOYMENT MATTERS
Buyer shall cause Buyer and the Realty One Companies to provide to
Post-Closing Time Realty One Employees such employee benefit plans as are
generally comparable to their current standard benefits, or such benefit plans
as are generally comparable to those provided to persons employed by Buyer,
subject to the right to add to, modify, or change such policies as determined by
Buyer from time to time. Nothing in this Section 2.13 shall create any rights
for any employees of the Realty One Companies, Buyer, or any Related Person
thereof, and no employees of the Realty One Companies shall be entitled to rely
upon this Agreement for any purpose whatsoever. Seller shall have no obligation
prior to the Closing Date to cause the Realty One Companies to terminate any
Plans.
2.14 RE/MAX ORDERS
Buyer agrees, for itself and its Control Affiliates, to comply with the
Order concerning the business practices of the Realty One Companies issued in
connection with the Re/Max Litigation and attached hereto as Exhibit 2.14 (the
"Re/Max Orders"). Seller shall not, after the date hereof, voluntarily consent
or agree to any Order or voluntarily enter into a settlement affecting the
future conduct of the business of any of the Realty One Companies in connection
with the settlement or conclusion of the Re/Max Litigation, without the prior
written consent of Buyer. Buyer agrees, for itself and its Control Affiliates,
to comply with any Order concerning the business practices of the Realty One
Companies issued in connection with the Re/Max Litigation after the Closing Time
in accordance with the preceding sentence.
2.15 SUBSEQUENT SALES OF THE REALTY ONE COMPANIES
If, prior to the first anniversary of the Closing Date, Buyer or a
Control Affiliate of Buyer enters into a binding agreement pursuant to which,
prior to April 30, 2003, in a single transaction or a series of transactions,
whether related or not, (i) Buyer sells all or substantially all of the assets
of the Realty One Companies to any Person other than a Control Affiliate of
Buyer, (ii) Buyer sells all of the capital stock of the Realty One Companies (or
all of the capital stock of a Subsidiary of Buyer which owns all of the capital
stock of the Realty One Companies) to any Person other than a Control Affiliate
of Buyer, or (iii) Buyer causes the Realty One Companies
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to be acquired by any Person other than a Control Affiliate of Buyer by a merger
or other business consolidation, then, upon the consummation of such transaction
or transactions a "Subsequent Sale Transaction"), Buyer shall pay to Seller an
amount equal to twenty-five percent (25%) of the amount, if any, by which the
gross proceeds of such Subsequent Sale Transaction actually received by Buyer
exceeds the Purchase Price herein. Such amount shall be payable at such time as
such gross proceeds are received by Buyer, and shall be paid on a pro rata basis
if Buyer is to receive such proceeds in more than one installment, and shall be
paid in consideration other than cash to the same extent that Buyer receives
such non-cash consideration. If a Subsequent Sale Transaction occurs as a part
of (1) a sale of the capital stock of Buyer or any Control Affiliate of Buyer,
(2) a sale of assets of Buyer or a Control Affiliate of Buyer in addition to all
or substantially all of the assets of the Realty One Companies, or (3) a merger
or other business consolidation involving Buyer or any Control Affiliate of
Buyer, then Buyer shall pay to Seller an amount equal to twenty-five percent
(25)% of the amount, if any, by which a prorated portion of the gross proceeds
of such Subsequent Sale Transaction actually received by Buyer exceeds the
Purchase Price herein, with such gross proceeds to be prorated on the basis of
the gross revenues generated by the Realty One Companies during the twelve full
months immediately preceding the closing of the Subsequent Sale Transaction in
relation to the gross revenues generated by the other entities, business units,
or assets sold or merged in such combined transaction during the same
twelve-month period. Such amount shall be payable at such time as such gross
proceeds are received by Buyer, and shall be paid on a pro rata basis if Buyer
is to receive such proceeds in more than one installment, and shall be paid in
consideration other than cash to the same extent that Buyer receives such
non-cash consideration.
2.16 POWERCHOOSER, VPA AND CARS LICENSES
(a) At the Closing, Seller will execute a license of PowerChooser in
favor of Buyer, in the form attached as Exhibit 2.16(a) hereto (the
"PowerChooser License Agreement").
(b) At the Closing Time, Buyer will cause Realty One to grant and,
conditioned on the occurrence of the Closing, effective as of the Closing Time,
Realty One hereby grants to Seller, a non-exclusive, non-transferable,
perpetual, irrevocable right to use both CARS and VPA ("CARS/VPA") only in the
United States (the "CARS/VPA License"). The CARS/VPA License does not include
rights to corrections, bug fixes, modifications, conversions, enhancements,
updates, new versions or derivative works created by Realty One ("Buyer New
Developments"), and all Buyer New Developments shall remain the property of
Realty One with no obligation to transfer any interest in such Buyer New
Developments to Seller. The CARS/VPA License includes the right of Seller to
make modifications, conversions, enhancements, updates, new versions or
derivative works ("Seller New Developments"), and all Seller New Developments
shall remain the property of Seller with no obligation to transfer any interest
in such Seller New Developments to Realty One. In addition, the CARS/VPA License
includes Seller's right to sub-license CARS/VPA to either or both of Insignia
Xxxxxxx Xxxxxxx, Inc. and Insignia Residential Group, Inc., Subsidiaries of IFG
("Insignia Sublicensees"). In the event of a change of control of either or both
of the Insignia Sublicensees or IFG, use of CARS/VPA by the applicable Insignia
Sublicensee and any new owner of such Insignia Sublicensee shall be restricted
to use in connection with real estate transactions relating to real estate
located in New York, New Jersey and Connecticut (the "Tri-State Area"). Seller
shall not use CARS/VPA for any unlawful purpose or in any unlawful manner.
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(i) At the Closing, Realty One shall provide a copy of
components of CARS/VPA that can be copied to a disk, tape or other
physical medium to Buyer. Seller may make one additional archival copy
for use as a backup and may make additional copies required in
connection with the limited sublicenses described above. Realty One
shall have no further obligation in respect of the CARS/VPA License.
Seller acknowledges that it has had an opportunity to inspect CARS/VPA,
and the copy to be provided at the Closing, and is not relying on any
representation by Realty One in respect thereof. Seller shall accept
delivery of the copy of CARS/VPA on an AS IS/WHERE IS basis.
(ii) Seller shall have no right to physical or internet access
to Buyer's operations related to the use and operation of CARS/VPA.
(iii) Seller will be responsible, without further cooperation
from Buyer, for obtaining any third party licenses, software,
equipment, and personnel necessary for the use and operation of
CARS/VPA.
(iv) The CARS/VPA License is a license and not a sale. Seller
shall have no interest in CARS/VPA other than the interest of a
licensee under the CARS/VPA License.
(v) Buyer shall cause Realty One to execute this Agreement on
a separate execution page at the Closing hereunder only for the purpose
of signifying Realty One's agreement to this Section 2.16.
2.17 ASSUMPTION OR REPLACEMENT OF CERTAIN EXISTING DEBT
At the Closing, (i) Buyer shall obtain National City Bank's consent to
the Contemplated Transactions in order that the Insignia Relocation Loan may be
continued, or Buyer shall replace such Insignia Relocation Loan; and (ii) Buyer
shall obtain KeyBank's consent to the Contemplated Transactions in order that
the current line of credit in favor of First Ohio Mortgage from KeyBank may be
continued, or Buyer shall replace such line of credit. Buyer shall, subject to
Section 6.4 hereof, provide written notice to Seller no later than January 15,
2002, if Buyer intends to continue the Insignia Relocation Loan, and written
notice to Seller no later than five business days prior to the Closing Date if
Buyer intends to continue the line of credit in favor of First Ohio Mortgage
from KeyBank.
3. REPRESENTATIONS AND WARRANTIES OF SELLER AND INSIGNIA
Seller and Insignia jointly and severally represent and warrant to
Buyer as follows:
3.1 ORGANIZATION AND GOOD STANDING
(a) Exhibit 3.1(a) hereto contains a complete and accurate list for
each of the Realty One Companies of its name, its jurisdiction of organization,
other jurisdictions in which it is authorized to do business, and its
capitalization (including the number of authorized equity securities, the number
of equity securities issued and outstanding, the identity of each equity
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security holder and the number of Realty One-Shares, First Ohio Escrow Shares,
First Ohio Mortgage Shares, and Insignia Relocation Shares). Each of Realty One,
First Ohio Escrow, First Ohio Mortgage and Insignia Relocation are corporations
duly organized, validly existing, and in good standing under the laws of their
jurisdiction of incorporation. Each Realty One Company has full power and
authority to conduct its business as it is now being conducted, to own or use
the properties and assets that it purports to own or use, and to perform all its
obligations under Applicable Contracts. Each of the Realty One Companies is duly
qualified to do business as a foreign entity and is in good standing under the
laws of each state or other jurisdiction in which either the ownership or use of
the properties owned or used by it, or the nature of the activities conducted by
it, requires such qualification. To the Knowledge of Insignia and Seller: (i)
Exhibit 3.1(a) hereto contains a complete and accurate list for Insignia Title,
of its name, its jurisdiction of organization, other jurisdictions in which it
is authorized to do business, and its capitalization (including the number of
authorized equity securities, the number of equity securities issued and
outstanding, the identity of each equity security holder and the number of
Insignia Title Member Interests held by each holder), (ii) Insignia Title is a
limited liability company, duly organized, validly existing and in full force
and effect under the laws of its jurisdiction of formation, (iii) Insignia Title
has full power and authority to conduct its business as it is now being
conducted, and to own or use the properties and assets that it purports to own
or use, and (iv) Insignia Title is duly qualified to do business as a foreign
entity and is in good standing under the laws of each state or other
jurisdiction in which either the ownership or use of the properties owned or
used by it, or the nature of the activities conducted by it, requires such
qualification.
(b) Seller and Insignia have delivered to Buyer copies of the
Organizational Documents of each of the Realty One Companies and Insignia Title,
certified by the applicable Secretary of State in respect of documents filed
with the Secretary of State and by the Secretary (or an Assistant Secretary) of
the applicable company in respect of all other Organizational Documents, in each
case as in effect on the date of such certification.
3.2 AUTHORITY; NO CONFLICT
(a) This Agreement constitutes the legal, valid, and binding obligation
of Seller and Insignia , enforceable against Seller and Insignia in accordance
with its terms. Except as set forth in Exhibit 3.2(a) hereto, each of Seller and
Insignia has the absolute and unrestricted right, power, authority, and capacity
to execute and deliver this Agreement and the Closing Documents to which it is a
party and to perform its respective obligations under this Agreement and the
Seller's Closing Documents to which it is a party.
(b) Except as set forth in Exhibit 3.2(b)-1 hereto, neither the
execution and delivery of this Agreement nor the consummation or performance of
any of the Contemplated Transactions by Seller and Insignia will, directly or
indirectly (with or without notice or lapse of time):
(i) contravene, conflict with, or result in a violation of (A)
any provision of the Organizational Documents of any of the Realty One
Companies or (B) any resolution adopted by the board of directors or
the stockholders of any of the Realty One Companies;
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(ii) contravene, conflict with, or result in a violation of,
or give any Governmental Body or other Person the right to challenge
any of the Contemplated Transactions or to exercise any remedy or
obtain any relief under, any Legal Requirement or any Order to which
any of the Realty One Companies or any of the assets owned or used by
any of the Realty One Companies, may be subject, and to the extent that
any Legal Requirement or Order to which they or their assets may be
subject would affect the business or assets of the Realty One
Companies, any Legal Requirement or Order to which Seller or Insignia,
or any of the assets owned or used by Seller or Insignia, may be
subject;
(iii) contravene, conflict with, or result in a violation of
any of the terms or requirements of, or give any Governmental Body the
right to revoke, withdraw, suspend, cancel, terminate, or modify, any
Governmental Authorization that is held by any of the Realty One
Companies or that otherwise relates to the business of, or any of the
assets owned or used by, any of the Realty One Companies;
(iv) contravene, conflict with, or result in a violation or
breach of any provision of, or give any Person the right to declare a
default or exercise any remedy under, or to accelerate the maturity or
performance of, or to cancel, terminate, or modify, any Applicable
Contract or any Contract (including without limitation any loan
documents) to which any of the Realty One Companies or any Seller is a
party and which would have a Material Adverse Effect; or
(v) result in the imposition or creation of any Encumbrance
upon or with respect to any of the assets owned or used by any of the
Realty One Companies, except Permitted Encumbrances.
Except as set forth Exhibit 3.2(b)-2 hereof, neither Seller, Insignia nor any of
the Realty One Companies is or will be required to give any notice to or obtain
any Consent from any Person, including without limitation, any owner, lender or
mortgage or other lien holder in connection with the execution, delivery, or
performance of this Agreement or the consummation or performance of any of the
Contemplated Transactions and which would have a Material Adverse Effect if such
Consent was not obtained. For purposes of this Section 3.2, the parties agree
that the absence of consents respecting any of the real property leases listed
in Exhibit 3.6 or leases for office equipment presently used in the Ordinary
Course operation of the Realty One Companies or any of the Continuing Ordinary
Course Applicable Contracts, copies of all of which have been made available to
Buyer, shall be deemed not to have a Material Adverse Effect.
3.3 CAPITALIZATION
Exhibit 3.1(a) hereto contains a complete and accurate list showing,
for each of the Realty One Companies, and, to the Knowledge of Insignia and
Seller, for Insignia Title, with respect to the authorized equity securities of
each, the number of equity securities authorized, the number of equity
securities issued and outstanding, and the holders of record. Seller is and will
be on the Closing Date the record and beneficial owner and holder of all of the
capital stock of Realty One, First Ohio Escrow, First Ohio Mortgage and Insignia
Relocation, and on the Closing
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Date the capital stock of each of Realty One, First Ohio Escrow, First Ohio
Mortgage and Insignia Relocation will be free and clear of all Encumbrances.
Realty One is and will be on the Closing Date the record and beneficial holder
of 49.9% of the Insignia Title Member Interests, and on the Closing Date the
Insignia Title Member Interests will be free and clear of all Encumbrances. As
of the Closing Date, no legend or other reference to any purported Encumbrance
will appear upon any certificate representing equity securities of any Realty
One Company or the Insignia Title Member Interests or if such legend appears,
Seller and Insignia will represent and warrant that such legends are no longer
applicable. The stock certificates or other instruments listed on Exhibit 3.1(a)
represent all of the outstanding equity securities of any Realty One Company,
and to the Knowledge of Insignia and Seller, the Insignia Title Member
Interests. Except as set forth on Exhibit 3.1(a), all of the outstanding equity
securities of each Realty One Company, and to the Knowledge of Insignia and
Seller, the Insignia Title Member Interests, have been duly authorized and
validly issued and are fully paid and nonassessable. As of the Closing Date,
there will be no Contracts relating to the issuance, sale, or transfer of any
equity securities or other securities of the Realty One Companies (other than as
contemplated herein), and to the Knowledge of Insignia and Seller, no such
Contracts in respect of Insignia Title. No Person holds or is entitled to
receive any stock option, warrant or other right to purchase equity securities
of any of the Realty One Companies, or to the Knowledge of Insignia and Seller,
the equity securities of Insignia Realty One other than Realty One's option to
purchase additional member interests in Insignia Title under certain condition,
and none of the Realty One Companies, or to the Knowledge of Insignia and
Seller, Insignia Title, has issued any security or instrument convertible into
equity securities. Except as set forth on Exhibit 3.1(a), to the Knowledge of
Seller and Insignia, none of the outstanding equity securities or other
securities of the Realty One Companies or Insignia Title was issued in violation
of the Securities Act or any other Legal Requirement. Except as set forth on
Exhibit 3.1(a), the Realty One Companies do not, and to the Knowledge of
Insignia and Seller, Insignia Title does not, own, or have any Contract to
acquire, any equity securities or other securities of any Person or any direct
or indirect equity or ownership interest in any other business.
3.4 FINANCIAL STATEMENTS
Seller has delivered to Buyer: an unaudited balance sheet of the Realty
One Companies as of December 31, 2000 (the "2000 Balance Sheets") and the
related statements of income, changes in stockholders' equity, and cash flow for
the fiscal year then ended (together with the 2000 Balance Sheets, the "2000
Financial Statements") and an interim balance sheet of each of the Realty One
Companies as of September 30, 2001 (the "Interim 2001 Balance Sheets") and the
related statements of income, changes in stockholders' equity, and cash flow for
the fiscal year then ended (together with the Interim 2001 Balance Sheets, the
"Interim 2001 Financial Statements"). The 2000 Financial Statements and the 2001
Interim Financial Statements fairly present the financial condition and the
results of operations, changes in stockholders' equity, and cash flow of each of
the Realty One Companies as at the respective dates of and for the periods
referred to in such financial statements, all in accordance with GAAP, in
accordance with the same accounting principles consistently applied by the
Realty One Companies, subject, in the case of the 2001 Interim Financial
Statements, to normal recurring year-end adjustments (the effect of which will
not, individually or in the aggregate, have a Material Adverse Effect). To the
Knowledge of Seller and Insignia, the financial statements referred to in this
Section 3.4 reflect the consistent application of such accounting principles
throughout the periods involved.
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3.5 BOOKS AND RECORDS
The books of account, minute books, stock record books, and other
records of each of the Realty One Companies, all of which have been made
available to Buyer, are substantially complete in all material respects. At the
Closing, all of those books and records of each of the Realty One Companies will
be in the possession of the applicable Realty One Company. Notwithstanding the
foregoing, the documents and communications between and among Insignia, Seller,
any Seller Control Affiliates and/or the Realty One Companies and/or
Representatives of any of them concerning the Contemplated Transactions shall be
excluded from the assets of the Realty One Companies and assigned to Seller
and/or Insignia and shall not be in the possession of the Realty One Companies
as of the Closing Date.
3.6 TITLE TO PROPERTIES; ENCUMBRANCES
None of the Realty One Companies owns any fee simple interest in real
estate or any options to acquire such interests, except fee simple title to real
estate held from time to time by Insignia Relocation in the Ordinary Course of
Business. Exhibit 3.6 hereof contains a complete Schedule of all real property
leaseholds held by the Realty One Companies, including the property, the
address, and, with respect to the lease agreement applicable to such leasehold
interest, the names of the parties, the date, and the termination date. Seller,
Insignia and/or the Realty One Companies have delivered to Buyer copies of the
leases by which the Realty One Companies hold real property interests in the
possession of Seller, Insignia or the Realty One Companies and relating to such
property or interests. The copies of such leases delivered to Buyer contain all
the agreements between a lessor and the applicable Realty One Company respecting
the terms and conditions of such Realty One Company's lease of the premises
subject to such lease agreements. The Realty One Companies hold good title, or
leasehold title, as applicable, subject only to the matters permitted by the
following sentence and otherwise herein, in all of the properties and assets
(whether real, personal, or mixed and whether tangible or intangible) that are
presently used in the operation of the business of the Realty One Companies
other than Intellectual Property Assets which shall be subject to
representations and warranties in Section 3.22, including all of the properties
and assets reflected in the Interim 2001 Balance Sheets (except for personal
property disposed of since the date of the Interim 2001 Balance Sheets in the
Ordinary Course of Business) and all of the properties and assets purchased or
otherwise acquired by the Realty One Companies since the date of the Interim
2001 Balance Sheets (except for personal property acquired and sold since the
date of the Interim 2001 Balance Sheets in the Ordinary Course of Business and
except as set forth on Exhibit 3.16). All material properties and assets
reflected in the Interim 2001 Balance Sheets are free and clear of all
Encumbrances except, with respect to all such properties and assets, (a)
mortgages or security interests shown on the Interim 2001 Balance Sheets as
securing specified liabilities or obligations, with respect to which no default
(or event that, with notice or lapse of time or both, would constitute a
default) exists and which would have a Material Adverse Effect, (b) mortgages or
security interests incurred in connection with the purchase of property or
assets after the date of the Interim 2001 Balance Sheets (such mortgages and
security interests being limited to the property or assets so acquired), with
respect to which no default (or event that, with notice or lapse of time or
both, would constitute a default) exists and which would have a Material Adverse
Effect, (c) liens for current Taxes not yet due, and (d) with respect to real
property, (i) zoning laws and other land use restrictions that do not impair the
present use of the
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property subject thereto, (ii) easements, conditions, restrictions, covenants
and declarations of record or in any lease, and (iii) those matters which would
be disclosed by an accurate survey, and (e) Permitted Encumbrances.
3.7 OWNERSHIP OF ASSETS; CONDITION AND SUFFICIENCY OF ASSETS
Except for the Intellectual Property Assets, which shall be subject to
the representations and warranties of Section 3.22 hereof, and other than the
leased property described on Exhibit 3.17(a)(iv), at the Closing Time, the
Realty One Companies will own and have good title, without Encumbrance, except
those encumbrances listed on Exhibit 3.7 (collectively, the "Permitted
Encumbrances"), to all of the assets currently used in conjunction with the
operation of the Realty One Companies' businesses. In addition, the Encumbrances
listed on Exhibit 3.7 with an indication that they are to be removed at or prior
to the Closing will be removed at or prior to the Closing.
3.8 ACCOUNTS RECEIVABLE
(a) All accounts receivable of the Realty One Companies, as determined
in accordance with GAAP as consistently applied by Seller and the Realty One
Companies since January 1, 2000 (the "Accounts Receivable") that are reflected
on the Interim 2001 Balance Sheets or on the accounting records of the Realty
One Companies as of the Closing Time will represent valid obligations arising
from sales actually made or services actually performed in the Ordinary Course
of Business. To the Knowledge of Seller and Insignia, there is no contest,
claim, or right of set-off under any Contract with any obligor under any of the
accounts receivable of the Realty One Companies that are reflected on the
Interim 2001 Balance Sheets or on the accounting records of the Realty One
Companies as of the Closing Time relating to the amount or validity of such
Accounts Receivable.
(b) Exhibit 3.8(b) contains a materially accurate summary list of all
Accounts Receivable as of November 30, 2001. The 2000 Financial Statements and
the Interim 2001 Financial Statements contain normal and adequate reserves for
the possible uncollectibility of any such Accounts Receivable.
3.9 ACCOUNTS PAYABLE
(a) All accounts payable (including commissions, commission bonuses and
other bonuses) of the Realty One Companies, as determined in accordance with
GAAP as consistently applied by Seller and the Realty One Companies since
January 1, 2000, (the "Accounts Payable") that are reflected on the Interim 2001
Balance Sheets or on the accounting records of the Realty One Companies as of
the Closing Time, represent, as of the respective dates thereof, valid
obligations of the Realty One Companies arising in the Ordinary Course of
Business.
(b) Exhibit 3.9(b) contains an approximate and materially accurate list
of all Accounts Payable as of November 30, 2001.
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3.10 NO UNDISCLOSED LIABILITIES
As of the Closing Time, to the Knowledge of Seller and Insignia, the
Realty One Companies will have no liabilities or obligations of any nature
(whether known or unknown and whether absolute, accrued, contingent, or
otherwise) except for: (i) the Continuing Liabilities; (ii) accrued obligations
for Taxes attributable to the period ending at the Closing Time (which
obligations Seller shall pay in accordance with Section 2.9); and (iii) Change
of Control Payments (which obligations Seller shall pay when due).
3.11 TAXES
(a) The Realty One Companies have filed or caused to be filed all Tax
Returns that are or were required to be filed by or with respect to any of them,
either separately or as a member of a group of corporations, pursuant to
applicable Legal Requirements. Seller and Insignia have made available to Buyer
copies of all such Tax Returns filed since December 31, 1997. The Realty One
Companies have paid, or made provision for the payment of, all Taxes that have
or may have become due as shown on those Tax Returns or otherwise, or pursuant
to any assessment received by the Realty One Companies, except such Taxes, if
any, as are listed in Exhibit 3.11(a) hereof and are being contested in good
faith and as to which adequate reserves (determined in accordance with GAAP)
have been provided in the Interim 2001 Balance Sheets. None of the Realty One
Companies have filed or been subject to a Legal Requirement to file any Tax
Returns with any Governmental Bodies outside the United States of America.
(b) Exhibit 3.11(b) hereof contains a complete and accurate list of all
audits of all such Tax Returns since December 31, 1997, and to the Knowledge of
Seller and Insignia during the period from December 31, 1995 through December
30, 1997, including a reasonably detailed description of the nature and outcome
of each audit. All deficiencies proposed as a result of such audits have been
paid, reserved against, settled, or, as described in Exhibit 3.11(a), are being
contested in good faith by appropriate proceedings. Exhibit 3.11(b) hereof
describes all adjustments to the United States federal income Tax Returns filed
by the Realty One Companies or any group of corporations including the Realty
One Companies for all Taxable years since December 31, 1997, and to the
Knowledge of Seller and Insignia during the period from December 31, 1990,
through December 30, 1997, and the resulting deficiencies proposed by the IRS.
Except as described in Exhibit 3.11(b) hereof, no Seller nor any of the Realty
One Companies has given or been requested to give waivers or extensions (or is
or would be subject to a waiver or extension given by any other Person) of any
statute of limitations relating to the payment of Taxes of the Realty One
Companies or for which the Realty One Companies may be liable.
(c) To the Knowledge of Seller and Insignia, there exists no proposed
Tax assessment against the Realty One Companies except as disclosed in the 2000
Balance Sheets or in Exhibit 3.11(c) hereof. No consent to the application of
Section 341(f)(2) of the IRC has been filed with respect to any property or
assets held, acquired, or to be acquired by the Realty One Companies. To the
Knowledge of Seller and Insignia, all Taxes that the Realty One Companies are or
were required by Legal Requirements to withhold or collect have been duly
withheld or collected and, to the extent required, have been paid to the proper
Governmental Body or other Person.
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(d) All Tax Returns filed by (or that include on a consolidated basis)
the Realty One Companies have been accurately prepared. There is no Tax sharing
agreement that will require any payment by the Realty One Companies after the
date of this Agreement. During the consistency period (as defined in Section
338(h)(4) of the IRC with respect to the sale of the Shares to Buyer), neither
the Realty One Companies nor any affiliate (as defined in Section 338(h)(6) of
the IRC with respect to the sale of the Shares to Buyer) has sold or will sell
any property or assets to Buyer or to any member of the affiliated group (as
defined in Section 338(h)(5) of the IRC) that includes Buyer. Exhibit 3.11(d)
lists all such affiliates.
(e) The Realty One Companies possess and maintain business records
containing all information necessary for the preparation of 2001 federal and
state information returns for the period through the Closing Time customarily
prepared by the Realty One Companies.
3.12 NO MATERIAL ADVERSE CHANGE
Except as set forth in Exhibit 3.16, and except for changes related to
changes in general economic conditions and the economic conditions in the real
estate industry, since the date of the Interim 2001 Balance Sheets, there has
not been any material adverse change in the business, client relations,
operations, properties, prospects, assets, or condition of any of the Realty One
Companies which has resulted in a Material Adverse Effect, and no event has
occurred or circumstance exists that could reasonably be expected to result in a
Material Adverse Effect.
3.13 EMPLOYEES AND EMPLOYEE BENEFIT PLANS
(a) Exhibit 3.13(a) lists each employment, bonus, deferred
compensation, pension, stock option, stock appreciation right, profit-sharing or
retirement plan, arrangement or practice, each medical, vacation, retiree
medical, severance pay plan, and each other agreement or fringe benefit plan,
arrangement or practice, of any of the Realty One Companies, whether legally
binding or not, which affects one or more of its employees, including all
"employee benefit plans" as defined by Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") (collectively, the "Plans").
(b) For each Plan which is an "employee benefit plan" under Section
3(3) of ERISA, to the extent applicable, the Realty One Companies have delivered
to the Buyer correct and complete copies of the plan documents, plan amendments,
and summary plan descriptions, the determination letters received from the IRS,
the most recent Form 5500 Annual Report, and all related trust agreements,
insurance contracts and funding agreements which implement each such Plan.
(c) Except as otherwise required by Legal Requirements, none of the
Realty One Companies has any commitment, whether formal or informal and whether
legally binding or not, (i) to create any additional such Plan; (ii) to modify
or change any such Plan; or (iii) to maintain for any period of time any such
Plan. Exhibit 3.13(c) contains a materially accurate description of the funding
policies (and commitments, if any) of the Realty One Companies with respect to
each such existing Plan.
(d) Except as set forth in Exhibit 3.13(d), none of the Realty One
Companies nor any Plan nor any trustee, administrator, fiduciary or sponsor of
any Plan has engaged in any
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prohibited transactions as defined in Section 406 of ERISA or Section 4975 of
the IRC for which there is no exemption; all filings, reports and descriptions
as to such Plans (including Form 5500 Annual Reports, Summary Plan Descriptions,
and Summary Annual Reports) required to have been made or distributed to
participants, the IRS, the United States Department of Labor and other
governmental agencies have been made in a timely manner or will be made on or
prior to the Closing Date; there is no material litigation, disputed claim,
governmental proceeding or investigation pending or Threatened with respect to
any of such Plans, the related trusts, or any fiduciary, trustee, administrator
or sponsor of such Plans; such Plans have been established, maintained and
administered in all material respects in accordance with their governing
documents and applicable provisions of ERISA and the IRC and Treasury
Regulations promulgated thereunder; and each Plan which is intended to be a
qualified plan under Section 401(a) of the IRC has received, within the last
three years, a favorable determination letter from the IRS.
(e) Except as set forth in Exhibit 3.13(d), the Realty One Companies
have performed all of their respective obligations under all Plans which if not
performed would have a Material Adverse Effect. Except as set forth in Exhibit
3.13(d), the Realty One Companies, with respect to all Plans, are, and each
Plan, is in full compliance with ERISA, the IRC, and other applicable Laws, and
with any applicable collective bargaining agreement.
(f) Except as set forth in Exhibit 3.13(f), the consummation of the
Contemplated Transactions will not (i) result in the payment or series of
payments by any of the Realty One Companies to any employee or other Person of
an "excess parachute payment" within the meaning of Section 280G of the IRC, or
(ii) accelerate the time of payment or vesting of any stock option, stock
appreciation right, deferred compensation, severance, bonus or other employee
benefits under any Plan (including vacation and sick pay).
(g) None of the Plans which are "welfare benefit plans," within the
meaning of Section 3(1) of ERISA, provide for continuing benefits or coverage
after termination or retirement from employment, except for COBRA rights under a
"group health plan" as defined in IRC Section 4980B(g) and ERISA Section 607.
(h) None of the Realty One Companies nor any entity which would be
treated as a single employer with the Realty One Companies under IRC Section 414
("ERISA Affiliate") has ever participated in or withdrawn from a multi-employer
plan as defined in Section 4001(a)(3) of Title IV of ERISA, and the Realty One
Companies have not incurred and do not owe any liability as a result of any
partial or complete withdrawal by any employer from such a multi-employer plan
as described under Sections 4201, 4203, or 4205 of ERISA.
(i) None of the Realty One Companies nor any ERISA Affiliate maintains
or contributes or ever has maintained or contributed to any Plan that is subject
to Title IV of ERISA or the minimum funding standards of Section 412 of the IRC.
3.14 COMPLIANCE WITH LEGAL REQUIREMENTS; GOVERNMENTAL
AUTHORIZATIONS
(a) Except as set forth in Exhibit 3.14(a) hereof:
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(i) Each of the Realty One Companies is in compliance with
each Legal Requirement that is or was applicable to it or to the
conduct or operation of its business or the ownership or use of any of
its assets and which non-compliance would have a Material Adverse
Effect;
(ii) No event has occurred or circumstance exists that (with
or without notice or lapse of time) constitutes or could reasonably be
expected to result in a violation by any of the Realty One Companies
of, or a failure on the part of the Realty One Companies to comply
with, any Legal Requirement and which violation or noncompliance would
have a Material Adverse Effect; and
(iii) None of the Realty One Companies has received at any
time since January 1, 1998 any notice or other communication (whether
oral or written) from U. S. Department of Housing and Urban Development
or any other Governmental Body or any other Person regarding any
actual, alleged, possible, or potential violation of, or failure to
comply with, any Legal Requirement which would have a Material Adverse
Effect.
(b) Exhibit 3.14(b) hereof contains a complete and accurate list of
each Governmental Authorization that is held by each of the Realty One Companies
and, to the extent necessary to enable the Realty One Companies to operate their
businesses in the manner presently conducted, by (i) any of Seller and Insignia
and/or (ii) any agents or sales associates or independent contractors affiliated
with the Realty One Companies. Each Governmental Authorization listed or
required to be listed in Exhibit 3.14(b) hereof is valid and in full force and
effect. Except as set forth in Exhibit 3.14(b) hereof:
(i) each of the Realty One Companies is, and at all times
since January 1, 1998 has been, in all material respects, in compliance
with all of the material terms and requirements of each Governmental
Authorization identified or required to be identified in Exhibit
3.14(b) hereof;
(ii) no event has occurred or circumstance exists that (with
or without notice or lapse of time) (A) constitutes or could reasonably
be expected to result directly or indirectly in a violation of or a
failure to comply with any term or requirement of any Governmental
Authorization listed or required to be listed in Exhibit 3.14(b)
hereof, or (B) could reasonably be expected to result directly or
indirectly in the revocation, withdrawal, suspension, cancellation, or
termination of, or any modification to, any Governmental Authorization
listed or required to be listed in Exhibit 3.14(b) hereof;
(iii) none of the Realty One Companies has received, at any
time since January 1, 1998, any notice or other communication (whether
oral or written) from any Governmental Body or any other Person
regarding (A) any actual, alleged, possible, or potential violation of
or failure to comply with any material term or requirement of any
Governmental Authorization, or (B) any actual, proposed, possible, or
potential revocation, withdrawal, suspension, cancellation, termination
of, or modification to any Governmental Authorization; and
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(iv) all applications required to have been filed for
Governmental Authorizations listed or required to be listed in Exhibit
3.14(b) hereof have been duly filed on a timely basis with the
appropriate Governmental Bodies, and all other filings required to have
been made with respect to such Governmental Authorizations have been
duly made on a timely basis with the appropriate Governmental Bodies.
(v) The Governmental Authorizations listed in Exhibit 3.14(b)
hereof collectively constitute all of the Governmental Authorizations
necessary to permit each of the Realty One Companies to lawfully
conduct and operate their businesses in the manner they currently
conduct and operate such businesses and to permit the Realty One
Companies to own and use their assets in the manner in which they
currently own and use such assets.
3.15 LEGAL PROCEEDINGS; ORDERS
(a) Exhibit 3.15(a) hereof sets forth all pending Proceedings: (i) that
have been commenced by or against any of the Realty One Companies; or (ii) that
have been commenced by or against Seller, Insignia or, to the Knowledge of
Seller and Insignia, against any agents or independent contractors of any of the
Realty One Companies that otherwise relate to or could reasonably be expected to
affect the business of, or any of the assets owned or used by, the Realty One
Companies; or (iii) to the Knowledge of Seller and Insignia, that otherwise
relate to or could reasonably be expected to affect the business of, or any of
the assets owned or used by, the Realty One Companies; or (iv) to the Knowledge
of Seller and Insignia, that challenges, or that could reasonably be expected to
have the effect of preventing, delaying, making illegal, or otherwise
interfering with, any of the Contemplated Transactions. Except as set forth in
Exhibit 3.15(a), to the Knowledge of Seller and Insignia, no such Proceeding has
been Threatened, and, to the Knowledge of Seller and Insignia, no event has
occurred or circumstance exists that could reasonably be expected to give rise
to or serve as a basis for the commencement of any such Proceeding. Seller,
Insignia and the Realty One Companies have made available to Buyer copies of all
pleadings, correspondence, and other documents relating to each material
Proceeding listed in Exhibit 3.15(a) hereof.
(b) Except as set forth in Exhibit 3.15(b) hereof:
(i) to the Knowledge of Seller and Insignia, there is no Order
to which any of the Realty One Companies, or any of the assets owned or
used by any of the Realty One Companies, is subject;
(ii) neither Seller, Insignia, any of the Realty One Companies
Executive Officers, or, to the Knowledge of Seller and Insignia, no
agent or independent contractor affiliated with the Realty One
Companies is subject to any Order that relates to the business of, or
any of the assets owned or used by, the Realty One Companies; and
(iii) no officer, director, or to the Knowledge of Seller and
Insignia, no agent, independent contractor or employee of any of the
Realty One Companies is subject to any Order that prohibits such
officer, director, agent, independent contractor or employee
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from engaging in or continuing any conduct, activity, or practice
relating to the business of any of the Realty One Companies.
(c) Except as set forth in Exhibit 3.15(c) hereof:
(i) Each of the Realty One Companies is, and at all times
since January 1, 1998 has been, in, all material respects, compliance
with all of the terms and requirements of each Order to which it, or
any of the assets owned or used by it, is or has been subject;
(ii) No event has occurred or circumstance exists that
constitutes or could reasonably be expected to result in (with or
without notice or lapse of time) a material violation of or failure to
materially comply with any term or requirement of any Order to which
any of the Realty One Companies, or any of the assets owned or used by
any of the Realty One Companies, is subject; and
(d) neither Seller, Insignia nor any of the Realty One Companies has
received, at any time since January 1, 1998, any notice or other communication
(whether oral or written) from any Governmental Body or any other Person
regarding any actual, alleged, possible, or potential violation of, or failure
to comply with, any term or requirement of any Order to which any of the Realty
One Companies, or any of the assets owned or used by any the Realty One
Companies, is or has been subject.
3.16 ABSENCE OF CERTAIN CHANGES AND EVENTS
Except as set forth in Exhibit 3.16 hereof or as contemplated herein,
since the date of the Interim 2001 Balance Sheets, the Realty One Companies have
conducted their businesses only in the Ordinary Course of Business and there has
not been any:
(a) change in the Realty One Companies' authorized or issued capital
stock; grant of any stock option, warrant or right to purchase shares of capital
stock of the Realty One Companies; issuance of any security or instrument
convertible into such capital stock; grant of any registration rights; purchase,
redemption, retirement, or other acquisition by any of the Realty One Companies
of any shares of any such capital stock; or declaration or payment of any
dividend or other distribution or payment in respect of shares of capital stock;
(b) amendment to the Organizational Documents of any of the Realty One
Companies;
(c) except in the Ordinary Course of Business, a material increase by
the Realty One Companies of any bonuses, salaries, or other compensation to any
stockholder, director, officer, agent or independent contractor affiliated with
any of the Realty One Companies or employee, entry into any employment,
severance, or similar Contract with any director, officer, agent, independent
contractor or employee;
(d) except in the Ordinary Course of Business, adoption of, or increase
in the payments to or benefits under, any profit sharing, bonus, deferred
compensation, savings,
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insurance, pension, retirement, or other employee benefit plan for or with any
employees of the Realty One Companies;
(e) uninsured damage to or destruction or loss of any material asset or
property of the Realty One Companies, materially and adversely affecting the
properties, assets, business, financial condition, or prospects of any one of
the Realty One Companies, taken as a whole;
(f) except in the Ordinary Course of Business, entry into, termination
of, or receipt of notice of termination of (i) any license, distributorship,
dealer, joint venture, credit, or similar agreement, or (ii) any Contract or
transaction involving a total remaining commitment by or to any Realty One
Company of at least $50,000;
(g) except in the Ordinary Course of Business, sale, lease, or other
disposition of any asset or property of the Realty One Companies or mortgage,
pledge, or imposition of any lien or other encumbrance on any material asset or
property of the Realty One Companies (except for Permitted Encumbrances),
including the sale, lease, or other disposition of any of the Intellectual
Property Assets;
(h) except in the Ordinary Course of Business, cancellation or waiver
of any claims or rights with a value to the Realty One Companies in excess of
$50,000;
(i) material change in the accounting methods used by the Realty One
Companies; or
(j) agreement, whether oral or written, by any of Realty One Companies
or Seller and Insignia to do any of the foregoing.
3.17 CONTRACTS; NO DEFAULTS
(a) Seller and Insignia and the Realty One Companies have delivered to
Buyer standard form contracts in respect of certain Realty One Services
Agreements and, unless expressly required otherwise, true and complete copies of
each of the Applicable Contracts or other documents listed in Exhibits
3.17(a)(i) through 3.17(a)(xvi), and have set forth the name and date of and
parties (where available) to the Applicable Contracts for which they are
providing copies, as set out below.
(i) Seller and Insignia have provided to Buyer (A) in respect
of Realty One: (1) current standard form exclusive listing agreement
under which Realty One contracts for the exclusive right to sell an
owner's residential property ("Realty One Listing Agreement") attached
hereto as Exhibit 3.17(a)(i)-1, and (2) a current standard form
exclusive agency agreement under which Target contracts for the
exclusive right to represent a potential purchaser of residential
property ("Target Buyer Agency Agreement") attached hereto as Exhibit
3.17(a)(i)-2, and (3) a current standard form residential purchase
contract under which an owner of a residence contracts to sell a
residence to a purchaser, generating a fee for the Realty One sales
agent(s) representing the seller and/or purchaser ("Residential Sales
Contract"), attached hereto as Exhibit 3.17(a)(i)-3, and represent to
Buyer that these are the forms generally used in Realty One's
residential brokerage business, subject to form revisions in the
Ordinary Course of Business and subject to modifications negotiated in
the Ordinary Course of Business; (B)
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in respect of First Ohio Mortgage, as described on Exhibit
3.17(a)(i)-4: (1) copies of all of the loan purchase contracts that are
currently in effect with purchasing lenders and under which it sells
and disposes of home mortgage loans to such purchasing lenders; and (2)
all other material Realty One Services Agreements applicable to its
business, but excluding all the documents that are part of each
individual borrower's loan file, and represent to Buyer that no other
agreements with purchasing lenders are currently in effect and that it
generally uses standard form loan contracts and disclosure forms as
required by its purchasing lenders and or Governmental Authorities in
respect of the home mortgage business; (C) a list of the material
Applicable Contracts of First Ohio Escrow, as described on Exhibit
3.17(a)(i)-5; and (2) copies of all its material standard form
contracts and all its Realty One Services Agreements except individual
purchaser files; (D) in respect of Insignia Relocation, as described on
Exhibit 3.17(a)(i)-6: a list of all its Realty One Services Agreements
currently in effect. Buyer acknowledges that the standard forms
referenced in this Section 3.17(a)(i) are used in conjunction with
other standard forms and are subject to modifications, updates, and
negotiated changes in the Ordinary Course of Business. Except as set
forth in Exhibit 3.2(b)-1, the sale of the Shares under this Agreement
will not adversely affect the rights and obligations of the Realty One
Companies under the Realty One Services Agreements.
(ii) Each Applicable Contract that involves performance of
services or delivery of goods or materials to the Realty One Companies
with a cost or value in excess of $50,000 is listed on Exhibit
3.17(a)(ii).
(iii) Seller and Insignia have provided copies of each
Applicable Contract that was not entered into in the Ordinary Course of
Business and that involves expenditures or receipts of the Realty One
Companies with a cost or value in excess of $50,000, and each such
Applicable Contract is listed on Exhibit 3.17(a)(iii).
(iv) Seller and Insignia have provided copies of each lease,
rental or occupancy agreement, installment and conditional sale
agreement, and other Applicable Contract affecting the ownership of,
leasing of, title to, use of, or any leasehold or other interest in,
any real or personal property where the total amount of lease or
installment payments is in excess of $10,000, and each such foregoing
document is listed on Exhibit 3.17(a)(iv).
(v) Seller and Insignia have provided copies of each material
agreement with current or former employees, consultants, or contractors
regarding the appropriation or the non-disclosure of any of the
Intellectual Property Assets, all as listed on Exhibit 3.17(a)(v).
(vi) Seller and Insignia have provided (A) in respect of
Realty One, (1) copies of each employment agreement to which Realty One
is a party, described on Exhibit 3.17(a)(vi)-1, which employment
agreements are in full force and effect, and (2) a copy of the current
standard form contract entered into by the independent contractor sales
agents affiliated with Realty One attached hereto as Exhibit
3.17(a)(vi)-2, and represent to Buyer that all such Independent
Contractor Agreements are in full force and effect, and no affiliated
sales associates or sales agent of Realty One has received or is to
receive any
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commission or other compensation in any form if such independent
contractor or sales agent has not executed an Independent Contractor
Agreement; and (B) in respect of all the Realty One Companies, (1)
copies of any other Applicable Contract relating to the provision of
services, and compensation therefor, by any employee, agent, director,
officer, or consultant of any of the Realty One Companies and for whom
annualized salary or annualized commission compensation exceeds
$75,000, such employment agreements listed and described on Exhibit
3.17(a)(vi)-3; and (2) a list and description of any collective
bargaining agreement and other Applicable Contract to or with any labor
union or other employee representative of a group of employees on
Exhibit 3.17(a)(vi)-4.
(vii) Each material joint venture, partnership, and other
Applicable Contract (however named) involving a sharing of revenue,
profits, losses, costs, or liabilities by the Realty One Companies with
any other Person is listed on Exhibit 3.17(a)(vii).
(viii) Seller and Insignia have provided copies of each
Applicable Contract containing covenants that in any way purport to
restrict the business activity of the Realty One Companies or limit the
freedom of the Realty One Companies to engage in any line of business
or to compete with any Person, and each such Applicable Contract is
described and listed on Exhibit 3.17(a)(viii).
(ix) Each power of attorney that is currently effective and
outstanding is described and listed on Exhibit 3.17(a)(ix).
(x) Seller and Insignia have provided copies of each
Applicable Contract entered into other than in the Ordinary Course of
Business that contains or provides for an express undertaking by the
Realty One Companies to be responsible for consequential damages, all
as described and listed on Exhibit 3.17(a)(x).
(xi) Each Applicable Contract for capital expenditures in
excess of $10,000 is described and listed on Exhibit 3.17(a)(xi).
(xii) Each written warranty, guaranty, and or other similar
undertaking with respect to contractual performance extended by the
Realty One Companies other than in the Ordinary Course of Business is
described and listed on Exhibit 3.17(a)(xii).
(xiii) Seller and Insignia have provided copies of each
Applicable Contract evidencing the obligation of any of the Realty One
Companies to repay borrowed money, including any obligations as the
maker or guarantor of a promissory note, and each such Applicable
Contract (including any such promissory note is described and listed on
Exhibit 3.17(a)(xiii).
(xiv) Seller and Insignia have provided or made available to
Buyer copies of each Applicable Contract since 1998 under which any of
the Realty One Companies acquired assets in respect of any residential
real estate business pursuant to which any of the Realty One Companies
(A) may be required to render payment or services or fulfill any other
obligation, or (B) may receive future revenue or other benefit, and
each such Applicable Contract is listed and described (including the
expiration date of such Applicable Contract) on Exhibit 3.17(a)(xiv).
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(xv) Each amendment, supplement, and modification (whether
oral or written) in respect of any material term of the foregoing
Contracts is described and listed on Exhibit 3.17(a)(xv) and Seller and
Insignia have provided copies of any written amendment, supplement, and
modification to any of the Contracts listed or described in Exhibits
3.17(a)(v), 3.17(a)(viii), 3.17(a)(x), 3.17(a)(xiii), and 3.17(a)(xiv).
(xvi) Any Contract entered into between any of the Realty One
Companies and a Control Affiliate of Seller or a director or executive
officer of Seller or of any Control Affiliate of Seller, or the spouse,
parent, child or sibling of any such director or officer, is listed on
Exhibit 3.17(a)(xvi).
(b) Except as required or contemplated by this Agreement or as set
forth in Exhibit 3.17(b) hereof:
(i) neither Seller nor Insignia has or may acquire any rights
under, and neither Seller nor Insignia has or may become subject to any
obligation or liability under, any Contract that relates to the
business of, or any of the assets owned or used by, the Realty One
Companies; and
(ii) no officer, director, agent, employee, consultant, or
contractor of the Realty One Companies is bound by any Contract that
purports to limit the ability of such officer, director, agent,
employee, consultant, or contractor to (A) engage in or continue any
conduct, activity, or practice relating to the business of the Realty
One Companies, or (B) assign to the Realty One Companies or to any
other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Exhibit 3.17(c) hereof, each Contract
identified or required to be identified in Exhibit 3.17(a)(i) through Exhibit
3.17(a)(xvi) hereof is in full force and effect and is valid and enforceable in
accordance with its terms.
(d) Except as set forth in Exhibit 3.17(d) hereof:
(i) each of the Realty One Companies is, and at all times
since January 1, 1998 has been, in all material respects, in compliance
with all applicable terms and requirements of each material Contract
under which each such of the Realty One Companies has or had any
obligation or liability or by which the Realty One Companies or any of
the assets owned or used by the Realty One Companies are or were bound,
except for non-compliance of non-material Contracts which
non-compliance in the aggregate does not have a Material Adverse
Effect;
(ii) to the Knowledge of Seller and Insignia, each other
Person that has or had any obligation or liability under any Contract
under which the Realty One Companies have or had any rights is, and at
all times since January 1, 1999 has been, in all material respects, in
compliance with all applicable terms and requirements of such Contract,
except for any non-compliance which had or will have a Material Adverse
Effect;
(iii) no event has occurred or circumstance exists that (with
or without notice or lapse of time) may contravene, conflict with, or
result in a violation or breach of, or
- 48 -
give the Realty One Companies or other Person the right to declare a
default or exercise any remedy under, or to accelerate the maturity or
performance of, or to cancel, terminate, or modify, any material
Applicable Contract; and
(iv) the Realty One Companies have not given to or received
from any other Person, at any time since January 1, 2001, any notice or
other communication (whether oral or written) regarding any actual,
alleged, possible, or potential material violation or breach of, or
default under, any material Contract.
(e) There are no renegotiations of, attempts to renegotiate, or
outstanding rights to renegotiate any material amounts paid or payable to the
Realty One Companies in excess of $50,000 under current or completed Contracts
with any Person and no such Person has made written demand for such
renegotiation.
(f) The Contracts relating to the sale, design, or provision of
services by the Realty One Companies have been entered into in the Ordinary
Course of Business and have been entered into without the commission of any act
alone or in concert with any other Person, or any consideration having been paid
or promised, that is or would, to the Knowledge of Seller and Insignia, be in
violation of any Legal Requirement.
3.18 INSURANCE
(a) Seller and Insignia and the Realty One Companies have delivered or
made available to Buyer, and listed on Exhibit 3.18(a) hereof:
(i) copies of all policies of insurance to which the Realty
One Companies are a party or under which the Realty One Companies, or
any director of the Realty One Companies, are or were covered at or
after January 1, 1999;
(ii) copies of all pending applications for policies of
insurance; and
(iii) any written statement by the auditor of the Realty One
Companies' financial statements with regard to the adequacy of such
entity's coverage or of the reserves for claims.
(b) Exhibit 3.18(b) hereof describes:
(i) any self-insurance arrangement by or affecting the Realty
One Companies, including any reserves established thereunder;
(ii) any contract or arrangement, other than a policy of
insurance, for the transfer or sharing of any risk by the Realty One
Companies; and
(iii) all obligations of the Realty One Companies to third
parties with respect to insurance (including such obligations under
leases and service agreements) and identifies the policy under which
such coverage is provided.
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(c) Except as set forth on Exhibit 3.18(c) hereof,
(i) All policies to which the Realty One Companies are a party
or that provide coverage to any Seller, the Realty One Companies, or
any director or officer of the Realty One Companies:
(A) are valid, outstanding, and enforceable;
(B) taken together, except for the risks arising from
the Re/Max Litigation and risks which are self-insured,
provide adequate insurance coverage for the assets and the
operations of the Realty One Companies for all risks normally
insured against by a Person carrying on the same business or
businesses as the Realty One Companies; and
(C) are sufficient for compliance with all Legal
Requirements and Contracts to which the Realty One Companies
are a party or by which any of them is bound.
(ii) None of the Realty One Companies has received, since
January 1, 1999 (A) any refusal of coverage or any notice that a
defense will be afforded with reservation of rights, or (B) any notice
of cancellation or any other indication that any insurance policy is no
longer in full force or effect or will not be renewed or that the
issuer of any policy is not willing or able to perform its obligations
thereunder.
(iii) Each of the Realty One Companies has paid all premiums
due, and has otherwise performed all of its respective material
obligations, under each policy to which any of the Realty One Companies
is a party or that provides coverage to the Realty One Companies or any
director thereof. The aggregate limits of none of the policies are
impaired.
(iv) The Realty One Companies have given notice to the insurer
of all claims that may be insured thereby.
3.19 ENVIRONMENTAL MATTERS
Except as set forth in Exhibit 3.19, to the Knowledge of Seller and
Insignia, none of the Realty One Companies has any basis to expect, nor has any
of them or any other Person for whose conduct they are or may be held
responsible, received, any citation, directive, inquiry, notice, Order, summons,
warning, or other communication that relates to Hazardous Activity, Hazardous
Materials, or any alleged, actual, or potential violation or failure to comply
with any Environmental Law, or of any alleged, actual, or potential obligation
to undertake or bear the cost of any Environmental, Health, and Safety
Liabilities with respect to any real property owned by any of the Realty One
Companies as of June 1, 2001.
3.20 EMPLOYEES
(a) Exhibit 3.20(a) hereof contains a materially accurate list of the
following information for each employee, sales agent, officer, or director of
each of the Realty One
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Companies, including each employee on leave of absence or layoff status:
employer; name; job title; current compensation paid or payable and any change
in compensation since December 31, 2000; vacation accrued; and service credited
for purposes of vesting and eligibility to participate under the pension,
retirement, profit-sharing, thrift-savings, deferred compensation, stock bonus,
stock option, cash bonus, employee stock ownership (including investment credit
or payroll stock ownership), severance pay, insurance, medical, welfare, or
vacation plan, other Employee Pension Benefit Plan (as defined in Section 3(2)
of ERISA) or Employee Welfare Benefit Plan (as defined in Section 3(1) of
ERISA), or any other employee benefit plan or any Plan or Plans for the benefit
of non-employee directors or other non-employees of any of the Realty One
Companies.
(b) Except as set forth on Exhibit 3.20(b), no employee, officer,
director, agent or affiliated independent contractor of any of the Realty One
Companies is a party to, or is otherwise bound by, any agreement or arrangement,
including any confidentiality, non-competition, or proprietary rights agreement,
between such employee or director and any other Person ("Proprietary Rights
Agreement") that in any way materially adversely affects or will materially and
adversely affect (i) the performance of his or her duties as an employee,
officer, director, agent or affiliated independent contractor of the Realty One
Companies, or (ii) the ability of the Realty One Companies to conduct its
business, including any Proprietary Rights Agreement with Seller, Insignia, or
any of the Realty One Companies by any such employee, officer, director, agent,
or affiliated independent contractor. Neither Seller, Insignia, nor any of the
Realty One Companies has obtained Knowledge that any director, officer, or other
key employee of the Realty One Companies intends to terminate his or her
employment with any of the Realty One Companies other than as contemplated
herein.
(c) Other than benefits due to retirees or under COBRA, Exhibit 3.20(c)
hereof also contains a complete and accurate list of the following information
for each retired employee, officer or director of the Realty One Companies, or
their dependents, receiving benefits or scheduled to receive benefits in the
future: name, pension benefit, pension option election, retiree medical
insurance coverage, retiree life insurance coverage, and other benefits other
than Continuing Liabilities.
3.21 LABOR RELATIONS; COMPLIANCE
Since January 1, 1998, except as disclosed in Exhibit 3.17(a)(vi),
hereto, none of the Realty One Companies has been and none is now a party to any
collective bargaining or other labor Contract. Since January 1, 1998, there has
not been, there is not presently pending or existing, and, to the Knowledge of
Sellers and Insignia, there is not Threatened, (a) any strike, slowdown,
picketing, work stoppage, or employee grievance process, (b) any Proceeding
against or affecting the Realty One Companies relating to the alleged violation
of any Legal Requirement pertaining to labor relations or employment matters,
including any charge or complaint filed by an employee or union with the
National Labor Relations Board, the Equal Employment Opportunity Commission, or
any comparable Governmental Body, organizational activity, or other labor or
employment dispute against or affecting any of the Realty One Companies or their
premises, or (c) any application for certification of a collective bargaining
agent. No event has occurred or circumstance exists that could reasonably be
expected to provide the basis for any work stoppage or other labor dispute.
There is no lockout of any
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employees by any of the Realty One Companies, and no such action is contemplated
by any of the Realty One Companies; each of the Realty One Companies has
complied in all material respects with all Legal Requirements relating to
employment, equal employment opportunity, nondiscrimination, immigration, wages,
hours, benefits, collective bargaining, the payment of social security and
similar Taxes, occupational safety and health, and plant closing; and the Realty
One Companies are not liable for the payment of any compensation, damages,
Taxes, fines, penalties, or other amounts, however designated, for failure to
comply with any of the foregoing Legal Requirements.
3.22 INTELLECTUAL PROPERTY
(a) Intellectual Property Assets. The term "Intellectual Property
Assets" means all right, title and interest of the Realty One Companies, to the
extent of such interest, to:
(i) (A) the use in the State of Ohio of the names set forth on
Exhibit 3.22(a), (B) all fictitious business names and trading names
used by the Realty One Companies in the State of Ohio, including those
registered with the State of Ohio, as set forth on Exhibit 3.22(a), and
(C) registered and unregistered trademarks and service marks and
applications for registration of such trademarks and services marks
(collectively, "Marks");
(ii) Patent No. U.S. 6,236,977 B1 issued May 22, 2001, titled
"Computer Implemented Marketing System" (the "Patent");
(iii) all copyrights of a Realty One Company in both published
works and unpublished works (collectively, "Copyrights");
(iv) all know-how, trade secrets, confidential information and
technical information (collectively, "Trade Secrets") owned or licensed
by the Realty One Companies as licensee or licensor; and
(v) all software including source and object code for software
developed by or for one or more of the Realty One Companies, to the
extent the rights to source and object code were retained by such
Realty One Company, owned or licensed by the Realty One Companies in
connection with their businesses (collectively "Software").
(b) Agreements. Exhibit 3.22(b) hereof contains a complete and accurate
list and summary description of all material Contracts relating to the Ordinary
Business IP Assets to which the Realty One Companies are a party or, to the
Knowledge of Seller and Insignia, by which the Realty One Companies are bound,
except for any license implied by the sale of a product and perpetual, paid-up
licenses for commonly available software programs with a value of less than
$10,000 under which any of the Realty One Companies is the licensee. There are
no outstanding and, to the Knowledge of Seller and Insignia, no Threatened
disputes or disagreements with respect to any such agreement.
(c) Know-How Necessary for the Business. Except as set forth on Exhibit
3.22(c), the Ordinary Business IP Assets are all those necessary for the
operation of the Realty One Companies' businesses as they are currently
conducted. Except as set forth on Exhibit 3.22(c),
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one or more of the Realty One Companies has the right to use the Ordinary
Business IP Assets in the manner in which such assets are currently used in the
business of the Realty One Companies, subject to the obligation to pay licensing
and/or maintenance fees in the Ordinary Course of Business.
(d) Non-Ordinary Business IP Assets. With respect to PowerChooser, VPA,
and CARS, there are no outstanding and, to the Knowledge of Seller and Insignia,
no Threatened disputes or claims alleging that any of the Realty One Companies'
use of such assets violates or infringes the rights of any third Person.
(e) Software. Except as set forth on Exhibit 3.22(e), in respect of
Software that is an Ordinary Business IP Asset, there are no outstanding and, to
the Knowledge of Seller and Insignia, no Threatened disputes or claims alleging
that any of the Realty One Companies' use of such Software infringes the rights
of any third Person.
(f) Patents. The only patent issued to any Realty One Company is the
Patent, which is subject to the rights of certain third parties as set forth on
Exhibit 3.22(f). The Realty One Companies have no pending patent applications.
(g) Trademarks. To the Knowledge of Seller and Insignia, Exhibit
3.22(g) hereof contains a complete and accurate list and summary description of
all Marks, including state and federal registrations and pending registrations,
and except as described in Exhibit 3.22(g), there are no outstanding, and, to
the Knowledge of Seller and Insignia, no Threatened disputes or disagreements
with respect to the Marks described thereon.
(h) Copyrights. In respect of copyrights that are Ordinary Business IP
Assets, except as set forth on Exhibit 3.22(h), (i) none of the Realty One
Companies owns any right, title, or interest in any registered Copyright, and
(ii) there are no outstanding and, to the Knowledge of Seller and Insignia, no
Threatened disputes or disagreements with respect to the Copyrights of any third
parties.
(i) Trade Secrets. In respect of the Trade Secrets that are Ordinary
Business IP Assets, Seller and Insignia and the Realty One Companies have taken
reasonable precautions to protect the secrecy, confidentiality, and value of
such Trade Secrets, and there are no outstanding and, to the Knowledge of Seller
and Insignia, no Threatened disputes or disagreements with respect to such Trade
Secrets.
(j) Employee Agreements. Except as set forth on Exhibit 3.20(b), no
officer or director, and to the Knowledge of Seller and Insignia, no employee,
agent or affiliated independent contractor of the Realty One Companies has
entered into any Contract that restricts or limits in any way the scope or type
of work in which such director, officer, employee, agent or affiliated
independent contractor may be engaged or requires such director, officer,
employee, agent or affiliated independent contractor to transfer, assign, or
disclose information concerning the employee's work to anyone other than the
Realty One Companies.
(k) Trade Name Rights in Ohio. Notwithstanding any other provision of
this Section 3.22, Realty One owns, as licensee or otherwise, the exclusive
right in the State of Ohio to the use of the name "Realty One" in connection
with a residential real estate brokerage business
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subject to the terms of the license agreements for such name. To the Knowledge
of Seller and Insignia, the Realty One Companies are not prohibited from using,
in the State of Ohio, the names or marketing slogans "First Ohio Mortgage,"
"First Ohio Escrow," and "Corporate Relocation Management," "You're on Your Way
Home," and "HGM Hilltop Realtors".
3.23 CERTAIN PAYMENTS
Neither the Realty One Companies nor any director or officer of the
Realty One Companies, or any other Person acting for or on behalf of the Realty
One Companies has directly or indirectly made any contribution, gift, bribe,
rebate, payoff, influence payment, kickback, or other payment to any Person,
private or public, regardless of form, whether in money, property, or services
in violation of any Legal Requirement.
3.24 REALTY ONE SERVICES AGREEMENTS
(a) The Realty One Services Agreements are in full force and effect and
are valid and enforceable according to their terms except as such enforcement
may be limited by applicable insolvency laws or laws affecting creditors' rights
generally. Except as set forth on Exhibit 3.24, no material default on the part
of the applicable Realty One Company, or to the Knowledge of Seller and
Insignia, on the part of the third party, exists in respect of any of the Realty
One Services Agreements, which defaults could have a Material Adverse Effect.
The Realty One Services Agreements contain, all the terms of agreement between
the Realty One Companies and the other party or parties thereto respecting the
parties' mutual rights and obligations related to the Residential Real Estate
Services of the Realty One Companies.
(b) None of the Realty One Companies has received notice of any
communication that any party (other than the Realty One Companies) to a Realty
One Services Agreement is considering terminating such agreement, including any
termination either prior to the expiration of their stated term or as a result
of effectuation of the Contemplated Transactions, or failure to renew a Realty
One Services Agreement, which termination or non-renewal has a Material Adverse
Effect.
3.25 DISCLOSURE
No representation or warranty of Seller and Insignia in this Agreement
nor any statement or certificate furnished or to be furnished by or on behalf of
any Seller to Buyer or its Representatives in connection herewith or pursuant
hereto contains or will contain any untrue statement of a material fact, or
omits or will omit to state a material fact necessary to make the statements
contained herein or therein, in light of the circumstances in which they were
made, not misleading.
3.26 RELATIONS WITH RELATED PERSONS
Except as set forth in Exhibit 3.26 hereof or as otherwise called for
under the terms of this Agreement, neither Seller, Insignia, nor any Seller
Control Affiliate or any of the Realty One Companies is a party to any Contract
with, or has any claim or right against, any of the Realty One Companies.
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3.27 BROKERS OR FINDERS
Seller and Insignia and their agents have incurred no obligation or
liability, contingent or otherwise, for brokerage or finders' fees or agents'
commissions or other similar payment in connection with this Agreement.
3.28 FIRST OHIO MORTGAGE; LOAN PURCHASE AGREEMENTS
(a) First Ohio Mortgage is in substantial compliance under its home
mortgage loan purchase contracts with lenders (including the applicable manuals
incorporated into such loan purchase contracts), and except as set forth on
Exhibit 3.28, no lender has cancelled a home mortgage loan purchase contract it
entered into with First Ohio Mortgage.
(b) First Ohio Mortgage places all of the home mortgage loans it makes
with lenders under its home mortgage loan purchase contracts and, following such
sale, retains no liability or obligation to the borrower, to the purchasing
lender, to any regulatory agency or any other Person in respect of such loans,
subject to its contractual repurchase and/or indemnification obligation to the
applicable purchasing lender.
(c) Except as set forth on Exhibit 3.28, since January 1, 1998, First
Ohio Mortgage has not been required pursuant to any contracts with any lender
for the sale of home mortgage loans to repurchase any loan transferred to such
lender.
(d) Except as set forth on Exhibit 3.28, since January 1, 1998, no
claim for indemnity has been made against First Ohio Mortgage in respect of its
indemnity obligation under any home mortgage loan purchase contract.
(e) With respect to each mortgage loan file of First Ohio Mortgage, all
of the documents, information, and signatures contained in each such mortgage
loan file are genuine and, with respect to each mortgage loan file that serves
as collateral for the line of credit in favor of First Ohio Mortgage from
KeyBank, all of the documents, information, and signatures contained in each
such mortgage loan file (i) conform to prudent and customary origination
practices in the mortgage industry and applicable laws and regulations, (ii) are
eligible for mortgage insurance, and (iii) are eligible for sale under First
Ohio Mortgage's mortgage loan purchase contracts with lenders.
4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller and Insignia as follows:
4.1 ORGANIZATION
(a) Buyer is a corporation, duly organized, validly existing, and in full force
and effect under the laws of Ohio, with full power and authority to own, lease,
license, and use its properties and assets and to carry on the business in which
it is now engaged and the business in which it contemplates engaging. Buyer is
duly qualified to do business as a foreign corporation
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in each state in which either the ownership or use of the properties owned or
used by it, or the nature of the activities conducted by it, requires such
qualification.
(b) Buyer has delivered to Seller and Insignia copies of the
Organizational Documents of Buyer, certified by the Secretary of State of Ohio
in respect of documents filed with the Secretary of State of Ohio and by the
Secretary of Buyer in respect of all other Organizational Documents, in each
case as in effect on the date of such certification.
4.2 AUTHORITY; NO CONFLICT
(a) This Agreement constitutes the legal, valid, and binding obligation of
Buyer, enforceable against Buyer in accordance with its terms. Buyer has the
absolute and unrestricted right, power, and authority to execute and deliver
this Agreement and the Buyer's Closing Documents and to perform its obligations
under this Agreement and the Buyer's Closing Documents.
(b) Except as set forth in Exhibit 4.2(b)-1 hereto, neither the
execution and delivery of this Agreement nor the consummation or performance of
any of the Contemplated Transactions will, directly or indirectly (with or
without notice or lapse of time):
(i) contravene, conflict with, or result in a violation of (A)
any provision of the Organizational Documents of Buyer or (B) any
resolution adopted by the members or managers of Buyer;
(ii) contravene, conflict with, or result in a violation of,
or give any Governmental Body or other Person the right to challenge
any of the Contemplated Transactions or to exercise any remedy or
obtain any relief under, any Legal Requirement or any Order to which
Buyer, or any of the assets owned or used by Buyer, may be subject;
(iii) contravene, conflict with, or result in a violation of
any of the terms or requirements of, or give any Governmental Body the
right to revoke, withdraw, suspend, cancel, terminate, or modify, any
Governmental Authorization that is held by Buyer or that otherwise
relates to the business of, or any of the assets owned or used by,
Buyer;
(iv) contravene, conflict with, or result in a violation or
breach of any provision of, or give any Person the right to declare a
default or exercise any remedy under, or to accelerate the maturity or
performance of, or to cancel, terminate, or modify, any Contract
(including without limitation any loan documents) to which Buyer is a
party;
(v) result in the imposition or creation of any Encumbrance
upon or with respect to any of the assets owned or used by Buyer; or
(vi) give any person the right to prevent, delay or otherwise
interfere with any of the Contemplated Transactions.
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Except as set forth in Exhibit 4.2(b)-2 hereof, Buyer is not nor will be
required to give any notice to or obtain any Consent from any Person, including
without limitation, any owner or mortgage/lien holder in connection with the
execution, delivery or performance of this Agreement or the consummation or
performance of any of the Contemplated Transactions.
4.3 INVESTMENT INTENT
Buyer is acquiring the Shares for its own account and not with a view
to their distribution or distribution within the meaning of Section 2(11) of the
Securities Act.
4.4 BROKERS OR FINDERS
Buyer and its officers and agents have incurred no obligation or
liability, contingent or otherwise, for brokerage or finders' fees or agents'
commissions or other similar payment in connection with this Agreement.
5. COVENANTS OF SELLER AND INSIGNIA PRIOR TO CLOSING DATE
5.1 REQUIRED APPROVALS
As promptly as practicable after the date of this Agreement, Seller and
Insignia will and will cause the Realty One Companies to make all filings
required by Legal Requirements to be made by them in order to consummate the
Contemplated Transactions. Between the date of this Agreement and the Closing
Date, Seller and Insignia will and will cause the Realty One Companies to (a)
cooperate with Buyer with respect to all filings that Buyer elects to make or is
required by Legal Requirements to make in connection with the Contemplated
Transactions, and (b) cooperate with Buyer in obtaining all Consents identified
in Exhibit 4.2(b)-2.
5.2 CURRENT INFORMATION
During the period from the date of this Agreement to the Closing Date,
Seller and Insignia will and will cause the Realty One Companies to cause one or
more of their representatives to confer on a regular and frequent basis with
representatives of Buyer to report on the general status of the Realty One
Companies' ongoing operations. Seller and Insignia will and will cause the
Realty One Companies to promptly notify Buyer of any material change in the
normal course of the business of the Realty One Companies or in the operation of
the businesses of the Realty One Companies and of any governmental complaints,
investigations, or hearings (or communications indicating that the same may be
contemplated), or the institution or the threat of material litigation involving
the Realty One Companies, or Seller and Insignia, to the extent such material
litigation could reasonably be expected to affect the business of the Realty One
Companies or the consummation of the Contemplated Transactions, and will keep
Buyer fully informed with respect to such events.
5.3 OPERATIONS PRIOR TO CLOSING DATE
In addition to any other express obligation under this Agreement,
between the date of this Agreement and the Closing Date, Seller and Insignia
will:
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(a) cause the Realty One Companies to conduct the businesses of the
Realty One Companies only in the Ordinary Course of Business, including the
payment of Ordinary Course of Business obligations when such obligations first
become due and payable, except as otherwise provided in Article 2 hereof;
(b) use their Best Efforts to cause the Realty One Companies to
preserve intact the current residential real estate services organizations of
the Realty One Companies, keep available the services of the current officers,
employees, and agents of the Realty One Companies and maintain the relations and
goodwill with customers, landlords, creditors, employees, agents, and all others
having business relationships with the Realty One Companies;
(c) cause the Realty One Companies to own and have good title without
Encumbrance (except Permitted Encumbrances) to all of the assets currently used
and necessary or useful for the operation of the businesses of the Realty One
Companies (except for acquisitions, dispositions, terminations and expirations
made or occurring in the Ordinary Course of Business since the date of the
Interim 2001 Balance Sheets) except for Intellectual Property Assets which shall
be subject of Subsection (d) hereof, including without limitation the following
assets:
(i) all Realty One Services Agreements;
(ii) all furniture, fixtures, equipment, personalty, permits,
licenses, and lease and utility deposits;
(iii) Accounts Receivable;
(iv) except as otherwise excluded herein, receivables under
any loan, financing or any other agreements or any other investment
assets; and
(v) all rights and claims for refunds of Taxes and other
governmental charges.
(d) maintain the interest of the Realty One Companies in the
Intellectual Property Assets as described in Section 3.22 hereof.
(e) During the period from the date hereof to and including the Closing
Date, except (x) as expressly contemplated hereby, (y) pursuant to obligations
listed on Exhibit 3.17(a)(xi) hereto, or (z) as provided in Section 5.3(a)
hereof, without the prior written Consent of Buyer, which shall not be
unreasonably withheld, conditioned or delayed, none of the Realty One Companies
will have:
(i) incurred any liability or obligation of any material
nature (whether accrued, absolute, contingent or otherwise), except in
the Ordinary Course of Business;
(ii) permitted any of its assets to be subjected to any
Encumbrance, except Permitted Encumbrances;
(iii) sold, transferred or otherwise disposed of any assets
except in the Ordinary Course of Business;
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(iv) made any capital expenditure or commitment therefor,
except in the Ordinary Course of Business, provided, however, the
Realty One Companies shall not make or commit to make any capital
expenditures in excess of $10,000 per individual agreement or
commitment or $20,000 in the aggregate;
(v) redeemed, purchased or otherwise acquired any shares of
its capital stock or any option, warrant or other right to purchase or
acquire any such shares;
(vi) borrowed money, except in the Ordinary Course of
Business, or made any loan to any Person;
(vii) written off as uncollectible any note or accounts
receivable, except write-offs in the Ordinary Course of Business
charged to applicable reserves, none of which individually or in the
aggregate is material to any of the Realty One Companies;
(viii) granted any increase in the rate of wages, salaries,
bonuses or other remuneration of any executive employee or other
employees or affiliated sales agents other than the annual increase in
wages and bonuses given in the Ordinary Course of Business as shall
have been approved by Buyer as of the date hereof;
(ix) cancelled or waived any claims or rights of substantial
value;
(x) made any change in any method of accounting or auditing
practice;
(xi) agreed, whether or not in writing, to do any of the
foregoing;
(xii) without the prior Consent of Buyer, taken any
affirmative action, or failed to take any reasonable action within
their or its control, as a result of which any of the changes or events
listed in Section 3.16 is likely to occur.
5.4 MISCELLANEOUS AGREEMENTS AND CONSENTS
Seller and Insignia will use their Best Efforts to, and will cause the
Realty One Companies to use their Best Efforts to: (a) satisfy all the
conditions precedent to their own and all other parties' obligations hereunder;
and (b) obtain Consents necessary or desirable for the consummation of the
transactions contemplated by this Agreement. Seller and Insignia agree, and
agree to cause the Realty One Companies promptly, to execute at the reasonable
request of Buyer before, on or after the Closing Date any documents or materials
related to the transactions contemplated by this Agreement, including, without
limitation, information to auditors respecting the operations of the Realty One
Companies prior to the Closing Date, letters of authority on the Closing Date
and signature cards and other materials evidencing the transfer, if any, of the
bank accounts of the Realty One Companies.
5.5 ACCESS AND INVESTIGATION; DELIVERY
Between the date of this Agreement and the Closing Date, Seller and
Insignia will cause the Realty One Companies to:
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(a) afford Buyer and its Representatives and advisors (collectively,
"Buyer's Advisors") reasonable access to: (i) the Realty One Companies Executive
Officers, and (ii) at locations reasonably designated by Seller and Insignia,
Applicable Contracts, books and records, and other documents and data;
(b) promptly deliver to Buyer any Applicable Contracts, documents,
financial statements, instruments and any other information which is created
after the date of this Agreement (or was otherwise unavailable to or unknown to
any Seller or Realty One Company as of the date of this Agreement) that would
have been required by the terms of this Agreement to be delivered to Buyer by
any Seller or any Realty One Company if such Applicable Contract, document,
financial statements, instruments or other information had been available to or
known to any of Seller and Insignia or any Realty One Company as of the date of
this Agreement, and Seller and Insignia shall describe on a series of Exhibits
5.5, each of which shall be separately dated as of the date of delivery to
Buyer, the identification of the Applicable Contract, document, financial
statements, instruments or other information delivered in accordance with this
Section 5.5 to the same extent as would be required by an applicable Exhibit to
this Agreement if such Applicable Contract, document, financial statements,
instruments or other information had been available to or known to any of Seller
and Insignia or any of the Realty One Companies as of the date of this
Agreement;
(c) promptly deliver or make available to Buyer and Buyer's Advisors
copies of all such Contracts, books and records, and other existing documents
and data as Buyer may reasonably request; and
(d) promptly deliver or make available to Buyer and Buyer's Advisors
such additional financial, operating, and other data and information as Buyer
may reasonably request.
5.6 NOTIFICATION
Between the date of this Agreement and the Closing Date, each of Seller
and Insignia will, and will cause the Realty One Companies to, promptly notify
Buyer in writing if any of Seller and Insignia or any of the Realty One
Companies becomes aware of any fact or condition that causes or constitutes a
Breach of any of representations and warranties of Seller and Insignia as of the
date of this Agreement, or if Seller, Insignia or any of the Realty One
Companies becomes aware of the occurrence after the date of this Agreement of
any fact or condition that would (except as expressly contemplated by this
Agreement) cause or constitute a Breach of any such representation or warranty
had such representation or warranty been made as of the time of occurrence or
discovery of such fact or condition. Should any such fact or condition require
any change in any representations or warranties of Seller, Insignia, or the
Realty One Companies herein if this Agreement were dated the date of the
occurrence or discovery of any such fact or condition, Seller and Insignia will
promptly deliver to Buyer written notice specifying such change (a "Modification
Notice"). During the same period, Seller, Insignia, and each Realty One Company
will promptly notify Buyer of the occurrence of any Breach of any covenant of
Seller and Insignia in this Section 5 or of the occurrence of any event that may
make the satisfaction of the conditions in Section 7 impossible or unlikely.
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5.7 NO NEGOTIATION
Until such time, if any, as this Agreement is terminated pursuant to
Section 9, Seller and Insignia will not, and will not permit the Realty One
Companies or any of their Representatives to, directly or indirectly solicit,
initiate, respond to, or encourage any inquiries or proposals from, discuss or
negotiate with, provide any information to, or consider the merits of any
unsolicited inquiries or proposals from, any Person (other than Buyer) relating
to any transaction involving the sale of the business or assets (other than in
the Ordinary Course of Business and as required in Section 2.6 hereof) of the
Realty One Companies, or any of the capital stock of the Realty One Companies,
or any merger, consolidation, business combination, or similar transaction
involving any of the Realty One Companies.
6. COVENANTS OF BUYER PRIOR TO CLOSING DATE
6.1 APPROVALS OF GOVERNMENTAL BODIES
As promptly as practicable after the date of this Agreement, Buyer
will, and will cause each of its Related Persons to, make all filings required
by Legal Requirements to be made by them to consummate the Contemplated
Transactions. Between the date of this Agreement and the Closing Date, Buyer
will, and will cause each Related Person to, cooperate with Seller and Insignia
with respect to all filings that Seller and Insignia are required by Legal
Requirements to make in connection with the Contemplated Transactions, and
cooperate with Seller and Insignia in obtaining all Consents identified in
Exhibit 3.2 hereof.
6.2 MISCELLANEOUS AGREEMENTS AND CONSENTS
Buyer shall use its Best Efforts to: (a) satisfy all the conditions
precedent to its own and all other parties' obligations hereunder; and (b)
obtain Consents necessary or desirable for the consummation of the transactions
contemplated by this Agreement. Buyer agrees promptly to execute at the
reasonable request of Seller and Insignia before, on or after the Closing Date
any documents or materials related to the transactions contemplated by this
Agreement.
6.3 NOTIFICATION
Between the date of this Agreement and the Closing Date, Buyer will
promptly notify Seller and Insignia in writing if Buyer becomes aware of any
fact or condition that causes or constitutes a Breach of any of representations
and warranties of Buyer as of the date of this Agreement, or if Buyer becomes
aware of the occurrence after the date of this Agreement of any fact or
condition that would (except as expressly contemplated by this Agreement) cause
or constitute a Breach of any such representation or warranty had such
representation or warranty been made as of the time of occurrence or discovery
of such fact or condition. Should any such fact or condition require any change
in any representations or warranties of Buyer herein if this Agreement were
dated the date of the occurrence or discovery of any such fact or condition,
Buyer will promptly deliver to Seller and Insignia a Modification Notice. During
the same period, Buyer will promptly notify Seller and Insignia of the
occurrence of any Breach of any covenant of Buyer in this Section 6 or of the
occurrence of any event that may make the satisfaction of the conditions in
Section 8 impossible or unlikely.
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6.4 TERMINATION OF IFG GUARANTY
Buyer agrees to obtain, prior to the Closing Date, the release of the
Guaranty, dated as of October 16, 1998, executed by IFG in favor of Key Bank in
connection with existing loans from Key Bank to First Ohio Mortgage (the
"Guaranty"), whether by providing to Key Bank a replacement guaranty or other
collateral satisfactory to Key Bank or by obtaining replacement financing for
First Ohio Mortgage's existing loans, allowing termination of existing loans and
of the Guaranty.
7. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE
Buyer's obligation to purchase the Shares and to take the other actions
required to be taken by Buyer at the Closing is subject to the satisfaction, at
or prior to the Closing, of each of the following conditions (any of which may
be waived by Buyer, in whole or in part):
7.1 ACCURACY OF REPRESENTATIONS
Subject to the provisions of Section 8.6, all of the representations
and warranties of Seller and Insignia in this Agreement (considered
collectively), and each of these representations and warranties (considered
individually), must have been accurate in all material respects as of the date
of this Agreement, and must be accurate in all material respects as of the
Closing Date as if made on the Closing Date, without giving effect to any
Modification Notice.
7.2 PERFORMANCE
(a) Each of the covenants and obligations that Seller and Insignia and
the Realty One Companies are required to perform or to comply with pursuant to
this Agreement at or prior to the Closing, must have been duly performed and
complied with in all material respects.
(b) Each document required to be delivered pursuant to Sections 2.4 and
Section 5 must have been delivered.
(c) All of the agreements, other documents or certificates, or actions
required to be entered into, delivered and/or taken at or prior to the Closing
in accordance with Section 2 and Section 5 hereof, including actions or
deliveries of Persons not a party hereto, shall have been entered into,
delivered and or taken, as applicable.
7.3 [INTENTIONALLY OMITTED]
[Intentionally Omitted]
7.4 ADDITIONAL DOCUMENTS
(a) Each of the following documents must have been delivered to Buyer:
(i) an opinion of counsel to Seller and Insignia, dated the
Closing Date, in the form of Exhibit 7.4(a);
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(ii) such other documents as Buyer may reasonably request for
the purpose of (A) enabling its counsel to provide the opinion referred
to in Section 8.4(a), (B) evidencing the accuracy of any of Seller's
and Insignia's representations and warranties, (C) evidencing the
performance by Seller and Insignia of, or the compliance by Seller and
Insignia with, any covenant or obligation required to be performed or
complied with by Seller and Insignia, or (D) evidencing the
satisfaction of any condition referred to in this Section 7.
7.5 NO PROCEEDINGS
There must not have been commenced or Threatened against Buyer, or
against any Person affiliated with Buyer, any Proceeding (a) involving any bona
fide challenge to, or seeking material damages or other relief in connection
with, any of the Contemplated Transactions, or (b) that could reasonably be
expected have the effect of preventing, delaying, making illegal, or otherwise
interfering with any of the Contemplated Transactions.
7.6 NO CLAIM REGARDING STOCK OWNERSHIP OR SALE PROCEEDS
There must not have been made or Threatened by any Person any claim
asserting that such Person (a) is the holder or the beneficial owner of, or has
the right to acquire or to obtain beneficial ownership of, any stock of, or any
other voting, equity, or ownership interest in, any of the Realty One Companies,
or (b) is entitled to all or any portion of the Purchase Price payable for the
Shares. Any corporate action of any of the Realty One Companies necessary to
effectuate the Contemplated Transactions shall have been taken.
8. CONDITIONS PRECEDENT TO SELLER'S AND INSIGNIA'S OBLIGATION TO CLOSE
The obligation of Seller and Insignia to sell the Shares and to take
the other actions required to be taken by Seller and Insignia at the Closing are
subject to the satisfaction, at or prior to the Closing, of each of the
following conditions (any of which may be waived by Seller and Insignia, in
whole or in part):
8.1 ACCURACY OF REPRESENTATIONS
All of Buyer's representations and warranties in this Agreement
(considered collectively), and each of these representations and warranties
(considered individually), must have been accurate in all material respects as
of the date of this Agreement and must be accurate in all material respects as
of the Closing Date as if made on the Closing Date.
8.2 BUYER'S PERFORMANCE
(a) Each of the covenants and obligations that Buyer is required to
perform or to comply with pursuant to this Agreement at or prior to the Closing
(considered collectively), and each of these covenants and obligations
(considered individually), must have been performed and complied with in all
material respects.
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(b) Buyer must have delivered each of the documents required to be
delivered by Buyer pursuant to Section 2.4 and Section 6 and must have delivered
the Closing Date Cash as required of Buyer pursuant to Sections 2.4(b)(i).
(c) All of the agreements, other documents or certificates, or actions
required to be entered into, delivered and/or taken at or prior to the Closing
in accordance with Section 2 and Section 6 hereof, including actions or
deliveries of Persons not a party hereto, shall have been entered into,
delivered and or taken, as applicable.
8.3 [INTENTIONALLY OMITTED]
[Intentionally Omitted]
8.4 ADDITIONAL DOCUMENTS
Buyer must have caused the following documents to be delivered to
Seller and Insignia:
(a) an opinion of counsel to Buyer, dated the Closing Date, in the form
of Exhibit 8.4(a); and
(b) such other documents as Seller and Insignia may reasonably request
for the purpose of (i) enabling their counsel to provide the opinion referred to
in Section 7.4(a), (ii) evidencing the accuracy of any representation or
warranty of Buyer, (iii) evidencing the performance by Buyer of, or the
compliance by Buyer with, any covenant or obligation required to be performed or
complied with by Buyer, (iv) evidencing the satisfaction of any condition
referred to in this Section 8, or (v) otherwise facilitating the consummation of
any of the Contemplated Transactions.
8.5 NO PROCEEDINGS
There must not have been commenced or Threatened against Seller and
Insignia, or against any Person affiliated with Seller and Insignia, any
Proceeding (a) involving any bona fide challenge to, or seeking material damages
or other relief in connection with, any of the Contemplated Transactions, or (b)
that could reasonably be expected have the effect of preventing, delaying,
making illegal, or otherwise interfering with any of the Contemplated
Transactions.
8.6 RELEASE OF INSIGNIA GUARANTY
The Guaranty shall have been released.
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9. TERMINATION
9.1 TERMINATION EVENTS
This Agreement may, by notice given prior to or at the Closing, be
terminated:
(a) by either Buyer or Seller and Insignia if a material Breach of any
provision of this Agreement has been committed by the other party and such
Breach has not been waived;
(b) (i) by Buyer if any of the conditions in Section 7 has not been
satisfied as of the Closing Date or if satisfaction of such a condition is or
becomes impossible (other than through the failure of Buyer to comply with its
obligations under this Agreement) and Buyer has not waived such condition on or
before the Closing Date; or (ii) by Seller and Insignia, if any of the
conditions in Section 8 has not been satisfied of the Closing Date or if
satisfaction of such a condition is or becomes impossible (other than through
the failure of Seller and Insignia to comply with their obligations under this
Agreement) and Seller and Insignia have not waived such condition on or before
the Closing Date;
(c) by mutual consent of Buyer and Seller and Insignia; or
(d) by either Buyer or Seller and Insignia if the Closing has not
occurred (other than through the failure of any party seeking to terminate this
Agreement to comply fully with its obligations under this Agreement) on or
before January 31, 2002, or such later date as the parties may agree upon.
9.2 EFFECT OF TERMINATION
Each party's right of termination under Section 9.1 is in addition to
any other rights it may have under this Agreement or otherwise, and the exercise
of a right of termination will not be an election of remedies. If this Agreement
is terminated pursuant to Section 9.1, all further obligations of the parties
under this Agreement will terminate, except that the obligations in Sections
11.1, 11.2, and 11.3 will survive; provided, however, that if this Agreement is
terminated by a party because of the Breach of the Agreement by the other party
or because one or more of the conditions to the terminating party's obligations
under this Agreement is not satisfied as a result of the other party's failure
to comply with its obligations under this Agreement, the terminating party's
right to pursue all legal remedies will survive such termination unimpaired. In
addition to any right of Seller to terminate this Agreement pursuant to Section
9.1, Seller shall, if applicable, have the right to terminate this Agreement
pursuant to Section 9.3 hereof. In the event of a conflict between the
provisions of Sections 9.1 and/or 9.2 on the one hand and Section 9.3 on the
other, the provisions of Section 9.3 shall govern.
9.3 FINANCING CONTINGENCY
(a) If Buyer fails to close on January 31, 2002, because Buyer is
unable, or otherwise fails, to obtain the HNB Loan or the HCIC Financing, Seller
may elect after January 31, 2002, to terminate this Agreement, whereupon Buyer
shall promptly thereafter reimburse Seller for all of Seller's out of pocket
expenses incurred in connection with the negotiation of this Agreement and the
Contemplated Transactions and all related activities (including accounting and
legal
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costs), up to a maximum reimbursement of $300,000. Except as otherwise expressly
provided in this Section 9.3, such reimbursement shall be Seller's and
Insignia's sole remedy and all further obligations of the parties under this
Agreement will terminate, except that the parties' obligations in Sections 11.2,
and 11.3 will survive.
(b) Notwithstanding the provisions of Section 9.3(a), if Buyer fails to
provide to Seller on or before:
(i) 5:00 p.m., E.S.T., Thursday, January 4, 2002, evidence or
assurance reasonably satisfactory to Seller of HNB's approval (or
waiver by HNB of such approval as a condition to making the HNB Loan)
of Section 2.2(e) of this Agreement (i.e., the agreements between Buyer
and Insignia relating to the prospective participation of Insignia as a
lender in the HNB Loan); or
(ii) 5:00 p.m. E.S.T., Thursday, January 4, 2002, evidence or
assurance reasonably satisfactory to Seller of HNB's approval (or
waiver by HNB of such approval as a condition to making the HNB Loan)
of the terms and conditions of the formation of Buyer including the
contribution of 100% of the equity interests of the Shareholders'
Companies (as such term is used in the HNB Commitment) and of this
Agreement and other documents and agreements supporting and evidencing
the same; or
(iii) 5:00 p.m. E.S.T., Tuesday, January 15, 2002, evidence or
assurance reasonably satisfactory to Seller that Buyer has obtained
commitments from affiliates or "insiders" of Buyer to purchase not less
than $3,000,000 of participation interests in the HCIC Financing; or
(iv) 5:00 p.m. E.S.T., Tuesday, January 15, 2002, evidence or
assurance reasonably satisfactory to Seller that Key Bank has agreed to
release the guaranty of Insignia of the Key Bank line of credit
financing to First Ohio Mortgage at (or before) a January 31, 2002,
Closing of the Contemplated Transactions; or
(v) 5:00 p.m. E.S.T., Friday, January 18, 2002, evidence or
assurance reasonably satisfactory to Seller that Buyer and HNB have
mutually approved in all material respects the terms and provisions of
the documents and agreements governing and constituting the HNB Loan,
including the collateral securing Buyer's obligations under the HNB
Loan; or
(vi) 5:00 p.m. E.S.T., Friday, January 18, 2002, evidence or
assurance reasonably satisfactory to Seller that HNB has completed to
HNB's satisfaction legal and financial due diligence with respect to
the Contemplated Transactions, the prospective HNB Loan and the parties
thereto (or that HNB has waived such completion as a condition to
making the HNB Loan); or
(vii) 5:00 p.m. E.S.T., Friday, January 18, 2002, evidence or
assurance reasonably satisfactory to Seller that Buyer and HCIC have
mutually approved in all material respects the terms and provisions of
the documents and agreements governing and constituting the HCIC
Financing, including the collateral securing Buyer's obligations under
the HCIC Financing; or
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(viii) 5:00 p.m. E.S.T., Friday, January 18, 2002, evidence or
assurance reasonably satisfactory to Seller that Buyer, HCIC and all
participants in the HNB Loan have mutually approved in all material
respects the terms and provisions of an intercreditor agreement;
then Seller may at any time after the time referenced at the beginning of any
applicable subparagraphs (i)-(viii) immediately above and prior to January 28,
2002, at its option, terminate this Agreement by delivering a written
termination notice via facsimile to Buyer, which notice shall specify the
specific failure(s) of Buyer by reference to one or more of subparagraphs
(i)-(viii) above of this Section 9.3(b), whereupon Buyer shall have the longer
of 48 hours following the transmission time of Seller's notice or 5:00 p.m.
E.S.T. of the next business following the date on which Seller transmits its
notice (the "cure period") to cure the failure by providing to Seller the
formerly absent evidence or assurance. If Buyer fails to cure the failure during
the applicable cure period, then, at Seller's option upon facsimile notice to
Buyer, this Agreement shall terminate as of the time of such notice and none of
the parties shall have any further obligation to any other parties hereunder
except that Sections 11.1, 11.2 and 11.3 of this Agreement shall survive.
(c) If HNB fails or refuses to make the HNB Loan because any one or
more of the following conditions in the HNB Commitment are not satisfied:
(i) Receipt by HNB, to its satisfaction, of an opening balance
sheet of Buyer reviewed by PricewaterhouseCoopers LLP indicating a
positive net worth after giving effect to the Contemplated Transactions
and all financing relating thereto, including, without limitation, the
HNB Loan and the HCIC Financing; or
(ii) No law or regulation in effect as of December 28, 2001,
prevents or prohibits HNB from making the HNB Loan in accordance with
the terms and conditions contained in the HNB Commitment; or
(iii) Buyer does not provide information to HNB that is false,
incomplete, or inaccurate in any material respect.
then Seller may elect to terminate this Agreement at any time after the earlier
of (1) January 31, 2002, or (2) the date HNB notifies or informs Buyer to the
effect that it will not make the HNB Loan because of the non-satisfaction of one
or more of the foregoing three conditions, whereupon Buyer shall promptly
thereafter reimburse Seller for all of Seller's out of pocket expenses incurred
in connection with the negotiation of this Agreement and the Contemplated
Transactions and all related activities, up to a maximum reimbursement of
$300,000. The failure of Buyer to obtain the HNB Loan because of the failure or
refusal by HNB referenced in this Section 9.3(c) shall be deemed a Breach of
this Agreement by Buyer and Seller may, in addition to collecting the
reimbursement provided for in this Section 9.3(c), pursue other legal remedies
for breach of contract available under applicable law. The provisions of Section
11.2 and 11.3 of this Agreement shall survive any such termination.
(d) If HCIC fails or refuses to make the HCIC Financing because any one
or more of the following conditions in the HCIC Commitment are not satisfied:
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(i) a minimum of fifty percent (50%) (or such higher amount as
may be demanded by the senior lender) of the floating rate debt of the
Issuer and Guarantors must be hedged against rate increases at levels
and in a manner acceptable to HCIC; or
(ii) Buyer pays Transaction Expenses (as defined in the HCIC
Commitment) at or prior to closing; or
(iii) Buyer must have additional liquidity in the form of cash
on hand or committed borrowing availability of not less than Two
Million Dollars ($2,000,000) at closing; or
(iv) Review and approval by HCIC of documents evidencing the
existing Insignia Relocation Loan; or
(v) Review and approval by HCIC of terms of Stock Restriction
Agreement (as defined in the HCIC Commitment) negotiated by Buyer;
then Seller may elect to terminate this Agreement at any after the earlier of
(1) January 31, 2002, or (2) the date HCIC notifies or informs Buyer to the
effect that it will not make the HCIC Financing because of the non-satisfaction
of one or more of the foregoing five conditions, whereupon Buyer shall promptly
thereafter reimburse Seller for all of Seller's out of pocket expenses incurred
in connection with the negotiation of this Agreement and the Contemplated
Transactions and all related activities, up to a maximum reimbursement of
$300,000. The failure of Buyer to obtain the HCIC Financing because of the
failure or refusal by HCIC referenced in this Section 9.3(d) shall be deemed a
Breach of this Agreement by Buyer and Seller may, in addition to collecting the
reimbursement provided for in this Section 9.3(d), pursue other legal remedies
for breach of contract available under applicable law. The provisions of Section
11.2 and 11.3 of this Agreement shall survive any such termination.
(e) Seller shall have no right to terminate the Agreement under this
Section 9.3(a)-(d) if:
(i) HNB or HCIC refuses or fails to make the HNB Loan or the
HCIC Financing, respectively, on the grounds that either (A) Seller
provided material information to HNB or HCIC that was materially
inaccurate at the time provided or (B) Buyer provided material
information to HNB or HCIC that was materially inaccurate at the time
provided and such information was provided by Seller to Buyer and was
materially inaccurate at the time provided by Seller; or
(ii) HNB refuses or fail to make the HNB Loan on the grounds
that a law or regulation enacted or promulgated after December 28,
2001, prevents or prohibits HNB from making the HNB Loan in accordance
with the terms and conditions contained in the HNB Commitment: or
(iii) Seller or Insignia is in Breach of Article 3 hereof or
of Seller's or Insignia's covenants or agreements under this Agreement.
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(f) Buyer shall diligently use its Best Efforts to: (i) obtain no later
than January 31, 2002, the HNB Loan in accordance with the HNB Commitment and
the HCIC Financing in accordance with the HCIC Commitment, and (ii)
expeditiously satisfy the conditions precedent set forth in HNB Commitment and
the HCIC Commitment. Buyer shall promptly provide to Seller and Insignia drafts
of material HNB Loan documents and HCIC Financing documents proposed by HNB and
HCIC, respectively, and their respective counsel. Buyer shall keep Seller
informed of the status of Buyer's negotiations with HNB and HCIC and with any
participants in the HNB Loan or the HCIC Financing, including negotiations
related to the satisfaction (or waiver by HNB or HCIC) of conditions precedent
set forth in the HNB Commitment and the HCIC Commitment.
(g) Buyer represents and warrants that it has no reasonable basis to
believe that it will be unable to obtain the HNB Loan and the HCIC Financing in
accordance with the terms and conditions of the HNB Commitment and the HCIC
Commitment. Buyer will promptly notify Seller if the foregoing representation
becomes inaccurate.
10. INDEMNIFICATION; REMEDIES
10.1 SURVIVAL; RIGHT TO INDEMNIFICATION NOT AFFECTED BY KNOWLEDGE
All representations and warranties in this Agreement and in any
certificate or document delivered pursuant to this Agreement will survive the
Closing until the second anniversary of the Closing Date, except as otherwise
provided below:
(a) The representations and warranties of Seller and Insignia contained
in Sections 3.11 and 3.13 of this Agreement shall survive until the applicable
statute of limitations.
(b) The representations and warranties of Seller and Insignia contained
in Sections 3.2(a) and 3.3 of this Agreement shall survive indefinitely, and the
representations and warranties of Seller and Insignia in Sections 3.17(a)(viii),
and 3.17(b)(ii) of this Agreement shall survive until the third anniversary of
the Closing Date.
(c) The representations and warranties of Buyer contained in Section
4.2(a) of this Agreement shall survive indefinitely.
Provided, further, that, if prior to the expiration of the survival period with
respect to any claim for indemnity hereunder, the indemnifying parties shall
have been notified of such claim with reasonable specificity, with an estimate
of the amount of the damages thereunder, if practicable, the claim shall have
been submitted to arbitration or filed as applicable within 90 days after the
otherwise applicable expiration date of the survival period, and such claim
shall not have been finally resolved before the expiration of such survival
period, any representation, warranty, covenant or agreement that is the basis
for such claim shall continue to survive as to such claim and shall remain a
basis for indemnity as to such claim until such claim is finally resolved. The
right to indemnification, payment of damages or other remedy based on such
representations, warranties, covenants, and obligations will not be affected by
any investigation conducted with respect to, or any Knowledge acquired (or
capable of being acquired) at any time, whether before or after the execution
and delivery of this Agreement or the Closing Date, with respect to the
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accuracy or inaccuracy of or compliance with, any such representation, warranty,
covenant, or obligation. The waiver of any condition based on the accuracy of
any representation or warranty, or on the performance of or compliance with any
covenant or obligation, will not affect the right to indemnification, payment of
damages, or other remedy based on such representations, warranties, covenants,
and obligations.
10.2 INDEMNIFICATION BY SELLER AND INSIGNIA
Seller and Insignia will, jointly and severally, indemnify, defend and
hold harmless Buyer, the Realty One Companies, and their respective officers,
directors, controlling persons, and affiliates (collectively, the "Buyer
Indemnified Persons") for, and will pay to the Buyer Indemnified Persons the
amount of, any loss, liability, claim, damage, or expense (including reasonable
costs of investigation and defense and reasonable professional fees), whether or
not involving a third-party claim (collectively, "Buyer Loss"), arising,
directly or indirectly, from or in connection with:
(a) any Breach of any representation or warranty made by Seller or
Insignia in this Agreement as if such representation or warranty were made on
and as of the Closing Date without giving effect to any Modification Notice;
(b) any Breach by Seller or Insignia of any covenant or obligation of
Seller or Insignia in this Agreement;
(c) any litigation pending on the Closing Date against the Realty One
Companies or Seller or Insignia (to the extent related to the business or assets
of the Realty One Companies), including, but not limited to, any such liability,
damage, cost, or expense incurred or paid by Buyer or any of the Realty One
Companies on account of being required to comply with any Order issued in any
such litigation that restricts or otherwise affects Buyer's ability to conduct
the business of the Realty One Companies after the Closing Date in accordance
with the manner in which such businesses were conducted by Seller immediately
prior to the Closing Date, provided, however, that Seller shall have no
indemnification obligation under this Agreement or otherwise for Losses arising
out of or related to business conduct restrictions required under the Re/Max
Orders or business conduct restrictions required under any Orders issued in
respect of any other suit that is similar to the Re/Max Litigation, so long as
the business conduct restrictions imposed by any such Order are not inconsistent
with, and no more restrictive or extensive than, the business restrictions under
the Re/Max Orders;
(d) any Change of Control Payments;
(e) any conduct, action, or inaction of Seller, Insignia, the Realty
One Companies, any Related Person or Representative thereof, occurring, arising
or related to the period prior to the Closing Time (whether known or unknown on
the Closing Date or at the Closing Time), to the extent attributable to such
period, or any circumstances related to the operation, management or ownership
of the Realty One Companies by Seller, Insignia, the Realty One Companies or
Related Person or Representative thereof occurring, arising or related to the
period on or prior to the Closing Time (whether known or unknown on the Closing
Date or at the Closing Time), to the extent attributable to such period, except
to the extent that any liability arising in connection
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with any of the above is included in the Continuing Liabilities or is otherwise
Buyer's obligation pursuant to Section 2.7(d);
(f) any liabilities or obligations of any nature (whether known or
unknown and whether absolute, accrued, contingent, or otherwise) accruing,
occurring, arising or related to the period prior to the Closing Time, to the
extent attributable to such period, except for the Continuing Liabilities or is
otherwise Buyer's obligation pursuant to Section 2.7(d); or
(g) any amounts representing fees and expenses or other costs of any
kind of any of Seller, Insignia and/or any of the Realty One Companies arising
out of or in connection with the Contemplated Transactions, to the extent that
any Realty One Company or Buyer or a related Person thereof shall become liable
therefor except to the extent that such amounts are expressly allocated under
this Agreement to Buyer or to the Realty One Companies as post-Closing Time
Subsidiaries of Buyer.
Except as specifically provided below, the indemnification obligations of Seller
and Insignia pursuant to Section 10.2(c) through (g) exist regardless of whether
such obligations may also arise as a Breach under Section 10.2(a) or (b) above.
Notwithstanding the preceding sentence, the sole indemnification obligations of
Seller and Insignia under this Agreement with respect to a Buyer Loss arising
from the ownership, development, use, or operation or CARS, VPA or PowerChooser
by Buyer after the Closing Time (including, but not limited to, any such
indemnification obligations arising out of any claims relating to the
feasibility, effectiveness, workability, or fitness for any particular use) are
limited to any breach by Seller of a representation or warranty set forth in
Section 3.22 hereof. The remedies provided in this Section 10.2 will not be
exclusive of or limit any other remedies that may be available to Buyer or the
other Buyer Indemnified Persons arising from (i) any fraud, deceit, or
intentional misrepresentation by Seller, Insignia, or a Control Affiliate of
either of them, (ii) arising from a breach of a covenant to be performed by
Seller, Insignia, or a Control Affiliate of either of them under the terms of
this Agreement prior to, at, or after the Closing, or (iii) any liability under
the federal securities laws and regulations.
10.3 INDEMNIFICATION BY BUYER
Buyer will indemnify, defend and hold harmless Seller and Insignia and
their respective officers, directors, controlling persons, and affiliates
(collectively, the Seller Indemnified Persons"), and will pay to Seller and
Insignia and their respective officers, directors, controlling persons, and
affiliates the amount of, any loss, liability, claim, damage, or expense
(including the reasonable costs of investigation and defense and reasonable
attorney's fees), whether or not involving a third-party claim ("Seller Loss")
arising, directly or indirectly, from or in connection with
(a) any Breach of any representation or warranty made by Buyer in this
Agreement, the Exhibits hereof, Buyer's Modification Notices or any other
certificate or document delivered by Buyer pursuant to this Agreement;
(b) any Breach by Buyer of any covenant or obligation of Buyer in this
Agreement; or
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(c) regardless of whether it may also constitute a Breach under Section
(a) or (b) above, any loss, liability, claim, damage, expense (including costs
of investigation and defense and reasonable attorneys' fees) arising from or
relating to: (i) any conduct, action, or inaction of the Realty One Companies,
any Related Person or Representative thereof, occurring, arising or related to
the period after the Closing Time; or (ii) the operation, management or
ownership of the Realty One Companies, arising or related to the period after
the Closing Time (whether known or unknown on the Closing Date) and including
liability arising in connection with the Continuing Liabilities (but excluding
the Excluded Liabilities).
10.4 PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS
(a) Promptly after receipt by an indemnified party under Section 10.2
or 10.3 of notice of the commencement of any demand, claim or Proceeding against
it, such indemnified party will, if a claim is to be made against an
indemnifying party under such Section, give notice to the indemnifying party of
the commencement of such claim within twenty (20) days of the notice of such
demand, claim or Proceeding, but the failure to notify the indemnifying party
will not relieve the indemnifying party of any liability that it may have to any
indemnified party, except to the extent that the indemnifying party demonstrates
that the defense of such action is prejudiced by the indemnifying party's
failure to give such notice.
(b) If any Proceeding referred to in Section 10.4(a) is brought against
an indemnified party and it gives notice to the indemnifying party of the
commencement of such Proceeding, the indemnifying party will be entitled to
participate in such Proceeding and, to the extent that it wishes (unless the
indemnifying party is also a party to such Proceeding and the indemnified party
determines in good faith that joint representation would be inappropriate), to
assume the defense of such Proceeding with counsel satisfactory to the
indemnified party and, after notice from the indemnifying party to the
indemnified party of its election to assume the defense of such Proceeding, the
indemnifying party will not, as long as it diligently conducts such defense, be
liable to the indemnified party under this Article 10 for any fees of other
counsel or any other expenses with respect to the defense of such Proceeding, in
each case subsequently incurred by the indemnified party in connection with the
defense of such Proceeding, other than reasonable costs of investigation. If the
indemnifying party assumes the defense of a Proceeding, (i) no compromise or
settlement of such claims may be effected by the indemnifying party without the
indemnified party's consent, which consent will not be unreasonably withheld,
delayed, or conditioned, unless (A) there is no finding or admission of any
violation of Legal Requirements or any violation of the rights of any
indemnified person and no effect on any other claims that may be made against
the indemnified party, and (B) the sole relief provided is monetary damages that
are paid in full by the indemnifying party; and (ii) the indemnified party will
have no liability with respect to any compromise or settlement of such claims
effected without its consent. If notice is given to an indemnifying party of the
commencement of any Proceeding and the indemnifying party does not, within
thirty (30) days after the indemnified party's notice is given, give notice to
the indemnified party of its election to assume the defense of such Proceeding,
the indemnifying party will be bound by any determination made in such
Proceeding or any compromise or settlement effected by the indemnified party.
(c) Notwithstanding the foregoing, if an indemnified party determines
in good faith that there is a reasonable probability that a Proceeding may
adversely affect it or its affiliates
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other than as a result of monetary damages for which it would be entitled to
indemnification under this Agreement, the indemnified party may, by notice to
the indemnifying party, assume the exclusive right to defend, compromise, or
settle such Proceeding, but the indemnifying party will not be bound by any
determination of a Proceeding so defended or any compromise or settlement
effected without its consent (which may not be unreasonably withheld).
(d) Subject to Section 11.2 hereof, Seller and Insignia hereby consent
to the non-exclusive jurisdiction of any court in which a Proceeding is brought
against any Indemnified Person for purposes of any claim that an Indemnified
Person may have under this Agreement with respect to such Proceeding or the
matters alleged therein, and agree that process may be served on Seller and
Insignia with respect to such a claim anywhere in the world.
(e) Notwithstanding the provisions of this Section 10.4, the parties
understand and agree that the Realty One Companies, through their inside
counsel, will continue to handle certain routine cases (i.e., those involving
claims arising in the Ordinary Course of Business of the Realty One Companies
and involving claims of a nature and amount as are being handled by such inside
counsel as of the date of this Agreement) that are currently pending or that may
arise after the Closing Time that are subject to the indemnification obligation
of Seller and Insignia hereunder. All such routine cases shall remain subject to
the indemnification obligations set forth in Section 10.2 above, and Seller
shall reimburse Buyer for any out-of-pocket expenses incurred by the Realty One
Companies in connection with the handling of such cases and for a portion of the
total compensation (including salary and benefits, but not attributed overhead)
of such inside counsel, on a pro rata basis based on the amount of time spent on
such cases relative to the time spent on all cases and other matters. Buyer and
the Realty One Companies shall cause such inside counsel to confer with Seller
and Insignia with respect to such cases and Seller and Insignia shall cooperate
with such inside counsel to defend, settle, or otherwise resolve such claims.
Buyer and the Realty One Companies will not settle or pay any amounts with
respect to any such routine claims without the approval of Seller or Insignia,
which shall not be unreasonably withheld, delayed, or conditioned.
10.5 PROCEDURE FOR INDEMNIFICATION--OTHER CLAIMS
A claim for indemnification for any matter not involving a third-party
claim may be asserted by notice to the party from whom indemnification is
sought.
10.6 INDEMNITY LIMITATIONS--SELLER AND INSIGNIA
(a) Seller and Insignia will have no liability (for indemnification or
otherwise) under Section 10.2(a) or (b) until the total of all Buyer Losses with
respect to such matters exceeds $200,000; provided, however, that if the total
of the Buyer Losses exceeds $200,000, Seller and Insignia shall be liable for
the total amount of all Buyer Losses from the first dollar thereof, and not
merely the amount by which such Buyer Losses exceed $200,000. Notwithstanding
the foregoing general limitation or any other provision of this Agreement
seemingly to the contrary, this Section 10.6(a) shall not apply to the costs and
obligations allocated to Seller and Insignia under Sections 2.5, 2.7(c), 2.7(d),
2.8, 2.9, 2.10, 2.14, and 10.9 hereof and shall not limit the liabilities and
obligations of Seller and Insignia described therein.
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(b) Notwithstanding anything in this Agreement to the contrary, the
aggregate Buyer Losses for which Seller and Insignia shall be liable under this
Section 10 shall be limited to the amount of Purchase Price received by Seller
and Insignia; provided, however, that such limitation shall not apply to any
Breach of any of Seller's or Insignia's representations and warranties of which
Seller or Insignia had Knowledge at the time at which such representation and
warranty is made or for any intentional Breach by Seller or Insignia of any of
Seller's or Insignia's covenants or obligations contained herein.
(c) Seller and Insignia will have no liability (for indemnification or
otherwise) with respect to any Buyer Losses that may arise out of any real
estate transaction entered into by or on behalf of any of the Realty One
Companies in the Ordinary Course of Business either prior to or at any time
after the Closing Time to the extent that Buyer or any of the Realty One
Companies receives or is entitled to receive and retain the commissions or other
revenues attributable to such transaction after the Closing Time, except to the
extent that Seller or Insignia had Knowledge of such claim prior to the Closing
Time, was under an obligation to disclose the same, and failed to disclose the
same.
10.7 INDEMNITY LIMITATIONS--BUYER
(a) Buyer will have no liability (for indemnification or otherwise)
under Section 10.3(a) until the total of all Seller Losses with respect to such
matters exceeds $200,000; provided, however, that if the total of Seller Losses
exceeds $200,000, Buyer shall be liable for the total amount of all Seller
Losses from the first dollar thereof, and not merely the amount by which such
Seller Losses exceed $200,000. Notwithstanding the foregoing general limitation
or any other provision of this Agreement seemingly to the contrary, this Section
10.7(a) shall not apply to the obligations of Buyer under Sections 2.5, 2.7(b),
2.7(d), and 2.15 hereof and shall not limit the liabilities and obligations of
Buyer described therein.
(b) Notwithstanding anything in this Agreement to the contrary, the
aggregate Damages for which Buyer shall be liable under this Section 10.7 shall
be limited to the aggregate Purchase Price paid to Seller and Insignia;
provided, however, that such limitations shall not apply to any Breach of any of
Buyer's representations and warranties of which Buyer had Knowledge at the time
at which such representation and warranty is made or for any intentional Breach
by Buyer of any of Buyer's covenants or obligations contained herein.
10.8 EFFECT OF INSURANCE PROCEEDS RECEIVED; SUBROGATION;
INDEMNIFICATION PAYMENT AS ADJUSTMENT TO PURCHASE PRICE
(a) The amount of any indemnification payable under this Article 10
shall be net of the receipt of insurance proceeds to the extent that such
proceeds are actually received (or any reservation of rights is resolved) and
specifically related to the claim otherwise covered by the indemnity provisions
herein to the indemnified party under a policy of insurance covering the loss
giving rise to the claim. The parties agree to respond within a reasonable time
to any inquiry by the other parties as to the status of any such insurance
payment.
(b) An indemnifying party shall be subrogated to any claims or rights
of the indemnified parties as against any other Persons with respect to any
Buyer Loss or Seller Loss,
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as applicable, paid by the indemnifying party under Section 10.2 or 10.3, as
applicable. The indemnified parties shall cooperate with the indemnifying
parties to a reasonable extent, at the indemnifying parties' expense, in the
assertion by the indemnifying parties of any such claim against such other
Persons.
(c) If Buyer or any Seller makes any payment to an indemnified party
pursuant to this Article 10, then such amount shall be treated as an adjustment
to the Purchase Price.
10.9 CERTAIN CONTINUING LITIGATION
Notwithstanding the provisions of Section 10.2 and the provisions of
Section 10.4, with respect to those litigation matters set forth on Exhibit
10.9, Seller and Insignia shall assume and retain authority and responsibility
for all negotiations and all litigation with respect to those matters, including
selection of counsel of its choice to represent the Realty One Companies in any
negotiations and litigation. Seller and Insignia shall diligently attempt to
resolve all disputed issues. Seller and Insignia shall be responsible for
payment of all legal fees, costs, and expenses in connection with such matters,
including Seller's and Insignia's legal fees and expenses and legal fees and
expenses of Buyer to the extent necessary to advise Buyer with respect to
settlement of such matters. Seller and Insignia agree to keep Buyer reasonably
informed in a timely manner of the status of all items in Exhibit 10.9,
including all negotiation and litigation strategy with respect to the matters.
Buyer shall make available at Seller's and Insignia's expense any witnesses and
any relevant non-privileged documents that Seller and Insignia may determine are
reasonably necessary or appropriate in dealing with such matters. No compromise
or settlement of such claims may be effected by Seller or Insignia without the
Buyer's consent (which consent Buyer agrees not to unreasonably withhold or
delay), unless (i) there is no finding or admission of any rights of any person
and no effect on other claims that may be made against any Realty One Company,
and (ii) the sole relief provided is monetary damages that are paid in full by
Seller or Insignia.
10.10 TIME LIMITATION
If the Closing occurs, Seller and Insignia will have no liability for
indemnification under Section 10.2(e) or Section 10.2(f) hereof unless on or
before the second anniversary of the Closing Date Buyer notifies Seller and
Insignia of a bona fide claim specifying the factual basis of that claim in
reasonable detail to the extent then known by Buyer.
11. GENERAL PROVISIONS
11.1 EXPENSES
Except as otherwise expressly provided in this Agreement, each party to
this Agreement will bear its respective expenses incurred in connection with the
preparation, execution, and performance of this Agreement and the Contemplated
Transactions, including all fees and expenses of agents, representatives,
counsel, and accountants. In the event of termination of this Agreement, the
obligation of each party to pay its own expenses will be subject to any rights
of such party arising from a Breach of this Agreement by another party.
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11.2 MANDATORY ARBITRATION
(a) Any controversy or claim between or among the parties hereto
including but not limited to those arising out of or relating to this Agreement,
including any claim based on or arising from an alleged tort (but excluding the
enforcement of specific relief under Section 2.8(e) hereof, which shall be
resolved in the manner prescribed therein and disputes under Section 2.8 hereof,
all of which shall be governed by the terms thereof), shall be determined by
binding arbitration in accordance with the Federal Arbitration Act (or, if not
applicable, the applicable Ohio law), the rules of practice and procedure for
the arbitration of commercial disputes of the AAA, and the "Special Rules" set
forth in paragraph (b) below. In the event of any inconsistency, the Special
Rules shall control. Judgment upon any arbitration award may be entered in any
court having jurisdiction. Any party to this Agreement may bring an action,
including a summary or expedited proceeding, to compel arbitration of any
controversy or claim to which this Agreement applies in any court having
jurisdiction over such action.
(b) The following shall constitute the "Special Rules" which shall be
applicable to any arbitration commenced under this Agreement: (i) the
arbitration shall be conducted in Chicago, Illinois, and administered by AAA,
who will appoint an arbitrator; (ii) all arbitration hearings will be commenced
within 90 days of the demand for arbitration, provided that, the arbitrator
shall, upon a showing of cause, be permitted to extend the commencement of such
hearing for up to an additional 60 days; (iii) the costs and expenses of the
arbitrator and reasonable costs and expenses of all parties to such arbitration,
including professional fees, shall be borne by the party or parties determined
by the arbitrator, who shall, in making such determination, take into account
the relative merits of the positions contended by the parties and the good faith
efforts of the parties in attempting to settle the matter without resort to
arbitration, but the arbitrator shall not take into consideration the relative
ability of the parties to pay such fees, costs, and expenses.
(c) No Person shall be entitled to pursue an indemnification claim
arising under Article 10 for resolution by arbitration unless and until: (i)
such claim, together with any other claims of such Person, involves one or more
matters or controversies aggregating $25,000 or more; or (ii) at least six
months have elapsed since such Person became aware of such claim; or (iii) the
claim would otherwise become subject to extinguishment within 180 days under
Article 10 because of the lapse of time.
11.3 CONFIDENTIALITY; PUBLIC ANNOUNCEMENT
(a) Unless consented to by Seller in advance in writing or required by
Legal Requirements, prior to the Closing, Buyer shall, and shall cause its
Subsidiaries and Representatives to, keep this Agreement strictly confidential
and may not make any disclosure of this Agreement to any Person. No public
announcement or similar publicity with respect to this Agreement or the
Contemplated Transactions will be issued prior to the Closing, except as
required by applicable federal securities law or the rules of the New York Stock
Exchange, and such announcement will be made, if at all, at such time and in
such manner as Buyer and Seller jointly determine, subject to Insignia's
obligation pursuant to applicable federal securities law or the rules of the New
York Stock exchange.
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(b) Unless consented to by Buyer in advance or required by applicable
federal securities law or the rules of the New York Stock Exchange or otherwise
required by Legal Requirements, prior to the Closing, Seller shall, and shall
cause the Realty One Companies to, keep this Agreement strictly confidential and
may not make any disclosure of this Agreement to any Person.
(c) Seller and Buyer will consult with each other concerning the means
by which the Realty One Companies' employees, clients, customers, and others
having dealings with the Realty One Companies will be informed of the
Contemplated Transactions, and Buyer will have the right to be present for any
such communication. Buyer and Seller will cooperate with and assist each other
in the preparation of anticipatory press releases and public announcements.
11.4 NOTICES
All notices, Consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given when (i)
delivered by hand (with written confirmation of receipt), (ii) sent by facsimile
(with written confirmation of receipt), provided that a copy is mailed by
registered mail, return receipt requested, or (iii) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses or facsimile
numbers (as applicable) set forth within Section 11.4 (or to such other
addresses and facsimile numbers as a party may designate by notice to the other
parties).
(a) If to Insignia or Seller, to:
Insignia Financial Group, Inc.
000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Office of the Chairman
and to: Insignia Financial Group, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: General Counsel & Secretary
with copy to: Xxxxxx & Xxxxxxxx, PLLC
000 Xxxxxx Xxxxxx, Xxxxx 0000
XxxXxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: X. Xxxxx Green, Esq.
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(b) If to Buyer, to:
Real Living, Inc.
c/o HER, Inc.
Administrative Offices
00 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Xx., President
with copy to: Porter, Wright, Xxxxxx & Xxxxxx LLP
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
11.5 JURISDICTION
Subject to the terms of Section 11.2, any action or proceeding seeking
to enforce any provision hereof or based on any right arising out of this
Agreement may be brought against any of the parties in the courts of the State
of Ohio or, if it has or can acquire jurisdiction, in the United States District
Court for the Northern District of Ohio, and each of the parties consents to the
jurisdiction of such courts (and of the appropriate appellate courts) in any
such action or proceeding and waives any objection to venue laid therein.
Process in any action or proceeding referred to in the preceding sentence may be
served on any party anywhere in the world.
11.6 FURTHER ASSURANCES
The parties agree (i) to furnish upon request to each other such
further information, (ii) to execute and deliver to each other such other
documents, and (iii) to do such other acts and things, all as the other party
may reasonably request for the purpose of carrying out the Contemplated
Transactions and the intent of this Agreement and the documents referred to in
this Agreement.
11.7 WAIVER
The rights and remedies of the parties to this Agreement are cumulative
and not alternative. Neither the failure nor any delay by any party in
exercising any right, power, or privilege under this Agreement or the documents
referred to in this Agreement will operate as a waiver of such right, power, or
privilege, and no single or partial exercise of any such right, power, or
privilege will preclude any other or further exercise of such right, power, or
privilege or the exercise of any other right, power, or privilege. To the
maximum extent permitted by applicable law, (i) no claim or right arising out of
this Agreement or the documents referred to in this Agreement can be discharged
by one party, in whole or in part, by a waiver or renunciation of the claim or
right unless in writing signed by the other party; (ii) no waiver that may be
given by a party will be applicable except in the specific instance for which it
is given; and (iii) no notice to or demand on one party will be deemed to be a
waiver of any obligation of such party
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or of the right of the party giving such notice or demand to take further action
without notice or demand as provided in this Agreement or the documents referred
to in this Agreement.
11.8 ENTIRE AGREEMENT; MODIFICATION
This Agreement supersedes all prior agreements between the parties with
respect to its subject matter (including the Letter of Intent between Buyer and
Insignia, dated October 10, 2001, as amended and supplemented), other than the
Confidentiality Agreement executed by Insignia and Buyer, dated as of June 27,
2001 (the "Confidentiality Agreement") and, together with the Confidentiality
Agreement, constitute (along with the documents referred to in this Agreement) a
complete and exclusive statement of the terms of the agreement between the
parties with respect to its subject matter. This Agreement may not be amended
except by a written agreement executed by the party to be charged with the
amendment.
11.9 ASSIGNMENTS; SUCCESSORS; NO THIRD-PARTY RIGHTS
Neither Insignia, Seller, nor Buyer may assign any of its rights under
this Agreement without the prior consent of Buyer or Insignia, as applicable.
Subject to the preceding sentence, this Agreement will apply to, be binding in
all respects upon, and inure to the benefit of the personal representatives,
executors, successors, and permitted assigns of the parties. Nothing expressed
or referred to in this Agreement will be construed to give any Person other than
the parties to this Agreement any legal or equitable right, remedy, or claim
under or with respect to this Agreement or any provision of this Agreement. This
Agreement and all of its provisions and conditions are for the sole and
exclusive benefit of the parties to this Agreement and their successors and
assigns.
11.10 SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable by
any court of competent jurisdiction, the other provisions of this Agreement will
remain in full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
11.11 SECTION HEADINGS; EXHIBITS; CONSTRUCTION
The headings of Sections in this Agreement are provided for convenience
only and will not affect its construction or interpretation. All references to
"Section" or "Sections" refer to the corresponding Section or Sections of this
Agreement. All references to "Exhibits" refer to the numbered exhibits attached
to this Agreement, which are hereby incorporated into this Agreement. All words
used in this Agreement will be construed to be of such gender or number as the
circumstances require. Unless otherwise expressly provided, the word "including"
does not limit the preceding words or terms. The parties, in acknowledgement
that all of them have been represented by counsel and that this Agreement has
been carefully negotiated, agree that the construction and interpretation of
this Agreement and other documents entered into in connection herewith shall be
construed neutrally in accordance with their plain meaning; and the construction
and interpretation thereof shall not be affected by the identity of the party or
parties under whose direction or at whose expense this Agreement and such
documents were prepared or drafted.
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11.12 GOVERNING LAW
This Agreement will be governed by the laws of the State of Ohio
without regard to conflicts of laws principles.
11.13 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original copy of this Agreement and all of which,
when taken together, will be deemed to constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
THIS SPACE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOLLOW
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IFG:
INSIGNIA FINANCIAL GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Xxxxx X. Xxxxxxxx, Office of the Chairman
ESG:
INSIGNIA ESG, INC.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Xxxxx X. Xxxxxxxx, Vice President
SELLER:
INSIGNIA RO, INC.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Xxxxx X. Xxxxxxxx, Vice President
BUYER:
REAL LIVING, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Xxxxxx X. Xxxxx, Xx., President and Chief
Executive Officer
JOINDER AGREEMENT
The undersigned is executing this Agreement only for the purpose of the
covenants contained in Section 2.16 hereof.
REALTY ONE, INC.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Xxxxx X. Xxxxxxxx, Vice President
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GUARANTY OF PERFORMANCE
The undersigned hereby guarantees performance of the obligations of
Buyer under the foregoing Agreement to the extent that such obligations are to
be performed prior to or at the Closing, but not thereafter.
HER, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Xxxxxx X. Xxxxx, Xx., President and Chief
Executive Officer
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