Exhibit 5
EXECUTION COPY
STOCK PURCHASE AGREEMENT
dated December 16, 2001
among
CENDANT CORPORATION
and
CARDIGAN ACQUISITION CORPORATION
and
THE XXXXXXX FUNDING GROUP, INC.
and
XXXXXXX MANAGEMENT & DEVELOPMENT CORPORATION
and
XXXXXXX RECEIVABLES CORPORATION
and
XXXXXXX RECEIVABLES CORPORATION II
and
THE PROCESSING CENTER, INC.
and
RESORT SERVICE COMPANY, INC.
and
AMERICAN MARINE INTERNATIONAL, LTD.
and
ALOHA CAPITAL CORPORATION
Table of Contents
Page
ARTICLE 1. PURCHASE AND SALE OF TARGET SECURITIES
1.1 Agreement to Purchase and Sell.......................................2
1.2 Purchase Price.......................................................2
ARTICLE 2. CLOSING
2.1 Closing..............................................................2
2.2 Sellers' Closing Deliveries..........................................2
2.3 Purchaser's Closing Deliveries.......................................3
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE SELLERS
3.1 Ownership of Stock; Title............................................3
3.2 Organization.........................................................4
3.3 Authority............................................................4
3.4 No Violation; Consents and Approvals.................................4
3.5 Litigation...........................................................4
3.6 Finder's Fee.........................................................5
3.7 Reliance.............................................................5
3.8 Tax Matters..........................................................5
3.9 Outstanding Obligations..............................................5
3.10 Joint and Several Liabilities of the Company.........................5
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
4.1 Organization; Authority..............................................6
4.2 No Violation.........................................................6
4.3 Consents and Approvals...............................................6
4.4 Financing............................................................6
4.5 Investment Representation............................................6
ARTICLE 5. COVENANTS
5.1 Satisfaction of Conditions...........................................7
5.2 Transfer Taxes.......................................................7
5.3 Solicitation.........................................................7
5.4 Voting...............................................................8
5.5 Bankruptcy Court Approval............................................8
5.6 Fiduciary Duties.....................................................9
5.7 General Release and Waiver..........................................10
5.8 Certain Events......................................................11
5.9 Publicity...........................................................11
ARTICLE 6. CONDITIONS TO CLOSING; TERMINATION
6.1 Conditions to Each Party's Obligations..............................12
6.2 Conditions to Obligations of the Purchaser..........................12
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6.3 Conditions to Obligations of the Sellers............................13
6.4 Termination.........................................................13
6.5 Effect of Termination...............................................14
ARTICLE 7. MISCELLANEOUS PROVISIONS
7.1 Other Agreements....................................................14
7.2 Survival of Representations and Warranties..........................15
7.3 Transactional Costs.................................................15
7.4 Successors and Assigns..............................................15
7.5 Notices.............................................................15
7.6 Entire Agreement....................................................16
7.7 Amendments and Waivers..............................................16
7.8 Headings............................................................16
7.9 Terms...............................................................16
7.10 Governing Law; Jurisdiction and Venue...............................16
7.11 No Third Party Beneficiaries........................................17
7.12 Counterparts........................................................17
7.13 Interpretation......................................................17
7.14 Acknowledgements....................................................18
7.15 Trustee Capacity....................................................18
7.16 Guarantee by Parent.................................................18
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement"), dated as of
December 16, 2001, is made by and among Cendant Corporation ("Parent"),
Cardigan Acquisition Corporation (the "Purchaser"), The Xxxxxxx Funding Group,
Inc. ("BFG"), Xxxxxxx Management & Development Corporation ("BMDC"), Xxxxxxx
Receivables Corporation, Xxxxxxx Receivables Corporation II, The Processing
Center, Inc., Resort Service Company, Inc., American Marine International,
Ltd. and Aloha Capital Corporation (such entities are referred to herein as
the "Sellers").
RECITALS
WHEREAS, BFG currently owns beneficially all of the 11,983
issued and outstanding shares of the Series 2 Class A Cumulative Redeemable
Preferred Stock, $3.00 par value (the "Series 2 Preferred Stock"), of Equivest
Finance Inc., a Delaware corporation (the "Company"), which shares have
liquidation preference of $1,000 per share plus accrued and unpaid dividends
thereon which accrue at the rate of $60 per share per annum.
WHEREAS, each of the Sellers currently owns beneficially
such number of shares of common stock, $.01 par value ("Common Stock"), of the
Company as are set forth opposite the name of such Seller on Exhibit A hereto.
WHEREAS, Parent, the Purchaser and the Company have entered
into an Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"), which provides, among other things, for the merger of the
Purchaser with and into the Company with the Company continuing as the
surviving corporation (the "Merger") upon the terms and subject to the
conditions set forth in the Merger Agreement (capitalized terms used herein
without definition shall have the respective meanings specified in the Merger
Agreement).
WHEREAS, the Sellers are debtors in a substantively
consolidated Chapter 11 case entitled In re The Xxxxxxx Funding Group, Inc.,
Case No. 96-61376 (the "Bankruptcy Case"), filed in the United States
Bankruptcy Court for the Northern District of New York (the "Bankruptcy
Court") on March 29, 1996 under Chapter 11 of Title 11 of the United States
Code, Sections 101-1330 (as amended, the "Bankruptcy Code").
WHEREAS, Xxxxxxx X. Xxxxxxx was appointed as Chapter 11
trustee (the "Trustee") in the Bankruptcy Case on April 18, 1996.
WHEREAS, the Sellers desire to sell to the Purchaser, and
the Purchaser desires to purchase from the Sellers, the Common Stock and the
Series 2 Preferred Stock owned by the Sellers on the terms and subject to the
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing Recitals
(which are hereby incorporated by reference), the agreements hereafter set
forth and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree to be legally bound as follows:
ARTICLE 1. PURCHASE AND SALE OF TARGET SECURITIES.
1.1 Agreement to Purchase and Sell. On the Closing Date (as
defined in Section 2.1) and upon the terms and subject to the conditions set
forth in this Agreement, each Seller shall sell, assign, transfer, convey and
deliver to the Purchaser, and the Purchaser will accept and purchase from each
Seller, all of such Seller's rights, title and interests in and to all of (a)
the shares of Common Stock held by such Seller, and (b) the shares of Series 2
Preferred Stock held by such Seller (the shares referred to in (a) and (b),
collectively, the "Target Securities"), in each case free and clear of all
Liens.
1.2 Purchase Price. Subject to the terms and conditions set forth
herein, the Purchaser shall pay or cause to be paid to the Sellers, in cash
(i) $3.00 multiplied by the number of shares of Common Stock held by the
Sellers as set forth opposite their names on Exhibit A, and (ii) the sum of
(x) $12,750,000 plus (y) the amount of accrued and unpaid dividends per share
of Series 2 Preferred Stock since January 1, 2002 through the Closing Date,
multiplied by the number of shares of Series 2 Preferred Stock held by the
Sellers as set forth opposite their names on Exhibit A ((i) and (ii) together,
the "Purchase Price").
ARTICLE 2. CLOSING.
2.1 Closing. Consummation of the transactions contemplated hereby
(the "Closing") shall take place at the offices of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00
a.m., local time, on the first business day following the day on which the
last of the conditions set forth in Sections 6.1, 6.2 and 6.3 is fulfilled or
waived (other than those conditions that by their nature are to be fulfilled
at the Closing, but subject to the fulfillment or waiver of those conditions),
or at such other time and place and on such other date as the Purchaser and
the Sellers shall agree (the "Closing Date").
2.2 Sellers' Closing Deliveries. (a) Subject to the conditions
set forth in this Agreement, at the Closing, simultaneously with the
Purchaser's deliveries hereunder, each Seller shall deliver or cause to be
delivered to the Purchaser stock certificates representing the Target
Securities owned by such Seller as set forth on Exhibit A hereto accompanied
by stock powers duly endorsed in blank or accompanied by duly executed
instruments of transfer and appropriate signature guarantees, with all
necessary transfer tax and other revenue stamps affixed thereto.
(b) At the Closing, the Sellers will also deliver the
following to the Purchaser:
(i) certificates of each of the Sellers as
contemplated by Section 6.2(c);
(ii) a duly executed certificate from each
Seller (each, a "FIRPTA Certificate") of non-foreign status in the form and
manner that complies with Section 1445 of the Code and the Treasury
Regulations promulgated thereunder.
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Notwithstanding anything to the contrary contained herein, if any Seller fails
to deliver a FIRPTA Certificate and the Purchaser elects to proceed with the
Closing, the Purchaser shall be entitled to withhold the amount required to be
withheld pursuant to Section 1445 of the Code from the Purchase Price payable
to such Seller; and
(iii) all such other certificates, documents and
instruments as the Purchaser shall reasonably request in connection with the
consummation of the transactions contemplated by this Agreement.
2.3 Purchaser's Closing Deliveries. Subject to the conditions set
forth in this Agreement, at the Closing, simultaneously with the Sellers'
deliveries hereunder, the Purchaser shall deliver or cause to be delivered to
the Sellers, the Purchase Price (less, if applicable pursuant to Section
2.2(b)(ii), any amounts withheld by the Purchaser) in immediately available
funds to a United States account designated in writing by the Sellers.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE SELLERS. Each of the
Sellers, jointly and severally, hereby represents and warrants to Parent and
the Purchaser, as follows:
3.1 Ownership of Stock; Title.
(a) Each such Seller is the sole lawful beneficial owner
of the number and type of Target Securities set forth opposite such Seller's
name on Exhibit A hereto, which ownership is free and clear of all Liens.
Except as set forth on Schedule 3.1, the Target Securities set forth opposite
each Seller's name on Exhibit A hereof, are the only class or classes of
capital stock, securities convertible into or exchangeable for any shares of
capital stock, warrants, options, agreements, call rights, conversion rights,
exchange rights, preemptive rights or other rights or commitments or
understandings which call for the issuance, sale, delivery, pledge, transfer,
redemption or other disposition of any shares of capital stock of the Company
or any of its Subsidiaries that such Seller or any of the other Sellers owns,
beneficially or of record. Except as set forth on Schedule 3.1, such Seller is
not a party to any agreement creating rights with respect to such Seller's
Target Securities in any Person, and such Seller has the full power and,
subject to approval of the Bankruptcy Court without any stay thereof being in
force, legal right to sell, assign, transfer and deliver such Seller's Target
Securities. Except as set forth on Schedule 3.1, there are no existing
warrants, options, stock purchase agreements, redemption agreements,
restrictions of any nature, voting trust agreement, proxies, calls or rights
to subscribe of any character relating to the Target Securities owned by such
Seller. Such Seller has not received any notice of any adverse claim to the
ownership of any such Target Securities, does not have any reason to know of
any such adverse claim that may be justified and is not aware of existing
facts that would give rise to any adverse claim to the ownership of such
Target Securities. On the Closing Date, such Seller shall have good and
marketable title to such Target Securities, free and clear of all Liens. The
delivery of certificates for the Target Securities owned by such Seller to the
Purchaser pursuant to the provisions of this Agreement will transfer to the
Purchaser good and marketable title to such Target Securities, free and clear
of all Liens, except for Liens created by the Purchaser.
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(b) The Target Securities and the certificates
representing the Target Securities owned by each Seller are now, and at all
times during the term hereof will be, held by the relevant Seller or by a
nominee, trustee or custodian for the benefit of such Seller, free and clear
of all Liens, except for any such Liens arising hereunder.
3.2 Organization. Each such Seller is a corporation duly
incorporated, validly existing and in good standing under the laws of the state
of its incorporation.
3.3 Authority. Each such Seller has the requisite power and
authority and has full legal capacity necessary to execute, deliver and,
subject to approval of the Bankruptcy Court without any stay thereof being in
force, perform its obligations under this Agreement and the other agreements
and instruments to be executed and delivered by such Seller hereunder or in
connection herewith and to carry out such Seller's obligations hereunder and
thereunder and the transactions contemplated hereby and thereby. The execution
and delivery to the Purchaser of this Agreement and the other agreements and
instruments to be executed and delivered by such Seller hereunder or in
connection herewith and the consummation of the transactions contemplated
hereby has been duly authorized by such Seller and its governing bodies. No
other proceedings on the part of such Seller, other than approval of the
Bankruptcy Court without any stay thereof being in force, are necessary to
authorize such execution, delivery and performance. This Agreement has been
duly and validly executed and delivered to the Purchaser by such Seller and,
subject to approval of the Bankruptcy Court without any stay thereof being in
force, constitutes a valid and binding obligation of such Seller, enforceable
against such Seller in accordance with its terms.
3.4 No Violation; Consents and Approvals.
(a) Except as set forth on Schedule 3.4(a), the
execution and delivery of this Agreement by such Seller and the consummation
of the transactions contemplated hereby do not and will not: (i) conflict with
or result in a breach of any provision of the certificate of incorporation or
bylaws or other organizational documents of such Seller; (ii) violate, or
conflict with, or result in a breach of any provisions of, or constitute a
default (or an event which, with notice or lapse of time or both, would
constitute a default) under, or give rise to a right of termination,
cancellation, modification or acceleration of the performance required by or a
loss of a benefit under, any note, bond, mortgage, indenture, deed of trust,
lease contract or agreement by which such Seller or any of such Seller's
Target Securities are bound (except to the extent such breach, violation or
default is not reasonably likely to materially impair the ability of the
Sellers to consummate the transactions contemplated hereby); (iii) constitute
a violation of any Order, to which such Seller or any of such Seller's Target
Securities are bound; or (iv) result in the creation of any Lien upon any of
such Seller's Target Securities.
(b) Except for consents and approvals of, or filings
with, the Bankruptcy Court without any stay thereof being in force, and as set
forth on Schedule 3.4(b), no consent, approval, permit, waiver, authorization,
notice or filing is required to be made or obtained in connection with the
execution, delivery and performance by such Seller of this Agreement or the
consummation of the transactions contemplated hereby.
3.5 Litigation. Except for the Bankruptcy Case and actions
instituted or, to such Seller's knowledge, threatened after the date hereof
challenging or seeking to
4
prevent, or which arise as a result, directly or indirectly, of the
consummation of the transactions contemplated by this Agreement or the Merger
Agreement, (i) there are no suits, claims, arbitrations, mediations, actions
or proceedings pending or, such Seller's knowledge, threatened or
investigations pending or threatened against such Seller or with respect to
the Target Securities, before any Governmental Authority and (ii) such Seller
and its Target Securities are not subject to any order, judgment, injunction
or decree of any Governmental Authority, in each case, which restricts in any
material respect or prohibits (or, if successful, would restrict in any
material respect or prohibit), the exercise by any party or beneficiary of its
rights under this Agreement or the performance by any party of its obligations
under this Agreement.
3.6 Finder's Fee. Such Seller has not employed, nor is such
Seller subject to a valid claim of, any broker, finder, financial adviser or
other intermediary in connection with the transactions contemplated hereby who
might be entitled to a fee or commission from Parent, the Purchaser or the
Company.
3.7 Reliance. Each Seller understands and acknowledges that
Parent and the Purchaser are entering into the Merger Agreement in reliance
upon such Seller's execution and delivery of this Agreement.
3.8 Tax Matters. Since January 1, 1987, (i) BFG has never owned
(directly or indirectly) any stock of BMDC and (ii) BMDC has not owned
(directly or indirectly) any stock of BFG. BFG and BMDC have never been
members of the same affiliated group within the meaning of Section 1504 of the
Internal Revenue Code of 1986, as amended. Neither BFG nor BMDC, individually,
has ever owned stock of the Company (i) possessing at least 80 percent of the
total voting power of the Company and (ii) having a value equal to at least 80
percent of the total value of the stock of the Company.
3.9 Outstanding Obligations. Except as set forth on Schedule 3.9,
the Company and its Subsidiaries have no outstanding liabilities or
obligations to, and there are no amounts due from the Company and its
Subsidiaries to, such Seller, and such Seller has no Claim (as defined in
Section 5.7(a)) against the Company or any of its Subsidiaries.
3.10 Joint and Several Liabilities of the Company. Except as set
forth on Schedule 3.10, neither the Company nor any Subsidiary of the Company
nor any of their respective assets or properties is directly or indirectly
liable for or subject to any Claim that has been or may be asserted against
any of the Sellers, the consolidated estate of the Sellers (the "Consolidated
Estate"), or any affiliate (other than the Company or its Subsidiaries) of the
Sellers or of the Company or its Subsidiaries, to the extent that such Claim
is based in whole or in part upon (x) actions (or inactions) of or by the
Sellers, the Consolidated Estate, any of their affiliates or any Person acting
in concert with them (other than the Company or its Subsidiaries) or (y) the
fact that the Company or any of its Subsidiaries were at any time an affiliate
of the Sellers or any of them, including, without limitation, (i) claims that
have been scheduled in the Bankruptcy Case, (ii) claims evidenced by proofs of
claim filed in the Bankruptcy Case, (iii) claims relating to Taxes, (iv)
claims under ERISA, and (v) Environmental Claims.
5
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
hereby represents and warrants to each Seller as follows:
4.1 Organization; Authority.
(a) The Purchaser is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Delaware
and has all requisite corporate power and authority to carry on its business
as now being conducted. The Purchaser has full power and authority necessary
to execute, deliver and perform its obligations under this Agreement and the
other agreements and instruments to be executed and delivered by the Purchaser
hereunder or in connection herewith, to carry out its obligations and to
consummate the transaction contemplated hereunder and thereunder. The
execution and delivery of this Agreement and the other agreements and
instruments to be executed and delivered by the Purchaser hereunder or in
connection herewith by the Purchaser, and the consummation by the Purchaser of
the transactions contemplated hereby, have been duly authorized pursuant to
and in accordance with the laws governing the Purchaser.
(b) This Agreement and the other agreements and
instruments to be executed and delivered by the Purchaser hereunder or in
connection herewith have been duly and validly executed, authorized and
delivered by the Purchaser and constitute valid and binding obligations of the
Purchaser, enforceable against the Purchaser in accordance with their
respective terms.
4.2 No Violation. The execution and delivery by the Purchaser of
this Agreement and the transactions contemplated hereby do not and will not
(i) conflict with or result in any breach of any provision of the certificate
of incorporation, bylaws of the Purchaser, (ii) violate, or conflict with, or
result in a breach of any provisions of, or constitute a default (or an event
which, with notice or lapse of time or both, would constitute a default)
under, or give rise to a right of termination, cancellation, modification or
acceleration of the performance required by or a loss of a benefit under, any
material agreement, permit or other instrument to which the Purchaser is a
party or to which the Purchaser is subject (except to the extent such breach,
violation or default is not reasonably likely to materially impair the ability
of the Purchaser to consummate the transactions contemplated hereby or to hold
the Target Securities), or (iii) violate any material order, judgment, writ,
injunction, decree, statute, rule or regulation applicable to the Purchaser or
to which the Purchaser is subject.
4.3 Consents and Approvals. Except as set forth on Schedule 4.3,
no consent, approval, permit, waiver, authorization, notice or filing is
required to be made or obtained in connection with the execution, delivery and
performance by the Purchaser of this Agreement or the consummation of the
transactions contemplated hereby.
4.4 Financing. As of the Closing Date, the Purchaser will have
available to it financing necessary to consummate the transactions
contemplated hereby.
4.5 Investment Representation. The Purchaser is accepting the
Target Securities being acquired hereunder for its own account and not for any
other person and for investment purposes only and without any view to
distribute, resell or otherwise transfer the same.
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ARTICLE 5. COVENANTS.
5.1 Satisfaction of Conditions.
(a) The Purchaser and the Sellers shall cooperate with
each other and use reasonable best efforts to take or cause to be taken all
actions, and do or cause to be done all things, necessary, proper or advisable
on their part under this Agreement and applicable Laws to consummate and make
effective the transactions contemplated by this Agreement and the Merger
Agreement as soon as reasonably practicable, including preparing and filing as
promptly as reasonably practicable all documentation to effect all necessary
notices, reports, applications and other filings and to obtain as promptly as
reasonably practicable all consents, registrations, approvals, permits and
authorizations necessary or advisable to be obtained from any third party
and/or any Governmental Authority in order to consummate the transactions
contemplated by this Agreement.
(b) Nothing in this Agreement shall require, or be
construed to require, Parent or the Purchaser, in connection with the receipt
of any regulatory consent, registration, approval permit or authorization, to
proffer to, or agree to (i) sell or hold separate and agree to sell, divest,
discontinue or limit, before or after the Effective Time, any assets,
businesses, or interest in any assets or businesses of Parent, the Purchaser,
the Company or any of their respective affiliates (or to consent to any sale,
or agreement to sell, or discontinuance or limitation by Parent, the
Purchaser, the Company or any of their respective affiliates, as the case may
be, of any of their respective assets or businesses) or (ii) agree to any
conditions relating to, or changes or restrictions in, the operations of any
such assets or businesses which, in the case of either clause (i) or (ii), is
reasonably likely, individually or in the aggregate, to materially and
adversely impact the aggregate economic or business benefits, taken as a
whole, to Parent or the Purchaser and their affiliates, of the transactions
contemplated by this Agreement or the Merger Agreement.
5.2 Transfer Taxes. All excise, sales, use, transfer (including
real property transfer or gains), stamp, documentary, filing, recordation and
other similar Taxes and fees which may be imposed or assessed as a result of
the transactions effected pursuant to this Agreement, together with any
interest, additions or penalties with respect thereto and any interest in
respect of such additions or penalties, shall be borne by the Sellers.
5.3 Solicitation.
(a) The Sellers shall not, and shall use their
reasonable best efforts to cause their respective directors, officers,
employees, representatives (including any investment bankers, attorney or
accountant retained by any such Persons) and agents not to, directly or
indirectly, take any action or refrain from taking any action that, if taken
by the Company, would result in a breach of the Company's obligations pursuant
to Sections 5.2 and 5.3 of the Merger Agreement.
(b) Notwithstanding anything contained herein to the
contrary but subject in all cases to the terms of Sections 5.2 and 5.3 of the
Merger Agreement, this Agreement shall not limit or affect any actions taken
by any member of the Company Board of Directors nominated by, or appointed at
the request of, a Seller solely in his or her capacity as a director of the
Company.
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5.4 Voting. Subject to approval of the Bankruptcy Court without
any stay thereof being in force, each of the Sellers agrees (i) that all of
the Target Securities beneficially owned by such Seller, or over which such
Seller has voting power or control, directly or indirectly (including any
shares of Common Stock or shares of Series 2 Preferred Stock acquired after
the date hereof), at the record date for any meeting of stockholders of the
Company called to consider and vote to approve the Merger Agreement and/or the
transactions contemplated thereby (or any action by written consent in lieu of
any such meeting), will be present at such meeting in person or by proxy (or
for purposes of any action by written consent in lieu of any such meeting) and
will be voted by such Seller in favor thereof, and (ii) that such Seller will
not vote such Target Securities in favor of any other Acquisition Proposal.
5.5 Bankruptcy Court Approval.
(a) As soon as practicable, but in any event within four
business days following the execution of this Agreement, the Sellers shall
file a motion in form and substance reasonably satisfactory to the Purchaser
(the "Motion") under Sections 105, 363 and 1146(c) of the Bankruptcy Code
seeking entry of an order (the "Bankruptcy Court Approval") approving this
Agreement and the transactions contemplated hereby and containing the
provisions set forth in (i) through (xi) below. The Bankruptcy Court Approval,
substantially in the form of which is attached hereto as Exhibit B, shall,
among other things: (i) grant the relief requested in the Motion; (ii) ratify
and approve the execution and delivery of this Agreement by the Sellers and
the Trustee on behalf of the Sellers and authorize the Sellers' performance
hereunder and to authorize them to execute and deliver any additional
documents and instruments requested by the Purchaser and to perform thereunder
in order to carry out the provisions of and transactions contemplated by this
Agreement; (iii) authorize and direct the Sellers to sell the Target
Securities held by them, pursuant to the terms and conditions herein, to the
Purchaser, free and clear of all and any Liens, liabilities and Claims of
every kind or nature; (iv) authorize and direct the Trustee on behalf of the
Sellers to vote the Target Securities in accordance with the provisions of
Section 5.4; (v) determine that the Purchaser is a good faith purchaser
pursuant to Section 363(m) of the Bankruptcy Code; (vi) determine that the
Purchaser is not deemed to have, de facto or otherwise, merged with or into
the Sellers or to be a mere continuation of the Sellers; (vii) determine that
the Purchase Price is a fair and reasonable price for the Target Securities
held by the Sellers; (viii) confirm the adequacy of notice to all creditors
and parties in interest; (ix) provide for the retention of jurisdiction in the
Bankruptcy Court over matters relating to the transactions contemplated in
this Agreement as they relate to the Sellers; (x) exempt the transactions
contemplated hereby from transfer taxes pursuant to Section 1146(c) of the
Bankruptcy Code; and (xi) declare that neither the Company nor any Subsidiary
of the Company nor any of their respective assets or properties is directly or
indirectly liable for or subject to any Claim that has been or may be asserted
against the Sellers or any of them, the Consolidated Estate, or any affiliate
(other than the Company or its Subsidiaries) of the Sellers or of the Company
or its Subsidiaries to the extent that such Claim is based in whole or in part
upon (i) actions (or inactions) of or by the Sellers, the Consolidated Estate,
any of their affiliates or any Person acting in concert with them (other than
the Company or its Subsidiaries) or (ii) the fact that the Company or any of
its Subsidiaries were at any time affiliates of the Sellers or any of them,
including, without limitation, (A) claims that have been scheduled in the
8
Bankruptcy Case, (B) claims evidenced by proofs of claim filed in the
Bankruptcy Case, (C) claims relating to Taxes, (D) claims under ERISA, and (E)
Environmental Claims, and enjoin any and all holders of any such claim from
asserting, prosecuting or otherwise pursuing any such claim against the
Company or any of its Subsidiaries or any of their respective assets or
properties; provided, that if the Bankruptcy Court will not grant such
declaration and injunction for all or any of the matters enumerated in
subparagraphs (A) through (E) above, the Sellers and the Consolidated Estate
shall and hereby do (in the event that such injunction and declaration is not
granted and subject to the approval of the Bankruptcy Court without any stay
thereof being in force), jointly and severally, indemnify Parent, the
Purchaser and their successors, permitted assigns and affiliates, and their
respective officers, directors, employees, agents, representatives and
affiliates (collectively, the "Purchaser Indemnified Parties") from and
against and shall reimburse the same for and in respect of any and all losses,
costs, fines, liabilities, claims, penalties, damages (other than
consequential damages) and expenses (including all legal fees and expenses) of
any nature or kind, known or unknown, fixed, accrued, absolute or contingent,
liquidated or unliquidated (collectively "Losses") which may be suffered,
sustained or incurred by, or claimed or assessed against, any of them or to
which any of them may be subject, in connection with any and all Claims, suits
or Losses which arise from or are related to the matters set forth above but
not so covered by such declaration and injunction; provided, however, that any
claims for indemnification under this Section 5.5(a) that are not asserted
against the Sellers and the Consolidated Estate by the Purchaser Indemnified
Parties on or before substantial consummation of any Chapter 11 plan for the
Sellers shall be forever barred and discharged. The Sellers shall promptly
notify the Purchaser of any action taken by the Bankruptcy Court with respect
to the approval required hereunder.
(b) Each of the Sellers shall use its reasonable best
efforts to seek the Bankruptcy Court Approval on or before January 10, 2002.
Each of the Sellers shall neither take any action nor fail to take any action,
which action or failure to act would reasonably be expected to result in the
failure to obtain the Bankruptcy Court Approval. Without limiting the
generality of the foregoing, none of the Sellers shall propose any motion to
the Bankruptcy Court or take action relating to the Bankruptcy Case which is
inconsistent with the terms of this Agreement or the Bankruptcy Court
Approval.
(c) Except (i) with respect to the Sellers' obligations
pursuant to Sections 1.1 and 2.2 hereof, and (ii) with respect to the
Purchaser's obligations pursuant to Sections 1.2 and 2.3 hereof, this
Agreement shall be effective as of the date hereof. Sections 1.1, 1.2, 2.2 and
2.3 hereof shall become effective at such time as the Bankruptcy Court
Approval shall be granted without any stay thereof being in force.
5.6 Fiduciary Duties. Notwithstanding anything contained herein
to the contrary, each of the Sellers shall have the right to take or refrain
from taking any such acts as it shall have reasonably determined are necessary
to fulfill its fiduciary obligations as a debtor and debtor in possession,
including, but not limited to, the right to entertain and, if appropriate,
accept any higher and better offers to purchase the Target Securities (an
"Alternative Transaction"), and the Sellers shall not be deemed to be in
breach of any provision of this Agreement as a result of taking any such
action or refraining from taking any such action; provided, that the Sellers
shall furnish the Purchaser with written
9
notice of the terms of any competing offer to purchase the Target Securities
and, if permitted by the Bankruptcy Court and applicable Law, shall provide
the Purchaser a reasonable opportunity to match any such competing offer. In
addition, notwithstanding anything contained herein to the contrary, but
subject in all cases to the terms of Sections 5.2 and 5.3 of the Merger
Agreement, this Agreement shall not limit or affect any actions taken by any
member of the Company Board of Directors nominated by, or appointed at the
request of, a Seller solely in his or her capacity as a director of the
Company.
5.7 General Release and Waiver.
(a) Except as expressly set forth in this Section 5.7,
upon the Closing hereof, each of the Sellers (on behalf of themselves and
their controlled affiliates, successors, and assigns) and the Consolidated
Estate (collectively, the "Releasing Parties") hereby releases, remises and
acquits Parent, the Purchaser, the Company and all of their respective
affiliates, successors and assigns, and their respective officers, directors,
shareholders, members, agents, executives, consultants, independent
contractors, attorneys, and advisers (in their capacities as such)
(collectively, the "Released Parties") from any and all claims, known or
unknown, which such Releasing Parties have or may have against any of the
Released Parties and any and all liabilities which any of the Released Parties
may have to such Releasing Parties, in each case arising on or prior to the
Closing Date, whether denominated claims, counter-claims, setoffs, recoupment,
demands, causes of action, obligations, damages or liabilities arising from
any and all bases (all such claims and liabilities, including, but not limited
to, any and all "claims" (as defined in 11 U.S.C 101(5)) and any claims that
were or could have been brought under Chapter 5 of the Bankruptcy Code,
collectively, the "Claims") that each of the Releasing Parties has or may
have; provided, however, that the release by the Releasing Parties hereunder
of Parent or any of its Subsidiaries (other than the Company and its
Subsidiary) shall be limited to Claims of a Releasing Party against Parent or
any of its Subsidiaries (other than the Company and its Subsidiaries) to the
extent that such Claims relate to the Company or any of its Subsidiaries. Each
of the Releasing Parties further agrees that such Releasing Party will not
assert, prosecute or file or permit to be asserted, prosecuted or filed on
such Releasing Party's behalf any such released Claim. This release is for any
relief, no matter how denominated, including, but not limited to, injunctive
relief, compensatory damages, or punitive damages. This release shall not
apply to any Claims that any of the Releasing Parties may have against any
Released Party arising from, relating to or in connection with, (i) Parent's
or the Purchaser's obligations pursuant to this Agreement and (ii) any of the
matters listed on Schedule 3.9 to the extent amounts are due to the Releasing
Parties with respect thereto.
(b) Each of the parties hereto acknowledges that
their respective agreements hereunder are being provided in consideration of
the release contained in this Section 5.7 and that they may not otherwise be
entitled to certain of the benefits described herein. Each of the parties
hereto agrees not to make any Claim or take any position inconsistent with
such releases.
(c) Except as expressly set forth in this Section
5.7(c), each of the Company and its Subsidiaries (on behalf of themselves and
their controlled affiliates, successors, and assigns) (collectively, the
"Company Releasing Parties") hereby releases, remises and acquits each of the
Sellers and the Consolidated Estate (collectively,
10
the "Debtor Released Parties") from any and all Claims which each of such
Company Releasing Parties has or may have against any of the Debtor Released
Parties arising on or prior to the Closing Date; provided, however, that
nothing set forth herein shall or shall be deemed to release, remise and
acquit the Debtor Released Parties from, and the Debtor Released Parties shall
be responsible for, any Claims that the Company or any of its Subsidiaries has
or may have against the Debtor Released Parties (A) arising from Claims
asserted or threatened to be asserted by any Person against the Company or any
of its Subsidiaries to the extent that such Claims are based upon (i) actions
or inactions of or by the Sellers, the Consolidated Estate, any of their
affiliates or any Person acting in concert with them (other than the Company
and its Subsidiaries) or (ii) the fact that the Company and its Subsidiaries
were at any time affiliates of the Sellers or any of them; or (iii) loans,
advances or the provision of goods and services to or any other liabilities of
the Debtor Released Parties or their affiliates (other than the Company and
its Subsidiaries); (B) arising from, relating to or in connection with the
obligations of the Debtor Released Parties (or any of them) pursuant to this
Agreement; and (C) asserted or assertable against any of the Debtor Released
Parties under theories of contribution, subrogation or indemnification. Each
of the Company Releasing Parties further agrees that such Company Releasing
Party will not assert, prosecute or file or permit to be asserted, prosecuted
or filed on such Company Releasing Party's behalf any such released Claim.
This release is for any relief, no matter how denominated, including, but not
limited to, injunctive relief, compensatory damages, or punitive damages.
5.8 Certain Events. In the event of any change in the Common
Stock or Series 2 Preferred Stock by reason of a stock dividend, stock split,
split-up, recapitalization, reorganization, business combination,
consolidation, exchange of shares, or any similar transaction or other change
in the capital structure of the Company affecting the Common Stock or the
Series 2 Preferred Stock or the acquisition of additional shares of Common
Stock, Series 2 Preferred Stock or other securities or rights of the Company
by any Seller: (a) the number of Shares and/or Series 2 Preferred Stock owned
by such Seller shall be adjusted appropriately, and (b) this Agreement and the
obligations hereunder shall attach to any additional shares of Common Stock,
Series 2 Preferred Stock or other securities or rights of the Company issued
to or acquired by each of the Sellers.
5.9 Publicity.
(a) Each of the parties hereto agrees that it will not
issue any press release or otherwise make any public statement with respect to
this Agreement or the transactions contemplated hereby without the prior
consent of the other parties hereto; provided, however, that such disclosure
may be made without obtaining such prior consent if (i) the disclosure is
required by Law or any Governmental Authority, including but not limited to,
any national securities exchange, trading market or inter-dealer quotation
system on which the Shares or the common stock of Parent trade and (ii) the
party making such disclosure has first used its reasonable best efforts to
consult with the other parties about the form and substance of such
disclosure.
(b) Each Seller hereby agrees to permit Parent and the
Purchaser to publish and disclose (including in all documents, statements and
schedules filed with the SEC), subject to review and approval (which approval
shall not be unreasonably
11
withheld) of such Seller its identity and ownership of the Target Securities
and the nature of its commitments, arrangements and understandings under this
Agreement.
ARTICLE 6. CONDITIONS TO CLOSING; TERMINATION.
6.1 Conditions to Each Party's Obligations. The respective
obligations of each party under this Agreement are subject to the
satisfaction, at or prior to the Closing Date, of the following conditions,
unless waived by the Purchaser and the Sellers in writing:
(a) No temporary restraining order, preliminary or
permanent injunction or other judgment or order issued by any court of
competent jurisdiction or other statute, law, rule, legal restraint or
prohibition (collectively, "Restraints") shall be in effect preventing the
consummation of the transactions contemplated hereby.
(b) No action, suit or proceeding shall have been
instituted, or shall be pending or threatened in writing, by a Governmental
Authority (i) seeking to restrain in any material respect or to prohibit the
consummation of the transactions contemplated hereby, (ii) seeking to obtain
from the Sellers, the Consolidated Estate, Parent or the Purchaser, as the
case may be, or any of their respective affiliates any material damages with
respect to the transactions contemplated hereby, or (iii) seeking to impose
the Restraints referred to in subsection (a) above.
(c) All material consents, orders or approvals of,
declarations or filings with, and expirations of waiting periods imposed by,
any Governmental Authority or third party that are required for the
consummation of the transactions contemplated hereby, if any, shall have been
obtained and in effect.
6.2 Conditions to Obligations of the Purchaser. The obligations
of Parent and the Purchaser under this Agreement are subject to the
satisfaction, at or prior to the Closing Date, of the following conditions,
unless waived by the Purchaser in writing:
(a) The Sellers shall have performed and complied in all
material respects with their obligations under this Agreement required to be
performed by them at or prior to the Closing Date.
(b) The representations and warranties of the Sellers
contained in this Agreement shall be true and correct in all material respects
(except for representations and warranties qualified as to materiality, which
shall be true in all respects), in each case as of the date of this Agreement
and at and as of the Closing Date as if made at and as of such date.
(c) The Purchaser shall have received a certificate
signed by each of the Sellers to the effect of Sections 6.2(a) and 6.2(b).
(d) The conditions set forth in Sections 7.1 and 7.2 of
the Merger Agreement (other than Sections 7.1(a), 7.2(c) and 7.2(e)) shall
have been fulfilled or waived by the Purchaser.
(e) The Sellers shall have made the deliveries required
by Section 2.2.
(f) The Bankruptcy Court Approval shall have been
obtained, shall contain the provisions set forth in Section 5.5(a) and shall
have become a Final Order;
12
provided, however, that (i) if the Bankruptcy Court will not grant the
declaration and injunction described in Section 5.5(a)(xi) and (ii) the
Bankruptcy Court approves the Sellers' indemnification of the Purchaser
Indemnified Parties for such Claims or Losses as described in the proviso of
Section 5.5(a), then the failure of the Bankruptcy Court Approval to contain
the declaration and injunction set forth in Section 5.5(a)(xi) shall not be a
condition of Closing. "Final Order" shall mean an order or judgment of the
Bankruptcy Court as to which (a) the time to appeal, petition for certiorari,
or motion for reargument or rehearing has expired and as to which no appeal,
petition for certiorari, or move for reargument or rehearing shall then be
pending or, (b) in the event that an appeal, writ of certiorari, reargument or
rehearing thereof has been sought, such order of the Bankruptcy Court shall
have been affirmed by the highest court to which such order was appealed, or
certiorari has been denied, or from which reargument or rehearing was sought,
and the time to take any further appeal, petition for certiorari or move for
reargument or rehearing shall have expired; provided, that no order shall fail
to be a Final Order solely because of the possibility that a motion pursuant
to Rule 60 of the Federal Rules of Civil Procedure or Rule 7024 of the Federal
Rules of Bankruptcy Procedure may be filed with respect to such order.
6.3 Conditions to Obligations of the Sellers. The obligations of
the Sellers under this Agreement are subject to the satisfaction or waiver, at
or prior to the Closing Date, of the following conditions, unless waived by
the Sellers in writing:
(a) The Purchaser shall have performed and complied in
all material respects with its obligations under this Agreement required to be
performed by it at or prior to the Closing Date.
(b) The representations and warranties of the Purchaser
contained in this Agreement shall be true and correct in all material respects
(except for representations and warranties qualified as to materiality, which
shall be true in all respects), in each case as of the date of this Agreement
and at and as of the Closing Date as if made at and as of such date.
(c) The Sellers shall have received a certificate signed
by an authorized officer of the Purchaser to the effect of Sections 6.3(a) and
6.3(b).
(d) The Bankruptcy Court Approval shall have been
obtained, shall contain the provisions set forth in Section 5.5(a) (other than
clauses (v), (vi) and (xi) of Section 5.5(a), the inclusion of which in the
Bankruptcy Court Approval shall not be a condition to the obligations of the
Sellers hereunder), and no stay thereof shall be in force.
6.4 Termination. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned at any time prior to the
Closing:
(a) by mutual written consent of the Sellers and the
Purchaser;
(b) by either the Purchaser or the Sellers, if the
Closing has not occurred on or before April 30, 2002; provided, however, that
the right to terminate this Agreement pursuant to this Section 6.4(b) shall
not be available to any party whose breach of a covenant, representation or
warranty has been the cause of the failure of the Closing to occur on or
before such date;
13
(c) by the Purchaser, if there has been a violation or
breach by any Seller of any covenant, agreement, representation or warranty
contained in this Agreement which has rendered the satisfaction of any
condition contained in Article 6 hereof incapable of fulfillment and such
violation or breach has not been waived by the Purchaser;
(d) by the Sellers, if there has been a violation or
breach by the Purchaser of any covenant, agreement, representation or warranty
contained in this Agreement which has rendered the satisfaction of any
condition contained in Article 6 hereof incapable of fulfillment and such
violation or breach has not been waived by the Sellers;
(e) by either the Purchaser or the Sellers, if a
Governmental Authority shall have issued a nonappealable final order, decree
or ruling or taken any other nonappealable final action having the effect of
permanently restraining, enjoining or otherwise prohibiting the transactions
contemplated hereby (which order, decree, ruling or other action the party
seeking to terminate this Agreement shall have used their reasonable best
efforts to lift);
(f) by the Purchaser, if the Merger Agreement is
terminated pursuant to Section 8.1 of the Merger Agreement; or
(g) by the Purchaser, if the Sellers enter into or
accept an Alternative Transaction with a Person other than the Purchaser or
Parent (or an affiliate or designee of the Purchaser or Parent).
If the Purchaser or the Sellers terminate this Agreement pursuant to the
provisions hereof, such termination will be effected by written notice to the
other party specifying the provision hereof pursuant to which the termination
is made.
6.5 Effect of Termination. In the event of the termination of
this Agreement pursuant to Section 6.4, this Agreement shall forthwith become
void and there shall be no liability or obligation on the part of any party
hereto or any of its affiliates, directors, officers or stockholders, except
(a) as stated in this Section 6.5 and Article 7 which shall survive such
termination, and (b) no such termination shall relieve any party hereto of any
liability for the breach of any representation, warranty, covenant or
agreement hereunder by such party.
ARTICLE 7. MISCELLANEOUS PROVISIONS.
7.1 Other Agreements. Until the Effective Time, Parent and the
Purchaser shall not purchase any shares of Common Stock at a price per share
of Common Stock greater than $3.00 (the "Consideration Threshold") from any
stockholder of the Company (other than the Sellers) (the "Other Stockholder"),
unless such greater price is also paid to the Sellers herein; it being
understood that in no event shall any amount paid or to be paid (i) as
consideration for any settlement of any dispute or pending or threatened
litigation, or as consideration for a release of any Claims underlying such
dispute or litigation, or (ii) pursuant to an agreement for the provision of
services (whether rendered or to be rendered), in each case, to any such Other
Stockholder be considered a payment for, or a purchase of, shares of Common
Stock for purposes of
14
determining if the price per share of Common Stock paid to the Other
Stockholder is greater than the Consideration Threshold. Parent and Purchaser
shall as soon as practicable advise the Sellers of any such settlement or
agreement referred to in subsections (i) or (ii) above.
7.2 Survival of Representations and Warranties. The
representations and warranties set forth in Article 3 hereof shall survive the
Closing; provided, however, that any claims for breach of such representations
and warranties that are not asserted (i) against the Sellers by the Purchaser
or (ii) against the Purchaser by the Sellers on or before substantial
consummation of any Chapter 11 plan for the Sellers shall be barred.
7.3 Transactional Costs. Except as set forth in Section 5.2, the
Purchaser shall be responsible for all of its legal, accounting, advisory and
other fees and expenses incurred in connection with this Agreement and the
consummation of the transactions contemplated hereby and the Sellers shall be
responsible for all legal, accounting (including all costs and fees), advisory
and other fees and expenses incurred by the Sellers in connection with this
Agreement and the consummation of the transactions contemplated hereby.
7.4 Successors and Assigns. This Agreement and all provisions
hereof will be binding upon and enure to the benefit of the parties hereto and
their respective successors and permitted assigns; provided, however, that
neither this Agreement nor any right, interest, or obligation hereunder may be
assigned by any party hereto without the prior written consent of the other
party, except that Parent and/or the Purchaser may assign their rights to an
affiliate of Parent or the Purchaser; provided, that no such assignment shall
relieve Parent or the Purchaser of their obligations hereunder, and provided
that no party hereto or successor or assignee has the ability to subrogate any
other person to any right or obligation under this Agreement.
7.5 Notices. All notices, requests, consents, instructions and
other communications required or permitted to be given hereunder shall be in
writing and hand delivered, sent by nationally recognized, next-day delivery
service or mailed by certified or registered mail, return receipt requested,
postage prepaid, addressed as set forth below or by facsimile transmission;
receipt shall be deemed to occur on the date of actual receipt if delivered
personally or by registered or certified mail and 12 hours from the time of
transmission if sent by facsimile.
(a) if to the Purchaser, to:
Cardigan Acquisition Corporation
c/o Cendant Corporation
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Fax: 000-000-0000
15
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxx, Esq.
Fax: 000-000-0000;
(b) if to any of the Sellers, to the address set forth
under such Seller's name on Exhibit A hereto:
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
M.O. Xxxxx, Jr., Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
or such other address or persons as the parties may from time to time
designate in writing in the manner provided in this Section.
7.6 Entire Agreement. This Agreement, together with the Schedules
and Exhibits hereto, and, to the extent relevant, the Merger Agreement
represent the entire agreement and understanding of the parties hereto with
respect to the transactions contemplated herein.
7.7 Amendments and Waivers. This Agreement may be amended,
superseded, cancelled, renewed or extended, and the terms hereof may be
waived, only by a written instrument signed by the Parent, Purchaser and the
Sellers or, in the case of a waiver, by the party waiving compliance or his or
her representative. No delay on the part of any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof; nor shall any
waiver on the part of any party of any such right, power or privilege, nor any
single or partial exercise of any such right, power or privilege, preclude any
further exercise thereof or the exercise of any other such right, power or
privilege.
7.8 Headings. The article and section headings contained in this
Agreement are solely for convenience of reference and shall not affect the
meaning or interpretation of this Agreement or of any term or provision
hereof.
7.9 Terms. All references herein to Articles, Sections, Schedules
and Exhibits shall be deemed references to such parts of this Agreement,
unless the context shall otherwise require.
7.10 Governing Law; Jurisdiction and Venue. Except as mandatorily
required by the Bankruptcy Code, this Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to choice of law
16
principles. Except as mandatorily required by the Bankruptcy Code, each party
hereto hereby agrees that any proceeding relating to this agreement and the
transactions contemplated hereby shall be brought in a State Court of New York
or a federal court located in New York. Each party hereto hereby consents to
personal jurisdiction in any such action brought in any such New York or
federal court, consents to service of process by registered mail made upon
such party and such party's agent and waives any objection to venue in any
such New York or federal court and any claim that any such New York or federal
court is an inconvenient forum.
7.11 No Third Party Beneficiaries. Except as expressly
contemplated in this Agreement, this Agreement shall be binding upon and inure
solely to the benefit of each party hereto and nothing in this Agreement is
intended to confer upon any other Person any rights or remedies of any nature
whatsoever under or by reason of this Agreement.
7.12 Counterparts. This Agreement may be executed in any number of
counterparts, each such counterpart being deemed to be an original instrument,
and all such counterparts shall together constitute the same agreement.
7.13 Interpretation. The table of contents is for convenience of
reference only, does not constitute part of this Agreement and shall not be
deemed to limit or otherwise affect any of the provisions hereof. Whenever the
words "include," "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation." The words
"hereof," "herein" and "hereunder" and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. All terms defined in this Agreement
shall have the defined meanings when used in any certificate or other document
made or delivered pursuant hereto unless otherwise defined therein. The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such term. Unless otherwise stated, any
agreement, instrument or statute defined or referred to herein or in any
agreement or instrument that is referred to herein means such agreement,
instrument or statute as from time to time amended, modified or supplemented,
including (in the case of agreements or instruments) by waiver or consent and
(in the case of statutes) by succession of comparable successor statutes and
references to all attachments thereto and instruments incorporated therein. As
used in this Agreement, "Person" shall mean any individual, corporation,
partnership, limited liability company, joint venture, estate, trust,
association, organization, labor union or entity of any kind whatsoever,
including any Governmental Authority. References to a Person are also to its
permitted successors and assigns. References to the "Sellers' knowledge" shall
mean the knowledge of any of the Sellers, after due inquiry and reasonable
investigation. As used in this Agreement, "affiliate" means as to any Person,
any other Person which, directly or indirectly, controls, or is controlled by,
or is under common control with, such Person. As used in this definition,
"control" (including, with its correlative meanings, "controlled by" and
"under common control with") shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of management or
policies of a Person, whether through the ownership of securities or
partnership or other ownership interests, by contract or otherwise.
17
7.14 Acknowledgements. The parties hereto acknowledge and agree
that (i) each party has reviewed and negotiated the terms and provisions of
this Agreement and has had the opportunity to contribute to its revision, and
(ii) each party has been represented by counsel in reviewing and negotiating
such terms and provisions. Accordingly, the rule of construction to the effect
that ambiguities are resolved against the drafting party shall not be employed
in the interpretation of this Agreement. Rather, the terms of this Agreement
shall be construed fairly as to both parties hereto and not in favor or
against either party.
7.15 Trustee Capacity. Xxxxxxx X. Xxxxxxx is executing this
Agreement on behalf of the Sellers solely in his capacity as Trustee of the
Consolidated Estate of the Sellers in the Bankruptcy Case and shall have no
personal responsibility or liability whatsoever under this Agreement. The
Trustee makes no agreement or understanding herein in his capacity as a
director of officer of the Company and nothing herein shall limit or affect
any actions taken by the Trustee in his capacity as an officer or director of
the Company.
7.16 Guarantee by Parent. Parent hereby guarantees the performance
of all obligations of the Purchaser contained in this Agreement (including,
without limitation, all payment obligations hereunder).
18
This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original and all of which together shall be
considered one and the same agreement.
CENDANT CORPORATION
By: /s/ Xxxx X. Xxxx
----------------------------------------
Name: Xxxx X. Xxxx
--------------------------------------
Title: Senior Vice President and Secretary
-------------------------------------
CARDIGAN ACQUISITION CORPORATION
By: /s/ Xxxx X. Xxxx
----------------------------------------
Name: Xxxx X. Xxxx
--------------------------------------
Title: Senior Vice President and Secretary
-------------------------------------
SELLERS
THE XXXXXXX FUNDING GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
--------------------------------------
Title: Trustee
-------------------------------------
XXXXXXX MANAGEMENT & DEVELOPMENT CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
--------------------------------------
Title: Trustee
-------------------------------------
19
XXXXXXX RECEIVABLES CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
--------------------------------------
Title: Trustee
-------------------------------------
XXXXXXX RECEIVABLES CORPORATION II
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
--------------------------------------
Title: Trustee
-------------------------------------
THE PROCESSING CENTER, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
--------------------------------------
Title: Trustee
-------------------------------------
RESORT SERVICE COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
--------------------------------------
Title: Trustee
-------------------------------------
AMERICAN MARINE INTERNATIONAL, LTD.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
--------------------------------------
Title: Trustee
-------------------------------------
ALOHA CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
--------------------------------------
Title: Trustee
-------------------------------------
20
EXHIBIT A
Number of
Number of Shares of Series
Shares of 2 Preferred
Common Stock Stock
Name and Address of Beneficially Beneficially
Seller Owned Owned Record Holder
------------------- ------------ ---------------- -------------
All Sellers as a group* 20,685,248 11,983** Common Stock
Address: Xxxxxxx X Xxxxxxx Ttee The Xxxxxxx
Xxxxxxx X. Xxxxxxx Funding Group: 5,271,000 shares
As Trustee for the The Xxxxxxx Funding Group Inc. c/o
Consolidated Estate of the Xxxxxxx X Xxxxxxx: 12,892,963
Xxxxxxx Funding Group, Inc. shares
000 Xxxxxxxxxx Xxxxxx Xxxxxxx Management & Development
Xxxxxxxxx, XX 00000 Corp.: 2,321,285 shares
Telephone: (000) 000-0000 Xxxxxxx X Xxxxxxx Bankruptcy Ttee
Facsimile: (000) 000-0000 of Xxxxxxx Management &
Development Corp.: 200,000 shares
Preferred Stock: The Xxxxxxx
Funding Group, Inc.
-----------------------
* All of the Sellers, as members of a consolidated estate in bankruptcy, may
have beneficial ownership over the Target Securities.
** Does not include shares to be issued as fourth quarter payment-in-kind
dividend, which shares are expected to be issued on or before
December 31, 2001.
X-0
XXXXXXX X
XXX XXXXXXXX
X-0
