STOCK PURCHASE AGREEMENT
------------------------
THIS STOCK PURCHASE AGREEMENT ("Agreement") is made and dated as of
September 10, 1998, between IMN Financial Corp., a Delaware corporation, whose
principal office is located at 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000
("IMNF"), CFI Mortgage, Inc., a Delaware corporation, whose principal office is
located at 000 Xxxxxxx Xxxx., Xxxxx 000, Xxxx Xxxx Xxxxx, XX 00000 ("CFI"), and
Xxxxxxx Xxxxxxx, an individual residing at 0000 XX Xxxxxxxx Xxxx, Xxxx Xxxxx, XX
00000 , as to the provisions of Paragraphs 1.5 and 3 only, and Xxxxxxxxxxx
Xxxxxxx, an individual residing at 00000 Xxxxxxxxx Xxxx, Xxxx Xxxxx Xxxxxxx, XX
00000, (the "Principals") as to the provisions of paragraph 3 only.
WHEREAS, CFI is the owner of all of the issued and outstanding shares
of capital stock of Bankers Direct Mortgage Company ("BDMC"),
WHEREAS, IMNF wishes to acquire and CFI wishes to sell all of the
outstanding shares of capital stock of BDMC, and CFI and the Principals will
agree not to compete in the retail mortgage business for a period of five (5)
years after Closing,
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and covenants herein contained, and other good and
valuable consideration, the receipt of which is hereby acknowledged, IMNF, the
Principals, as indicated above, and CFI hereby agree as follows:
1. PURCHASE AND SALE OF STOCK.
--------------------------
1.1 PURCHASE AND SALE. On the Closing Date, as defined herein, IMNF
-----------------
1
shall purchase from CFI, and it will sell and transfer to IMNF, all the issued
and outstanding shares of stock of CFI's subsidiary, BDMC, of every kind and
description (the "Stock").
1.2 DELIVERY AT CLOSING. At the Closing, as defined herein, CFI
-------------------
will deliver certificate(s) for the Stock duly endorsed so as to make IMNF the
sole owner of the Stock, free and clear of all claims, liens, equities,
encumbrances and restrictions of any kind, except hereinafter provided.
1.3 PURCHASE PRICE AND PAYMENT TERMS. In exchange for 100% of the
---------------------------------
issued and outstanding stock of BDMC, and the covenants not to compete of CFI
and the Principals, IMNF will pay CFI quarterly, forty-five days after the end
of each quarter, for the two years following the Closing, one eighth of one
point on all closed loans, provided BDMC's branch operations existing at the
date of Closing are profitable in that quarter, after deduction of all
liabilities of any kind of BDMC, including but not limited to undisclosed
liabilities, trade accounts payable, employee claims of whatever nature,
litigation losses, or losses due to loan buy-backs on warehouse lines or from
investors.
1.4 GUARANTEE OF MINIMUM NET WORTH. CFI guarantees that BDMC will
------------------------------
have a net worth of $0. If BDMC's net worth is negative, such amount will be
netted against the payments to be made pursuant to Section 1.3 above.
1.5 EMPLOYMENT OF XXXXXXX XXXXXXX. As a further inducement to IMNF
-----------------------------
to enter into this Agreement, Xxxxxxx Xxxxxxx agrees to enter into an employment
agreement with IMNF's wholly-owned mortgage banking subsidiary, Island Mortgage
Network as Senior Vice President and National Manager of Sales, for a five (5)
year period, with duties customary to such a position in the
2
mortgage banking industry, upon terms to be negotiated.
2. CLOSING DATE On the closing date, the date upon which all
------------
transactions constituting conditions precedent to the sale shall have been
consummated ("Closing Date"), Closing will be held at the offices of IMNF, 000
Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000, on September 4, 1998, or such other
date and time as the parties may agree.
3. NON-COMPETITION/ NON-SOLICITATION.
---------------------------------
A. As a further inducement to IMNF to enter into this Agreement,
CFI agrees that for a period of five (5) years from the Closing Date of this
Agreement , CFI , its subsidiaries and affiliates shall not, directly or
indirectly, (i) engage in activities or businesses which compete with the
business of BDMC as currently conducted; or (ii) solicit, recruit, or hire any
employees of BDMC as of the date of this Agreement, or any persons who have
worked for BDMC. CFI recognizes that a breach of this obligation would result in
irreparable injury to CFI for which no adequate remedy would be available at
law, and therefore consents to the entry of such injunctive relief as shall be
reasonably necessary to restrain or prohibit conduct which violates this
Section.
B. As a further inducement to IMNF to enter into this Agreement,
Xxxxxxx Xxxxxxx agrees that for a period of five (5) years from the Closing Date
of this Agreement , Xxxxxxx Xxxxxxx shall not, directly or indirectly, (i)
engage in activities or businesses which compete with the business of BDMC as
currently conducted; or (ii) solicit, recruit, or hire any employees of BDMC as
of the date of this Agreement, or any persons who have worked for BDMC. Xxxxxxx
Xxxxxxx recognizes that a breach of this obligation would result in irreparable
injury to IMNF for which no adequate remedy would be available at law, and
therefore consents to the entry of such injunctive relief as shall be reasonably
necessary to restrain or prohibit conduct which violates this Section.
3
C. As a further inducement to IMNF to enter into this Agreement,
Xxxxxxxxxxx Xxxxxxx agrees that for a period of five (5) years from the Closing
Date of this Agreement, Xxxxxxxxxxx Xxxxxxx shall not, directly or indirectly,
(i) engage in activities or businesses which compete with the business of BDMC
as currently conducted; or (ii) solicit, recruit, or hire any employees of BDMC
as of the date of this Agreement, or any persons who have worked for BDMC.
Xxxxxxxxxxx Xxxxxxx recognizes that a breach of this obligation would result in
irreparable injury to IMNF for which no adequate remedy would be available at
law, and therefore consents to the entry of such injunctive relief as shall be
reasonably necessary to restrain or prohibit conduct which violates this
Section.
4. REPRESENTATIONS AND WARRANTIES BY CFI. CFI represents and
-------------------------------------
warrants to IMNF as follows:
4.1 ORGANIZATION AND STANDING, POWERS, QUALIFICATION AND
----------------------------------------------------
AUTHORITY/BOOKS AND RECORDS/ PERMITS AND LICENSES.
--------------------------------------------------
A. BDMC is a corporation duly organized, validly existing and in
good standing under the laws of the State of Florida, has all requisite
corporate power and authority to own its properties and assets and carry on its
business as now conducted is duly qualified and authorized to transact business
as a mortgage lending company in the State of Florida, and is qualified and in
good standing as a foreign corporation in each jurisdiction where the nature of
its business required such qualification.
B. The copies of the Articles of Incorporation and Bylaws of
BDMC attached as Schedule 4.1 are correct and complete. The stock transfer,
minute books, and corporate records of BDMC which have been made available to
IMNF are correct and complete and constitute the only
4
written records and minutes of the meetings, proceedings, and other actions of
the shareholders and the Board of Directors from the date of BDMC's organization
to the date hereof.
C. BDMC (and/or, where necessary, its employees), has duly
obtained and holds in full force and effect all consents, authorizations,
licenses, permits, orders, or approvals of, and has made timely declarations and
filings with all federal state or local governmental or regulatory bodies that
are material and necessary in the conduct of its business as conducted at
present, (collectively, the "Permits"). All the Permits were duly obtained, are
in full force and effect, and no violations are or have been recorded in respect
of any such Permit. To CFI's knowledge, no proceeding is pending or threatened
to revoke, deny or limit any such Permit.
4.2 CAPITAL STOCK. BDMC authorized capital stock consists of one
-------------
class of voting common stock, consisting of seven thousand five hundred (7500)
shares, each share having no par value. Of the authorized capital stock, all
shares are validly issued and outstanding, fully paid and nonassessable at the
date hereof, all of which are owned by CFI. There are no options, warrants or
rights to acquire any capital stock of BDMC or securities convertible into or
exchangeable for, or which otherwise confer on the holder or holders thereof any
right (whether or not upon the happening of any contingency or after any lapse
of time, and whether or not upon the payment or delivery of any consideration)
to acquire, any capital stock of BDMC, nor is BDMC committed to issue any such
option, warrant, right or security.
4.3 DISSOLUTION; FORFEITURE. No action at law or suit in equity and
-----------------------
no other investigation or proceeding whatsoever is now pending or threatened:
(i) to liquidate, dissolve or disincorporate BDMC, (ii) to declare any of the
corporate rights, powers, franchises or privileges of BDMC to be null and void
or otherwise than in full force and effect; (iii) to declare that BDMC or
5
any of its directors, officers, agents or employees have exceeded or violated
any of their corporate rights, powers, franchises or privileges; or (iv) to
obtain any decree, order, judgment or other judicial determination or
administrative or other ruling that will or may impede or detract from any of
the corporate rights, powers, franchises or privileges now vested in or claimed
by BDMC.
4.4 FINANCIAL STATEMENTS.
--------------------
(a) There have heretofore been furnished to IMNF copies of the
audited financial statements of CFI as at December 30, 1997 and December 30,
1998, and the related statements of income and retained earnings for the fiscal
years then ended, all prepared by Xxxxx Xxxxxxxx, certified public accountant
for CFI. Such financial statements are complete and correct and have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis throughout the periods involved and fairly present the
financial position of CFI as at the dates indicated and the results of the
operations of CFI for the periods indicated.
(b) Prior to the Closing Date, CFI has delivered to IMNF a pro
forma balance sheet of BDMC as at August 31, 1998, and a pro forma statement of
income and retained earnings for the period then ended of BDMC, net of
inter-company balances with CFI or related entities, showing the guaranteed net
worth of BDMC, certified by the chief executive officer of BDMC (hereinafter
collectively referred to as the "August, 1998, Balance Sheet"). The financial
statements referred to above shall be prepared in conformity with generally
accepted accounting principles applied on a basis consistent with the financial
statements referred to in Subsection (a) above and will fairly present the
financial position of BDMC as at August 31, 1998, and the results of operations
of BDMC for the period then ended.
6
4.5 PROPERTIES. BDMC has and will have on the Closing Date all
----------
requisite corporate power and authority to own and hold, and (except for assets
disposed of in the ordinary course of business) will have on the Closing Date
good and marketable indefeasible title to, all of the properties and assets
reflected in the most recent of the balance sheets referred to in Paragraph 3.4
above, subject to no mortgage, pledge, lien, encumbrance, charge or security
interest, except only: (i) liens in respect of pledges or deposits under
workers' compensation laws or similar legislation; (ii) liens for property
taxes, assessments or like governmental charges not yet delinquent and payable
without penalty; (iii) defects and exceptions, none of which (individually or in
the aggregate) materially interfere with the use by BDMC of such properties for
the purposes for which they are held; and (iv) the liens described in Schedule
4.5A, attached hereto, which schedule describes each such lien, describes the
transaction or other circumstances out of which it arises, describes the amount
of the obligation it secures, identifies the property affected thereby,
identifies the owner of such property, and is complete and correct. CFI agrees
to cooperate with IMNF in obtaining the discharge of any liens of record. Said
Schedule 4.5A will also describe all notes payables of August 31, 1998. Attached
hereto is Schedule 4.5B, which is complete and correct, listing all real
property owned by BDMC. All of the properties and assets of BDMC are in
existence, in the possession of BDMC and in good working order and repair,
except for minor defects which do not materially interfere with their use, or
except as described in Schedule 4.5C, attached hereto.
4.6 CHANGES IN CONDITION. Since August 31, 1998, there has been no
--------------------
change in the assets, liabilities, condition (financial or otherwise) or
business of BDMC from that set forth in or reflected in its financial statements
as at said date, except changes in the ordinary course of
7
business, none of which (individually or in aggregate) have been materially
adverse. Since August 31, 1998, BDMC has not been adversely affected in any
material manner as a result of any fire, explosion, accident, flood, earthquake,
seismic or tidal wave, windstorm, strike, lockout, labor dispute, riot, civil
commotion or disturbance, sabotage, confiscation, condemnation or purchase of
any property by governmental authority, activities of armed forces, or acts of
God or the public enemy, except as shown on Schedule 4.6, attached hereto.
4.7 TAX RETURNS AND PAYMENTS. All tax returns and reports of BDMC
------------------------
required by law (including, without limiting the generality of the foregoing,
all income, unemployment compensation, social security, sales, compensating use,
excise, privilege and franchise tax laws of the United States or any state,
territory or municipal or political subdivision thereof) to be filed on or
before the Closing Date have been, or will be, duly and timely filed. All taxes,
assessments, fees, interest, penalties and other governmental charges or
impositions which are, or should be, shown on said returns and reports,
reflected on xxxxxxxx by governmental agencies, or required to be deposited on
or before the Closing Date, have been, or will be, duly and timely paid (other
than those not yet due and payable, those presently payable without penalty, and
those currently being contested in good faith).
BDMC has not received any notice of deficiency assessment or
proposed deficiency assessment of any United States, state, municipal or other
tax or penalty and has no knowledge of any basis for any additional deficiency
assessment of any such tax or penalty, nor has it knowingly waived any law or
regulation fixing, or consented to the extension of, any period of time for the
assessment of any tax or other governmental imposition, or become committed so
to do, except as shown on Schedule 4.7, attached hereto.
8
4.8 COMPLIANCE WITH OTHER INSTRUMENTS. BDMC is not in violation of
---------------------------------
or in default with respect to any term or provision of its: (i) Articles of
Incorporation or Bylaws; (ii) material indentures, contracts, agreements or
instruments to which it may be bound; or (iii) any judgment, order, writ,
injunction or decree of any court or of any federal, state, territorial,
municipal or other commission, board or other administrative or governmental
agency or authority; and it is not in violation of any federal, state,
territorial, municipal or other statute, rule or regulation applicable to it or
by which it may be bound in any case in any manner so as at present or at any
future time to affect it adversely in any material respect.
4.9 UNDISCLOSED LIABILITIES. At the date of the most recent balance
-----------------------
sheet referred to in Paragraph 4.4 herein, there were no material liabilities of
BDMC (actual, contingent or accrued) which are not shown or reflected in such
balance sheet or the notes thereto.
4.10 BOOKS OF ACCOUNT. The books of account of BDMC are complete
----------------
and correct in all material respects, and all moneys due or to become due from
or to or owing by, and all liabilities (actual, contingent or accrued) of, BDMC
by reason of any transaction, matter, cause or thing whatsoever which, in
accordance with generally accepted accounting practices or principles, should be
entered therein have been duly, correctly and completely entered therein.
4.11 LITIGATION, ETC. BDMC is not a party to or affected by any
----------------
pending, and has no notice or knowledge of any threatened action, suit,
proceeding or investigation (at law or in equity or otherwise) in, before or by
any court or any governmental board, commission, agency, department
9
or office in which an adverse determination would have any material adverse
effect on the business, assets or financial condition of BDMC, except as shown
on Schedule 4.11, attached hereto.
4.12 ACCOUNTS AND NOTES RECEIVABLE /ACCOUNTS AND COMMISSIONS
-------------------------------------------------------
PAYABLE.
-------
A. Except as specified in Schedule 4.12A, attached hereto, all
accounts and notes receivable of BDMC are and on the Closing Date will be valid,
genuine and subsisting; arise and/or will arise out of bona fide sales and/ or
performances of services; and are subject and will be subject to no known
defenses, set-offs or counterclaims. BDMC will deliver to IMNF at the Closing
Date Schedule 4.12, showing the age of accounts and notes receivable of BDMC as
at August 31, 1998, which schedule will specify the amount, if any, of such
accounts and notes receivable which BDMC deems to be uncollectible.
B. Attached as Schedule 4.12B is the August 31, 1998 accounts
payable run for BDMC, listing balances outstanding and the last payment to each
creditor, which is true and correct as of the date of the Closing hereunder.
C. Attached as Schedule 4.12C is the August 31, 1998 commissions
payables run for BDMC, listing all commissions owed to employees or others,
which is true and correct as of the Closing hereunder.
4.13 OTHERS' DEFAULTS. No other party with whom BDMC has any
----------------
material contractual arrangement is not in compliance with, or is in default
(without regard to any requirement of notice or grade period or both) in the
observance or performance of, any term, condition or provision of any such
contractual arrangement.
10
4.14 COLLECTIVE BARGAINING AGREEMENTS. BDMC is not a party to or
--------------------------------
bound by any collective bargaining agreement or other labor agreement with any
bargaining agent (exclusive or otherwise) with respect to its employees.
4.15 OVERTIME, BACK-WAGE, BACK COMMISSION, VACATION,
----------------------------------------------
DISCRIMINATION, FMLA STATUS/ NO EXTRAORDINARY TURNOVER IN KEY STAFF.
-------------------------------------------------------------------
A. Except as described in Schedule 4.15A, which will be delivered
by BDMC to IMNF on the Closing Date, no present or former employee of BDMC has
any claim against BDMC (whether under federal or state law, under any employment
agreement or otherwise) on account of or for: (i) overtime pay, other than
overtime pay for work done in the current payroll period; (ii) wages or salary
or commissions for any period other than the current payroll period; (iii)
vacation time off or pay in lieu of vacation time off, other than (a)
accumulated vacation pay as at the Closing Date as shown in the schedule
referred to above, and (b) vacation time (or pay in lieu thereof) earned in or
in respect of the current fiscal year; or (iv) any violation of any statute,
ordinance or regulation relating to minimum wages or maximum hours of work. No
employee is at present taking, or has notified BDMC of any intention to take, a
leave pursuant to the Family and Medical Leave Act of 1993, ("FMLA") or any
state counterpart, except as noted in Schedule 4.15A hereto. BDMC has designated
the calender year as its FMLA leave year. No person or party (including, but not
limited to, governmental agencies of any kind) has made any claim against, or
asserted any basis for any action or proceeding against, BDMC under or arising
out of any statute, ordinance or regulation relating to discrimination in
employment or employment practices.
B. CFI warrants and represents that no key staff, defined as its
11
branch managers and loan officers, have left BDMC's employ since the date of the
last audited financial statement referred to in Paragraph 4.4a above, except as
noted on Schedule 4.15B.
4.16 CONTRACTS FOR PERSONAL SERVICES. BDMC is not a party to or
-------------------------------
bound by any contract, agreement or undertaking with any person whatsoever for
personal services to be rendered by any person for BDMC, except as set forth in
Schedule 4.16A attached hereto. Attached hereto is Schedule 4.16B, showing the
names, positions and annual rates of compensation of all employees of BDMC,
including copies of employment contracts, or a statement that they are employed
at will. Copies of BDMC's written employment policies, including sick and
vacation policies, as well as a copy of its employee manual, if any, are also
attached as Schedule 4.16B.
4.17 PROFIT SHARING ARRANGEMENTS; BONUSES. BDMC is not and will not
------------------------------------
be, at the Closing Date, a party to or bound by any contract, agreement or
undertaking by the terms of which any person, firm, corporation, business trust
or other entity is or may be entitled (for any reason or in any capacity other
than as a shareholder or employee of BDMC) to any share in the gross receipts,
earnings or profits of BDMC, except for any leases, concessions, franchises or
other agreements providing for payments by BDMC based on sales or profits, true
copies of all which leases, concessions, franchises or other agreements have
been delivered by BDMC to IMNF, and except as set forth on Schedule 4.17,
attached hereto.
4.18 PENSIONS AND OTHER DEFERRED COMPENSATION. BDMC will not as of
----------------------------------------
the Closing Date have a pension, profit sharing or retirement income plan,
contract or arrangement in force, except for those plans disclosed in Schedule
4.18, attached hereto, copies of which plans have heretofore been delivered to
IMNF.
12
4.19 BENEFIT CLAIMS. No person or party whatsoever now has or will
--------------
have on the Closing Date any claim known to BDMC under which BDMC has any
liability under any health, sickness, disability, medical, surgical, hospital or
similar benefit plan or arrangement (whether or not legally binding) maintained
by BDMC, or to or by which BDMC is a party or is bound, or under any workers'
compensation or similar law, which is not fully covered by insurance maintained
with reputable, financially responsible insurers. CFI herewith delivers to IMNF
Schedule 4.19, listing all insurance contracts relating to all such benefit
plans, arrangements and copies of such benefit plans themselves.
4.20 INTERESTS IN PROPERTY, ETC. No other party owns, holds or
--------------------------
claims any interest in any real or personal property or other assets (tangible
or intangible) used by BDMC in its businesses.
4.21 LEASES. BDMC is not, either as lessee or lessor, a party to or
------
bound by any lease or any property or assets having a term of (or subject to
renewal or extension by any party other than BDMC for a total term, including
the initial term and any such renewal or extended term, aggregating) more than
one year, except only for the leases described on Schedule 4.21, attached
hereto, true copies of which have been heretofore delivered to IMNF.
4.22 CONTRACTS FOR PURCHASE OR SALE. BDMC is not a party to or
------------------------------
bound by any contract, agreement or undertaking with any person or party
whatsoever (other than cost and insurance contracts entered into in the ordinary
course of business) for the purchase of any property or assets of any nature
whatsoever which requires that payment for such property or assets shall be
13
made regardless of the Closing Date of this Agreement. BDMC is not a party to,
or bound by any other contract, agreement or undertaking for, the sale of any
property or assets of any nature whatsoever, except only such as have been made
in the ordinary course of business and that expire by their terms or are
otherwise cancelable by BDMC (without any right of renewal or extension in any
party other than BDMC) no later than 30 days after the Closing Date.
4.23 INSURANCE CONTRACTS; BANKING RELATIONSHIPS. CFI hereby
------------------------------------------
delivers to IMNF Schedule 4.23A, showing all contracts of insurance and
indemnity (not shown in any other schedule referred to in this Agreement) in
force at the date hereof. CFI also hereby delivers to IMNF Schedule 4.23B,
showing (i) the names and locations of all banks in which BDMC has accounts or
safe deposit boxes or borrowing relationships and the names of all persons
authorized to draw on such accounts, access such boxes, or borrow pursuant to
such relationships; the balance as of the Closing Date and a description of the
use and purpose of each account; and (ii) the names of all persons or entities
holding BDMC powers of attorney, with copies thereof.
4.24 BROKERAGE; INDEMNITY. CFI has retained no broker or finder in
--------------------
connection with the transactions contemplated by this Agreement, and will
indemnify, defend and hold harmless IMNF against all the claims for brokers' or
finders' fees made or asserted by any party claiming to have been employed by
it, and all costs and expenses (including the reasonable fees of counsel) of
investigating and defending such claims.
4.25 CONTRACTS, LEASES, ETC. As of the date hereof, BDMC is not a
----------------------
party to any lease, contract, undertaking or other commitment, written or oral,
except:
14
(a) Those leases, contracts, undertakings or other commitments
listed in the Schedules hereto; and
(b) Those leases, contracts, undertakings and commitments not
materially affecting the business of BDMC. The original or a full, true and
correct copy of each item listed in the aforementioned schedules (together with
supplements and amendments thereto) or a summary of the material provisions, in
the event a formal document is not in existence, has been delivered to or
examined by IMNF. BDMC is not in default under any lease, contract, undertaking
or other commitment materially affecting its business. To the extent that any
lease, contract, undertaking or other commitment set forth in the aforementioned
schedules requires the consent of any other person or party to its assignment,
CFI agrees to use its best efforts to procure such consent and to deliver the
same to IMNF on or before the Closing Date.
4.26 PERMITS. BDMC holds or has obtained all governmental permits,
-------
licenses, consents, approvals and waivers necessary for the lawful conduct of
its business as now conducted. Copies of all such permits are attached hereto as
Schedule 4.26.
4.27A WAREHOUSE LINES. BDMC has in place warehouse lines of credit
---------------
in the total amount of approximately $42,500,000 dollars in force at the date
hereof. CFI hereby delivers to IMNF Schedule 4.27A showing the names, locations
balances and limits of all such warehouse lines of credit, together with a
listing of all mortgages comprising the balances thereof, with ageing details.
CFI warrants and represents that INSouth Funding is a warehouse line of credit
used solely by BDMC, and that Nikko Financial is a non-segregated line used by
BDMC and CFI. CFI agrees that no amounts from the non-segregated line will be
charged to, or become an obligation of, IMNF after
15
Closing of this Agreement.
4.27B INVESTORS. Schedule 4.27B, which CFI warrants is complete and
---------
correct, lists the entities to which BDMC sells mortgages, their addresses and
contact names, as well as providing a percentage breakdown of business and type
of business for each, and a total for their volume. Also attached are agreements
with such entities.
4.27C ALL MORTGAGE LOANS CURRENTLY ORIGINATED OR STILL OPEN.
-----------------------------------------------------
Attached as Schedule 4.27C, which CFI warrants is complete and correct, is a
listing of all loans in BDMC's pipeline as of today's date, including all loans
in all stages: application, commitment, and all closed but unpurchased loans on
BDMC's books, as well as all warehoused loans and all amounts due and payable
thereon., none of which amounts shall be charged to, or become an obligation of
IMNF after the Closing Date.
4.28 NO CONFLICT WITH OTHER AGREEMENTS. Neither the execution and
---------------------------------
delivery of this Agreement nor compliance with its terms and provisions will
conflict with or result in a breach of any agreement or instrument to which BDMC
is a party or by which it may be bound or constitute a default thereunder or
result in the creation or imposition of any lien, charge, encumbrance or
restriction of any nature whatsoever upon, or give to anyone any interest or
rights, including rights of termination or cancellation, in or with respect to,
any of the properties, assets, contracts, or business of BDMC.
4.29 NO RESTRICTIONS. Neither CFI nor BDMC is subject to any
---------------
charter, bylaw,
16
judgment or other restriction which would prevent the consummation of the
transactions contemplated by this Agreement. The board of directors and the
shareholders of CFI have duly approved this agreement and the transactions
contemplated herein as required under the laws of the State of Delaware and have
authorized the execution and delivery of this Agreement.
4.30 DISCLOSURE. Neither the financial statements, any schedule
----------
referred to herein nor this Agreement contains any untrue statements of a
material fact or knowingly omits to state a material fact (other than facts
generally known to the business community) necessary in order to make the
statements contained therein or herein not misleading. To the best knowledge of
CFI, there is no such fact which materially adversely affects or in the future
may (so far as CFI can now reasonably foresee) materially adversely affect the
business or prospects or condition (financial or otherwise) of BDMC or any of
its properties or assets which has not been set forth herein in Schedule 4.30,
delivered to IMNF.
5. REPRESENTATIONS ,WARRANTIES, AND COVENANTS OF IMNF. IMNF
--------------------------------------------------
represents and warrants to CFI as follows:
5.1 ORGANIZATION AND STANDING. IMNF is a corporation duly organized
-------------------------
and existing and in good standing under the laws of the State of Delaware and
has full corporate power to carry out this Agreement.
5.2 AUTHORITY OF IMNF. The execution and performance of this
-----------------
Agreement by IMNF has been duly authorized and approved by its board of
directors. Neither the execution nor the performance by IMNF of this Agreement
will result in the breach of any term or provision of any
17
other agreement to which IMNF is a party.
5.3 BROKERAGE; INDEMNITY. IMNF has not retained any broker or
--------------------
finder in connection with the transactions contemplated by this Agreement, and
IMNF will indemnify, defend and hold harmless CFI against all claims for
brokers' or finders' fees made or asserted by any party claiming to have been
employed by IMNF, and all costs and expenses (including the reasonable fees of
counsel) of investigating and defending such claims.
6. CERTAIN COVENANTS BY CFI. CFI covenants and agrees with IMNF
------------------------
that:
6.1 CONSENTS. CFI shall promptly apply for or otherwise seek,
--------
and use its best efforts to obtain, all consents and approvals of all parties
whose consent or approval is necessary for the valid effective consummation and
completion of the transactions contemplated hereby or is otherwise necessary in
order that CFI may validly, lawfully and effectively perform and carry out its
obligations hereunder. BDMC will not apply for any mortgage or banking
department approval, but will cooperate with IMNF as requested in making such
application.
6.2 RESIGNATIONS OF ALL DIRECTORS AND OFFICERS. CFI shall
------------------------------------------
deliver to IMNF written resignations signed by all Directors and Officers of
BDMC dated as of the Closing Date.
6.3 TRANSFER OF AUTHORITY TO ACCESS AND DRAW UPON BANK ACCOUNTS,
------------------------------------------------------------
ETC. CFI shall deliver to IMNF written transfer of authority to access and draw
---
upon each and every bank account of every nature and kind, every safe deposit
box, and any right to borrow, as set forth in Schedule 4.23, maintained by BDMC,
into the name of IMNF, dated as of the Closing Date.
18
7. CONDITIONS TO IMNF'S OBLIGATIONS. The obligations of IMNF to
--------------------------------
complete and consummate this Agreement shall be subject to compliance by CFI
and, if applicable, Principals, with all of the agreements herein contained and
to the satisfaction of the following conditions precedent:
7.1 REPRESENTATIONS AND WARRANTIES TRUE. The representations and
-----------------------------------
warranties contained in Paragraph 5 hereof shall be true and correct in all
material respects as of the Closing Date with the same force and effect as
though made on and as of the Closing Date, and IMNF shall have received on the
Closing Date a certificate from CFI dated the Closing Date signed by the
president and secretary of CFI to those effects.
7.2 OPINION OF COUNSEL. At the Closing Date, CFI shall deliver
------------------
or cause to be delivered to IMNF an opinion (in form and content satisfactory to
IMNF), dated the Closing Date, from counsel for CFI, to the following effect:
(a) That BDMC is a corporation duly organized and validly
existing and in good standing under the laws of the State of Florida, entitled
to own or to lease its properties and to carry on its business as and in the
places where such properties are now owned, or leased, or such businesses are
now conducted, and insofar as is known to such counsel, has fully complied with
all federal, state, and local laws with respect to the operation of its
business.
(b) That CFI has full power and authority to make, execute,
deliver and perform this Agreement in accordance with its terms; this Agreement
has been duly authorized and approved by proper corporate action of CFI and
constitutes a valid and legally binding obligation of CFI in accordance with its
terms. All of the shares of stock currently outstanding as reflected in
paragraph 5.2 of this agreement are validly issued and outstanding and are not
currently subject to
19
any lien, pledge, encumbrance, restriction or claims, and CFI has full right and
authority to transfer the same pursuant to this transaction. Upon assignment and
delivery of the share certificates to IMNF, it will take title thereto free and
clear of any lien, pledge, encumbrance, charge, agreement or claim.
(c) That such counsel does not know that any action, suit,
proceeding or investigation is pending against BDMC which might result in any
material adverse change in the condition (financial or otherwise) or business of
BDMC (other than those referred to in Paragraph 5.11 hereof), or which questions
the legality, validity or propriety of this Agreement or of any actions taken or
to be taken pursuant to or in connection with this Agreement.
In rendering such opinion, counsel for BDMC may rely (and
will state in such opinion the belief that IMNF is justified in relying) upon
the certificates of an officer of BDMC as to matters of fact.
7.3 NO ACTION TO PREVENT COMPLETION. No action or proceeding
-------------------------------
shall have been instituted or threatened on or prior to the Closing Date to set
aside, restrain or prohibit, or to obtain damages in respect of, this Agreement
or the consummation of the transactions contemplated herein which in the opinion
of IMNF makes it inadvisable to consummate such transactions.
7.4 FINAL BALANCE SHEET. CFI has delivered at Closing the
-------------------
Final Balance Sheet of BDMC and related financial statements, which will show no
material adverse change in the financial position of BDMC from the date of the
financial statements described in Paragraph 4.3 hereof. In addition, there shall
have been no material adverse change in the financial position of BDMC, up to
and including the Closing Date.
20
7.5 CONSENT. To the extent specified in any paragraph or
-------
schedule with respect to obtaining the consent of any other person or party to
the assignment of specified contracts, licenses, leases, agreements or
commitments, CFI shall have obtained by the Closing Date such consents in form
and substance satisfactory to IMNF, except as provided on Schedule 6.5.
7.6 FULL COMPLIANCE. IMNF's obligations to complete and
---------------
consummate this Agreement shall be subject to material compliance by CFI with
all of its agreements herein contained, and to the reasonable satisfaction of
all of the conditions of this Agreement.
7.7 CHANGES IN CONDITIONS. From the date of this Agreement to
---------------------
the Closing Date, there will have been no material adverse change in the assets
or liabilities or condition (financial or otherwise) or business of BDMC, and
BDMC will not have been adversely affected in any material manner as the result
of any fire, explosion, accident, flood, earthquake, seismic or tidal wave,
windstorm, strike, lockout, labor dispute, riot, civil commotion or disturbance,
sabotage, confiscation, condemnation or purchase of any property by governmental
authority, activities of armed forces, or acts of God or the public enemy,
whether covered by insurance or not.
8. CONDITIONS TO CFI'S OBLIGATIONS. CFI's obligations to complete
-------------------------------
and consummate this Agreement shall be subject to material compliance by IMNF
with all of its agreements herein contained and to the reasonable satisfaction
of the following conditions precedent:
8.1 REPRESENTATIONS AND WARRANTIES TRUE. The representations and
-----------------------------------
warranties contained in Paragraph 5 hereof shall be true and correct in all
material respects as of the Closing Date, and IMNF shall have suffered no
adverse material changes in its financial condition that would
21
affect its ability to perform the transactions contemplated hereunder. CFI shall
have received at the Closing a certificate dated the Closing Date signed by the
president or vice president and the secretary or assistant secretary of IMNF to
that effect.
8.2 NO ACTION TO PREVENT COMPLETION. No action or proceeding
-------------------------------
shall have been instituted or threatened on or prior to the Closing Date to set
aside the authorizations of the transfers hereunder or any of them, and no
action or proceeding shall have been instituted or threatened before any court
or governmental agency to restrain or prohibit, or to obtain substantial damages
in respect of, this Agreement or the consummation of the transactions
contemplated herein which in the opinion of CFI makes it inadvisable to
consummate such actions.
9. FURTHER ASSURANCE. It is expressly understood and agreed that
-----------------
CFI will, upon IMNF's request, from time to time prior to the closing execute
and deliver to IMNF all such instruments and documents of further assurance or
otherwise, and will do all such acts and things as in the sole judgement of IMNF
may be necessary or proper for the full, complete and effectual vesting in IMNF
at the Closing of all of BDMC's assets or otherwise to carry out and perform
BDMC's obligations hereunder.
10. CLOSING DELIVERIES. This Agreement shall close when all of the
------------------
deliveries referred to heretofore in this Agreement, and all of the deliveries
referred to in this Paragraph 10, are made on or prior to the Closing Date, in
form reasonably satisfactory to the parties and their legal and accounting
advisors. Such schedules and deliveries as cannot reasonably be made at Closing
shall be exchanged as soon as practicable, but in any event, within thirty (30)
days of the Closing Date referred to in Paragraph 2 hereof.
22
10.1 IMNF and CFI shall deliver to each other certified copies
of the resolutions of their boards of directors authorizing the execution and
performance of this Agreement and the acts of the officers of each in carrying
out the terms and provisions thereof, and appropriate incumbency certificates
for such officers, certified by their secretaries or assistant secretaries.
10.2 IMNF and CFI agree to execute and deliver such instruments
and take such other action as any of them may reasonably require in order to
carry out the intent of this Agreement.
10.3 CFI shall deliver to IMNF a certificate of the Secretary of
State of Florida, evidencing the good standing of BDMC as of a date or dates not
more than ten (10) days prior to the Closing Date.
10.4 CFI shall cooperate with IMNF in seeking a tax clearance
certificate for BDMC to be issued by the appropriate Florida authority dated as
of the Closing Date.
10.5 CFI will issue and deliver to IMNF certificate(s) for the
Stock sold to IMNF by this Agreement.
10.6 CFI shall deliver to IMNF all BDMC's formal corporate
records and devices, including the corporate minute book, corporate stock
transfer records and corporate seal.
10.7 CFI shall deliver to IMNF written resignations signed by
all Directors and Officers of BDMC dated as of the Closing Date.
23
10.8 CFI shall deliver to IMNF written transfer of authority to
access and draw upon each and every bank account of every nature and kind, as
set forth in Schedule 4.23B, maintained by BDMC into the name of IMNF dated as
of the Closing Date.
11. INDEMNIFICATION OF IMNF. 11.1 CFI shall indemnify and hold IMNF
-----------------------
harmless after the Closing Date from and against any and all of the following:
(a) The breach by CFI of any warranty or representation made by
CFI pursuant to this Agreement;
(b) The nonperformance of any covenant of CFI;
(c) Any claim, action, suit or proceeding brought against IMNF
based on a undisclosed claim or liability (as herein defined) arising before the
Closing date and relating to CFI's operation of BDMC;
(d) Any claims for unpaid taxes of any kind which are asserted
or levied against IMNF or the properties or assets of BDMC after the Closing
Date which relate to any period before the Closing Date.
(e) All costs, assessments, judgments, demands (including costs
of defense and reasonable attorneys' fees) arising out of any claim, or the
defense thereof, made with respect to Paragraphs 11.1 (a) through 11.1 (d). IMNF
will seek in good faith by all reasonable means to defeat or reduce any damages
as to which indemnification may be sought so as to minimize such indemnification
and will give CFI timely notice of, and the opportunity to participate in at its
expense, the defense or compromise of any claim which may give rise to such
indemnification. Failure to give timely notice shall be a defense only to the
extent it prejudices CFI's rights. Final settlement authority
24
remains with IMNF.
11.2 Except as provided in Subparagraph 11.1 (c), no liability
of CFI under this Agreement shall exist with respect to the representations,
warranties and covenants made in this Agreement or any schedule or certificate
furnished by them with respect thereto, except as to claims which are made
within three years of the Closing Date.
11.3 The aggregate of all claims for indemnification by IMNF
hereunder must exceed the sum of $25,000 before any claim may be made. The said
amount of $ 25,000 is a one-time deductible against all such future claims.
12. INDEMNIFICATION OF CFI/ MEMBERS OF XXXXXXX FAMILY. 12.1 IMNF
shall indemnify and hold CFI (and as to the provisions of Paragraph 12.1d,
Xxxxxxxxxxx Xxxxxxx, Xxxxxxx X. Xxxxxxx and/or Xxxxxxx X. Xxxxxxx) harmless
after the Closing Date from and against any and all of the following:
(a) The breach by IMNF of any warranty or representation made by
IMNF pursuant to this Agreement;
(b) The nonperformance of any covenant of IMNF;
(c) Any claims for unpaid taxes of any kind which are asserted
or levied against CFI or the properties or assets of CFI after the Closing Date
which relate to any period after the Closing Date.
(d) All claims arising against Xxxxxxxxxxx Xxxxxxx, Xxxxxxx X.
Xxxxxxx and/or Xxxxxxx X. Xxxxxxx on trade lines of credit of BDMC;
(e) All costs, assessments, judgments, demands (including costs
of defense and reasonable attorneys' fees) arising out of any claim, or the
defense thereof, made with respect to
25
Paragraphs 12.1 (a) through 12.1 (d). CFI will seek in good faith by all
reasonable means to defeat or reduce any damages as to which indemnification may
be sought so as to minimize such indemnification and will give IMNF timely
notice of any claim which may give rise to such indemnification.
12.2 Except as provided in Subparagraph 12.1(e), no liability of
IMNF under this Agreement shall exist with respect to the representations,
warranties and covenants made in this Agreement or any certificate furnished
with respect thereto, except as to claims which are made within three years of
the Closing Date.
12.3 The aggregate of all claims for indemnification by CFI
hereunder must exceed the sum of $25,000 before any claim may be made. The said
amount of $25,000 is a one-time deductible against all such future claims.
13. MISCELLANEOUS.
-------------
13.1 EXPENSES. Whether or not the transactions herein set forth
--------
shall be consummated, IMNF will pay all expenses of the preparation and
performance of this Agreement incurred by IMNF, and CFI will pay all expenses
incurred by it in connection with the preparation and performance of this
agreement.
13.2 CONFIDENTIALITY. Except as contemplated by this Agreement
---------------
or necessary to carry out the transactions herein set forth, all information or
documents furnished hereunder by IMNF or CFI to the other shall be kept
confidential by the party to whom furnished at all times to the Closing Date,
and in the event such transactions are not consummated, each shall return to the
other all documents furnished hereunder and copies thereof and shall continue to
keep confidential all information furnished hereunder and not thereafter use the
same for its advantage.
13.3 NOTICES. Any notice required or permitted hereunder shall
-------
be in writing and
26
shall be given by hand, or by overnight mail addressed, if to IMNF to: IMN
Financial Corp., 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000, Attention:
General Counsel. If to CFI to: CFI Mortgage, Inc., 000 Xxxxxxx Xxxxxxxxx, Xxxxx
000, Xxxx Xxxx Xxxxx, Xxxxxxx 00000, Attention: Xxxxxxxxxxx X. Xxxxxxx.
13.4 BEST EFFORTS, COOPERATION. IMNF, CFI and Principals shall
-------------------------
exert their best efforts to obtain all consents and approvals necessary for the
due and punctual performance of this Agreement and the satisfaction of the
conditions hereof on their part to be satisfied, and all shall cooperate with
the other with respect thereto.
13.5 ENTIRE AGREEMENT/AMENDMENT. This Agreement and the
---------------------------
Schedules thereto constitute and contain the entire agreement of the parties and
supersede any and all prior negotiations, correspondence, understandings and
agreements between the parties respecting the subject matter hereof. No
modification or amendment of this Agreement shall be of any force or effect
unless in writing and signed by all the parties hereto.
13.6 PARTIES IN INTEREST. All of the terms and provisions of
-------------------
this Agreement shall be binding upon and inure to the benefit of and be
enforceable by the successors and permitted assigns of the parties hereto,
whether herein so expressed or not, but neither this Agreement nor any of the
rights, interests or obligations hereunder of any party hereunder shall be
assigned without the prior written consent of the other parties.
13.7 COUNTERPARTS. This Agreement may be executed in any number
------------
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument, and in making proof
hereof it shall not be necessary to produce or account for more than one such
counterpart.
27
13.8 TIME OF THE ESSENCE. Time is of the essence in the
-------------------
performance of all obligations of the parties under this Agreement.
13.9 GOVERNING LAW/ SECTION AND PARAGRAPH HEADINGS/
----------------------------------------------
CONSTRUCTION. This Agreement shall be governed by the laws of the State of New
------------
York, without regard to conflicts of law principles. The section and paragraph
headings contained herein are meant for convenience only , and shall form no
part of the interpretation or construction of this Agreement. All of the parties
to this Agreement have participated freely in its negotiation and preparation;
therefore, this Agreement shall not be more strictly construed against any one
of the parties hereto.
13.10 SURVIVAL. This Agreement's provisions, representations and
--------
warranties, shall survive the Closing of this Agreement, and the transfer and
delivery of stock certificates hereunder.
13.11 SCHEDULES. The following schedules are attached hereto and
---------
by this reference form a part hereof. All schedules shall be delivered to IMNF
at the Closing unless otherwise indicated herein.
SCHEDULE SUBJECT MATTER
-------- --------------
4.1 Articles of Incorporation and By-laws of BDMC
4.5A Notes Payable/Liens on Real Property
4.5B Real Property Owned
4.5C Defects in Properties or Assets
4.6 Changes in Condition
4.7 Taxes and Deficiency Assessments
4.11 Litigation
4.12A Accounts and Notes Receivable
4.12B Accounts Payable
28
4.12C Commissions Payable
4.15A Overtime, Back-Wage, Vacation, Discrimination Claims
4.15B Key Staff
4.16A Personal Service Contracts
4.16B Employees
4.17 Profit Sharing Arrangements; Bonuses
4.18 Pensions and Deferred Compensation
4.19 Benefits Policies and Claims
4.21 Leases
4.23A Insurance and Indemnity Policies
4.23B Banking Relationships
4.26 Permits
4.27A Warehouse Lines
4.27B Investors
4.27C Mortgage Originations
4.30 Disclosure
5.4 Xxxxxxx Family Guaranties on Trade Lines of Credit
7.5 Consents
29
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written. CFI MORTGAGE, INC.
By:_____________________________________
Xxxxxxxxxxx X. Xxxxxxx, President
IMN FINANCIAL CORP.
By:_______________________________
Xxxxxx X. Xxxxxxx, President
As to the Provisions of Paragraphs 1.5
and 3 Only:
XXXXXXX XXXXXXX
-----------------------------------
As to the Provisions of
Paragraph 3 Only:
XXXXXXXXXXX XXXXXXX
-------------------------------------
30
