Exhibit 10.13
PURCHASE AGREEMENT
PURCHASE AGREEMENT ("Agreement"), dated December 20, 2000 between Home Gold
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Inc. ("Seller"), a corporation organized under the laws of the State of South
Carolina, and New Freedom Mortgage Corporation ("Purchaser"), a corporation
organized under the laws of the State of Utah.
Seller and Purchaser agree as follows:
1. PURCHASE AND SALE OF RECEIVABLES AND RELATED ASSETS: Purchaser purchases
from Seller and Seller sells to Purchaser all of Seller's interest in the
Receivables identified on Schedule "A." The term "Receivables" means:
1. All debts and obligations, including but not limited to the
obligations of any cosigner or guarantor;
2. All security instruments securing the debts and obligations, including
but not limited to mortgages, deeds of trust, and deeds to secure
debt;
3. All instruments and documents evidencing or related to the debts and
obligations, including but not limited to credit reports, lien search
reports, files, and ledger cards or their computer equivalent;
4. All policies or certificates of insurance in force on collateral
securing any debt or obligation or insuring Seller as the owner or
otherwise as a party in interest;
5. All credit insurance related to the debts; and
6. All pending insurance claims and proceeds related to the debts or
collateral.
2. DETERMINATION OF PURCHASE PRICE: The purchase price for the receivables is
set forth on the Closing Statement attached as Exhibit "A." If after the
execution of the Closing Statement, it appears that an error occurred in
computation of the purchase price, the party owing the amount that will
correct the overpayment or underpayment, as the case may be, must promptly
pay such amount to the other party upon submission of reasonable evidence
of such error.
3. REPRESENTATIONS AND WARRANTIES OF SELLER; REPURCHASE OBLIGATION:
1. Seller represents and warrants to Purchaser that:
1. Seller is the sole owner of the Receivables, free and clear of any
liens or other claims;
2. The Receivables are valid and binding obligations of the obligors,
enforceable according to their respective terms, except as may be
limited by bankruptcy or receivership;
3. No obligor has a defense, right of set-off, or counterclaim
against the Seller;
4. There are no written or oral agreements that vary any of the terms
of the Receivables, except as set forth in the documents
constituting the Receivables;
5. No Receivable is, on the closing date, sixty days or more
contractually past due, in bankruptcy, had any property
repossessed, in litigation, a "skip," or a judgment account;
6. All information concerning the Receivables and the obligors
thereon is truly and completely described in the books, records,
files, cards and other documents of the Receivables. Information
supplied by obligors or other third parties is true and complete
to Seller's best knowledge;
7. All liens included in the Receivables are valid, perfected first
or second liens on the property described;
8. The Receivables comply with all applicable state and federal law,
including but not limited to the Federal Consumer Credit
Protection Act ("Truth-In-Lending") and Regulation Z, and the
Federal Equal Credit Opportunity Act and Regulation B; and
9. All policies or certificates of credit insurance have been issued
or are being issued; and all costs or premiums have been paid to
the respective insurers, or if unbilled will be paid promptly by
Sellers upon billing by the respective insurers, through the
entire term of the policies.
2. If any of the foregoing warranties and representations are breached,
Seller must, upon demand, immediately repurchase from Purchaser any
Receivable with respect to which a warranty or representation was
breached. The purchase price for the repurchase is 88% (if blank,
100%) of the unpaid balance owing on the contract at the time of the
repurchase (unpaid balance for this purpose means principal plus
accrued interest on an interest-bearing account and gross unpaid
balance less applicable rebate required by law on a precomputed
account).
4. SELLER'S AUTHORITY: Seller represents and warrants to Purchaser that:
1. This Agreement is enforceable against Seller in accordance with its
terms; and
2. The signing and delivery by Seller of, and the performance of, this
Agreement do not:
1. Violate the articles of incorporation or bylaws of Seller;
2. Breach or result in a default under any existing contractual
obligation of Seller; or
3. Violate or breach any statute, judicial or administrative decree,
order, or ruling applicable to Seller or to the Receivables.
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER: Purchaser represents and
warrants to Seller that:
1. This Agreement is enforceable against Purchaser in accordance with its
terms; and
2. The signing and delivery by Purchaser of, and the performance of its
agreements in, this Agreement do not:
1. Violate the articles of incorporation or bylaws of Purchaser;
2. Breach or result in a default under any existing contractual
obligation of Purchaser; or
3. Violate or breach any statute, judicial or administrative decree,
order, or ruling applicable to Purchaser or to the Receivables.
6. DELIVERIES BY SELLER: Seller must deliver to Purchaser at the closing
(except as may be specifically waived in writing by the Purchaser):
1. The Receivables listed on Schedule "A;"
2. If Seller is a corporation, a certified copy of a corporate resolution,
substantially in the form of Exhibit "B;"
3. An Assignment and Power of Attorney substantially in the form of Exhibit
"C;"
4. For Receivables secured by real property, individual assignments of
mortgages in a form acceptable to Purchaser; and
5. Any other necessary and proper documents to assign to Purchaser Seller's
interest in property securing the Receivables.
7. COVENANTS OF SELLER: Seller covenants as follows:
1. From the date of the closing, Seller will warrant and defend the title
of Purchaser to all of the Receivables. Upon request of Purchaser,
Seller at its own expense will do, execute, acknowledge and deliver,
such instruments and other documents as may be reasonably required to
carry out any of the provisions of this Agreement.
2. All sums received by or on behalf of Seller after the date of the
closing in payment of the Receivables are received for the account of
Purchaser and will be promptly paid over to Purchaser by Seller.
8. PURCHASER'S SUBSIDIARIES: Purchaser may designate one or more of its
subsidiaries as the Buyer of any Receivable, and the word "Purchaser" as
used in this Agreement, whenever applicable, will include the subsidiary;
but, Purchaser is responsible for the performance of this Agreement.
9. NO BROKERS: Seller and Purchaser represent and warrant to each other that
their respective employees or attorneys negotiated this transaction; no
person is entitled to any brokerage commission, finder's fee, adviser's
fee or like payment.
10. NATURE AND SURVIVAL OF REPRESENTATIONS, ETC.: All representations and
warranties contained in this Agreement will survive after the date of the
closing.
11. COSTS AND EXPENSES: Purchaser and Seller must pay their individual costs
and expenses incurred in connection with this transaction, including
without limitation, fees and disbursements of their respective
professional advisers. Neither party has any recourse, right of offset or
other claim against the other for those costs and expenses.
12. INDEMNITY: Seller agrees to defend, indemnify, and hold harmless Purchaser
and its respective parents, officers, directors, employees, successors and
assigns against any and all losses, damages, claims, suits, proceedings,
liabilities, costs and expenses, including reasonable attorneys fees
incurred by reason of any representation or warranty made by Seller in or
in connection with this Agreement having been untrue or incorrect in any
respect when made or deemed made, or the breach by Seller of any covenant
or agreement made by it in this Agreement, or by reason of any action or
proceeding being instituted by any person based upon an allegation or
assertion which, if true, would indicate the existence of any of the above
circumstances.
13. CONFIDENTIALITY AND NON-SOLICITATION: Neither Seller nor any of its
directors, officers, affiliates, employees, agents or representatives may
disclose, directly or indirectly, any information concerning the
Receivables, other than information that was previously available to the
public, or as required by law or regulation. Further, Seller, its
directors, officers, affiliates and employees may not solicit any such
obligor for the purpose of making a loan or financing a retail sale or
lend any money to or finance any sale to said obligors for a period of
twenty four (24) months from the execution of this Agreement.
14. NOTICES: All notices and other communications under this Agreement will be
in writing and will be deemed to have been duly given if delivered or
mailed first class, postage prepaid:
1. If to Purchaser, to: New Freedom Mortgage Corporation
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxxxx Xxxxxxxx
or to Purchaser at such other address Purchaser will have furnished in
writing to Seller;
1. If to Seller, to: Home Gold, Inc.
000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
or to Seller at such other address as Seller will have furnished in writing
to Purchaser.
15. SPECIFIC PERFORMANCE: Purchaser and Seller recognize that each may be
irreparably damaged if this Agreement is not specifically enforced and,
therefore, agree
that any right or obligation under this Agreement is enforceable in a
court of equity by a decree of specific performance. Such remedy, however,
is cumulative and not exclusive of any other remedy at law or equity.
16. ENTIRE AGREEMENT: This Agreement and all documents delivered pursuant to
this Agreement constitute the entire agreement between the parties. Any
amendment of this Agreement is ineffective unless in writing signed by
both Purchaser and Seller.
17. WAIVERS: Any waiver of any term of this Agreement is ineffective unless
granted in writing signed by the party entitled to the performance of such
term. A waiver of any term of this Agreement by any party is not a waiver
by such party of any other term under this Agreement nor will a waiver of
any breach of a term, condition or obligation constitute a waiver of a
subsequent breach of the same term, condition or obligation or of any of
its attendant rights.
18. SEVERABILITY: If a court holds that any provision of this Agreement is for
any reason invalid, the provision must be enforced to the extent to which
it is valid; the parties may enforce the remaining provisions of this
Agreement as written, unless enforcement is in manifest violation of the
present intention of the parties reflected in this Agreement.
19. COUNTERPARTS: The parties may sign this Agreement in one or more
counterparts; each counterpart is an original but all are deemed to be the
same instrument.
20. SUCCESSORS: This Agreement is binding upon and inures to the benefit of
the parties hereto and their respective successors and assigns.
21. ARBITRATION: Any controversy or claim arising out of or relating to this
agreement or the breach thereof, shall be settled by arbitration
administered by the American Arbitration Association under its Commercial
Arbitration Rules, and judgment on the award rendered by the arbitrator(s)
may be entered in any court having jurisdiction thereof. Any arbitration
proceeding provided for by this section shall take place in Dallas, Texas.
Seller:
Home Gold, Inc. Purchaser:
New Freedom Mortgage Corporation
By:
By:
(Typed or Printed Name) (Typed or Printed Name)
Its: Its:
(Title) (Title)
EXHIBIT "A"
CLOSING STATEMENT
Seller: New Freedom Mortgage Corporation
Purchaser: Associates Financial Services Company, Inc.
Date: December 20, 2000
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(check one)
[ ] Gross [X]Net Balance of Receivables $2,148,001.00
times 15.0875%
Purchase Price $1,823,920.57
Less Reserve $19,234.14
Net Payable to Seller $1,843,154.71
Seller:
Home Gold, Inc. Purchaser:
New Freedom Mortgage Corporation
By:
By:
(Typed or Printed Name)
(Typed or Printed Name)
Its:
(Title) Its:
(Title)
EXHIBIT "B"
CERTIFIED COPY OF CORPORATE RESOLUTION
I, ______________________________________________________________________, the
duly elected, qualified and acting Secretary of Home Gold, Inc., a corporation
duly organized and existing under and by virtue of the laws of the State of SC
(the "Corporation"), do hereby certify that the following is a true, correct and
complete copy of a resolution of the Board of Directors of this Corporation,
duly adopted by unanimous written consent of the Board of Directors without a
meeting dated December 20, 2000 and that such resolution is set forth in the
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original minute book of the Corporation and that such resolution has not been
rescinded or modified:
RESOLVED, that this Corporation enter into an agreement (the "Agreement")
New Freedom Mortgage Corporation, for the sale by this Corporation of
assets consisting of loan and sales finance receivables under such terms
and conditions, and at such price, as will be contained in the Agreement;
and
RESOLVED, that the President or any Vice President of this Corporation, be,
and he is, hereby authorized to execute the Agreement with such terms and
conditions as may be contained therein, the execution being conclusive
evidence of its authorization; and such officer is hereby authorized to
prepare, execute and deliver such other documents and to take all such
action as will be necessary or desirable to effectuate the sale of such
assets identified in the Agreement in accordance with the terms and
conditions of such Agreement.
I, _____________________________________________________________________________
_________, further certify that Xxxxx Xxxxx is the _____________________________
President of this Corporation, and the foregoing resolution has not been
amended, repealed or modified and is in full force and legal effect as of the
date hereof.
Dated: December 20 2000
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Secretary
EXHIBIT "C"
POWER OF ATTORNEY
(With Limited Power of Substitution)
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Home Gold, Inc., a UT
corporation, for and in consideration of the sum of One Dollar ($1.00) and other
good and valuable consideration, the receipt of which is hereby acknowledged,
does by these presents, assign to New Freedom Mortgage Corporation, a Utah, all
of its interest in the receivables listed on Schedule "A" of a Purchase
Agreement dated December 20, 2000, which Schedule is made a part hereof by
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reference.
That for the purpose of collecting, receiving, releasing, endorsing, assigning,
and otherwise enjoying the full rights, privileges and benefits which the
undersigned has heretofore had, hereby names, constitutes and appoints New
Freedom Mortgage Corporation, or any of its authorized agents, employees or
representatives, its duly authorized attorney and agent solely with respect to
such receivables, with full power and authority to endorse or assign notes or
security instruments in our name, to receive and collect any and all monies due
and payable under said receivables, to enforce performance of all contracts and
instruments covered thereby and for such purposes, to institute suit in its own
name, to effect repossession of chattels or to use any other methods or means
which New Freedom Mortgage Corporation finds necessary to effect collection and
performance; to release any and all liens and instruments of record; to amend,
supplement or replace such instruments with other like or similar instruments to
extend and modify periods and time of payment; and, generally, to do and perform
any and all things necessary and incident in the premises, with equal rights,
privileges and powers which the undersigned has had or was entitled to exercise
as the owner of said receivables.
Home Gold, Inc. further gives to New Freedom Mortgage Corporation the limited
power of substitution and revocation of another party for the purpose and only
for the purpose of endorsing or assigning notes or security instruments in our
name, and hereby ratifying and confirming all that the attorney in fact, or a
substitute or substitutes, shall lawfully do or cause to be done by virtue of
this power of attorney and the rights and powers.
Home Gold, Inc
(Witness) By:
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(Witness) (Typed or Printed Name)
Its:
(Title)
ACKNOWLEDGEMENT
STATE OF )
) SS.:
COUNTY OF )
Personally appeared before me, the undersigned authority in and for the said
County and State, December 20, 2000, within my jurisdiction, the within named
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__________ who acknowledged that he is the ___________________________________
_______________ of Home Gold, Inc., a SC corporation, and that for and on
behalf of the said corporation, and as its act and deed he executed the above
and foregoing instrument, after first having been duly authorized by said
corporation so to do.
Witness my hand and official seal.
________________________________ ___________________________________
Notary Public My Commission Expires
APPOINTMENT OF SUBSTITUTE UNDER POWER OF ATTORNEY
To All Whom These Presents Shall Come, Greeting:
Whereas, Home Gold, Inc., by a power of attorney under its hand dated
December 20,2000, appointed the undersigned, New Freedom Mortgage Corporation
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its attorney for it and in its name, with limited power of substitute to appoint
another to endorse or assign notes or security instruments Home Gold, Inc., in
connection with the receivables listed on Schedule "A" of a Purchase Agreement
dated December 20, 2000, which Schedule is made a part hereof by reference.
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Now, Therefore, by virtue of such power, New Freedom Mortgage Corporation hereby
appoints ________________________ to be the attorney of the said New Freedom
Mortgage Corporation for it and in its name, to do and perform only the acts of
endorsing or assigning those notes, contracts, and other evidence of debt and
the related security instruments listed on Schedule "A" of a Purchase Agreement
dated December 20,2000, which Schedule is made a part hereof by reference.
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New Freedom Mortgage Corporation
By:
(Witness)
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(Witness) (Typed or Printed Name)
Its:
----------------------------------
(Title)
ACKNOWLEDGEMENT
STATE OF )
) SS.:
COUNTY OF )
Personally appeared before me, the undersigned authority in and for the said
County and State, December 20, 2000, within my jurisdiction, the within named
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________________________ who acknowledged that he is the ____________________
of New Freedom Mortgage Corporation., a Utah corporation, and that for and on
behalf of the said corporation, and as its act and deed he executed the above
and foregoing instrument, after first having been duly authorized by said
corporation so to do.
Witness my hand and official seal.
Notary Public
My Commission expires: _______________
ADDENDUM TO PURCHASE AND SALE AGREEMENT DATED DECEMBER 20, 2000
The purchase and sale agreement dated December 20, 2000 may also serve as a
warehouse repurchased agreement at the closing of HomeGold, Inc.
During the first 15 calendar days after the sale HomeGold may repurchase the
loans at 150 basis points plus accrued interest above the schedule purchase
price. From day 16 to day 30, HomeGold may repurchase the remaining loans for
250 basis points plus accrued interest above the purchase price amount.
On the 31st day if the loans have not been repurchased by HomeGold Inc., the
loans become the sole property of New Freedom Mortgage Corporation, as set forth
in the Purchase and Sale agreement dated December 20, 2000.
During the 30-day period HomeGold will service the loans. Any loan remaining on
the 31st day will be transferred within 30 days to New Freedom Mortgage.
All original files of loans not repurchased will be shipped to New Freedom from
HomeGold within 5 working days.
Time is of the essence.
