EXHIBIT 10.99
AGREEMENT
This Agreement ("Agreement") is entered into as of December 1, 1997,
between CITY NATIONAL BANK, a national banking association, as successor by
statutory merger to Riverside National Bank (collectively "CNB"), and INCO HOMES
CORPORATION, a California corporation ("Inco").
1. RECITALS.
1.1 Inco has requested that CNB sell to the persons or entities identified
on Schedule "A", a Loan owed by Inco to CNB pursuant to a Loan Sale Agreement of
even date herewith. As of the date hereof and pursuant to such Loan, Inco owes
CNB the following sums:
Principal $2,891,000.00
Interest 92,311.11
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Total $2,983,311.11
The purchaser of said Loan is paying a total consideration of
$1,750,000.00 to purchase the Loan from CNB. Therefore, the difference between
the amount outstanding and owed by Inco pursuant to the Loan and the purchase
price for the Loan is the sum of $1,141,000.00 for principal and $64,083.71 for
interest for a total of $1,205,083.71. Agreeing to Inco's request will, but for
the terms of this Agreement, result in an unrecoverable loss to CNB of said
sums.
1.2 Inco has requested that CNB cancel and terminate all its rights under
that certain Warrant to Purchase 250,000 shares of common stock granted by Inco
to CNB on July 24, 1996. Said Warrant represents an asset of unknown but
valuable worth.
1.3 In consideration for CNB's agreement to:
a) Sell the Loan for a loss of $1,141,000.00 in principal.
b) Forgive accrued interest of $92,311.11 with respect to the Loan.
c) Cancel and terminate all its rights under the Warrant to Purchase
250,000 shares of common stock of Inco.
Inco has agreed to reimburse CNB for the above-stated loss of
principal, under the terms and conditions set forth in this Agreement. Said
payment shall be without interest, apart from interest at the rate of fifteen
percent (15%) per annum in the event payment is not made within thirty (30) days
of its due date.
2. AGREEMENT
2.1 Inco agrees to pay CNB, in the aggregate, $1,141,000.00 from the three
sources set forth in this section. Said payment shall be without interest apart
from interest at the rate of fifteen percent (15%) per annum in the event
payment is not made within thirty (30) days of its due date.
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2.2 PERCENTAGE OF NET PROFITS. Commencing with the fiscal year ending
December 31, 1999 and each fiscal year ending thereafter, Inco shall pay CNB
fifteen percent (15%) of its net profits for such fiscal year determined in
accord with generally accepted accounting principles.
Said payment shall be due one-hundred and twenty (120) days after
the end of the fiscal year from which it is due.
2.3 NON-OPERATIONAL INCREASES IN EQUITY. Inco shall, in the event of
any increase in its Net Worth, as determined in accord with generally accepted
accounting principles from that existing at the end of the fiscal year ended
December 31, 1997, which was not derived from retained earnings, pay an amount
to CNB as determined herein. Net Worth shall be determined as if no dividends
are paid on Inco's common stock or any other equity security and without regard
to payments made previously hereunder.
2.3.1 For the first $3,500,000.00 of such increase: Zero.
2.3.2 For the next $250,000.00 of such increase: All.
2.3.3 For any such increase in Net Worth in excess of
$5,000,000.00: Ten percent (10%).
2.4 CONSIDERATION RECEIVED BY SHAREHOLDERS UPON A CHANGE IN CONTROL.
Upon any Change in Control Event as hereinafter defined, Inco shall pay CNB an
amount determined by the net cash proceeds received by Inco's shareholders as a
result of a Change in Control as follows:
2.4.1 For the first $3,500,000.00 of net proceeds as follows:
Nothing.
2.4.2 For the next $250,000.00 of net proceeds: All.
2.4.3 For any such net proceeds in excess of $5,000,000.00:
Ten percent (10%).
2.4.4 A Change in Control Event shall be any one of the
following occurrences:
A) The acquisition by any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act)(a
"Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 20% or more of either (A) the then outstanding shares
of Common Stock of Inco (the "Outstanding Common Stock") or (B) the combined
voting power of the then outstanding voting securities of Inco entitled to vote
generally in the election of directors (the "Outstanding Voting Securities"); or
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B) Individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a majority of the
Board; provided, however, that any individual who becomes a director subsequent
to the date hereof whose election, or nomination for election by the Inco's
shareholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board; but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of either an actual or threatened election contest (as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or
other actual or threatened solicitation of proxies or consents by or on behalf
of a Person other than the Board; or
C) Approval by the shareholders of Inco of a reorganization, merger or
consolidation (a "transaction"), unless, following such transaction in each
case, (A) more than 80% of, respectively, the then outstanding shares of common
stock of the corporation resulting from such transaction and the combined voting
power of the then outstanding voting securities of such corporation entitled to
vote generally in the election of directors is then beneficially owned, directly
or indirectly, by all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the Outstanding Common Stock and
Outstanding Voting Securities immediately prior to such transaction and (B) no
Person beneficially owns, directly or indirectly, 20% or more of, respectively,
the then outstanding shares of common stock of the corporation resulting from
such transaction or the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the election of
directors; or
D) Approval by the shareholders of Inco of (A) a complete liquidation
or dissolution of Inco or (B) the sale or other disposition of all or
substantially all of the assets of Inco, unless such assets are sold to a
corporation and following such sale or other disposition, the conditions
described in clauses (A) and (B) of paragraph 2.2.3 above are satisfied with
respect to the acquiring corporation.
3. REPORTING REQUIREMENTS.
Inco shall supply the following reports to CNB:
3.1 The 10-K report for Inco within ten (10) days of its filing.
3.2 The 10-Q report for Inco within ten (10) days of its filing.
3.3 Quarterly sales report for Inco within fifteen (15) days after each
quarter-end.
4. CONDITIONS TO EFFECTIVENESS.
This Agreement shall become effective upon the payment of the purchase price
pursuant to the Loan Sale Agreement of even date herewith.
5. ARBITRATION.
5.1 MANDATORY ARBITRATION. At the request of CNB or Inco, any dispute,
claim
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or controversy of any kind (whether in contract or tort, statutory or common
law, legal or equitable) now existing or hereafter arising between CNB and Inco
and in any way arising out of, pertaining to or in connection with: (1) this
Agreement, and/or any renewals, extensions, or amendments thereto; (2) any
violation of this Agreement; (3) any incidents, omissions, action practices or
occurrences arising out of or related to this Agreement causing injury to either
party whereby the other party or its agents, employees or representatives may be
liable, in whole or in part, or (4) any aspect of the present or future
relationships of the parties, will be resolved through final and binding
arbitration before a three-member panel conducted at a location determined by
the arbitrators in Los Angeles, California, and administered by the American
Arbitration Association ("AAA") in accordance with the California Arbitration
Act (Title 9, California Code of Civil Procedure Section 1280 et. seq.) and the
then existing Commercial Rules of the AAA. Judgment upon any award rendered by
the arbitrators may be entered in any state or federal courts having
jurisdiction thereof.
5.2 POWER AND QUALIFICATIONS OF ARBITRATORS. The arbitrators will
give effect to statutes of limitation, waiver and estoppel and other affirmative
defenses in determining any claim. Any controversy concerning whether an issue
is arbitratable will be determined by the arbitrators. The laws of the State of
California will govern. The arbitration award may include equitable and
declaratory relief. All arbitrators selected will be required to be a
practicing attorney or retired judge licensed to practice law in the State of
California and will be required to be experienced and knowledgeable in the
substantive laws applicable to the subject matter of the controversy or claim at
issue.
5.3 DISCOVERY. The provisions of California Code of Civil
Procedures Section 1283.05 or its successor section(s) are incorporated herein
and made a part of this Agreement. Depositions may be taken and discovery may
be obtained in any arbitration under this Agreement in accordance with said
section(s).
5.4 MISCELLANEOUS. The arbitrators will determine which is the
prevailing party and will include in the award that party's reasonable
attorneys' fees and costs (including allocated costs of in-house legal
counsel). Each party agrees to keep all controversies and claims and the
arbitration proceedings strictly confidential, except for disclosures of
information required in the ordinary course of business of the parties or by
applicable law or regulation.
6. MISCELLANEOUS.
6.1 CUMULATIVE RIGHTS AND NO WAIVER. Each and every right and
remedy granted hereunder or under any other document delivered hereunder or in
connection herewith, shall be cumulative, and no one such right or remedy shall
be exclusive or any other. No failure on the part of any party to exercise, and
no delay in exercising, any right or remedy shall operate as a waiver thereof,
no shall any single or partial exercise or waiver by any party of any right or
remedy preclude any other or future exercise thereof or the exercise of any
other right or remedy.
6.2 APPLICABLE LAW. This Agreement and the rights and obligations
of the parties hereunder shall be governed by and interpreted and construed in
accordance with the laws of the State of California.
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6.3 NOTICES. Any notice required or permitted to be given under this
Agreement or any of the documents related hereto shall be given in writing and
shall be deemed to have been given when deposited in the United States mail
certified return receipt requested, with first class postage prepaid and
properly addressed. For the purposes hereof, the addresses of the parties hereto
shall, until further notice given as herein provided, be as follows:
"CNB" City National Bank
Real Estate Loan Department
400 North Roxbury Drive, Eighth Floor
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Vice President
copy to: City National Bank
Legal Department
400 North Roxbury Drive, Fifth Floor
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, Associate General Counsel
"Inco" Inco Homes Corporation
0000 X. Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxx, President
6.4 ASSIGNMENTS. The provisions of this Agreement are hereby made
applicable to and shall inure to the benefit of such parties, successors and
assigns.
6.5 COUNTERPARTS. The parties may execute this Agreement in two (2) or
more counterparts, which shall, in the aggregate, be signed by all of the
parties, and each counterpart shall be deemed an original instrument as against
the party who has signed it.
6.6 COMPLETE AGREEMENT. This written Agreement is intended by CNB and
the Buyer as a final expression of their agreement and is intended as a complete
statement of the terms and conditions of their agreement on the subject dealt
with herein.
"CNB" City National Bank, a
national banking association
By:
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Xxxxx X. Xxxxx, Vice President
"Inco" Inco Homes Corporation
By: /s/ Xxx Xxxxxx
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Xxx Xxxxxx, President
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