REORGANIZATION,
STOCK AND ASSET PURCHASE AGREEMENT
by and between
AMRES Holding, LLC
a Nevada limited liability company
and
Xxxxx Xxxxxxxx
an individual
on the one hand
and
American Residential Funding, Inc.
a Nevada corporation
and its Majority Shareholder
Anza Capital, Inc.
a Nevada corporation
on the other hand
REORGANIZATION, STOCK AND ASSET PURCHASE AGREEMENT
This REORGANIZATION, STOCK AND ASSET PURCHASE AGREEMENT ("Agreement") is
dated as of September 30, 2005, by and among AMRES Holding, LLC, a Nevada
limited liability company ("AMRES Holding") and Xxxxx Xxxxxxxx, an individual
and sole member of AMRES Holding ("Xxxxxxxx") on the one hand, and American
Residential Funding, Inc., a Nevada corporation ("AMRES") and Anza Capital,
Inc., a Nevada corporation (the "Shareholder"), on the other hand. Each of AMRES
Holding, Xxxxxxxx, AMRES, and the Shareholder shall be referred to herein as a
"Party" and collectively as the "Parties."
W I T N E S S E T H
WHEREAS, the Shareholder owns approximately 63.6% of the issued and
outstanding common stock of AMRES (the "AMRES Common Shares"), 100% of the
issued and outstanding Series A Preferred Stock of AMRES and 100% of the issued
and outstanding Series B Convertible Preferred Stock of AMRES (the "AMRES
Preferred Shares", and together with the AMRES Common Shares, the "AMRES
Securities"), as set forth in Exhibit A attached hereto;
WHEREAS, the Shareholder owns all of the assets set forth on Exhibit B
attached hereto (the "Shareholder Assets"), that when taken with the AMRES
Securities constitutes substantially all of the assets of Shareholder (the AMRES
Securities and the Shareholder Assets shall collectively be referred to as the
"Acquired Assets");
WHEREAS, the Shareholder desires to sell and AMRES Holding desires to
purchase all of the Acquired Assets in accordance with the terms set forth
herein;
NOW THEREFORE, in consideration of the premises and respective mutual
agreements, covenants, representations and warranties herein contained, it is
agreed between the Parties hereto as follows:
ARTICLE 1
SALE AND PURCHASE OF THE ACQUIRED ASSETS
1.1 Sale of the Acquired Assets. At the Closing, subject to the terms and
conditions herein set forth, and on the basis of the representations, warranties
and agreements herein contained, the Shareholder shall sell to AMRES Holding and
AMRES Holding shall purchase from the Shareholder, all of the Acquired Assets.
1.2 Purchase Price. As consideration for the purchase of the Acquired
Assets, the following shall occur (collectively referred to as the "Purchase
Price"):
(a) Xxxxxxxx will transfer his entire ownership interest in the
Shareholder, consisting of 988,275 shares of common stock and 18,800
shares of Series F Convertible Preferred Stock (the "Xxxxxxxx Securities")
to Viking Investments USA, Inc. ("Viking") as follows:
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(1) Xxxxxxxx will deliver the 988,275 shares of common stock
to Viking;
(2) Xxxxxxxx will convert the 18,800 shares of Series F
Convertible Preferred Stock into 1,880,000 shares of common stock
and deliver said common stock to Viking;
(b) AMRES Holding will assign a warrant to acquire 250,000 shares of
common stock of the Shareholder to Viking (the "Warrants");
(c) Xxxxxxxx will terminate that certain Employment Agreement dated
June 1, 2001, by and between Xxxxxxxx and the Shareholder (formerly known
as e-Net Xxxxxxxxx.xxx, Inc.) and waive his right to severance thereunder
(the "Xxxxxxxx Employment Agreement");
(d) AMRES will assume all obligations under that certain real
property lease by and between Shareholder and Fifth Street Properties-DS,
LLC and will execute an Assumption of Lease in form satisfactory to the
Parties and the lessor thereunder; and
(e) AMRES will deliver to Viking its ownership interest in
Shareholder, consisting of 4,137,500 shares of Shareholder common stock
(the "Subsidiary Shares").
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
OF AMRES AND THE SHAREHOLDER
2.1 Representations and Warranties of AMRES and the Shareholder. To induce
AMRES Holding and Xxxxxxxx to enter into this Agreement and to consummate the
transactions contemplated hereby, AMRES and the Shareholder, and each of them,
represent and warrant as of the date hereof and as of the Closing, as follows:
2.1.1 Authority of AMRES and the Shareholder; Transfer of Acquired
Assets. AMRES and the Shareholder have the full right, power and authority
to enter into this Agreement and to carry out and consummate the
transactions contemplated herein. This Agreement, and all of the Exhibits
attached hereto, constitutes the legal, valid and binding obligation of
AMRES and the Shareholder. The Shareholder shall transfer title in and to
the Acquired Assets to AMRES Holding free and clear of all liens, security
interests, pledges, encumbrances, charges, restrictions, demands, and
claims of any kind or nature whatsoever, whether direct or indirect or
contingent, other than customary restrictions imposed by the securities
laws.
2.1.2 Corporate Existence of AMRES. AMRES is a corporation duly
organized, validly existing, and in good standing under the laws of the
State of Nevada. It has all requisite corporate power, franchises,
licenses, permits and authority to own its properties and assets and to
carry on its business as it has been and is being conducted. It is in good
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standing in each state, nation or other jurisdiction wherein the character
of the business transacted by it makes such qualification necessary.
2.1.3 Capitalization of AMRES. The authorized equity securities of
AMRES consists of 500,000,000 shares of common stock, par value $0.001, of
which 133,520,000 shares are issued and outstanding, and 50,000,000 shares
of preferred stock, par value $0.001, of which 1,825,000 shares are issued
and outstanding. The outstanding preferred stock is divided into two
classes, comprising 1,250,000 authorized shares of Series A Convertible
Preferred Stock of which 825,000 shares are issued and outstanding, and
1,000,000 authorized shares of Series B Convertible Preferred Stock of
which 1,000,000 are issued and outstanding. No other shares of capital
stock of AMRES are issued and outstanding. All of the issued and
outstanding shares have been duly and validly issued in accordance and
compliance with all applicable laws, rules and regulations and are fully
paid and nonassessable. AMRES is not obligated or committed to purchase,
redeem or otherwise acquire any of its equity. All presently exercisable
voting rights in AMRES are vested exclusively in its outstanding shares of
common stock and Series B Convertible Preferred Stock, each share of
common stock is entitled to one vote on every matter to come before it's
Shareholder, and each share of Series B Convertible Preferred Stock is
entitled to that number of votes equal to the number of shares of AMRES
common stock to which it can be converted (85% of the votes all together),
and other than as may be contemplated by this Agreement, there are no
voting trusts or other voting arrangements with respect to any of AMRES'
equity securities.
2.1.4 Subsidiaries. "Subsidiary" or "Subsidiaries" means all
corporations, trusts, partnerships, associations, joint ventures or other
Persons, as defined below, of which a corporation or any other Subsidiary
of such corporation owns not less than twenty percent (20%) of the voting
securities or other equity or of which such corporation or any other
Subsidiary of such corporation possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies,
whether through ownership of voting shares, management contracts or
otherwise. "Person" means any individual, corporation, trust, association,
partnership, proprietorship, joint venture or other entity. AMRES has no
subsidiaries.
2.1.5 Execution of Agreement. The execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated
hereby will not: (a) violate, conflict with, modify or cause any default
under or acceleration of (or give any Party any right to declare any
default or acceleration upon notice or passage of time or both), in whole
or in part, any charter, article of incorporation, bylaw, mortgage, lien,
deed of trust, indenture, lease, agreement, instrument, order, injunction,
decree, judgment, law or any other restriction of any kind to which AMRES,
its Subsidiaries, or the Shareholder are a party or by which any of them
or any of their properties are bound; (b) result in the creation of any
security interest, lien, encumbrance, adverse claim, proscription or
restriction on any property or asset (whether real, personal, mixed,
tangible or intangible), right, contract, agreement or business of AMRES,
its Subsidiaries, or the Shareholder; (c) violate any law, rule or
regulation of any federal or state regulatory agency; or (d) permit any
federal or state
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regulatory agency to impose any restrictions or limitations of any nature
on AMRES, its Subsidiaries, or the Shareholder or any of their respective
actions.
2.1.6 Taxes.
2.1.6.1 Except as set forth in Schedule 2.1.6.1, all taxes,
assessments, fees, penalties, interest and other governmental
charges with respect to AMRES and its Subsidiaries which have become
due and payable on the date hereof have been paid in full or
adequately reserved against by AMRES, (including without limitation,
income, property, sales, use, franchise, capital stock, excise,
added value, employees' income withholding, social security and
unemployment taxes), and all interest and penalties thereon with
respect to the periods then ended and for all periods thereto;
2.1.6.2 There are no agreements, waivers or other arrangements
providing for an extension of time with respect to the assessment of
any tax or deficiency against AMRES or its Subsidiaries, nor are
there any actions, suits, proceedings, investigations or claims now
pending against AMRES or its Subsidiaries, nor are there any
actions, suits, proceedings, investigations or claims now pending
against AMRES or its Subsidiaries in respect of any tax or
assessment, or any matters under discussion with any federal, state,
local or foreign authority relating to any taxes or assessments, or
any claims for additional taxes or assessments asserted by any such
authority, and there is no basis for the assertion of any additional
taxes or assessments against AMRES or its Subsidiaries; and
2.1.6.3 The consummation of the transactions contemplated by
this Agreement will not result in the imposition of any additional
taxes on or assessments against AMRES or its Subsidiaries.
2.1.7 Disputes and Litigation. Except as set forth in Schedule
2.1.7, there is no suit, action, litigation, proceeding, investigation,
claim, complaint, or accusation pending, threatened against or affecting
AMRES, its Subsidiaries, or any of their properties, assets or business or
to which they are a party, in any court or before any arbitrator of any
kind or before or by any governmental agency (including, without
limitation, any federal, state, local, foreign or other governmental
department, commission, board, bureau, agency or instrumentality), and
there is no basis for such suit, action, litigation, proceeding,
investigation, claim, complaint, or accusation; (b) there is no pending or
threatened change in any environmental, zoning or building laws,
regulations or ordinances which affect or could affect AMRES, its
Subsidiaries, or any of their properties, assets or businesses; and (c)
there is no outstanding order, writ, injunction, decree, judgment or award
by any court, arbitrator or governmental body against or affecting AMRES,
its Subsidiaries, or any of their properties, assets or business. There is
no litigation, proceeding, investigation, claim, complaint or accusation,
formal or informal, or arbitration pending, or any of the aforesaid
threatened, or any contingent liability which would give rise to any right
of indemnification or similar right on the part of any director or officer
of AMRES or its Subsidiaries, or any such person's heirs, executors or
administrators as against AMRES or its Subsidiaries.
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2.1.8 Compliance with laws. Except as set forth in Schedule 2.1.8,
AMRES and its Subsidiaries have at all times been, and presently are, in
full compliance with, and have not received notice of any claimed
violation of, any applicable federal, state, local, foreign and other
laws, rules and regulations. AMRES and its Subsidiaries have filed all
returns, reports and other documents and furnished all information
required or requested by any federal, state, local or foreign governmental
agency and all such returns, reports, documents and information are true
and complete in all respects. All permits, licenses, orders, franchises
and approvals of all federal, state, local or foreign governmental or
regulatory bodies required of AMRES and its Subsidiaries for the conduct
of their business have been obtained, no violations are or have been
recorded in respect of any such permits, licenses, orders, franchises and
approvals, and there is no litigation, proceeding, investigation,
arbitration, claim, complaint or accusation, formal or informal, pending
or threatened, which may revoke, limit, or question the validity,
sufficiency or continuance of any such permit, license, order, franchise
or approval. Such permits, licenses, orders, franchises and approvals are
valid and sufficient for all activities presently carried on by AMRES and
its Subsidiaries.
2.1.9 Guaranties. AMRES and its Subsidiaries have not guaranteed any
dividend, obligation or indebtedness of any Person; nor has any Person
guaranteed any dividend, obligation or indebtedness of AMRES or its
Subsidiaries.
2.1.10 Books and Records. AMRES and its Subsidiaries keep their
books, records and accounts (including, without limitation, those kept for
financial reporting purposes and for tax purposes) in accordance with good
business practice and in sufficient detail to reflect the transactions and
dispositions of their assets, liabilities and equities. The minute books
of AMRES and its Subsidiaries contain records of their shareholder' and
directors' meetings and of action taken by such shareholders and
directors. The meetings of directors and shareholder referred to in such
minute books were duly called and held, and the resolutions appearing in
such minute books were duly adopted. The signatures appearing on all
documents contained in such minute books are the true signatures of the
persons purporting to have signed the same. Attached hereto as Exhibit C
is (a) an income statement and a balance sheet of AMRES and its
Subsidiaries as of and for the fiscal years ended April 30, 2004 and 2005,
(b) a balance sheet as of and for the year ended April 30, 2004 and 2005.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF AMRES HOLDING AND XXXXXXXX
3.1 Representations and Warranties of AMRES Holding and Xxxxxxxx. To
induce AMRES and the Shareholder to enter into this Agreement and to consummate
the transactions contemplated hereby, AMRES Holding and Xxxxxxxx each represents
and warrants, as of the date hereof and as of the Closing, as follows:
3.1.1 Authority of AMRES Holding and Xxxxxxxx. AMRES Holding and
Xxxxxxxx each have the full right, power and authority to enter into this
Agreement and to carry out and consummate the transactions contemplated
herein. This Agreement, and all of the Exhibits attached hereto
constitutes the legal, valid and binding obligation of AMRES Holding and
Xxxxxxxx.
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3.1.2 Corporate Existence and Authority of AMRES Holding. AMRES
Holding is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of Nevada. It has all
requisite corporate power, franchises, licenses, permits and authority to
own its properties and assets and to carry on its business as it has been
and is being conducted. It is in good standing in each state, nation or
other jurisdiction in each state, nation or other jurisdiction wherein the
character of the business transacted by it makes such qualification
necessary.
3.1.3 Execution of Agreement. The execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated
hereby will not: (a) violate, conflict with, modify or cause any default
under or acceleration of (or give any Party any right to declare any
default or acceleration upon notice or passage of time or both), in whole
or in part, any charter, article of incorporation, bylaw, mortgage, lien,
deed of trust, indenture, lease, agreement, instrument, order, injunction,
decree, judgment, law or any other restriction of any kind to which AMRES
Holding or its Subsidiaries or Xxxxxxxx are a party or by which they or
any of their properties are bound; (b) result in the creation of any
security interest, lien, encumbrance, adverse claim, proscription or
restriction on any property or asset (whether real, personal, mixed,
tangible or intangible), right, contract, agreement or business of AMRES
Holding or its Subsidiaries or Xxxxxxxx; (c) violate any law, rule or
regulation of any federal or state regulatory agency; or (d) permit any
federal or state regulatory agency to impose any restrictions or
limitations of any nature on AMRES Holding or its Subsidiaries or Xxxxxxxx
or any of their actions.
ARTICLE 4
CLOSING AND DELIVERY OF DOCUMENTS
4.1 Closing. The Closing (the "Closing") shall take place at the offices
of AMRES Holding, 0000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxx, XX 00000, no later
than the close of business (Orange County, California time) on November 8, 2005,
or at such other place, date and time as the Parties may agree in writing (the
"Closing Date").
4.2 Deliveries by Xxxxxxxx. At the Closing, Xxxxxxxx shall deliver to
Viking the following:
4.2.1 The Xxxxxxxx Securities subject to no liens, security
interests, pledges, encumbrances, charges, restrictions, demands or claims in
any other party whatsoever, executed or accompanied by a stock power for valid
transfer to Viking.
4.2.2 A document, acceptable to the Parties, to terminate the
Xxxxxxxx Employment Agreement.
4.3 Delivery by AMRES: At the Closing, AMRES shall deliver the following:
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4.3.1 AMRES shall deliver to AMRES Holding:
(a) written confirmation of the approval of the herein
described transactions by AMRES' Board of Directors;
(b) an officers certificate, executed by the President, Chief
Executive Officer, and Secretary of AMRES, in the form attached
hereto as Exhibit D; and
(c) financial statements of AMRES as set forth in Section
2.1.10.
4.3.2 AMRES shall deliver to Viking the Subsidiary Shares.
4.3.3 AMRES shall deliver a document, acceptable to the Parties,
sufficient to assume the lease as set forth in Section 1.2(d).
4.4 Delivery by The Shareholder: At the Closing, the Shareholder shall
deliver the following:
4.4.1 The Shareholder shall deliver to AMRES Holding:
(a) the AMRES Securities subject to no liens, security
interests, pledges, encumbrances, charges, restrictions, demands or
claims in any other party whatsoever, executed or accompanied by a
stock power for valid transfer of the AMRES Securities to AMRES
Holding; and
(b) the Shareholder Assets subject to no liens, security
interests, pledges, encumbrances, charges, restrictions, demands or
claims in any other party whatsoever, executed or accompanied by a
stock power (if part of the Shareholder Assets consists of stock
certificates) for valid transfer of the Shareholder Assets to AMRES
Holding.
(c) an officers certificate, executed by the President and
Chief Executive Officer of Shareholder, in the form attached hereto
as Exhibit E.
4.5 Delivery by AMRES Holding: At the Closing, AMRES Holding shall deliver
to Viking the Warrants.
ARTICLE 5
CONDITIONS, TERMINATION, AMENDMENT AND WAIVER
5.1 Conditions Precedent. This Agreement, and the transactions
contemplated hereby, shall be subject to the following conditions precedent:
5.1.1 The obligation of AMRES Holding to pay the Purchase Price and
to satisfy its
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other obligations hereunder shall be subject to the fulfillment (or waiver
by AMRES Holding and Xxxxxxxx), at or prior to the Closing, of the
following conditions, which AMRES and the Shareholder agrees to use their
best efforts to cause to be fulfilled:
(a) Representations, Performance. If the Closing Date is not
the date hereof, the representations and warranties contained in
Section 2.1 hereof shall be true at and as of the date hereof and
shall be repeated and shall be true at and as of the Closing Date
with the same effect as though made at and as of the Closing Date,
except as affected by the transactions contemplated hereby; AMRES
and the Shareholder shall have duly performed and complied with all
agreements and conditions required by this Agreement to be performed
or complied with by it prior to or on the Closing Date; and AMRES
shall have delivered to AMRES Holding a certificate dated the
Closing Date, and signed by its Chief Executive Officer, President,
and Secretary to the effect set forth above in this section.
(b) Consents. Any required consent to the transactions
contemplated by this Agreement shall have been obtained or waived.
(c) Litigation. No suit, action, arbitration or other
proceeding or investigation shall be threatened or pending before
any court or governmental agency in which it is sought to restrain
or prohibit or to obtain material damages or other material relief
in connection with this Agreement or the consummation of the
transactions contemplated hereby or which is likely to affect
materially the value of AMRES.
(d) Proceedings and Documentation. All corporate and other
proceedings of AMRES in connection with the transactions
contemplated by this Agreement, and all documents and instruments
incident to such corporate proceedings, shall be satisfactory in
form and substance to AMRES Holding, Xxxxxxxx and their counsel, and
AMRES Holding, Xxxxxxxx and their counsel shall have received all
such receipts, documents and instruments, or copies thereof,
certified if requested, to which AMRES Holding and Xxxxxxxx are
entitled and as may be reasonably requested.
(e) Property Loss. No portion of AMRES' assets shall have been
destroyed or damaged or taken by condemnation under circumstances
where the loss thereof will not be substantially reimbursed to AMRES
Holding through the proceeds of applicable insurance or condemnation
award.
(f) Consents and Approvals. All material licenses, permits,
consents, approvals, authorizations, qualifications and orders of
governmental or regulatory bodies which are (1) necessary to enable
AMRES Holding to fully operate the business of AMRES and its
Subsidiary as contemplated from and after the Closing shall have
been obtained and be in full force and effect, or (2) necessary for
the consummation of the transactions contemplated hereby, shall have
been obtained. Any notices to or consents of any party to any
agreement or commitment constituting part of the transactions
contemplated hereby, or otherwise required to consummate any such
transactions, shall have been delivered or obtained.
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(g) Board of Director and Shareholder Approval of Shareholder.
The approval of this Agreement and the transactions contemplated
hereby shall have been approved by the Board of Directors and
shareholders of Shareholder.
(h) Conditional Closing. The Closing shall be subject to the
closing of the transaction contemplated by that certain Common Stock
Purchase Agreement dated September 19, 2005, by and between
Xxxxxxxx, AMRES Holding, Viking and the Shareholder.
5.1.2 The obligation of AMRES and the Shareholder to deliver the AMRES
Securities and to satisfy their other obligations hereunder shall be subject to
the fulfillment (or waiver by AMRES and the Shareholder), at or prior to the
Closing, of the following conditions, which AMRES Holding agrees to use its best
efforts to cause to be fulfilled:
(a) Representations, Performance. If the Closing Date is not
the date hereof, the representations and warranties contained in
Section 3.1 hereof shall be true at and as of the date hereof and
shall be repeated and shall be true at and as of the Closing Date
with the same effect as though made at and as of the Closing Date,
except as affected by the transactions contemplated hereby; AMRES
Holding shall have duly performed and complied with all agreements
and conditions required by this Agreement to be performed or
complied with by it prior to or on the Closing Date; and AMRES
Holding shall have delivered to AMRES a certificate dated as of the
Closing Date, and signed by its Chief Executive Officer, President,
and Secretary to the effect set forth above in this section.
(b) Proceedings and Documentation. All corporate and other
proceedings of AMRES Holding in connection with the transactions
contemplated by this Agreement, and all documents and instruments
incident to such corporate proceedings, shall be satisfactory in
form and substance to AMRES and AMRES' counsel, and AMRES and AMRES'
counsel shall have received all such receipts, documents and
instruments, or copies thereof, certified if requested, to which
AMRES is entitled and as may be reasonably requested.
(c) Conditional Closing. The Closing shall be subject to the
closing of the transaction contemplated by that certain Common Stock
Purchase Agreement dated September 19, 2005, by and between
Xxxxxxxx, AMRES Holding, Viking and the Shareholder.
5.2 Termination. Notwithstanding anything to the contrary contained in
this Agreement, this Agreement may be terminated and the transactions
contemplated hereby may be abandoned prior
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to the Closing Date only by the mutual consent of all of the Parties. Following
the Closing Date, this Agreement may be terminated by either Party upon delivery
of written notice to the other Party.
5.3 Waiver and Amendment. Any term, provision, covenant, representation,
warranty or condition of this Agreement may be waived, but only by a written
instrument signed by the Party entitled to the benefits thereof. The failure or
delay of any Party at any time or times to require performance of any provision
hereof or to exercise its rights with respect to any provision hereof shall in
no manner operate as a waiver of or affect such Party's right at a later time to
enforce the same. No waiver by any Party of any condition, or of the breach of
any term, provision, covenant, representation or warranty contained in this
Agreement, in any one or more instances, shall be deemed to be or construed as a
further or continuing waiver of any such condition or breach or waiver of any
other condition or of the breach of any other term, provision, covenant,
representation or warranty. No modification or amendment of this Agreement shall
be valid and binding unless it be in writing and signed by all Parties hereto.
ARTICLE 6
COVENANTS, INDEMNIFICATION
6.1 To induce AMRES Holding to enter into this Agreement and to consummate
the transactions contemplated hereby, and without limiting any covenant,
agreement, representation or warranty made, AMRES and the Shareholder covenant
and agree as follows:
6.1.1 Notices and Approvals. AMRES and the Shareholder agree: (a) to
give all notices to third parties which may be necessary or deemed
desirable by AMRES Holding and Xxxxxxxx in connection with this Agreement
and the consummation of the transactions contemplated hereby; (b) to use
its best efforts to obtain all federal and state governmental regulatory
agency approvals, consents, permit, authorizations, and orders necessary
or deemed desirable by AMRES Holding and Xxxxxxxx in connection with this
Agreement and the consummation of the transaction contemplated hereby; and
(c) to use its best efforts to obtain all consents and authorizations of
any other third parties necessary or deemed desirable by AMRES Holding and
Xxxxxxxx in connection with this Agreement and the consummation of the
transactions contemplated hereby.
6.1.2 Information for AMRES Holding's Statements and Applications.
AMRES and the Shareholder and their employees, accountants and attorneys
shall cooperate fully with AMRES Holding in the preparation of any
statements or applications made by AMRES Holding to any federal or state
governmental regulatory agency in connection with this Agreement and the
transactions contemplated hereby and to furnish AMRES Holding with all
information concerning AMRES and the Shareholder necessary or deemed
desirable by AMRES Holding for inclusion in such statements and
applications, including, without limitation, all requisite financial
statements and schedules.
6.1.3 Access to Information. AMRES Holding and Xxxxxxxx, together
with its appropriate attorneys, agents and representatives, shall be
permitted to make the full and complete investigation of AMRES and the
Shareholder and have full access to all of the
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books and records of the other during reasonable business hours.
Notwithstanding the foregoing, such parties shall treat all such
information as confidential and shall not disclose such information
without the prior consent of the other.
6.3 Indemnification.
6.3.1 Indemnity of AMRES and the Shareholder. AMRES Holding and
Xxxxxxxx agree to indemnify, defend and hold the AMRES and the Shareholder
harmless from and against any and all Losses (as hereinafter defined)
arising out of or resulting from the breach by AMRES Holding and Xxxxxxxx
of any representation, warranty, covenant or agreement of AMRES Holding
and Xxxxxxxx contained in this Agreement or the schedules and exhibits
hereto. For purposes of Section 6.3, the term "Losses" shall mean all
damages, costs and expenses (including reasonable attorneys' fees) of
every kind, nature or description, it being the intent of the Parties that
the amount of any such Loss shall be the amount necessary to restore the
indemnified party to the position it would have been in (economically or
otherwise), including any costs or expenses incident to such restoration,
had the breach, event, occurrence or condition occasioning such Loss never
occurred. Notwithstanding the foregoing provisions of this section, no
claim for indemnification shall be made by AMRES or the Shareholder under
this section unless and until the aggregate amount of all Losses of AMRES
and the Shareholder in respect thereof shall exceed $5,000.
6.3.2 Indemnity of AMRES Holding. AMRES and the Shareholder, and
each of them, hereby agrees to indemnify, defend and hold AMRES Holding
harmless from and against any and all Losses arising out of or resulting
from the breach by AMRES or the Shareholder of any representation,
warranty, agreement or covenant contained in this Agreement or the
exhibits and schedules hereto, including, without limitation, the failure
to disclose any liabilities or material contracts or agreements pursuant
to Section 2.1.10. Notwithstanding the foregoing provisions of this
section, no claim for indemnification shall be made by AMRES Holding under
this section unless and until the aggregate amount of all Losses of AMRES
Holding in respect thereof shall exceed $5,000.
6.3.3 Indemnification Procedure.
(a) An indemnified party shall notify the indemnifying party
of any claim of such indemnified party for indemnification under
this Agreement within thirty days of the date on which such
indemnified party or an executive officer or representative of such
indemnified party first becomes aware of the existence of such
claim. Such notice shall specify the nature of such claim in
reasonable detail and the indemnifying party shall be given
reasonable access to any documents or properties within the control
of the indemnified party as may be useful in the investigation of
the basis for such claim. The failure to so notify the indemnifying
party within such thirty-day period shall not constitute a waiver of
such claim but an indemnified party shall not be entitled to receive
any indemnification with respect to any additional loss that
occurred as a result of the failure of such person to give such
notice.
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In the event any indemnified party is entitled to
indemnification hereunder based upon a claim asserted by a third
party (including a claim arising from an assertion or potential
assertion of a claim for Taxes), the indemnifying party shall be
given prompt notice thereof, in reasonable detail. The failure to so
notify the indemnifying party shall not constitute a waiver of such
claim but an indemnified party shall not be entitled to receive any
indemnification with respect to any Loss that occurred as a result
of the failure of such person to give such notice. The indemnifying
party shall have the right (without prejudice to the right of any
indemnified party to participate at its expense through counsel of
its own choosing) to defend or prosecute such claim at its expense
and through counsel of its own choosing if it gives written notice
of its intention to do so not later than twenty days following
notice thereof by the indemnifying party or such shorter time period
as required so that the interests of the indemnified party would not
be materially prejudiced as a result of its failure to have received
such notice; provided, however, that if the defendants in any action
shall include both an indemnifying party and an indemnified party
and the indemnified party shall have reasonably concluded that
counsel selected by the indemnifying party has a conflict of
interest because of the availability of different or additional
defenses to the indemnified party, the indemnified party shall have
the right to select separate counsel to participate in the defense
of such action on its behalf, at the expense of the indemnifying
party. If the indemnifying party does not so choose to defend or
prosecute any such claim asserted by a third party for which any
indemnified party would be entitled to indemnification hereunder,
then the indemnified party shall be entitled to recover from the
indemnifying party, on a monthly basis, all of its attorneys'
reasonable fees and other costs and expenses of litigation of any
nature whatsoever incurred in the defense of such claim.
Notwithstanding the assumption of the defense of any claim by an
indemnifying party pursuant to this paragraph, the indemnified party
shall have the right to approve the terms of any settlement of a
claim (which approval shall not be unreasonably withheld).
(b) The indemnifying party and the indemnified party shall
cooperate in furnishing evidence and testimony and in any other
manner which the other may reasonably request, and shall in all
other respects have an obligation of good faith dealing, one to the
other, so as not to unreasonably expose the other to an undue risk
of loss. The indemnified party shall be entitled to reimbursement
for out-of-pocket expenses reasonably incurred by it in connection
with such cooperation. Except for fees and expenses for which
indemnification is provided pursuant to this Section 6.3, as the
case may be, and as provided in the preceding sentence, each party
shall bear its own fees and expenses incurred pursuant to this
paragraph (b).
ARTICLE 7
MISCELLANEOUS
7.1 Expenses. Except as otherwise specifically provided for herein,
whether or not the transactions contemplated hereby are consummated, each of the
Parties hereto shall bear the cost of
12
all fees and expenses relating to or arising from its compliance with the
various provisions of this Agreement and such Party's covenants to be performed
hereunder, and except as otherwise specifically provided for herein, each of the
Parties hereto agrees to pay all of its own expenses (including, without
limitation, attorneys and accountants' fees and printing expenses) incurred in
connection with this Agreement, the transactions contemplated hereby, the
negotiations leading to the same and the preparations made for carrying the same
into effect, and all such fees and expenses of the Parties hereto shall be paid
prior to Closing.
7.2 Notices. Any notice, request, instruction or other document required
by the terms of this Agreement, or deemed by any of the Parties hereto to be
desirable, to be given to any other Party hereto shall be in writing and shall
be delivered by facsimile or overnight courier to the following addresses:
To AMRES Holding AMRES Holding, LLC
or Xxxxxxxx: 0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx, Managing Member
Facsimile (000) 000-0000
To AMRES or the Shareholder: c/o Anza Capital, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx, President
Facsimile (000) 000-0000
with a copy to: The Lebrecht Group, APLC
00000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx Xxxxx Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx, Esq.
Facsimile (000) 000-0000
The persons and addresses set forth above may be changed from time to time
by a notice sent as aforesaid. Notice shall be conclusively deemed given at the
time of delivery if made during normal business hours, otherwise notice shall be
deemed given on the next business day.
7.3 Entire Agreement. This Agreement, together with the schedules and
exhibits hereto, sets forth the entire agreement and understanding of the
Parties hereto with respect to the transactions contemplated hereby, and
supersedes all prior agreements, arrangements and understandings related to the
subject matter hereof. No understanding, promise, inducement, statement of
intention, representation, warranty, covenant or condition, written or oral,
express or implied, whether by statute or otherwise, has been made by any Party
hereto which is not embodied in this Agreement, or exhibits hereto or the
written statements, certificates, or other documents delivered pursuant hereto
or in connection with the transactions contemplated hereby, and no Party hereto
shall be bound by or liable for any alleged understanding, promise, inducement,
statement, representation, warranty, covenant or condition not so set forth.
13
7.4 Survival of Representations. All statements of fact (including
financial statements) contained in the schedules, the exhibits, the certificates
or any other instrument delivered by or on behalf of the Parties hereto, or in
connection with the transactions contemplated hereby, shall be deemed
representations and warranties by the respective Party hereunder. All
representations, warranties, agreements, and covenants hereunder shall survive
the Closing and remain effective regardless of any investigation or audit at any
time made by or on behalf of the Parties or of any information a Party may have
in respect thereto. Consummation of the transactions contemplated hereby shall
not be deemed or construed to be a waiver of any right or remedy possessed by
any Party hereto, notwithstanding that such Party knew or should have known at
the time of Closing that such right or remedy existed.
7.5 Incorporated by Reference. All documents (including, without
limitation, all financial statements) delivered as part hereof or incident
hereto are incorporated as a part of this Agreement by reference.
7.6 Remedies Cumulative. No remedy herein conferred upon any Party is
intended to be exclusive of any other remedy and each and every such remedy
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or
otherwise.
7.7 Execution of Additional Documents. Each Party hereto shall make,
execute, acknowledge and deliver such other instruments and documents, and take
all such other actions as may be reasonably required in order to effectuate the
purposes of this Agreement and to consummate the transactions contemplated
hereby.
7.8 Finders' and Related Fees. Each of the Parties hereto is responsible
for, and shall indemnify the other against, any claim by any third party to a
fee, commission, bonus or other remuneration arising by reason of any services
alleged to have been rendered to or at the instance of said Party to this
Agreement with respect to this Agreement or to any of the transactions
contemplated hereby.
7.9 Governing Law. This Agreement has been negotiated and executed in the
State of California and shall be construed and enforced in accordance with the
laws of such state.
7.10 Forum. Each of the Parties hereto agrees that any action or suit
which may be brought by any Party hereto against any other Party hereto in
connection with this Agreement or the transactions contemplated hereby may be
brought only in a federal or state court in Orange County, California.
7.11 Attorneys' Fees. Except as otherwise provided herein, if a dispute
should arise between the Parties including, but not limited to arbitration, the
prevailing Party shall be reimbursed by the nonprevailing Party for all
reasonable expenses incurred in resolving such dispute, including reasonable
attorneys' fees exclusive of such amount of attorneys' fees as shall be a
premium for result or for risk of loss under a contingency fee arrangement.
14
7.12 Binding Effect and Assignment. This Agreement shall inure to the
benefit of and be binding upon the Parties hereto and their respective heirs,
executors, administrators, legal representatives and assigns.
7.13 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. In making proof of this Agreement, it shall not be
necessary to produce or account for more than one such counterpart.
[signature page to follow]
15
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first written hereinabove.
"AMRES Holding" "AMRES"
AMRES Holding, LLC, American Residential Funding, Inc.,
a Nevada limited liability company a Nevada corporation
/s/ Xxxxxxx Xxxxxxxx /s/ Xxxxxxx Xxxxxxxx
------------------------------------- --------------------
By: Xxxxxxx Xxxxxxxx By: Xxxxxxx Xxxxxxxx
Its: Managing Member Its: President
"Shareholder" "Xxxxxxxx"
Anza Capital, Inc.,
a Nevada corporation
/s/ Xxxxxxx Xxxxxxxx /s/ Xxxxxxx Xxxxxxxx
------------------------------------- --------------------
By: Xxxxxxx Xxxxxxxx Xxxxxxx Xxxxxxxx,
Its: President an individual
Schedules
Schedule 2.1.6.1 - AMRES Taxes
Schedule 2.1.7 - AMRES Disputes and litigation
Schedule 2.1.8 - AMRES Compliance with laws
16
Schedule 2.1.6.1
AMRES Taxes
[Insert]
Schedule - 1
Schedule 2.1.7
AMRES Disputes and litigation
[Insert]
Schedule - 2
Schedule 2.1.8
AMRES Compliance with laws
[Insert]
Schedule - 3
Exhibit A
AMRES Securities
No. of Shares Owned by
Security Shareholder No. of Shares Outstanding
------------------------ ------------------------- ---------------------------
AMRES Common Shares 85,000,000 133,520,000
Series A Preferred Stock 825,000 825,000
Series B Convertible 1,000,000 1,000,000
Preferred Stock
A-1
Exhibit B
Shareholder Assets
[Insert]
B - 1
Exhibit C
Assets and Liabilities
and Financial Statements
of AMRES
[Insert]
C - 1
Exhibit D
AMRES Officers Certificate
D - 1
Exhibit E
Shareholder Officers Certificate
E - 1
