EXHIBIT 10(l)
Asset Purchase Agreement among C.R.I., Inc. and CRI Acquisition, Inc. and
Xxxxxxx X. Xxxxxxx and H. Xxxxxxx Xxxxxxxxxx
ASSET PURCHASE AGREEMENT
Among
C.R.I., Inc.
and
CRI Acquisition, Inc.
and
Xxxxxxx X. Xxxxxxx
H. Xxxxxxx Xxxxxxxxxx
Dated as of 11:58 p.m., June 30, 1995
TABLE OF CONTENTS
Page Page
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ARTICLE I -- BASIC TRANSACTION . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Purchase and Sale of Assets . . . . . . . . . . . . . . . . . . . 1
1.2 Assumption of Liabilities . . . . . . . . . . . . . . . . . . . . 1
1.3 Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II -- CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.1 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Deliveries by Seller . . . . . . . . . . . . . . . . . . . . . . 3
2.3 Deliveries by Buyer . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE III -- REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . 4
3.1 Representations and Warranties of the Seller . . . . . . . . . . 4
(a) Organization; Standing . . . . . . . . . . . . . . . . . . . 4
(b) Capitalization . . . . . . . . . . . . . . . . . . . . . . . 4
(c) Authority . . . . . . . . . . . . . . . . . . . . . . . . . 4
(d) Noncontravention . . . . . . . . . . . . . . . . . . . . . . 4
(e) Government Approval; Consents . . . . . . . . . . . . . . . 5
(f) Financial Statements . . . . . . . . . . . . . . . . . . . . 5
(g) Absence of Certain Changes or Events . . . . . . . . . . . . 5
(h) Compliance with Law . . . . . . . . . . . . . . . . . . . . 5
(i) Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(j) Litigation . . . . . . . . . . . . . . . . . . . . . . . . . 6
(k) Title to Assets; Encumbrances . . . . . . . . . . . . . . . 6
(l) Contracts. . . . . . . . . . . . . . . . . . . . . . . . . . 6
(m) Signet Note . . . . . . . . . . . . . . . . . . . . . . . . 6
(n) Net Worth. . . . . . . . . . . . . . . . . . . . . . . . . . 6
(o) Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . 7
3.2 Representations and Warranties of the Buyer . . . . . . . . . . 7
(a) Organization; Standing and Power. . . . . . . . . . . . . . 7
(b) Authority . . . . . . . . . . . . . . . . . . . . . . . . . 7
(c) Noncontravention . . . . . . . . . . . . . . . . . . . . . . 7
(d) Government Approval; Consents . . . . . . . . . . . . . . . 8
(e) Litigation . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IV -- ADDITIONAL AGREEMENTS . . . . . . . . . . . . . . . . . . . . 8
4.1 Merger Proposal . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.2 Additional Agreements and Provisions. . . . . . . . . . . . . . . 8
ARTICLE V -- REMEDIES FOR BREACHES OF THIS AGREEMENT . . . . . . . . . . . . 9
5.1 Investigations; Survival of Representations and Warranties . . . . 9
5.2 Indemnification by the Seller and the Principals. . . . . . . . . 9
5.3 Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.4 Indemnification Threshold. . . . . . . . . . . . . . . . . . . . 10
5.5 Limitation on Indemnification. . . . . . . . . . . . . . . . . . 10
5.6 No Contribution . . . . . . . . . . . . . . . . . . . . . . . . . 10
1 ARTICLE VI -- GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . 11
6.1 Public Statements . . . . . . . . . . . . . . . . . . . . . . . . 11
6.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.3 Interpretation. . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.4 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.5 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . 12
6.6 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.7 Validity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.8 Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.9 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.10 Knowledge. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SCHEDULES
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Schedule 3.1(j) Litigation
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT (this Agreement ), dated as of 11:58 p.m., on
June 30, 1995, is made by and among C.R.I., Inc., a Delaware corporation
(C.R.I." or Seller ), CRI Acquisition, Inc., a Maryland corporation ( Buyer ),
Xxxxxxx X. Xxxxxxx and H. Xxxxxxx Xxxxxxxxxx.
WHEREAS, Xxxxxxx X. Xxxxxxx and H. Xxxxxxx Xxxxxxxxxx (the "Principals"),
who are directors and senior executive officers of CRIIMI MAE Inc., a Maryland
corporation ("CRIIMI MAE"), are the sole stockholders and directors of CRI and
the Buyer;
WHEREAS, this Agreement is being entered into in accordance with the terms
of the Agreement and Plan of Merger dated April 20, 1995, as amended (the
"Merger Agreement") among CRIIMI MAE, CRIIMI MAE Management, Inc., a Maryland
corporation ("CRIIMI Management"), CRI/AIM Management, Inc., a Delaware
corporation ("CRI/AIM Management"), CRICO Mortgage Company, Inc., a Delaware
corporation ("CRICO Mortgage"), Buyer and the Principals; and
WHEREAS, this Agreement contemplates a transaction in which the Buyer will
purchase certain assets of the Seller and in consideration therefor, assume
certain liabilities of Seller. This transaction is intended to be effective
immediately prior to the Effective Time (as defined the Merger Agreement).
NOW, THEREFORE, in consideration of the premises and the representations,
warranties and agreements herein contained, the parties hereby agree as follows:
ARTICLE I
BASIC TRANSACTION
1.1 Purchase and Sale of Assets. On the Closing Date (as hereinafter
defined), and subject to the terms and conditions of this Agreement,
concurrently with the execution and delivery hereof, the Seller sells,
transfers, conveys, assigns and delivers to the Buyer, and the Buyer purchases
from the Seller, for the consideration specified below in this Article I, the
following:
(a) all of Seller's right, title and interest as adviser pursuant to
that certain CRI Insured Mortgage Association, Inc. Advisory Agreement, dated as
of November 21, 1989 by and between CRIIMI MAE (formerly known as CRI Insured
Mortgage Association, Inc.) and CRI Insured Mortgage Associates Adviser Limited
Partnership (the "Adviser") as amended by that certain First Amendment to CRI
Insured Mortgage Association, Inc. Advisory Agreement, dated as of June 1, 1993,
as assigned by the Adviser to Seller pursuant to that certain Assignment, dated
of even date herewith (as amended and assigned, the "Advisory Agreement") and
all benefits arising thereunder on and after the Closing Date; and
(b) all of Seller's right, title and interest (the "Partnership
Interest") as general partner of CRI/AIM Investment Limited Partnership, a
Delaware limited partnership ("CRI/AIM L.P."), pursuant to that certain
Agreement of Limited Partnership dated as of March 1, 1991, as amended by
that certain First Amendment to Agreement of Limited Partnership of CRI/
AIM L.P., dated as of June 1, 1993, and as further amended by that certain
Second Amendment to Agreement of Limited Partnership of CRI/AIM L.P.,
dated as of August 31, 1993 (as amended, the "Partnership Agreement") and
all benefits arising thereunder on and after the Closing Date.
The Advisory Agreement and the Partnership Agreement may be hereinafter
referred to as the "Contracts".
1.2 Assumption of Liabilities. On the Closing Date and subject to the
terms and conditions of this Agreement, concurrently with the execution and
delivery hereof, the Buyer assumes and becomes responsible for the duties,
obligations and liabilities relating to performance under the Contracts on and
after the Closing Date (as hereinafter defined) (the "Assumed Liabilities").
The Buyer does not assume or have any responsibility with respect to any other
obligation or liability of the Seller not included within the definition of
Assumed Liabilities, except with respect to the payment of Purchase Price, as
set forth in Section 1.4, below.
1.3. Employees. Concurrently with the execution and delivery hereof,
Seller sells, transfers, conveys, assigns and delivers to Buyer, and Buyer
accepts, the right to employ Xxxxxxx X. Xxxxxxx and H. Xxxxxxx Xxxxxxxxxx as
Chairman of the Board and President of Buyer, respectively, for a substantial
portion of the Principals' time, except that each Principal may devote time to
satisfy his other business obligations; provided that the time devoted to such
other business obligations does not interfere with his duties to the Buyer and
its affiliates. (For purposes of this Section 1.3, the phrase "substantial
portion" means all of his time required to perform the duties necessary and
appropriate for the conduct of the Buyer's business.)
1.4 Purchase Price. Buyer hereby agrees to assume all of Seller's
obligations under that certain A Loan Note dated June 27, 1994 (the "Signet
Note") and referred to in that certain Second Amended and Restated Credit and
Security Agreement, dated as of June 27, 1994 among CRI, Signet Bank/Maryland
("Signet") and certain other parties, as may have been amended prior to the date
hereof (together with all documents executed by Seller or its affiliates in
connection therewith, the "Signet Credit Facility'"). In connection with
Buyer's assumption of Seller's obligations under the terms of the Signet Note,
Buyer shall execute and deliver to Signet such agreements, documents and
instruments as Signet may require (the "Assumption Documents").
ARTICLE II
CLOSING
2.1 Closing. The closing of the transaction contemplated hereby (the
"Closing") shall take place at the offices of the Seller, 00000 Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxx (or such other place as the parties may agree), at 10:00
a.m. local time, simultaneously with the execution and delivery of this
Agreement, and shall be effective as of 11:58 p.m. local time on such date (the
"Closing Date") and in any event prior to the Effective Time (as defined in the
Merger Agreement).
2.2 Deliveries by the Seller. At or prior to the Closing, the Seller has
delivered the following items to the Buyer:
(a) Other Documents. Any other documents required to effect the
transactions contemplated hereby which are reasonably satisfactory in form and
substance to the Buyer.
2.3 Deliveries by Buyer. At or prior to the Closing, the Buyer has
delivered, or caused to be delivered, the following items to the Seller:
(a) Assumption Documents. The Assumption Documents.
(b) Release of Seller. Signet's release of Seller and its affiliates
from any and all liability or obligation under the terms of the Signet Note.
(c) Other Documents. Any other documents required to effect the
transactions contemplated hereby which are reasonably satisfactory in form and
substance to the Seller including without limitation, such documents as may be
required by Signet in connection with Buyer's assumption of the Signet Note.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Seller and the Principals. The
Seller and the Principals, jointly and severally, represent and warrant as
follows :
(a) Organization; Standing. The Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
(b) Capitalization. Each of the Principals owns one-half of the issued
and outstanding capital stock of the Seller.
(c) Authority. Each of the Seller and the Principals has the requisite
power (including corporate power with respect to the Seller) and authority to
enter into this Agreement, and to perform its or his obligations hereunder. The
execution, delivery and consummation of this Agreement by the Seller and the
Principals have been duly authorized by the Board of Directors of the Seller and
approved by the Principals. No other corporate proceedings on the part of the
Seller are necessary to authorize the execution, delivery and performance of
this Agreement. This Agreement has been duly executed and delivered by the
Seller and the Principals and constitutes a valid and binding obligation of the
Seller and the Principals, enforceable against the Seller and the Principals in
accordance with its terms.
(d) Noncontravention. Neither the execution and delivery of this
Agreement by the Seller and the Principals nor the consummation of this
Agreement nor compliance by the Seller and the Principals with any of the
provisions hereof will (i) violate, conflict with, or result in a breach of any
provisions of, or constitute a default (or an event which, with notice or lapse
of time or both, would constitute a default) under, or result in the termination
or suspension of, or accelerate the performance required by, or result in a
right of termination or acceleration under, or result in the creation of any
Lien (as hereinafter defined) upon any of the properties or assets of the Seller
or the Principals under, any of the terms, conditions or provisions of (x) the
Articles of Incorporation or By-Laws of the Seller, or (y) any note, bond,
mortgage, indenture, deed of trust, license, Permit (as hereinafter defined),
authorization, lease, agreement or instrument or obligation to which the Seller
or the Principals is party or by which they are bound or to which they or any of
their respective assets may be subject, or (ii) violate any judgment, ruling,
order, writ, injunction, decree, or, to the best knowledge of the Seller and the
Principals, statute, rule or regulation applicable to the Seller or the
Principals or any of their respective assets, except, in the case of each of
clauses (i)(y) and (ii) above, for such violations, conflicts, breaches,
defaults, terminations, accelerations or creations of Liens (as hereinafter
defined), which would not, in the aggregate, have a material adverse effect on
the Advisory Agreement or the Partnership Interest ("Material Adverse Effect").
(e) Government Approval; Consents. All third party consents and approvals
necessary to be obtained by the Seller for the consummation of this Agreement
have been obtained. No notice to, filing with, or authorization, consent or
approval of, any domestic or foreign public body or authority is necessary for
the execution, delivery or consummation of this Agreement by the Seller or the
Principals or compliance by the Seller or the Principals with any of the
provisions hereof, except where failures to give such notices, make such
filings, or obtain authorizations, consents or approvals would not, in the
aggregate, have a Material Adverse Effect.
(f) Financial Statements. The combined statements of assets and
liabilities, comprised of (i) the assets and liabilities of CRI delivered to or
assumed by Buyer pursuant to this Agreement and (ii) the assets and liabilities
of CRICO Mortgage and CRI/AIM Management, dated December 31, 1994 (the "Company
Financial Statements") previously delivered to the Buyer have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis throughout the periods covered thereby (except as may be indicated in the
notes thereto), and fairly present the financial position of such assets and
liabilities as of the dates thereof and their results of operations and cash
flow for the periods then ended.
(g) Absence of Certain Changes or Events. Except for the execution of the
Merger Agreement and as provided for therein or as specifically reflected in the
Company Financial Statements, since December 31, 1994 there has not been (i) any
change or any event which would result in a Material Adverse Effect, or (ii) any
agreement by the Seller to take, whether in writing or otherwise, any action
which, if taken prior to the date of this Agreement, would have made any
representation or warranty in this Section 3.1 untrue or incorrect.
(h) Compliance with Law. The Seller has not, to the best knowledge of the
Principals and the Seller, violated or failed to comply with any statute, law,
ordinance, regulation, rule, order or other legal requirement of any foreign,
federal, state or local government, authority or any other governmental
department or agency, or any judgment, decree or order of any court, applicable
to the Contracts or the Partnership Interest, except where any such
violations or failures to comply would not, individually or in the aggregate,
have a Material Adverse Effect.
(i) Brokers. No broker, finder, adviser or investment banker is entitled
to any brokerage, finder's or other fee or commission in connection with the
consummation of this Agreement.
(j) Litigation. Except as set forth on Schedule 3.1(j) hereto, there is
no claim, action, proceeding or investigation pending or, to the best knowledge
of the Principals and the Seller, threatened against or relating to the Seller
before any court or governmental or regulatory authority or body which, if
determined adversely, individually or in the aggregate, would have a Material
Adverse Effect. The Seller is not subject to any outstanding order, writ,
injunction or decree applicable to the Contracts or the Partnership Interest.
(k) Title to Assets; Encumbrances. The Seller has good and marketable
title to the Advisory Agreement and the Partnership Interest free and clear
of any Lien (as hereinafter defined) except the lien of Signet Bank/Maryland
pursuant to that certain Collateral Assignment of Partnership Interests dated
April 15, 1994 and related documents. "Lien" means any mortgage, pledge,
encumbrance, security interest, charge, or other lien, except (i) statutory
liens not yet delinquent, (ii) liens that do not materially detract from or
materially interfere with the present use of the assets subject thereto or
affected thereby, or otherwise materially impair present business operations
with respect to such assets, (iii) liens for taxes not yet due and owing, and
(iv) liens reflected in the Company Financial Statements.
(l) Contracts. The Seller has delivered to the Buyer a correct and
complete copy of each Contract. With respect to each such Contract, as far as
the Seller and the Principals are aware: (A) the Contract is valid, binding,
enforceable, and in full force and effect; (B) the Contract will continue to be
valid, binding, enforceable, and in full force and effect in all material
respects following the consummation of this Agreement; (C) no party is in breach
or default, and no event has occurred which with notice or lapse of time would
constitute a breach or default, or permit termination, modification, or
acceleration, under the Contract; and (D) no party has repudiated any material
provision of the Contract.
(m) Signet Note. Signet has consented to Buyer's assumption of the Signet
Note. The Signet Credit Facility has not been modified or amended except as
disclosed to Buyer and there has been no breach of any provision of, or default
(or an event which, with notice or lapse of time or both, would constitute a
default) under the Signet Credit Facility.
(n) Net Worth. The net worth of each of the Principals (i.e., with
respect to each Principal, the sum of the current value of his assets (excluding
jointly owned assets, his interest in CRICO Mortgage, CRI/AIM Management and
Buyer, and CRIIMI MAE common stock and options to be issued to him on the
Closing Date less the sum of the current amount of his liabilities)
is at least $5 million.
(o) Disclosure. To the best knowledge of the Seller and the Principals,
no certificate, schedule, list or other information furnished in writing by or
on behalf of the Seller or the Principals to the Buyer prior to the date hereof
in connection herewith (excluding projections) contains (after giving effect to
any correction thereof furnished in writing to the Buyer prior to the date
hereof) any untrue statement of a material fact or omits or will omit to state a
material fact necessary in order to make the statements herein or therein, in
light of the circumstances under which they were made, not misleading.
3.2 Representations and Warranties of the Buyer. The Buyer represents and
warrants to the Seller and the Principals as follows:
(a) Organization; Standing and Power. The Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Maryland.
(b) Authority. The Buyer has the requisite corporate power and authority
to enter into this Agreement and to perform its obligations hereunder. The
execution, delivery and consummation of this Agreement by the Buyer have been
duly authorized by the Buyer's Board of Directors and stockholders and no other
corporate proceedings on the part of the Buyer are necessary to authorize the
execution, delivery and performance of this Agreement. This Agreement has been
duly executed and delivered by the Buyer and constitutes a valid and binding
obligation of the Buyer, enforceable in accordance with its terms.
(c) Noncontravention. Neither the execution, delivery and consummation of
this Agreement by the Buyer nor compliance by the Buyer with any of the
provisions hereof will (i) violate, conflict with, or result in a breach of any
provisions of, or constitute a default (or an event which, with notice or lapse
of time or both, would constitute a default) under, or result in the termination
or suspension of, or accelerate the performance required by, or result in a
right of termination or acceleration under, or result in the creation of any
Lien upon any of the properties or assets of the Buyer under, any of the terms,
conditions or provisions of (x) the Buyer's Articles of Incorporation or By-
Laws, or (y) any note, bond, mortgage, indenture, deed of trust, license,
permit, authorization, lease, agreement or instrument or obligation to which the
Buyer is party or to which it or any of its properties or assets may be subject,
or (ii) violate any judgment, ruling, order, writ, injunction, decree, statute,
rule or regulation applicable to the Buyer or any of its properties or assets,
except, in the case of each of clauses (i)(y) and (ii) above, for such
violations, conflicts, breaches, defaults, terminations, accelerations or
creations of Liens, which would not, in the aggregate, have a material adverse
effect on the business, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Buyer, or affect the Buyer's ability to
consummate the transactions contemplated hereby.
(d) Government Approval; Consents. All third party consents and approvals
necessary to be obtained by the Buyer for the consummation of this Agreement
have been obtained. No notice to, filing with, or authorization, consent or
approval of, any domestic or foreign public body or authority is necessary for
the execution, delivery and consummation of this Agreement by the Buyer or
compliance by the Buyer with any of the provisions hereof, except where failures
to give such notices, make such filings, or obtain authorizations, consents or
approvals would not, in the aggregate, have a material adverse effect on the
business, property, assets, liabilities, condition (financial or otherwise) or
prospects of the Buyer, or affect the Buyer's ability to consummate the
transactions contemplated hereby.
(e) Litigation. There is no claim, action, proceeding or investigation
pending or, to the best knowledge of the Buyer, threatened against or relating
to the Buyer before any court or governmental or regulatory authority or body
which, if determined adversely, individually or in the aggregate, would have a
material adverse effect on the Buyer's ability to purchase the Contracts. The
Buyer is not subject to any outstanding order, writ, injunction or decree.
ARTICLE IV
ADDITIONAL AGREEMENTS
4.1 Merger Proposal. The Seller and the Principals agree to take all
actions necessary to consummate the Merger Proposal (as defined in the Merger
Agreement).
4.2 Additional Agreements and Provisions. Subject to the terms and
conditions of this Agreement, each of the parties hereto agrees to use his or
its best efforts to take, or cause to be taken, all action and to do, or cause
to be done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement. The parties hereto agree to use their respective reasonable
efforts to challenge any action, including using all reasonable efforts to have
any order or injunction vacated or reversed, brought against any of the parties
hereto seeking a temporary restraining order or preliminary or permanent injunc-
tive relief which would prohibit, or materially interfere with, the consummation
of this Agreement. If any time after the Closing Date any further action is
necessary or desirable to carry out the purposes of this Agreement or to vest
the Buyer with full title to the Advisory Agreement or the Partnership Interest
or ensure Seller's release from its obligations under the Signet Note, the
proper officers and directors of each corporation that is a party to this
Agreement (or its successor) shall take all such necessary action.
ARTICLE V
REMEDIES FOR BREACHES OF THIS AGREEMENT
5.1 Investigations; Survival of Representations and Warranties. The
representations and warranties of the Seller and the Principals (collectively,
the "Indemnifying Parties") contained in Section 3.1 hereof (the
"Representations and Warranties") shall not be deemed waived or otherwise
affected by any investigation by the Buyer and shall survive the Closing Date
for a period of three (3) years (the "Warranty Period"). None of the
representations and warranties of the Buyer in this Agreement or in any
instrument delivered pursuant to this Agreement shall survive the Closing. This
Section 5.1 shall not limit any covenant or agreement of the parties hereto
which by its terms contemplates performance after the Closing Date.
5.2 Indemnification by the Seller and the Principals. The Indemnifying
Parties, jointly and severally, shall indemnify, defend and hold harmless the
Buyer and its affiliates, directors, officers, employees and attorneys
(collectively, the "Indemnified Persons"), and reimburse the Indemnified Persons
for, from and against all demands, claims, actions or causes of action,
assessments, losses, damages, liabilities, costs and expenses, including,
without limitation, interest, penalties and reasonable attorneys' fees,
disbursements and expenses, imposed on or incurred by the Indemnified Persons,
directly or indirectly, by reason of:
(a) any breach or alleged breach by any of the Indemnifying Parties
of any of the Representations and Warranties; or
(b) any failure or alleged failure by the Indemnifying Parties to
perform any material covenant, undertaking or obligation hereunder.
5.3 Defense. If any action or claim shall be brought or asserted against
any Indemnified Person under this Article V, or any successor thereto (the
"Indemnified Party"), in respect of which indemnity may be sought from the
Indemnifying Parties under this Article V, the Indemnified Party shall
immediately notify the Indemnifying Parties who shall assume the defense
thereof, including the employment of counsel reasonably satisfactory to said
Indemnified Party and the payment of all expenses; except that any delay or
failure to so notify said Indemnifying Parties shall only relieve the
Indemnifying Parties of its or his obligations hereunder to the extent, if at
all, that they are materially prejudiced by reason of such delay or failure.
The Indemnified Party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the Indemnified Party unless:
(a) the employment thereof shall have been specifically directed and
required by said Indemnifying Parties; or
(b) The Indemnifying Parties shall have elected not to assume the
defense and employ counsel.
Without the express prior written consent of said Indemnified Party,
the Indemnifying Parties shall have no right to settle or compromise any
matter.
5.4 Indemnification Threshold. The Indemnifying Parties shall not be
required to indemnify the Indemnified Persons unless the sum of the amounts for
which indemnity would otherwise be payable under this Agreement and under the
Merger Agreement and the Asset Purchase Agreements attached to the Merger
Agreement as Exhibits 2 and 3 exceeds $100,000, at which time and at all times
thereafter the Indemnified Persons shall be entitled to the full amount of all
claims without deduction of $100,000.
5.5 Limitation on Indemnification. The Buyer shall not be entitled to
seek indemnification hereunder at any time subsequent to the expiration of the
Warranty Period; provided, however, that the Buyer may seek indemnification
hereunder with respect to any claims of which the Buyer first receives notice
during the Warranty Period up to 14 days after such notice is received.
5.6 No Contribution. The parties agree that after the Closing Date the
Principals shall have no right of contribution from CRIIMI Management (as the
successor to the Seller) with respect to any claims brought under this Article
V.
ARTICLE VI
GENERAL PROVISIONS
6.1 Public Statements. The Buyer, the Seller and the Principals agree
that neither they nor their respective directors, officers, employees or agents
shall disclose to any third party (other than to their professional advisers) or
publicly issue any press release or other statement to the press or any third
party with respect to this Agreement, except as may be required by law, until
such time as any such public announcement is approved in advance by the Seller,
the Buyer and the Principals.
6.2 Notices. All notices and other communications hereunder shall be in
writing (including telex or similar writing) and shall be deemed given if
delivered in person or by messenger, cable, telegram or telex or facsimile
transmission or by a reputable overnight delivery service which provides for
evidence of receipt to the parties at the following addresses or telecopier
numbers (or at such other address or telecopy number for a party as shall be
specified by like notice):
(a) if to the Buyer, to:
CRI Acquisition, Inc.
00000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
(000) 000-0000/(000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
with a copy to:
Office of General Counsel
C.R.I., Inc.
The CRI Building
00000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
(000) 000-0000
Telecopy: (000) 000-0000
(b) if to the Principals or to the Seller, to:
Xxxxxxx X. Xxxxxxx
H. Xxxxxxx Xxxxxxxxxx
C.R.I., Inc.
The CRI Building
00000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
(000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxxxxxxx
Peabody & Xxxxx
0000 00xx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
(000) 000-0000
Telecopy: (000) 000-0000
6.3 Interpretation. When reference is made in this Agreement to Exhibits,
Schedules or Sections, such reference shall be to an Exhibit, Schedule or
Section of this Agreement unless otherwise indicated. The headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
6.4 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
6.5 Entire Agreement. This Agreement (including the documents and
instruments referred to herein), constitutes the entire agreement and supersedes
all prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof.
6.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Maryland, without regard to the
principles of conflicts of law of such state.
6.7 Validity. The invalidity or unenforceability of any provisions of
this Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, each of which shall remain in full force and
effect.
6.8 Assignment. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any party hereto, whether by
operation of law or otherwise, without the express prior written consent of each
of the other parties hereto. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors, heirs, legal representatives and assigns.
6.9 Expenses. Each party shall bear its own expenses incurred in
connection with this Agreement.
6.10 Knowledge. Statements herein made "to the best knowledge" of a party
are made after exercising reasonable care in the ascertainment of relevant
facts.
IN WITNESS WHEREOF, the Buyer and the Seller have caused this Agreement to
be signed by their respective officers thereunto duly authorized, and each of
the Principals has signed this Agreement, all as of the date first above
written.
The Seller:
C.R.I. Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Xxxxxxx X. Xxxxxxx
Chairman of the Board
The Buyer:
CRI Acquisition, Inc.
By: /s/ H. Xxxxxxx Xxxxxxxxxx
-------------------------------
H. Xxxxxxx Xxxxxxxxxx
President
The Principals:
/s/ Xxxxxxx X. Xxxxxxx
---------------------------
Xxxxxxx X. Xxxxxxx
/s/ H. Xxxxxxx Xxxxxxxxxx
-------------------------------
H. Xxxxxxx Xxxxxxxxxx
SCHEDULE 3.1 (j)
Litigation
C.R.I., Inc.
None
