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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) November 4, 1996
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RSI Holdings, Inc.
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(Exact name of registrant as specified in its charter)
North Carolina 0-18091 56-1200363
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(State or other jurisdiction (Commission (IRS Employer of
incorporation) File Number) Identification No.)
Post Office Box 6847, Greenville, South Carolina 29606
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (864) 271-7171
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Not Applicable
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(Former name or former address, if changed since last report)
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Item 2. Acquisition or Disposition of Assets.
On November 4, 1996, RSI Holdings, Inc., (the "Company") purchased
for cash all of the outstanding common stock of CambridgeBanc, Inc. from
Emergent Group, Inc. for the total purchase price of $15,000. The assets that
are owned by CambridgeBanc, Inc. consist of furniture and equipment that the
Company believes have a fair value of $15,000. Through CambridgeBanc, Inc.,
the Company intends to engage in the business of originating and selling home
improvement loans secured by liens on improved property (the "Business").
In addition to the purchase agreement to acquire the common stock, the
Company executed a lease agreement with Emergent Group, Inc. in which the
Company is obligated to pay a sum of $18,000 for the use of additional
furniture and equipment for one year. These assets were used by CambridgeBanc,
Inc. in the operation of the Business. The newly acquired subsidiary,
CambridgeBanc, Inc. executed a sublease agreement to rent for one year from
Emergent Group, Inc. the office space that it occupies at $1,757 per month.
The Company expects to fund these total obligations with its existing cash.
Mr. Buck Mickel, Chairman of the Board and Chief Executive Officer of
the Company and beneficial owner of more than 5% of its outstanding common
stock, also serves on the board of directors of Emergent Group, Inc. and
beneficially owns less than 5% of its outstanding common stock and C. Thomas
Wyche, Secretary of the Company and the beneficial owner of less than 5% of its
outstanding common stock, also serves as Secretary of Emergent Group, Inc. and
is a shareholder of Emergent Group, Inc., owning less than 5% of its
outstanding common stock. In addition, each of Buck A. Mickel, Charles C.
Mickel and Minor Mickel Shaw, beneficial owners of more than 5% of the
Company's outstanding common stock, are shareholders of Emergent Group, Inc.,
each owning less than 5% of its outstanding common stock. Each of Buck A.
Mickel, Charles C. Mickel and Minor Mickel Shaw are the adult children of Buck
Mickel.
Item 7. Financial Statements and Exhibits.
(a) Financial statements of businesses acquired - CambridgeBanc, Inc.
The following financial statements of CambridgeBanc, Inc. will be
filed under cover of Form 8 within 60 days of the filing due date
hereof:
Audited Financial Statements
- Report of Independent Certified Public Accountants
- Balance Sheet - December 31, 1995
- Statement of Operations - For the period from September 29, 1995
(inception) through December 31, 1995
- Statement of Shareholder's Equity - For the period from September
29, 1995 (inception) through December 31, 1995
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- Statement of Cash Flows - For the period from September 29, 1995
(inception) through December 31, 1995
- Notes to Financial Statements
The following unaudited interim financial statements of CambridgeBanc,
Inc. will be filed under cover of Form 8 within 60 days of the filing
due date hereof:
- Condensed Balance Sheet - September 30, 1996.
- Condensed Statement of Operations - For the Nine Months Ended
September 30, 1996.
- Condensed Statement of Cash Flows - For the Nine Months Ended
September 30, 1996.
(b) Pro forma financial information
Pro forma financial information for 1996 and 1995 is not
presented as CambridgeBanc, Inc. has been in existence for less
than one year. In addition, RSI Holdings, Inc. had no operations
during fiscal 1996 and 1995 and has presented its financial results on
the liquidation basis since August 31, 1994.
(c) Exhibits
2.1 Stock Purchase and Sale Agreement, dated as of November 4,
1996, by and between the Company and Emergent Group, Inc.
("Emergent"). The Company agrees to furnish upon the
request of the Commission any omitted exhibit or schedule to
this document.
2.2 Equipment Lease, dated as of November 4, 1996, by and between
CambridgeBanc, Inc. and Emergent.
2.3 Sublease Agreement, dated as of November 4, 1996, by and
between CambridgeBanc, Inc. and Emergent.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
RSI Holdings, Inc.
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(Registrant)
Date: November 11, 1996 /s/ Joe F. Ogburn
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Joe F. Ogburn, Vice President
and Treasurer
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EXHIBIT 2.1
STOCK PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made and entered into as of this 4th day of
November, 1996, by and between EMERGENT GROUP, INC., a corporation organized
and existing under the laws of the State of South Carolina, hereinafter
referred to as "Seller", and RSI HOLDINGS, INC., a corporation organized and
existing under the laws of the State of North Carolina, hereinafter called
"Buyer".
W I T N E S S E T H :
WHEREAS, Seller owns all of the issued and outstanding capital
stock (the "Stock") of CAMBRIDGEBANC, INC., a corporation organized and
existing under the laws of the State of South Carolina (the "Corporation"); and
WHEREAS, Buyer desires to purchase all of the Stock for the
consideration, and upon the terms, provisions and conditions of this Agreement;
and
WHEREAS, Seller desires to sell, assign, transfer, convey and
deliver to Buyer the Stock.
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements contained in this Agreement, and for good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
I. PURCHASE AND SALE:
Buyer does hereby agree to purchase and Seller does hereby agree
to sell, transfer and assign to Buyer the Stock subject to the terms of this
Agreement.
II. PURCHASE PRICE AND PAYMENT:
The total purchase price for the Stock sold and purchased
hereunder ("Purchase Price") shall be Fifteen Thousand Dollars ($15,000.00).
The Purchase Price shall be paid by Buyer to Seller in cash on the Closing Date
as defined in Section III.
III. CLOSING DATE:
The Closing of the purchase and sale of the Stock ("Closing")
shall take place at the offices of Wyche, Burgess, Freeman & Parham, P. A. on
or about 11:00 a.m. on October 11, 1996, or at such other time and place or on
such other date as may be agreed upon by Seller and Buyer in writing ("Closing
Date").
IV. REPRESENTATIONS AND WARRANTIES OF SELLER:
4.1 Organization and Good Standing. The Corporation is duly
organized, validly existing and in good standing under the laws of the State of
South Carolina; it is duly qualified and has all requisite corporate power and
authority to carry on the business of making loans insured by
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the United States Department of Housing and Urban Development (the "Business")
and to own, lease and operate its properties.
4.2 Capitalization and Ownership of Stock. The entire
authorized capital stock of the Corporation consists of 100,000 shares of
common stock, no par value, of which 1000 shares have been legally and validly
issued, are presently outstanding, and are fully paid and nonassessable. Seller
is the owner of all of the issued and outstanding capital stock of the
Corporation free of any claim or encumbrance. No other person has any right or
interest in, or any option, warrant or other right to purchase or acquire, any
capital stock of the Corporation.
4.3 Binding Effect. This Agreement and each instrument
executed and to be executed by Seller related thereto is the legal, valid and
binding obligation of Seller enforceable against Seller in accordance with its
respective terms.
4.4 Authorization. The execution, delivery and performance
by Seller of this Agreement and each instrument executed and to be executed by
Seller in connection herewith, and in consummation of the transactions provided
for herein and therein, are and will be within its corporate power; will have
been duly authorized by all necessary corporate action on the part of Seller by
the Closing Date; and do not and will not contravene any law, regulation,
judgment, decree, order or award relating to Seller or conflict with or result
in any breach of any of the terms, conditions or provisions of, or constitute a
default under, or result in the creation of any lien, charge, security interest
or encumbrance upon, any of the assets or properties of Seller pursuant to any
corporate charter, by-law, indenture, mortgage, lease, security agreement,
partnership agreement or other agreement to which Seller is a party or by which
Seller is bound.
4.5 Title. The Corporation has good and marketable title in
and to all its assets, free and clear of all liens, charges, security interests
and encumbrances of any nature whatsoever.
4.6 All License Assets Required to Operate Business. The
Corporation has all licenses, contract rights and other rights necessary to
operate the Business other than a license to engage in the Business from the
South Carolina Board of Financial Institutions.
4.7 Employee Benefit Plans.
(i) The Corporation does not maintain, and has not in its
history maintained, directly or indirectly, and is not a party to (nor has it
ever been a party to) (1) any profit sharing, stock bonus, deferred
compensation, bonus, stock option, stock purchase, pension, retainer,
severance, retirement, welfare or incentive plan or agreement, whether legally
binding or not; (2) any plan providing for "fringe benefits" to its employees,
including but not limited to vacation, sick leave, medical, hospitalization,
disability, life insurance and other insurance plans, and related benefits; (3)
any employment, consulting or noncompetition agreement; or (4) any other
"employee benefit plan" (within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), whether oral or
written (collectively referred to as the "fringe benefit plans"). For purposes
of this Section 4.7 the term "Corporation" shall include any corporation which
is a member of a controlled group of corporations (as defined in Section 414(b)
of the Internal Revenue Code of 1986, as amended (the "Code")) which includes
the Corporation; any trade or business (whether or not incorporated) which is
under common control (as defined in Section 414(c) of the Code) with the
Corporation; any organization (whether or not incorporated) which is a member
of an affiliated service group (as defined in Section 414(m) of the Code) which
includes the Corporation;
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and any other entity required to be aggregated with the Corporation pursuant
to regulations under Section 414(o) of the Code.
(ii) The consummation of the transactions contemplated by
this Agreement will not: (A) entitle any current or former employee of the
Corporation or any other person to severance pay, unemployment compensation or
any similar payment; or (B) accelerate the time of payment or vesting or
increase the amount of any compensation due to any such employee or former
employee or result in payments not deductible by reason of Section 280G of the
Code.
(iii) The Corporation currently has no obligation to
contribute to any multi-employer plan as defined in Section 3(37) of ERISA.
The Corporation has not, with respect to any multiemployer plan, ever suffered
or caused a complete or partial withdrawal (as such terms are defined in
Sections 4203 and 4205 of ERISA) and will not become liable therefor as a
result of the transactions contemplated by this Agreement.
4.8 Other Business Names. The Corporation has not used
any other business name or address during the three years immediately prior to
the Closing Date.
4.9 Consents and Approvals. No consent of any person and
no approval or authorization of, or declaration or filing with, any
governmental or regulatory authority is required for the valid authorization,
execution and delivery by Seller of this Agreement or the valid transfer to
Buyer of the Stock pursuant hereto, other than a report to the Department of
Housing and Urban Development that this transaction has occurred.
4.10 Financial Statements.
(i) Buyer has been furnished with the internal financial
statements of the Corporation for the 12 months ended December 31, 1995. The
Corporation's books and records from which such financial statements were
prepared accurately reflect all of the Corporation's items of income and
expense and all of its assets and liabilities. Except as noted in such
financial statements, such financial statements have not been affected by
transactions with affiliated companies, have been prepared in conformity with
the books and records of the Corporation, are true and correct in all material
respects, and present fairly the financial position of the Corporation and the
results of its operations as at such date and for the period therein indicated,
in conformity with generally accepted accounting principles applied on a
consistent basis. Without limiting the generality of the foregoing:
(a) The Corporation and Seller have duly filed all tax returns
and reports required to be filed by them and have paid all
taxes and assessments due or claimed to be due by any taxing
authority, together with all interest, penalties, assessments
and deficiencies assessed in connection therewith. All income
tax obligations as to which the Corporation or Seller were
subject as of the dates of the balance sheet referred to above
were fully reserved for in such balance sheets. No tax or
related liabilities are proposed to be assessed and no
potential tax deficiencies are expected to be raised by any
taxing authority with respect to the business of Seller or the
Corporation. No waivers of statues of limitations have been
given or requested.
(b) The Corporation has no debts, liabilities, obligations or
commitments of any kind or nature of a type that would be
included in a balance sheet prepared in accordance with
generally accepted accounting principles.
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(ii) Since December 31, 1995 (the "Balance Sheet Date"),
there has not been any change in the financial condition, assets, properties,
liabilities, business, results of operations or prospects of the Corporation
(other than changes which resulted in the balance sheet attached hereto as
Exhibit 7.1(g) ("Approved Changes")), changes in general economic conditions,
and changes in the normal, regular and customary course of business, or any
labor trouble, property dispute, lease or contract dispute, or other claim or
event, or any condition of any character whatsoever materially and adversely
affecting, or which would materially and adversely affect, the financial
position, business or prospects of the Corporation. Without limiting the
generality of the foregoing since the Balance Sheet Date, other than the
Approved Changes, the Corporation has not taken any of the following actions:
(a) paid any dividend, redeemed or made any payment or
distribution in respect of its outstanding capital stock, or
paid, transferred, sold, leased or otherwise disposed of any of
its assets, properties, rights, except sales and dispositions
in the normal, regular and customary course of business that
are reflected on the books and records of the Corporation or,
other than in the ordinary course of business, cancelled any
debt or claim;
(b) incurred any obligation or liability, absolute or
contingent, except current liabilities and obligations under
contracts entered into in the normal, regular and customary
course of business and consistent with the requirements of its
business that are reflected on the books and records of the
Corporation;
(c) mortgaged, pledged or subjected to lien, charge, security
interest or other encumbrance any of its assets;
(d) suffered the loss or destruction of any assets or
properties, whether or not covered by insurance;
(e) made any change in compensation or benefits payable to any
officer, employee (except in the ordinary course of business)
or stockholder; or
(f) entered into any transaction other than in the normal,
regular and customary course of business.
4.11 Asset Representations. All personal property,
furniture, fixtures and equipment of the Corporation are in good working order
and condition (ordinary wear and tear excepted) and have been properly
maintained.
4.12 Contracts.
(i) The only contracts to which the Corporation is a
party are contracts for the maintenance of service for some of the equipment
referenced on Exhibit 7.1(g) and the Agreement with TMS Mortgage, Inc.
described below. The Corporation has no other contracts, agreements and other
instruments, nor is it or its property bound by any other document, including,
without limitation, any (a) contracts for the employment of any employee; (b)
leases or agreements under which the Corporation is lessee of or holds any
property, real or personal, owned by a third party which is used in the
Corporation's business; (c) loan, credit, guarantee, subordination or other
similar
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or related types of agreements; (d) contracts or commitments for capital
expenditures; or (e) contracts by which such the Corporation has agreed to
limit its freedom to compete in any business or with any person or entity. No
purchase orders for goods or services are outstanding. All representations and
warranties of the Corporation in any contract (including, without limitation,
that certain Sale and Purchase Agreement dated as of September 9, 1996, by and
between TMS Mortgage, Inc., and the Corporation) were accurate and complete
when made and are accurate and complete as of the date hereof.
(ii) The Corporation is not in default under any contract,
agreement or other instrument to which it is a party, and the Corporation has
not received any notice or claim to the contrary. Seller does not know of any
default under any such contract, agreement or other instrument by any other
party thereto. Seller shall not permit and shall cause the Corporation not to
modify or change any such contract, agreement or other instrument prior to the
Closing Date without the prior written consent of Buyer.
4.13 Intangibles.
(i) The Corporation owns no copyrights, trademarks,
service marks, trade names, or applications or registrations for the foregoing
and has no licenses, sub-licenses, franchises and other agreements relating to
the foregoing other than common law rights with respect to the name
"CambridgeBanc."
(ii) The Corporation is the exclusive owner and has the
sole right to use all trademarks, service marks, and trade names presently
used in the conduct of its business, none of which, to the best knowledge of
Seller: (a) is being infringed upon by any third party or (b) is subject to any
outstanding claim, order, decree, judgment or judicial stipulation. No action
taken by the Corporation infringes upon or otherwise violates the trademark,
service mark or trade name rights of any third party, and neither the
Corporation nor Seller has received any claim or notice to the contrary.
4.14 Claims and Litigation.
(i) There are no claims, suits, legal, administrative,
arbitration or other proceedings pending or threatened against or affecting
the Corporation or any of its properties, and, to the best of the knowledge of
Seller, there is no existing basis for any such claim, suit, legal,
administrative, arbitration proceeding.
(ii) There are no outstanding judgments, decrees, orders
or awards or specific administrative regulations relating to the Corporation or
any of its properties.
(iii) Neither the Corporation nor Seller is a party to any
litigation, proceeding or inquiry, now pending in any court, or before any
governmental agency or arbitrator, nor, to the knowledge of Seller, has any
litigation, proceeding or inquiry, affecting the Corporation or Seller, or
their businesses, been threatened which, if adversely determined, could,
individually or in the aggregate, materially and adversely affect consummation
of the transactions herein contemplated or the Corporation's assets or the
Business.
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4.15 Compliance with Laws. The Corporation has conducted
its business prior to the date hereof in compliance, in all material respects
with all laws and regulations applicable to its respective business, assets and
properties and has not received any claims or notices to the contrary.
4.16 No Misleading Statements. Neither this Agreement nor
the financial statements that have been furnished to Buyer by or on behalf of
Seller or the Corporation, nor any other information furnished to Buyer by or
on behalf of Seller or the Corporation in connection with the transactions
contemplated hereby, nor any of the schedules, instruments or certificates
executed and delivered by or on behalf of Seller or the Corporation and
referred to in this Agreement and the schedules hereto or executed and
delivered concurrently herewith, contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the
statements contained herein or therein not misleading. To the best knowledge
of Seller, there is no state of facts relating to the Corporation or its
businesses, assets, properties or liabilities, which has a current materially
adverse affect, or is reasonably expected to have a future material adverse
affect upon, the business or assets of the Corporation, except as has been
disclosed in this Agreement or the schedules hereto.
V. REPRESENTATIONS AND WARRANTIES OF BUYER:
Buyer represents and warrants to Seller as follows:
5.1 Organization and Qualification. Buyer is a
corporation duly organized, validly existing and in good standing under the
laws of the State of North Carolina.
5.2 Authorization; Binding Effect. Buyer has full
corporate power and all necessary authorizations to enter into this Agreement.
The execution, delivery and performance of this Agreement has been duly and
validly authorized by all necessary corporate action on the part of Buyer and
will not violate any provisions of its Articles of Incorporation or By-laws.
This Agreement constitutes the valid and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms.
VI. COVENANTS OF SELLER:
6.1 Continuance of Business. From the date hereof and
through the Closing Date, Seller will cause the Corporation to:
(a) carry on the business of the Corporation as carried on as
of the date hereof in and only in, the usual, regular and
ordinary course in substantially the same manner as heretofore
carried on, and, to the extent consistent with such business,
it will exercise its best efforts to preserve intact the
Corporation's present business organization, to keep available
the services of the Corporation's present officers and
employees and to preserve its relationships with customers,
lenders and others with whom it has business dealings to the
end that its goodwill and going business shall be conducted on
substantially the same basis at the Closing Date as at the date
hereof and heretofore;
(b) perform all of its obligations under all agreements,
contracts and instruments relating to or affecting its
properties, assets and business and which are material to its
business, financial condition, results of operations or
prospects;
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(c) maintain its books of account and records in the usual,
regular and ordinary manner; and
(d) promptly advise Buyer in writing of any material and
adverse change in the financial condition, operations or
business of the Corporation.
6.2 Access to Information; Assistance in Transition. From
and after the date hereof, Seller will give to Buyer and its representatives,
accountants and agents, full access during normal business hours to the
properties, books, records, contracts and commitments relating to the
Corporation, including full access to its officers and employees and to the
premises from which the Business is operated. In addition, Seller will
cooperate fully with Buyer with respect to the transition of the ownership of
the Corporation.
6.3 Consents. Seller will use its best efforts to obtain
the consent or approval of each person or authority whose consent or approval
is required or advisable in order to permit Seller to consummate the
transactions contemplated hereby.
6.4 Supplements. From time to time prior to the Closing
Date, Seller shall deliver to Buyer supplemental information with respect to
any matters or events arising or discovered subsequent to the date hereof
which, if existing or known on the date hereof, would have rendered any
statement, representation or warranty made herein on the part of Seller or any
information contained in the Schedules to this Agreement then materially
misleading, inaccurate or incomplete.
6.5 Dividends. From the date hereof and through the
Closing Date, Seller will cause the Corporation not to declare, set aside, make
or pay any dividend or other distribution in respect to its common stock or any
bonus or increase in compensation to its officers or directors.
VII. CONDITIONS TO OBLIGATIONS OF BUYER:
7.1 Conditions to the Obligations of Buyer. The
obligations of Buyer under this Agreement are subject, at the discretion of
Buyer, to the satisfaction, at or before the Closing Date, of each of the
following conditions:
(a) Accuracy of Representations and Warranties.
The representations and warranties of Seller
contained in this Agreement or in any schedule or material delivered by Seller
hereunder shall be true on and as of the Closing Date with the same force and
effect as though made on and as of the Closing Date, except as affected by
transactions contemplated hereby and except that any such representation and
warranty made as of the specified date (other than the date of this Agreement)
shall have been true on and as of such date.
(b) Performance of Agreements.
Seller shall have performed all obligations and
agreements and complied with all covenants to be complied with by it hereunder
on or before the Closing Date.
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(c) Contracts.
The contracts listed on Schedule 4.12 shall be in
full force and effect. Any consents required under such contracts shall have
been obtained and proof of such consent shall have been furnished to Buyer.
(d) Transfer of Certificates for the Stock.
Buyer shall have received certificates for all shares
of the Stock, duly endorsed to Buyer, free and clear of all liens and
encumbrances.
(e) No Law or Litigation.
There shall not be pending or threatened any
litigation or proceeding to restrain or invalidate the consummation of the
purchase and sale of the Stock or the operation of the business of the
Corporation which would, if adversely decided, materially and adversely affect
the operation of the business of the Corporation after the Closing Date. No
law, regulation or decree shall have been proposed, adopted, or promulgated or
have become effective after the date hereof, the enforcement of which would
materially and adversely affect this Agreement or the ability of Buyer to
consummate the transactions contemplated hereby or to own the Stock.
(f) No Violations.
No violations shall exist or be alleged by any
governmental authority of any law, statute, ordinance, or regulations, the
enforcement of which would materially adversely affect the assets or the
business of the Corporation.
(g) Balance Sheet.
The assets of the Corporation shall be as set forth
on Exhibit 7.1(g), and the Corporation shall have no liabilities other than as
provided in Subsections 7.1(h) and (i) below.
(h) Real Property Sublease.
Seller and the Corporation shall have entered into a
one-year sublease with respect to the premises located at 1200 Woodruff Road,
Unit C-4, in substantially the form attached hereto as Exhibit 7.1(h).
(i) Equipment Lease.
Seller and the Corporation shall have entered into a
one-year lease for certain office equipment in substantially the form attached
hereto as Exhibit 7.1(i).
VIII. CONDITIONS TO THE OBLIGATIONS OF SELLER:
8.1 Conditions to the Obligations of Seller. The
obligations of Seller under this Agreement are subject, at the discretion of
Seller, to the satisfaction, at or before the Closing Date, of each of the
following conditions:
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(a) Accuracy of Representations and Warranties.
The representations and warranties of Buyer contained
herein shall be true on and as of the Closing Date with the same force and
effect as though made on and as of the Closing Date, except as affected by
transactions contemplated hereby and any representation and warranty made as of
a specified date (other than the date of this Agreement) shall have been true
on and as of such date.
(b) Performance of Agreements.
Buyer shall have performed all obligations and
agreements and complied with all covenants to be performed and complied with by
it hereunder on or before the Closing Date.
(c) Delivery of Payment.
The delivery to Seller of the cash payment provided
for under Section II shall have occurred.
IX. INDEMNIFICATION:
9.1 Seller's Indemnification. Subject to the limitations
hereinafter set forth, Seller shall indemnify and hold harmless Buyer and its
parents, subsidiaries, successors and assigns from and against all costs,
losses, claims, liabilities, fines, penalties, damages and expenses
(including any interest and court costs imposed in connection therewith and
reasonable fees and disbursements of counsel), incurred by reason of:
(i) any breach or inaccuracy of any of the representations,
warranties, covenants or agreements made by Seller in this Agreement; and
(ii) any attempt (whether or not successful) by any person to
cause or require Buyer to pay or discharge any debt, obligation, liability or
commitment of the Corporation the existence of which would constitute a breach
of any representation, warranty, covenant or agreement made by Seller in this
Agreement.
In addition, Seller shall perform any obligations of the
Corporation pursuant to that certain Sale and Purchase Agreement dated as of
September 9, 1996, by and between the Corporation and TMS Mortgage, Inc., a New
Jersey corporation.
9.2 Buyer's Indemnification. Buyer shall indemnify
and hold harmless Seller, its parents, subsidiaries, successors and assigns,
from and against all costs, losses, claims, taxes, liabilities, fines,
penalties, damages and expenses (including any interest and court costs imposed
in connection therewith and reasonable fees and disbursements of counsel)
incurred by Seller in connection with any breach or inaccuracy of any of the
representations, warranties, covenants or agreements made by Buyer in this
Agreement.
9.3 Equitable Relief. The indemnification as provided
in Sections 9.1 and 9.2 hereof shall be in addition to any equitable relief
which Buyer or Seller might otherwise be entitled to obtain against the other.
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9.4 Actions. Any indemnity payment under this Agreement,
or any documents delivered hereunder, shall be made in cash within 30 days
after notice from the party entitled to indemnity (the "Indemnified Party") to
the party required to provide indemnity (the "Indemnifying Party") of the
payment made or the cost incurred and which provides a basis for such
indemnity. If any claim is hereafter made against an Indemnified Party by a
third party with respect to which the Indemnified Party believes it is entitled
to indemnification under Sections 9.1 or 9.2 hereof (herein called the
"Claim"), the Indemnified Party shall give written notice thereof to the
Indemnifying Party. Such notice shall be given in the manner provided in this
Agreement within a reasonable time after the Indemnified Party shall become
aware of the Claim. Within 15 days after the giving of such notice, the
Indemnifying Party may assume the defense of the Claim, and failing such
defense, the Indemnified Party shall have the right to satisfy, compromise or
defend the Claim. At the request of the Indemnifying Party, the Indemnified
Party shall cooperate with the Indemnifying Party in the defense of any Claim,
provided that the Indemnifying Party has assumed the defense of such Claim in
accordance with the preceding sentence and that all reasonable costs of the
Indemnified Party shall be reimbursed by the Indemnifying Party upon demand.
The Indemnified Party shall have the right to be represented by counsel at its
own expense in any contest, defense, litigation or settlement of any Claim
conducted by the Indemnifying Party, provided, however, that the Indemnified
Party shall be entitled to reimbursement therefor if the Indemnifying Party
shall fail to exercise its right to defend and settle such Claim as herein
provided.
X. POST-CLOSING OBLIGATIONS:
After the Closing Date, Seller shall deliver to Buyer, at such
time as Buyer may reasonably request, such other documents and things as Buyer
may reasonably request to consummate the transactions contemplated by this
Agreement or related documents. In addition, Seller agrees to prepare and
cause to be timely filed Forms W-2, 941, 940, 1099, and any other governmental
form or tax return required to be prepared or filed as a result of operation of
the Corporation prior to the Closing Date. Buyer agrees to cooperate with
Seller in connection with such filings and reports.
XI. GENERAL PROVISIONS:
11.1 Survival of Representations, etc.. Each party
hereto agrees that its representations, warranties, covenants, agreements and
indemnities contained in this Agreement or in any ancillary document shall
survive the execution of this Agreement and the consummation of the
transactions contemplated hereby. However, neither party shall be entitled to
make any claim against the other based upon any representation, warranty,
covenant, agreement or indemnity contained in this Agreement or in any
ancillary document after three years from the Date of Closing.
11.2 Waivers. No action taken pursuant to this
Agreement, including any investigation by or on behalf of any party, shall be
deemed to constitute a waiver by the party taking such action of compliance
with any representation, warranty, covenant or agreement contained in this
Agreement or in any related document. The waiver by any party hereto of a
breach of any provision of this Agreement shall not operate or be construed as
a waiver of any subsequent breach.
11.3 Expenses. Whether or not the transactions
contemplated by this Agreement are consummated, the parties hereto shall each
pay the fees of their own accountants and other experts.
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11.4 Notices. All notices and other communications which
are required to be or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given if hand delivered or mailed, certified
mail, return receipt requested, postage prepaid, to the party to which the same
is so given or made.
If to Buyer:
RSI Holdings, Inc.
245 East Broad Street, Suite A
Greenville, South Carolina 29601
with a copy to:
Wyche, Burgess, Freeman & Parham, P.A.
44 East Camperdown Way
Post Office Box 728
Greenville, South Carolina 29602-0728
Attention: Jo Watson Hackl
If to Seller:
Emergent Group, Inc.
Post Office Box 17526
Greenville, South Carolina 29606
with a copy to:
Wyche, Burgess, Freeman & Parham, P.A.
44 East Camperdown Way
Post Office Box 728
Greenville, South Carolina 29602-0728
Attention: C. Thomas Wyche
11.5 Entire Agreement. This Agreement (including the
schedules hereto) constitutes the entire agreement, and supersedes all prior
oral and written agreements and understandings among the parties hereto with
respect to the subject matter hereof.
11.6 Headings. The section and other headings contained in
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement.
11.7 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall, when executed, be deemed to be an
original and all of which shall be deemed to be one and the same instrument.
11.8 Broker. Seller and Buyer agree that they have
negotiated directly with each other and that no broker or finder is entitled to
any commission in connection with this Agreement or the transactions
contemplated hereby. Seller or Buyer (the "Indemnifying Party") will indemnify
and
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<PAGE> 12
hold the other harmless from any claim, loss, liability or expense in
respect to brokerage or finders' fees arising out of the transaction
contemplated hereby asserted by any person claiming to have been engaged as a
broker or finder by the Indemnifying Party.
11.9 Governing Law. This Agreement shall be construed as to
both validity and performance and enforced in accordance with and governed by
the laws of the State of South Carolina, without regard to its conflict of laws
doctrine, applicable to agreements made and to be performed in South Carolina.
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<PAGE> 13
IN WITNESS WHEREOF, the parties have executed this Agreement or
caused it to be executed on their behalf by a person thereunto duly authorized,
as of the date first above written.
SELLER
ATTEST: EMERGENT GROUP, INC..
/s/ C. T. Wyche By: /s/ John M. Sterling, Jr.
- -------------------------- -------------------------------
Secretary
Title: Chairman and CEO
----------------------------
BUYER
ATTEST: RSI HOLDINGS, INC.
/s/ C. T. Wyche By: /s/ Buck A. Mickel
- -------------------------- -------------------------------
Secretary
Title: Vice President
----------------------------
[All exhibits omitted.]
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<PAGE> 1
EXHIBIT 2.2
EQUIPMENT LEASE
This Equipment Lease is made and entered into as of this 4th day of
November, 1996, by and between Emergent Group, Inc., of 15 South Main Street,
City of Greenville, County of Greenville, State of South Carolina ("Lessor"),
and CambridgeBanc, Inc., of Suite C-4, Merovan Center, 1200 Woodruff Road, City
of Greenville, County of Greenville, State of South Carolina ("Lessee"), and
Lessee leases from Lessor, with respect to the personal property described on
Exhibit A attached hereto (the "Property").
SECTION ONE
TERM OF LEASE
The term of the lease shall commence on the date hereof, and terminate
twelve (12) months from the date hereof, unless otherwise terminated as
provided in this Agreement.
SECTION TWO
PAYMENT OF RENT
In consideration for the leasing of the Property for the
above-described term, Lessee agrees to pay the Lessor as rent for the Property
the sum of Eighteen Thousand Dollars ($18,000.00) on the date hereof.
SECTION THREE
USE AND PRESERVATION OF PROPERTY
Lessee shall use the Property in a careful and proper manner, shall
comply in all material respects with all applicable laws and regulations, and
shall maintain the Property in good repair and condition (reasonable wear and
tear excepted). Lessee assumes all risks of loss and damage to the Property
from any cause whatsoever and agrees that the Property will be returned to
Lessor in substantially the same appearance and condition as when received,
ordinary wear and tear excepted.
SECTION FOUR
TERMINATION OF LEASE BY DEFAULT
If Lessee fails to perform any of the conditions or covenants of this
lease, Lessor may terminate this lease and Lessee's right to possession of the
Property, and take possession of the Property upon five (5) days notice to
Lessee.
<PAGE> 2
SECTION FIVE
LESSOR'S RIGHT OF INSPECTION
At all times during Lessee's business hours, Lessor shall have the
right to enter the premises where the Property is located for the purpose of
inspecting the Property.
SECTION SIX
OBLIGATION TO PAY TAXES AND FEES
Lessee shall pay any all license fees, assessments, and sales, use,
property and other taxes imposed on the Property, either directly or by
reimbursement of Lessor, excepting only taxes imposed on or measured by income
of Lessor.
SECTION SEVEN
OWNERSHIP OF PROPERTY
LIMITATION OF WARRANTIES
Lessor represents and warrants that it has sole title to the Property,
free and clear of any claims, liens or encumbrances and has full power and
authority to enter into this Lease. Lessor has not made and does not make any
representation, warranty, or covenant, express or implied, with respect to the
condition of the Property. Lessor shall not be liable to Lessee for any
liability, loss, or damage caused directly or indirectly by the Property, by
any inadequacy or defect, or by any incident in connection with the Property.
Lessor shall cooperate fully with Lessee in the exercise of any rights of
warranty respecting the Property.
SECTION EIGHT
MISCELLANEOUS
This Agreement constitutes the entire agreement and understanding
among the parties hereto with respect to the subject matter hereof. The
headings in this Agreement are for reference purpose only and shall not affect
the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, each party has caused this Agreement to be
executed on the date indicated below.
2
<PAGE> 3
Lessor: Lessee:
EMERGENT GROUP, INC. RSI HOLDINGS, INC.
By: /s/ John M. Sterling, Jr. By: /s/ Matthew J. Marron
------------------------------ -------------------------------
Title: Chairman and CEO Title: President
--------------------------- ----------------------------
Date: October 11,1996 Date: October 11, 1996
---------------------------- -----------------------------
[All exhibits omitted]
3
<PAGE> 1
EXHIBIT 2.3
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT made this 4th day of November, 1996 between EMERGENT
GROUP, INC. (hereinafter referred to as "Sublessor") having as its address 15
South Main Street, Ste. 750; Greenville, SC and CAMBRIDGEBANC, INC.
(hereinafter referred to as "Sublessee") having as its address c/o RSI
Holdings, Inc., 245 East Broad Street, Greenville, South Carolina 29606.
RECITALS:
Pursuant to the Lease Agreement dated September 18, 1995 between Zeta
Partnership, a South Carolina partnership ("Prime Lessor"), as lessor, and
Sublessee, as lessee, Prime Lessor leased to Sublessee certain real premises
located in Greenville County, South Carolina more particularly described
therein. Said Lease Agreement has been amended as of the date hereof to
substitute Sublessor as the lessee thereunder. (Said Lease Agreement, as
amended, is referred to herein as the "Prime Lease".)
Sublessee desires to sublease from Sublessor and Sublessor desires to sublease
unto Sublessee the premises which is subject to the Prime Lease upon the terms
and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual undertakings, covenants,
promises, and agreements of the parties, IT IS AGREED AS FOLLOWS:
1. Providing all of the terms and conditions contained within the
Sublease Agreement (the "Agreement") are fulfilled, Sublessor shall
sublease unto Sublessee and Sublessee shall accept the sublease of,
the Premises (as defined in the Prime Lease) from the date hereof for
a period of one (1) year, subject to the rents, terms, covenants,
conditions, and provisions set forth in the Prime Lease.
2. This Agreement shall automatically terminate one year from the date
hereof or such earlier date as provided herein.
3. Sublessee shall duly observe and perform those obligations imposed
upon the lessee under the Prime Lease, Subject, however, to the terms
of Paragraph 6 hereof.
4. Sublessor warrants and represents to Sublessee that:
(a) The Prime Lease is valid and existing; the copy of
the Prime Lease attached hereto is true, correct and
complete; and there are no existing defaults on the
part of the lessor or the lessee under the Prime
Lease.
(b) There are and will be not contracts for services or
otherwise on account of maintenance or repairs which
expressly or impliedly are or will be binding upon
Sublessee or upon the Premises.
5. As consideration for this Sublease, Sublessee shall pay to Sublessor
rent hereunder equal
<PAGE> 2
to rent and additional rent due from Sublessor to Prime Lessor under
the Prime Lease required within the term hereof. All such rent
payments shall be paid on the same schedule as provided in the Prime
Lease, but each such payment shall be delivered to Sublessor no fewer
than three (3) business days prior to the due date thereof under the
Prime Lease. At Sublessor's instruction, Sublessee shall tender such
payments directly to Prime Lessor with proof of payment thereof to
Sublessor if requested by Sublessor. If Sublessee pays rent and
additional rent hereunder to Sublessor, Sublessor shall pay rent and
additional rent due under the Prime Lease on a timely basis.
6. In the event Sublessee fails to comply with any of the obligations of
the lessee under the Prime Lease, Sublessor may, at its election, cure
such failure of compliance, and upon written demand, Sublessee shall
immediately reimburse Sublessor for all costs of Sublessor's cure.
7. In the event Sublessee defaults in any obligation of the lessee under
the Prime Lease or any obligation of Sublessee hereunder, at the
election of Sublessor, Sublessee shall be deemed to be in default
hereunder, and Sublessor shall in such event be entitled to exercise
any or all remedies available to it under applicable law including,
without limitation, the termination of the Agreement, the recovery of
the Premises and the removal of Sublessee therefrom, and damages to
which Sublessor may be entitled.
8. Sublessee shall cause Sublessor to be an additional insured party on
all insurance policies required of lessee under the Prime Lease.
9. Sublessee shall not further assign this Agreement or sublet the
Premises without Sublessor's prior written consent, which consent
shall not be unreasonably withheld or delayed.
10. Any notices shall be in writing and shall be sent by registered or
certified mail, return receipt requested, addressed to the parties at
the addresses indicated on the first page hereof, or such other
address as such party has been advised on in writing.
11. This Agreement (as supplemented by the terms of the Prime Lease)
contains the entire agreement and understanding between the parties
hereto with respect to the Premises, and there are no other terms,
covenants, obligations, or representations, oral or written, of any
kind whatsoever.
12. Subject to the provisions of Article 9 hereof, this Agreement shall be
binding upon, and shall inure to the benefit of, the parties hereto,
their respective heirs, executors, administrators, successors, and
assigns, and may not be revoked or amended, except by instrument in
writing, subscribed by the party sought to be charged therewith.
13. This Agreement shall be interpreted and governed by the laws of the
State of South Carolina.
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<PAGE> 3
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date, month, and year first above written.
SUBLESSOR: SUBLESSEE:
Emergent Group, Inc. CambridgeBanc, Inc.
By: /s/ John M. Sterling, Jr. By: /s/ Matthew J. Marron
------------------------------- --------------------------
Title: Chairman and CEO Title: President
---------------------------- ------------------------
[All exhibits omitted.]
3
