Agreement to Transfer Going Business In Lieu of Foreclosure of Security Interest, dated July 17, 2013, by and between Redfin Network, Inc., TCA Global Credit Master Fund, LP, and RedFin Holdings, Inc

 

(A)

All assets including personal property both tangible and intan­gible;

 

(B)

TOGETHER WITH (i) all the estate, right, title and interest of Debtor of, in and to all judgments and decrees, insurance proceeds, and awards of damages and settlements hereafter made, Creditor is hereby authorized to collect and receive said awards and proceeds and to give proper re­ceipts therefor, and to apply the same toward the payment of the Secured Obligations; and (ii) whether arising from any voluntary or involuntary disposition of the property described in Clause (A), all Proceeds, prod­ucts, replacements, additions, substitutions, renewals and accessions, remainders, reversions and after acquired interest in, of and to such prop­erty;

 

(C)

TOGETHER WITH the absolute assignment of all of the Leases, together with all of the following (including all "Cash Collateral" within the mean­ing of the Bankruptcy Law) arising from the Leases: (a) Rents (subject, however, to the aforesaid absolute assignment to Creditor and the conditional permission herein below given to Debtor to collect the Rents), (b) all guarantees, letters of credit, security deposits, collateral, cash deposits, and other credit enhancement documents, arrangements and other measure with respect to the Leases, (c) all of Debtor's right, title, and interest under the Leases, including the following: (i) the right to receive and collect the Rents from the lessee, sublessee or license, or their successor(s), under any Lease(s) and (ii) the right to enforce against any tenants thereunder and otherwise any and all remedies under the Leases, including Debtor's right to evict from possession any tenant thereunder or to retain, apply, use, draw upon, pursue, enforce or realize upon any guaranty of any Lease; to terminate, modify, or amend the Leases; to obtain possession of, use or occupy, any of the real or personal property subject to the Leases; and to enforce or exercise, whether at law or in equity or by any other means, all provisions of the Leases and all obligations of the tenants thereunder. Notwithstanding anything to the contrary contained herein, the foregoing provisions of this Paragraph (C) shall not constitute an assignment for pur­poses of security but shall constitute an absolute and present assignment of the Rents to Creditor;

 

(D)

TOGETHER WITH all of Debtor's right, title and interest in and to any and all maps, plans, budgets, designs, specifications, marketing plans, feasibility studies, soils tests, surveys, other studies and tests, reports, data and drawings relating to the Business;

 

(E)

TOGETHER WITH, to the extent permitted by applicable law, all of Debtor's right, title, and interest in and to any and all licenses, permits, variances, special permits, franchises, certificates, rulings, certifications, validations, exemptions, filings, registrations, authorizations, consents, ap­provals, waivers, orders, rights and agreements (including, without limita­tion, options, option rights, subdivision rights and contract rights) now or hereafter obtained by Debtor from any Governmental Authority having or claiming jurisdiction over the FF&E, or any other element of the Debtor Estate or providing access thereto, or the operation of the Business;

 

(F)

 

(G)

 

(H)

 

(I)

 

(J)

 

i.

the resignations of all officers and directors, subject to acceptance at the will of the Creditor;

 

ii.

Cause the shares of Debtor to be issued in the name of the Creditor and/or RHI, or its nominee, or in their own names;

 

iii.

resolutions to be passed by the Debtor's Board of Directors providing that all checks for the withdrawal of funds to the credit of the Debtor be signed by the Creditor;

 

iv.

Perform all acts and sign all documents which Debtor or its directors are re­quested by the Creditor to sign in connection with the performance of this Agreement, the continued operation of the Business, the assignment of the Debt­or's Estate and assets, and, if so required by the Creditor, in connection with the dissolution and liquidation of the Debtor, should the corporation be dissolved or liquidated

 

(a)

Valid Title. Debtor has good, valid and marketable title to the Debtor Estate, and Debtor has the right to hold, occupy and enjoy its interest in the Debtor Estate; sign same as provided herein and

 

(b)

Authority. Debtor has full power and authority to execute, deliver and perform this Agreement and the Ancillary Documents to which it is a party and to consummate the Contemplated Transactions;

 

(c)

Organization and standing. Debtor is a corporation duly formed, validly existing and in good standing under the laws of Nevada, its jurisdiction of incorporation or organ­ization, and is duly qualified, licensed, and in good standing as a foreign corporation in the States of Florida and ___________________, and has all power (corporate or otherwise) and authority, and possesses all governmental licenses, permits, authori­zations and approvals, necessary to enable it to own or lease and to operate its prop­erties and assets and carry on its Business as currently and historically conducted, in all material respects. Neither the Business activities nor the ownership or leasing of property by Debtor require it to be qualified in any other jurisdiction(s).

 

(d)

Board of Director Approval. The execution and delivery of this Agreement and the Ancillary Documents to which Debtor is a party and the performance by Debtor of the Contemplated Transactions that are required to be performed by Debtor have been duly authorized by its Board of Directors, in accordance with applicable Law and the certificate of incorporation and bylaws or other similar organizational docu­ments of Debtors and no other corporate or other proceedings on the part of Debtor (including, without limitation, any shareholder vote or approval) are necessary to au­thorize the execution, delivery and performance of this Agreement and the Ancillary Documents to which Debtor is a party or the consummation of the Contemplated Transactions that are required to be performed by Debtor. This Agreement and each of the Ancillary Documents to be executed and delivered at the Closing by Debtor will be, at the Closing, duly authorized, executed and delivered by Debtor, and con­stitute, or as of the Closing Date will constitute, valid and legally binding agreements of Debtor, enforceable against Debtor, in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other Laws of general applicability relat­ing to or affecting creditors' rights and to general equity principles.

 

(e)

No Conflict. The execution and delivery by Debtor of this Agreement and the Ancil­lary Documents to which Debtor is a party, consummation of the Contemplated Transactions that are required to be performed by Debtors and compliance with the terms of this Agreement and the Ancillary Documents to which Debtor is a party, will not (a) conflict with or violate any provision of the certificate of incorporation, bylaws or similar organizational documents of Debtor, (b) result in any violation of or default, give rise to a right of termination, cause the forfeiture of any right, or require any notice or consent, under any provision of any material Contract to which Debtor is a party or by which Debtor or their or any of its respective properties is bound or affected, with respect to the Business, (c) conflict with or violate in any material respect any Law applicable to the Business, or (d) result in the creation of, or require the creation of, any material Lien upon any of the Assets;

 

(f)

Third Party or Governmental Consents. No consents, licenses, approvals or authori­zations of, or registrations, declarations or filings with, any Governmental Authority ("Governmental Consents") or any other party or person are required to be obtained or made by Debtor in connection with the execution, delivery, performance, validity and enforceability of this Agreement or any Ancillary Documents to which Debtor is, or is to be, a party, or the consummation by Debtor of the Contemplated Transac­tions;

(g)

Financial Statements. Each of the Financial Statements reported on the most recent filings with the Securities and Exchange Commission has been prepared in accord­ance with GAAP applied on a basis consistent with prior periods and fairly presents in all material respects the consolidated financial condition of Debtor as of its respec­tive date and the consolidated results of operations and shareholders' equity, or cash flows, as the case may be, of Debtor for the period covered thereby, and that Debtor has no material liabilities with respect to the Business (whether or not the subject of any other representation or warranty hereunder) except for liabilities that may have arisen in the ordinary course of business since the date of such Financial Statements, and which do not have, and would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect. Such financial statements (1) are in agreement with the books and records of Debtor, (2) present fairly the fi­nancial condition of Debtor, as at the dates indicated, and the results of their opera­tions for the periods indicated, and (3) have been prepared in accordance with gener­ally accepted accounting principles consistently applied. The respective amounts set up as provisions for taxes on the balance sheet are sufficient for the payment of all unpaid federal, state, county, and local taxes of Debtor for or applicable to the re­spective fiscal periods ended on such balance sheet dates and all fiscal periods prior thereto.

(h)

Real Property. Debtor does not own any real property;

 

(i)

Leasehold Interests. The leasehold interests relating to the Business of the Debtor are free and clear of all liens created or caused by the Debtor. Each Real Property Lease is in full force and effect, fully assignable, and all rent and other material sums and charges payable thereunder are current and Debtor is not in default in any mate­rial respect with respect thereto. Debtor has not received any written notice from the other party to any Real Property Lease of the termination or proposed termination thereof;

 

(j)

Intellectual Property. Debtor exclusively owns, or has the valid right to use, all Intel­lectual Property used or held for use in connection with the Business and each item of Intellectual Property is subsisting, valid and enforceable, and has not been held invalid or unenforceable, in whole or in part, and the operation of the Business prior to the date hereof does not misappropriate or infringe in any respect upon the Intel­lectual Property of any Person. No proceeding alleging misappropriation or in­fringement of the Intellectual Property of any Person is pending or, to the knowledge of Debtor, threatened against Debtor;

 

(m)

 

(n)

 

(o)

 

(p)

Compliance with laws. Debtor has complied in all material respects with (i) all ap­plicable Laws relating to the payment and withholding of Taxes in connection with the Business and has, within the time and in the manner prescribed by applicable Laws, collected or withheld and paid over to the proper Governmental Authority all amounts required to have been collected or withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, member, stockholder or other third party with respect to the Business and (ii) all Tax infor­mation collecting, reporting and retention provisions of all applicable Laws in con­nection with the Business. Debtor, to the best of its knowledge, has complied with all laws, regulations, and orders applicable to its business. The execution and carrying out of this agreement and compliance with the provisions hereof by Debtor will not violate any provision of law applicable to Debtor and will not conflict with, or result in a breach of, any term, condition, or provision of, or constitute a default under, Debtor's corporate charter and bylaws, or any indenture, mortgage, security interest, agreement, or other instrument to which Debtor is a party or by which it may be bound, nor result in the creation of any lien, charge, or encumbrance upon any of Debtor's properties or assets

 

(q)

Power of Attorney. Neither Debtor nor any of its Affiliates has given any irrevocable power of attorney to any Person for any purpose whatsoever with respect to the Business.

 

(r)

Bankruptcy. No bankruptcy or insolvency proceedings are pending or contemplated by or, to the best of Debtor's knowledge, against Debtor;

 

(s)

Operation of the Business. The Debtor Estate includes all property and rights which are necessary to operate the Business as it currently is operating. No mate­rial part of the Debtor Estate has been damaged, destroyed, condemned or aban­doned. The Debtor Estate and all structures, equipment, fixtures or activities there­on are in compliance with all applicable zoning and land use ordinances and regula­tions, building codes, and fire codes except where failure to comply would not have a material adverse effect on Debtor's business, finances or operations, or he value of the Land; and

 

(t)

Creditor may at all times peaceably and quietly enter upon, hold, occupy and en­joy the entire Debtor Estate in accordance with the terms hereof;

Supplemental list of receivables and payables. Promptly following the Closing Date, Debtor shall furnish to Creditor and RHI a supplemental list of its accounts and notes receivable as of the Closing Date (including the name of the respective debtors and principal amounts owed), and also a supplemental list of such accounts and notes payable as of the Closing. The total of the amounts on such lists shall agree with the books and records of Debtor as of the Closing Date.

Extinguishment of indebtedness. Notwithstanding anything heretofore to the contrary, on the Closing Date, RHI shall accept the Debtor's Estate to be acquired, in exchange of the Debt . To the extent that the Debt exceeds the value of the revenues and proceeds derived from the Debtor's Estate after crediting such revenues and proceed against the Debt, Debtor acknowledges its continuing obligation for the unpaid balance to the Creditor.

Approvals from third parties. To the extent that the assignment of any contract, license, lease, commitment, or receivable to be assigned to Creditor or RHI shall require the consent of any other party to such contract, license, lease, commitment, or receivable, this Agree­ment shall not constitute an agreement to assign the same if an attempted assignment would constitute a breach thereof. Debtor shall use its best efforts to obtain, on or before the Clos­ing Date, the consent of the other party to such contract, license, lease, commitment, or re­ceivable to the assignment thereof to Creditor. If such consent is not obtained on or before the Closing Date, Debtor shall cooperate with Creditor in any reasonable arrangement de­signed to provide for Creditor the benefits under any such contract, license, lease, commit­ment, or receivable, including enforcement, at the cost and for the benefit of Creditor, of any and all rights of Debtor against the other party thereto arising out of the breach or cancella­tion by such other party or otherwise.

Collection of receivables subsequent to closing. From and after the Closing Date, RHI shall have the right and authority to collect for the exclusive benefit of Creditor, all receivables and other items which shall be credited against the Debt, as provided herein, and to indorse with the name of Debtor checks received on account of such receivables or other items. At and after the Closing Date, Debtor shall transfer and deliver to RHI any cash or other prop­erty that Debtor may receive in respect of such receivables or other items.

11.

12.

Conditions precedent to consummation of transaction by Debtor. The obligations of Debtor are, at its option, subject to the conditions that:

13.

(a)

(b)

14.

Termination of business. RHI, in its sole discretion, whenever it deems it to the best inter­est of the Debtors and the Creditors, or upon the termination of this Agreement provided all claims owed to the Creditor and/or RHI have not been paid in full at that time, may vote for the dissolution and liquidation of the Debtor's Estate, for the filing of a petition in bank­ruptcy, for the filing of a petition for an arrangement, for the filing of a certificate of disso­lution of the Debtor, or for any other proceeding which the Creditor or RHI, in their sole discretion, may deem advisable. If the Creditor or RHI shall determine to dissolve and liq­uidate the Debtor's Estate, the Creditors shall not take any proceedings or institute any ac­tion in any court to interfere with the method of liquidation or dissolution recommended by the Creditor or RHI, and shall abide by such proceedings as may be recommended by the Creditor or RHI, but nothing herein contained shall be deemed to permit the Creditor or RHI to accept on behalf of the Creditors any settlement or compromise.

 

(a)

Special provision with respect to certain casualties. If the fixed assets to be transferred hereunder shall be damaged prior to the Closing Date to an extent which materially im­pairs the value of the tangible assets of Debtor as a whole or materially impairs the pro­ductive capacity of Debtor's plant taken as a whole, by act of God, fire, explosion, earth­quake, windstorm, accident, flood, drought, war, embargo, riot, condemnation, confisca­tion, seizure, or activities of the armed forces, or other casualty, Creditor shall have the right at any time prior to the Closing Date at its option to terminate and cancel this agreement without liability of either party to the other. If Creditor does not elect to ter­minate and cancel this agreement, all proceeds of insurance policies received in respect of any such casualty by Debtor prior to the Closing Date shall be received by Debtor for the account of Creditor and shall be turned over to Creditor at the Closing, and all unset­tled claims of Debtor for proceeds of insurance policies arising from such casualty shall at the Closing Date be assigned by Debtor to Creditor.

 

(b)

Survival of representations. All representations and warranties of the parties hereunder shall survive the Closing Date. All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the successors and as­signs of Debtor and Creditor. It is contemplated that Creditor may assign its rights here­under prior to the Closing Date to a subsidiary or subsidiaries to be formed for such pur­pose.

 

(c)

Nonperformance of conditions--termination. If either party to this Agreement shall be unable to perform on or before the Closing Date any of the agreements, time is of the es­sence, covenants, or conditions which are of material significance required to be per­formed or fulfilled by such party, the other party, at its option, may terminate this agreement by notice given to such defaulting party, and in the event of such termination both parties shall be released from any further obligation or liability hereunder.

 

(d)

Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered by facsimile, electronic mail, overnight mail, or US mailed, first class, postage prepaid:

(m)

WAIVER OF JURY TRIAL. CREDITOR AND THE DEBTOR, AFTER CON­SULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES IRREVOCABLY, THE RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE REVOLVING NOTES, ANY LOAN DOCUMENT OR ANY OF THE OBLIGATIONS, THE COLLATERAL, OR ANY OTHER AGREE­MENT EXECUTED OR CONTEMPLATED TO BE EXECUTED IN CONJUNCTION WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT OR COURSE OF DEALING IN WHICH CREDITOR AND DEBTOR ARE ADVERSE PARTIES. THIS PROVISION IS A MATERIAL INDUCEMENT FOR CREDITOR GRANT­ING ANY FINANCIAL ACCOMMODATION TO DEBTOR.

 

(n)

JURISDICTION. TO INDUCE CREDITOR TO MAKE THE LOANS, DEBTOR IRREVOCABLY AGREES THAT ALL ACTIONS ARISING, DIRECTLY OR INDIRECTLY, AS A RESULT OR CONSEQUENCE OF THIS AGREEMENT, THE REVOLVING NOTES, ANY OTHER LOAN DOCUMENT OR THE COLLAT­ERAL, SHALL BE EXCLUSIVELY INSTITUTED AND LITIGATED ONLY IN COURTS HAVING THEIR SITUS IN THE STATE OF FLORIDA, County of PROVID­ED THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE CREDITOR OR RHI FROM BRINGING SUIT OR TAKING OTHER LE­GAL ACTION IN ANY OTHER JURISDICTION. DEBTOR HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION AND VENUE OF ANY STATE OR FEDER­AL COURT SELECTED BY THE CREDITOR OR RHI HAVING ITS SITUS IN SAID STATE, AND WAIVES ANY OBJECTION BASED ON FORUM NON CON VENIENS. DEBTOR HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO DEBTOR, AS SET FORTH HEREIN IN THE MANNER PROVIDED BY APPLICA­BLE STATUTE, LAW, RULE OF COURT OR OTHERWISE.

/s/ Joseph Jones

Redfin Network, Inc.

 

(ii)