AGREEMENT REGARDING DISSOLUTION
OF JOINT VENTURE
This agreement is entered into
effective as of May 1, 2006, by and between BWC Real Estate, a
California corporation ("BWCRE") and Simonich Corporation, a
California corporation ("Simonich").
RECITALS
BWCRE and Simonich entered into a
joint venture agreement in 1994, amended June 13, 1995, and
amended and restated as of April 1, 2002 (collectively the "JV
Agreement").
Pursuant to the JV Agreement, the
parties entered into a joint venture under the name "BWC Mortgage
Services" (the "Joint Venture") to conduct the business of
providing mortgage banking and related services.
BWCRE has agreed to sell and
transfer to Simonich, and Simonich has agreed to purchase, all of
BWCRE's right and interest in the Joint Venture on the terms and
conditions set forth below. The parties wish to then dissolve the
Joint Venture.
Now, therefore, the parties agree as
follows:
1.
Payment of Consideration . On the date of execution,
Simonich shall pay $1,029,130 in cash to BWCRE.
2.
Transfer and Assignment . On the date of execution,
effective on the Effective Date, BWCRE shall transfer and assign
all of its right, title and interest in the Joint Venture and all
of its right, title and interest in the leases and other assets of
the Joint Venture, to Simonich. The Joint Venture shall execute
forms of Assignment, an Assignment and Assumption of Leases in the
form attached hereto as Exhibit A and an Assignment and Assumption
of Contracts in the form attached hereto as Exhibit B.
3.
Effective Date . The Effective Date of this agreement shall
be May 1, 2006 (the "Effective Date"). On the date of
execution, Simonich shall make its payment to BWCRE, BWCRE shall
transfer all of its right, title and interest in the Joint Venture
to Simonich, and from and after the Effective Date, the Joint
Venture shall be dissolved and any and all business done from the
Effective Date under the name BWC Mortgage Services shall be
business conducted solely by Simonich or such affiliate as Simonich
may select. From and after the Effective Date, BWCRE shall have no
further right, interest, obligation, liability or responsibility
for BWC Mortgage Services or the Joint Venture.
4.
Assumption of Liabilities . As of the Effective Date,
Simonich shall assume full responsibility for all leases,
contracts, obligations, debts and any and all other liabilities of
any type or nature of the Joint Venture, and BWCRE shall have no
obligation or responsibility for any debts or obligations of the
Joint Venture.
5.
Indemnity . From and after the Effective Date, Simonich
shall defend, (with legal counsel selected by Simonich and
consented to by BWCRE, or its affiliates or assigns) protect and
hold BWCRE, and all affiliates of BWCRE, free and harmless from any
and all liabilities,
|
W02-SF:FSJ\61493367.1
|
-1-
|
|
|
|
|
|
claims, debts, obligations or
expenses pertaining to the Joint Venture whether arising before or
after the Effective Date, except as to any such matters that arise
exclusively from actions or agreements of BWCRE. Without limiting
the foregoing, Simonich shall reimburse BWCRE, or its affiliates or
assigns, for all expenses, damages or fines incurred or suffered by
BWCRE, its affiliates or assigns by reason of the Joint Venture, or
by reason of any agreements, commitments, actions, violations or
other obligations of the Joint Venture. Nothing in this section
shall obligate Simonich to indemnify BWCRE, its affiliates or
assigns, against BWCRE own willful acts. BWCRE represents that as
of the date of execution, it is not aware of any expenses, damages,
fines or claims that fall within this indemnity
obligation.
6.
Dissolution . As of the Effective Date, the parties shall
take such actions, and execute all such documents, as may be
necessary or appropriate to fully and formally terminate and
dissolve the Joint Venture.
7.
Name and Logo . From and after the Effective Date, Simonich
may continue to use the name "BWC Mortgage Services"
provided:
(i) There
shall be no further reference to BWC Mortgage Services as being a
joint venture; and
(ii) There
shall be no reference to BWC Mortgage Services being a "Bank of
Walnut Creek affiliate" nor shall any logo, sign or other
indication be used that uses the name or in any way identifies Bank
of Walnut Creek as being part of, or in any way affiliated with,
BWC Mortgage Services or any other name or entity in which Simonich
is doing business. There will be no statement or reference to Bank
of Walnut Creek, or any affiliate of the Bank, having previously
been affiliated with BWC Mortgage Services. Any and all existing
letterhead, business cards, contact information or other materials
that makes reference to the "Joint Venture", "general or limited
partnership" or "Bank of Walnut Creek" shall be destroyed and/or
replaced on or before June 1, 2006. Simonich shall use commercially
reasonable efforts to accomplish replacement and elimination of the
referenced documentation and materials..
8.
Notification . Concurrently with the execution of this
Agreement, Simonich and BWCRE shall jointly execute a letter in
form agreed upon by both parties, which will be sent by Simonich to
all lenders, landlords, employees, independent contractors and
parties to any existing contracts or obligations advising them of
the dissolution and termination of the Joint Venture and
affirmatively stating that Simonich alone is continuing the
business under the name BWC Mortgage Services.
9.
Employees–Independent Contractors . All employees or
independent contractors of the Joint Venture, or of Simonich
Corporation, who maintain desks or offices in any office, branch or
location of the Bank of Walnut Creek shall vacate such locations as
of June 1,
