-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HZhguI0NbbJKiDZT5O+pQNiokW6GPeK7rMDf4JA1ztY85nMfxsrv60MtZzSDT3cY n2kYcXrnAl5NtgbDtafMFg== 0001032210-02-000265.txt : 20020414 0001032210-02-000265.hdr.sgml : 20020414 ACCESSION NUMBER: 0001032210-02-000265 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 10 FILED AS OF DATE: 20020219 GROUP MEMBERS: GOLDMAN, SACHS & CO. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: AFEM MEDICAL CORP CENTRAL INDEX KEY: 0000820608 STANDARD INDUSTRIAL CLASSIFICATION: CONVERTED PAPER & PAPERBOARD PRODS (NO CONTAINERS/BOXES) [2670] IRS NUMBER: 330202574 STATE OF INCORPORATION: NV FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-40164 FILM NUMBER: 02553426 BUSINESS ADDRESS: STREET 1: 10180 SW NIMBUS AVE STE J 5 CITY: PORTLAND STATE: OR ZIP: 97223-4340 BUSINESS PHONE: 5039688800 MAIL ADDRESS: STREET 1: 10180 SW NIMBUS AVE STREET 2: SUITE J-5 CITY: PORTLAND STATE: OR ZIP: 97223 FORMER COMPANY: FORMER CONFORMED NAME: XTRAMEDICS INC /NV/ DATE OF NAME CHANGE: 19920703 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GOLDMAN SACHS GROUP INC/ CENTRAL INDEX KEY: 0000886982 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY BROKERS, DEALERS & FLOTATION COMPANIES [6211] IRS NUMBER: 133501777 STATE OF INCORPORATION: DE FISCAL YEAR END: 1126 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 BUSINESS PHONE: 2129021000 MAIL ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 SC 13D 1 dsc13d.txt SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. __) A-Fem Medical Corporation (fka Athena Medical Corp. -- name change effective 11/12/97) ------------------------------------------------------------------------- (Name of Issuer) Common Stock, par value $.01 per share ------------------------------------------------------------------------- (Title of Class of Securities) 00105V105 ------------------------------------------------------------------------ (CUSIP Number) Joel S. Kaplan Ball Janik LLP Suite 1100 101 SW Main Street Portland, OR 97204 (503) 228-2525 ------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) February 6, 2002 ------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of (S) 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box [_]. Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See (S) 240.13d-7(b) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). - -------------------------------------------------------------------------------- CUSIP No. 00105V105 Page 2 of 8 Pages - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1 Names of Reporting Persons: Goldman, Sachs & Co. I.R.S. Identification No. - -------------------------------------------------------------------------------- 2 Check the Appropriate Box if a Member of a Group (See Instructions) (a) [_] (b) [_] - -------------------------------------------------------------------------------- 3 SEC Use Only - -------------------------------------------------------------------------------- 4 Source of Funds (See Instructions) WC - -------------------------------------------------------------------------------- 5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [X] - -------------------------------------------------------------------------------- 6 Citizenship or Place of Organization: New York - -------------------------------------------------------------------------------- Number of Shares (7) Sole Voting Power: -0- ------------------------------------------------------------- Beneficially Owned (8) Shared Voting Power: 8,456,564 ------------------------------------------------------------- by Each Reporting (9) Sole Dispositive Power: -0- ------------------------------------------------------------- Person with (10) Shared Dispositive Power: 8,456,564 - -------------------------------------------------------------------------------- 11 Aggregate Amount Beneficially Owned by Each Reporting Person: 8,456,564 - -------------------------------------------------------------------------------- 12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions): [_] - -------------------------------------------------------------------------------- 13 Percent of Class Represented by Amount in Row (11) 45.3% - -------------------------------------------------------------------------------- 14 Type of Reporting Person (See Instructions): BD-PN-IA - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- CUSIP No. 00105V105 Page 3 of 8 Pages - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1 Names of Reporting Persons: The Goldman Sachs Group, Inc. I.R.S. Identification No. - -------------------------------------------------------------------------------- 2 Check the Appropriate Box if a Member of a Group (See Instructions) (a) [_] (b) [_] - -------------------------------------------------------------------------------- 3 SEC Use Only - -------------------------------------------------------------------------------- 4 Source of Funds (See Instructions) AF - -------------------------------------------------------------------------------- 5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [_] - -------------------------------------------------------------------------------- 6 Citizenship or Place of Organization: Delaware - -------------------------------------------------------------------------------- Number of Shares (7) Sole Voting Power: -0- ----------------------------------------------------------- Beneficially Owned (8) Shared Voting Power: 8,456,564 ----------------------------------------------------------- by Each Reporting (9) Sole Dispositive Power: -0- ----------------------------------------------------------- Person With (10) Shared Dispositive Power: 8,456,564 - -------------------------------------------------------------------------------- 11 Aggregate Amount Beneficially Owned by Each Reporting Person: 8,456,564 - -------------------------------------------------------------------------------- 12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions): [_] - -------------------------------------------------------------------------------- 13 Percent of Class Represented by Amount in Row (11) 45.3% - -------------------------------------------------------------------------------- 14 Type of Reporting Person (See Instructions): HC-CO - -------------------------------------------------------------------------------- Item 1. Security and Issuer This statement relates to the Common Stock, $0.01 par value, of A-Fem Medical Corporation (the "Issuer"). The principal executive offices of the Issuer are located at 10180 SW Nimbus Avenue, Suite J5, Portland, OR 97223 Item 2. Identity and Background This filing is being made by Goldman, Sachs & Co. ("Goldman Sachs") and The Goldman Sachs Group, Inc. ("GS Group"). Goldman Sachs and GS Group are collectively referred to as the "Filing Persons." Goldman Sachs, a New York limited partnership, is an investment banking firm and a member of the New York Stock Exchange, Inc. and other national exchanges. Goldman Sachs is wholly owned, directly and indirectly, by GS Group. GS Group is a Delaware corporation and holding company that (directly and indirectly through subsidiaries or affiliated companies or both) is a leading investment banking organization. The principal business address of each Filing Person is 85 Broad Street, New York, NY 10004. The name, business address, present principal occupation or employment and citizenship of each director of GS Group are set forth in Schedule I hereto and are incorporated herein by reference. Nether the present filing nor anything contained herein shall be construed as an admission that any Filing Person constitutes a "person" for any purpose other than for compliance with Section 13(d) of the Securities Exchange Act of 1934. During the last 5 years, none of the Filing Persons nor, to the knowledge of each of the Filing Persons, any of the persons listed on Schedule I (i) has been convicted in any criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) except as set forth on Schedule II hereto, has been a party to any civil proceeding of any judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree, or final order enjoining future violations of, or prohibiting or mandating activities subject to federal or state securities laws or finding any violation with respect to such laws. The Filing Persons have entered into a Joint Filing Agreement, a copy of which is filed with this Statement as Exhibit 99.1 (which is incorporated herein by reference), pursuant to which the Filing Persons have agreed to file this Schedule 13D jointly in accordance with the provisions of Rule 13d-1(k) promulgated under the Act. Item 3. Source and Amount of Funds or Other Consideration The source of funds was working capital of Goldman Sachs and the total consideration was One Dollar ($1.00). PNW is a Delaware limited liability company ("PNW"). PNW is wholly owned, directly and indirectly, by GS Group. Goldman Sachs acquired the securities described in this Schedule from PNW pursuant to an Assignment dated February 6, 2002 for One Dollar ($1.00). PNW acquired a number of loan and equity assets (including the securities described in this Schedule) on February 6, 2002 pursuant to an Overbid Purchase Contract dated January 24, 2002, between Thomas F. Lennon, Receiver of Capital Consultants, LLC, an Oregon limited liability company in the cases of Securities and Exchange Commission v. Capital Consultants, LLC, et al. (Case No. 00-1290-KI) and Elaine L. Chow, Secretary of Department of Labor v. Capital Consultants, LLC, et al. (Case No. 00-1291-KI) pending in the United States District Court, District of Oregon, as seller, and MTGLQ Investors, LP, as buyer. MTGLQ Investors, LP is a Delaware limited liability company and is wholly owned, directly and indirectly, by GS Group. The interest of MTGLQ Investors, LP in the Overbid Purchase Contract as it relates to certain assets (including the equity interests in Issuer described herein) was assigned to PNW on February 5, 2002. The assets acquired by PNW under the Overbid Purchase Contract and then assigned to Goldman Sachs include 7,492,135 shares of the Series A Preferred Stock of the Issuer and Warrants to purchase 1,204,012 shares of the Series A Preferred Stock of the Issuer. Each share of the Series A Preferred Stock is immediately convertible into one share of the Issuer's Common Stock. Each Warrant is exercisable for one share of the Issuer's Series A Preferred Stock. Of the total of 1,204,012 Warrants, 964,429 are convertible immediately or within 60 days of February 6, 2002. The remaining 239,583 Warrants are not exercisable within 60 days of February 6, 2002; and the underlying 239,583 shares of Common Stock are not deemed to be beneficially owned by the reporting person as of that date. The Overbid Purchase Contract, Assignment from MTGLQ Investors LP to PNW, and Assignment from PNW to Goldman, Sachs & Co. are filed as Exhibit 99.2, Exhibit 99.3 and Exhibit 99.4, ------------ ------------ ------------ respectively. Item 4. Purpose of Transaction The response to Item 3 is incorporated herein by reference. Except as disclosed herein, none of the Filing Persons or, to the knowledge of the Filing Persons, any of the persons listed on Schedule I hereto has any present plans or intentions which would result in or relate to any of the transactions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D. Each of the Filing Persons expects to evaluate on an ongoing basis the Issuer's financial condition, business, operations and prospects, the market price of the Issuer's Common Stock, conditions in the securities markets generally, general economic and industry conditions and other factors. Accordingly, each Filing Person reserves the right to change its plans and intentions at any time, as it deems appropriate. In particular, each Filing Person (and their respective affiliates) may purchase additional shares of the Issuer's Common Stock or other securities of the Issuer or may sell or transfer shares of the Issuer's Common Stock beneficially owned by them from time to time in public or private transactions and/or may enter into privately negotiated derivative transactions with institutional counterparties to hedge the market risk of some or all of their positions in the shares of the Issuer's Common Stock. Any such transactions may be effected at any time or from time to time (subject to any applicable limitations imposed on the sale of any of the securities by the Securities Act or other applicable law). To the knowledge of each Filing Person, each of the persons listed on Schedule I hereto may make similar evaluations from time to time or on an ongoing basis. Item 5. Interest in Securities of the Issuer (a) Based on the most recently available public information on the Issuer, there were outstanding 10,221,558 shares of the Issuer's Common Stock on February 6, 2002. As of that date, each Filing Person may be deemed to beneficially own an aggregate of 8,456,564 shares of Issuer's Common Stock, consisting of 7,492,135 shares of Series A Preferred Stock and Warrants to purchase 964,429 shares of Series A Preferred Stock. Each share of the Series A Preferred Stock is immediately convertible into one share of the Issuer's Common Stock. Each Warrant is exercisable for one share of the Issuer's Series A Preferred Stock (which is, in turn, convertible into one share of the Issuer's Common Stock). Of the total of 1,204,012 Warrants, 964,429 are convertible immediately or within 60 days of February 6, 2002. The remaining 239,583 Warrants are not exercisable within 60 days of February 6, 2002; and the underlying shares of Common Stock are not deemed to be beneficially owned by the reporting person as of that date. Each Filing Person's beneficial ownership of 8,456,564 shares of Common Stock represents 45.3% of the outstanding Common Stock of the Issuer. An aggregate of 50,000 Warrants are exercisable at $4.25 per share and an aggregate of 130,000 Warrants are exercisable at $1.92 per share. The balance of the Warrants are exercisable at $0.01 per share. Each share of the Series A Preferred Stock was initially convertible into one share of the Issuer's Common Stock. Each share of the Series A Preferred Stock is entitled to anti-dilution protection in the form of an adjustment to the conversion ratio if, under certain circumstances, the Issuer issues capital stock for a consideration of less than $1.92 per share. Based upon the Issuer's public filings, the Filing Persons believe that the Issuer has issued capital stock at prices below $1.92 per share, and that the conversion ratio is higher than one-to-one (in other words, each share of Series A Preferred Stock is convertible into more than one share of Common Stock). The Filing Persons cannot determine how many shares of capital stock may have been issued below $1.92 per share, or when or at what prices such shares may have been issued. Accordingly, the Filing Persons believe that the Series A Preferred Stock is convertible into Issuer's Common Stock at a ratio greater than one-to-one, but presently cannot determine that ratio. If that belief is correct, the beneficial ownership of the Filing Persons is greater, and possibly substantially greater, than 45.3%, but the Filing Persons cannot presently determine that percentage. Forms of a Preferred Stock and Purchase Warrant Agreement and a Stock Purchase Warrant are filed as Exhibit 99.5 and Exhibit 99.6, ------------ ------------ respectively. All of the securities of Issuer held by the Filing Persons are subject to agreements substantially similar to those forms. The Amended and Restated Registration Rights Agreement, filed as Exhibit 99.7 hereto, provides the Filing Persons and certain of its ------------ transferees, subject to various restrictions, demand and piggyback registration rights relating to the underlying Common Stock of the Issuer issuable upon conversion of the Series A Preferred Stock. In accordance with SEC Release No. 34-39538 (January 12, 1998), this filing reflects the fact that GS Group and Goldman Sachs do not report the beneficial ownership of the securities beneficially owned by the asset management group of Goldman Sachs (the "Asset Management Unit"). The Asset Management Unit will separately report, to the extent required, its beneficial ownership of securities. (b) Each Filing Person shares the power to vote or direct the vote and to dispose or to direct the disposition of the shares of Issuer's Common Stock beneficially owned by such Filing Persons. (c) See item 3 above. (d) No other person is known by any Filing Person to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, any shares of the Issuer's Common Stock owned by any Filing Person. (e) Not Applicable Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer See Items 3 and 5 above. Item 7. Material to be filed as Exhibits Exhibit 99.1 Joint Filing Agreement dated February 19, 2002. Exhibit 99.2 Overbid Purchase Contract dated January 24, 2002, between Thomas F. Lennon, Receiver of Capital Consultants, LLC, an Oregon limited liability company in the cases of Securities and Exchange Commission v. Capital Consultants, LLC, et al. (Case No. 00-1290-KI) and Elaine L. Chow, Secretary of Department of Labor v. Capital Consultants, LLC, et al. (Case No. 00-1291-KI) pending in the United States District Court, District of Oregon, as seller, and MTGLQ Investors, LP, as buyer. Exhibit 99.3 Assignment and Assumption Agreement (of the Overbid Purchase Contract) dated February 5, 2002 from MTGLQ Investors LP to PNW. Exhibit 99.4 Assignment dated February 6, 2002 from PNW to Goldman, Sachs & Co. Exhibit 99.5 Preferred Stock and Purchase Warrant Agreement dated September 21, 2000 Exhibit 99.6 Stock Purchase Warrant dated September 21, 2000. Exhibit 99.7 Amended and Restated Registration Rights Agreement dated September 21, 2000. Exhibit 99.8 Power of Attorney, dated December 8, 2000, relating to Goldman, Sachs & Co. Exhibit 99.9 Power of Attorney, dated December 8, 2000, relating to The Goldman Sachs Group. Signature After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. February 19, 2002 Goldman, Sachs & Co. By: /s/ Roger S. Begelman -------------------------- Name: Roger S. Begelman Title: Attorney-in-Fact The Goldman Sachs Group, Inc. By: /s/ Roger S. Begelman -------------------------- Name: Roger S. Begelman Title: Attorney-in-Fact EXHIBITS Exhibit 99.1 Joint Filing Agreement dated February 19, 2002. Exhibit 99.2 Overbid Purchase Contract dated January 24, 2002, between Thomas F. Lennon, Receiver of Capital Consultants, LLC, an Oregon limited liability company in the cases of Securities and Exchange Commission v. Capital Consultants, LLC, et al. (Case No. 00-1290-KI) and Elaine L. Chow, Secretary of Department of Labor v. Capital Consultants, LLC, et al. (Case No. 00-1291-KI) pending in the United States District Court, District of Oregon, as seller, and MTGLQ Investors, LP, as buyer. Exhibit 99.3 Assignment and Assumption Agreement (of the Overbid Purchase Contract) dated February 5, 2002 from MTGLQ Investors LP to PNW. Exhibit 99.4 Assignment dated February 6, 2002 from PNW to Goldman, Sachs & Co. Exhibit 99.5 Preferred Stock and Purchase Warrant Agreement dated September 21, 2000 Exhibit 99.6 Stock Purchase Warrant dated September 21, 2000. Exhibit 99.7 Amended and Restated Registration Rights Agreement dated September 21, 2000. Exhibit 99.8 Power of Attorney, dated December 8, 2000, relating to Goldman, Sachs & Co. Exhibit 99.9 Power of Attorney, dated December 8, 2000, relating to The Goldman Sachs Group. SCHEDULE I The name of each director of The Goldman Sachs Group, Inc. is set forth below. The business address of each person listed below is c/o Goldman, Sachs & Co., 85 Broad Street, New York, NY 10004. Each person is a citizen of the United States of America except for Lord Browne of Madingley, who is a citizen of the United Kingdom. The present principal occupation or employment of each of the listed persons is set forth below. Name Present Principal Occupation Henry M. Paulson, Jr. Chairman and Chief Executive Officer of The Goldman Sachs Group, Inc. Robert J. Hurst Vice Chairman of The Goldman Sachs Group, Inc. John A. Thain President and Co-Chief Operating Officer of The Goldman Sachs Group, Inc. John L. Thornton President and Co-Chief Operating Officer of The Goldman Sachs Group, Inc. Lord Browne of Madingley Group Chief Executive of BP Amoco plc James A. Johnson Chairman and Chief Executive Officer of Johnson Capital Partners John H. Bryan Chairman of Sara Lee Corporation Ruth J. Simmons President of Brown University Margaret C. Whitman President and Chief Executive Officer of eBay Inc. Morris Chang Chairman of Taiwan Semiconductor Manufacturing Company Ltd. SCHEDULE II On April 6, 2000, in connection with an industry-wide investigation by the Securities and Exchange Commission (the "SEC") relating to the pricing of government securities in advance refunding transactions, Goldman, Sachs & Co. (the "Firm") joined in a global settlement resolving the SEC investigation as well as a related qui tam lawsuit purportedly brought on behalf of the United States entitled United States ex rel. Lissack v. Goldman, Sachs & Co., et al., 95 Civ. 1363 (S.D.N.Y.)(BSJ). Pursuant to the settlement, without admitting or denying the findings, the Firm consented to the issuance of an SEC administrative order (SEA Rel. No. 42640) which, among other things, found that the Firm had violated Sections 17(a)(2) and (3) of the Securities Act of 1933 in connection with such pricing of government securities, required the Firm to cease and desist from violating such provisions, and ordered the Firm to make payments totaling approximately $5.1 Million to the U.S. Treasury and $104,000 to two municipalities. Under the global settlement, the qui tam lawsuit was dismissed with prejudice, and the Internal Revenue Service agreed not to challenge the tax-free nature of the refundings by virtue of the pricing of such securities. EX-99.1 3 dex991.txt JOINT FILING AGREEMENT EXHIBIT 99.1 JOINT FILING AGREEMENT In accordance with Rule 13d-1(k)(1) promulgated under the Securities Exchange Act of 1934, the undersigned agree to the joint filing of a Statement on Schedule 13D (including any and all amendments thereto) with respect to the Common Stock, $0.01 par value per share, of A-Fem Medical Corporation and further agree that this Joint Filing Agreement be included as an Exhibit thereto. In addition, each party to this Agreement expressly authorizes each other party to this Agreement to file on its behalf any and all amendments to such Statement. Date: February 19, 2002 Goldman, Sachs & Co. By: /s/ Roger S. Begelman --------------------- Name: Roger S. Begelman Title: Attorney-in-Fact The Goldman Sachs Group, Inc. By: /s/ Roger S. Begelman --------------------- Name: Roger S. Begelman Title: Attorney-in-Fact EX-99.2 4 dex992.txt OVERBID PURCHASE CONTRACT EXHIBIT 99.2 OVERBID PURCHASE CONTRACT This Overbid Purchase Contract is entered into as of January 24, 2002, and made effective as of the Effective Date by and between MTGLQ Investors, LP, a limited partnership ("Buyer"), and Thomas F. Lennon, Receiver for Capital Consultants, LLC, an Oregon limited liability company ("CCL") in the cases of Securities and Exchange Commission v. Capital Consultants, LLC, et. al. (Case - ----------------------------------------------------------------------- No. 00-1290-KI) and Elaine L. Chao, Secretary of Department of Labor v. Capital ----------------------------------------------------------- Consultants, LLC, et. al. (Case No. 00-1291-KI) pending in the United States - ------------------------- District Court, District of Oregon, on behalf of CCL and the Investors (as defined below). 1. DEFINITIONS. 1.1. Meanings. As used in this Agreement, the following words have the -------- meanings respectively assigned to them by this Section 1.1: (1) "Adjusted Purchase Price" shall have the meaning set forth in Section 6.4(1) below. (2) "Agreement" means this Purchase and Sale Agreement, as the same may be amended from time to time. (3) "Asset" means each Loan, Collateral, Equity, and Claim being sold by the Seller to the Buyer pursuant to this Agreement. (4) "Auction" shall mean the public auctions held in accordance with an order previously entered by the Court in the Receivership Cases whose potentially interested purchasers have the opportunity to bid for the Assets. (5) "Buyer" means MTGLQ Investors, LP, and its permitted successors and permitted assigns. (6) "Cash Collateral" means the deposited funds acting as Collateral for the obligations of a Loan. (7) "Claims" means all contract and tort claims, if any, held by the Receiver and CCL (other than as a representative of otherwise unrepresented Investors in certain litigation authorized by orders of the Court) against the borrowers, guarantors and Collateral associated with the Loans. This does not include any claims held by the Receiver or CCL against any other persons, entities or things, including, without limitation, claims against CCL professionals. In addition, the claims to be sold do not include direct tort claims by CCL Investors, such as securities law violation claims, if any, against the borrowers, guarantors, their professionals or other third-parties that are not derivative (i.e., claims that can only be brought on behalf of or ---- through CCL). (8) "Collateral" means the security in the form of real or personal property, or Cash Collateral, collateralizing the obligations of a Loan. (9) "Closing" means the closing of the sale and purchase transaction contemplated by this Agreement, including without limitation, the payment of the Purchase Price and the negotiation or assignment of the Assets to the Buyer by the Seller. (10) Closing Date" means the date which is five (5) business days following satisfaction of all of the Conditions, but in no event later than February 5, 2002, or such later date as is agreed to by the parties. (11) "Conditions" shall have the meaning set forth in Section 3.4 below. (12) "Court" means the United States District Court, District of Oregon overseeing the Receivership Cases." (13) "Cutoff Date" means September 15, 2001. (14) "Deposit" shall have the meaning set forth in Section 2.1 below. (15) "Deposit Escrow Account" shall have the meaning set forth in Section 2.1 below. (16) "Documents" means with respect to each Asset and only if and to the extent that any of the following items listed in (a) through (g) below is presently in the possession or control of the Seller: (a) all written contracts, agreements, instruments and documents relating to such Asset; (b) all written security agreements, pledge agreements, financing statements, mortgages, deeds of trust, assignments of leases and/or rents, and other writings creating, evidencing or perfecting liens, security interests, pledges, hypothecations or other encumbrances securing such Asset; (c) all written guaranties of or indemnification agreements relating to such Asset; (d) all certificates of title, insurance policies, stock certificates, certificates of deposit, certificates of membership interests, certificates of partnership interests and other agreements, instruments or documents securing such Asset; (e) all other collateral in the possession of the Seller securing such Asset; (f) all written disbursement and payment histories relating to such Asset; and (g) all written amendments, assignments, extensions and reinstatements of and all supplements to any of the items listed in (a) through (d) above. (17) "Effective Date" means the date that this Agreement is executed by both Seller and Buyer. (18) "Equity" means each private equity investment referred to in Schedule II. (19) "ERISA" shall have the meaning set forth in Section 6.2(6) below. (20) "Escrow Accounts" means all monies (excluding Cash Collateral) held by the Seller in escrow for real estate taxes, insurance and/or other similar items with respect to the Loans. (21) "Excluded Documents" means, with respect to the Loan(s), any and all correspondence, reports, information, internal analysis, internal memoranda, documents, credit information, regulatory reports, and/or internal assessments of valuation of the Loan(s), trust deed(s) and/or related collateral, or any other collateral document, including but not limited to, mortgage, assignment of production, security agreement, assignment of security interest, guaranty, corporate guaranty, letter of credit, pledge, collateral agreements, loan agreement, or other agreement or document, whether an original or copy or whether similar to those enumerated, securing the payment or performance of the Notes evidences the Loans or any other Asset, that may be, but are not necessarily, missing, misplaced, misfiled, omitted or excluded from the Loan Files due to either (i) removal by the Receiver or its agents, employees or representatives due to attorney-client privilege claims or (ii) unintentional acts of Seller or acts of third parties of which Seller has no knowledge. (22) "Files" means all of the Loan Files, Equity Files and Claims Files. (23) "Investor" means a client of CCL whose funds were used to make a Loan or invest in an Equity included in Schedule I or II, respectively. (24) "Loan" means each loan or other indebtedness referred to in Schedule I. (25) "Loan File," "Claim File" and "Equity File" mean, with respect to each Loan, Claim or Equity, as applicable, all correspondence, notices and other agreements, instruments or documents, including the related Notes and Documents, but excluding any documentation that represents a privileged communication. (26) "Note" means each promissory note or other evidence of indebtedness evidencing a Loan and made payable to the Seller, CCL and/or the Investors. (27) "Original Loan Documents" means original notes, guarantees, security agreements, mortgages, deeds of trust, certificates of title, stock certificates, certificates of deposit, certificates of membership interests, and certificates of partnership interests located in the Files or otherwise in the possession or control of the Seller. (28) "Purchase Price" means $_____________________, subject to the adjustments to be made pursuant to Section 3.6 and below. (29) "Receiver" means Thomas F. Lennon, receiver in the Receivership Cases, and his successors and assigns. (30) "Receivership Cases" means: (i) the case of Securities and -------------- Exchange Commission v. Capital Consultants, LLC, et al. (Case 00-1290-KI) and - ------------------------------------------------------- (ii) the case of Elaine L. Chao, Secretary of Department of Labor v. Capital ----------------------------------------------------------- Consultants, LLC, et al. (Case No. 00-1291-KI, each pending in the United States - ------------------------ District Court, District of Oregon. (31) "Related Persons" shall have the meaning set forth in Section 8.4 below. (32) "Released Party" shall have the meaning set forth in Section 6.4(4) below. (33) "right, title and interest" in and to the Assets means any claim to ownership, constructive trust, equitable lien or other claim of right, title or interest that an Investor or Seller could claim to have with respect to an Asset or portion thereof but excluding direct tort claims or other claims not of a derivative nature such as claims of securities fraud. (34) "Sale Order" means a written order signed and entered by the Court in the Receivership Cases, which shall: (i) approve the sale of Seller's, CCL's and/or Investors' right, title and interest in and to the Assets to Buyer on the terms and conditions set forth herein free and clear of all liens, claims, encumbrances, security interests, and rights of ownership by or of any other party, (ii) provide that the Court shall retain jurisdiction over all matters arising from or relating to the Sale Order; and (iii) be substantially in the form of Exhibit E hereto. ---------------- (35) "Seller" means the Receiver in the Receivership Cases acting on behalf of CCL and the Investors. (36) "Seller's Account" means the following described bank account: Wells Fargo Bank Loan Portfolio Proceeds Money Market Account No. 2902732615 (37) "Termination Notice" shall have the meaning set forth in Section 2.1 below. 1.2. Number. Whenever a word defined in Section 1.1 in its singular form is ------ used in this Agreement in its plural form, it retains its defined meaning and refers to more than one, but not necessarily all, unless the context of its usage indicates otherwise. Whenever a word defined in Section 1.1 in its plural form is used in this Agreement in its singular form, it retains its defined meaning and refers to one, unless the context of its usage indicates otherwise. 1.3. Incorporations. Schedule I, Schedule II, Exhibit A, Exhibit B, Exhibit -------------- C, Exhibit D and Exhibit E as attached to this Agreement are incorporated herein by reference. 2. DEPOSIT. 2.1. First Deposit. Not less than five (5) days prior to execution of this ------------- Agreement by the Seller and the Buyer, Buyer has deposited Five Hundred Thousand Dollars ($500,000.00) (the "Deposit") in a mutually agreed-upon interest bearing segregated escrow account (the "Deposit Escrow Account") in the name of Seller. The Deposit and all interest accrued thereon shall be applicable to the Purchase Price and shall be non-refundable unless (a) the Court fails to enter the Sale Order or (b) Seller breaches this Agreement and such breach remains uncured after notice from Buyer and the failure of Seller to cure within thirty (30) from date of Buyer's notice. 2.2. Evidence of Sufficient Funds. Buyer shall provide Seller with written ---------------------------- evidence acceptable to Seller in its reasonable discretion not later than 5 days prior to the Auction that Buyer has cash or other immediately available funds to pay the Purchase Price. 3. SALE AND PURCHASE. 3.1. Sale and Purchase. At the Closing, the Seller without recourse and ----------------- without representation or warranty, express or implied (except to the extent representations and warranties are expressly set forth in this Agreement) will sell to the Buyer, transfer, assign, set over and convey and the Buyer will purchase from the Seller, all of the Seller's, CCL's and the Investors' right, title and interest, if any, in and to the Assets and all Escrow Accounts, Files and Documents (excluding Excluded Documents) associated therewith, for the consideration and on the terms and conditions set forth in this Agreement. 3.2. Closing. The Closing will be held on the Closing Date at CCL's ------- office, 2300 SW First Avenue, Portland, Oregon, or at such other time and place or in such other manner as may be mutually agreed upon by the Seller and the Buyer. 3.3. Payment of Purchase Price. At or before the Closing, the Purchase ------------------------- Price will be paid as follows: (A) by the Buyer depositing in the Seller's Account an amount ("Payment Amount")equal to the Purchase Price (less the Deposit and less any adjustments made prior to Closing in accordance with Section 3.6 below), by the wire transfer of collected funds received prior to 11:00 a.m. (Pacific Standard Time), and (B) by the Seller applying the Deposit to the payment of the balance of the Purchase Price. 3.4. Conditions to Closing. The obligations of Seller and Buyer to close --------------------- the sale of the Assets contemplated hereby is subject to satisfaction or waiver of the conditions of Seller and Buyer set forth below (collectively, the "Conditions"): (1) Conditions to Seller's Obligations (each of which may be waived at Seller's election): (a) The Court shall have approved the form of this Agreement no later than November 23, 2001; (b) Entry of the Sale Order on or before January 31, 2002, provided that such Sale Order has not been stayed as of the Closing; (c) Deposit by Buyer of the Deposit into the Deposit Escrow Account as contemplated herein; (d) Compliance by Buyer with any applicable securities laws and other regulatory requirements; (e) Satisfaction of any other restrictions which are not able to be overcome by issuance of the Sale Order by the Court; (f) As of the Closing Date, Buyer shall have timely performed all of the obligations required to be performed by Buyer pursuant to this Agreement; and (g) The representations and warranties of Buyer set forth in Section 6.2 shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date. (2) Conditions to Buyer's Obligations (each of which may be waived at Buyer's election): (a) Entry of the Sale Order on or before January 31, 2002, provided that such Sale Order has not been stayed as of the Closing; (b) Compliance by Buyer with any applicable securities laws and other regulatory requirements; (c) As of the Closing Date, Seller shall have timely performed all of the obligations required to be performed by Seller pursuant to this Agreement; and (d) The representations and warranties of Seller set forth in Section 6.1 shall be true and correct in all material respects as of the Closing Date. 3.5. Transfer Of Assets, Notes And Documents. --------------------------------------- (1) Transfer. Subject to the Seller's prior receipt of the Purchase -------- Price and satisfaction of all of the conditions to Seller's obligations set forth in Section 3.4(1) above, at the Closing the Seller will (a) assign all of Seller's, CCL's and Investors' right, title and interest in and to the Assets and all Escrow Accounts, Files and Documents (excluding the Excluded Documents) associated therewith, (b) endorse, without recourse, and deliver to the Buyer the Notes, and (c) deliver to the Buyer all of the Documents and Files. Each Note will be endorsed by a separate allonge substantially in the form of Exhibit ------- A, and all of Seller's, CCL's and Investors' right, title and interest in and to - - the Assets and Documents will be assigned by an assignment substantially in the form of Exhibit B, provided however, that each recorded mortgage, deed of trust --------- and assignment of leases and rents in which Seller, CCL and/or the Investors is the named beneficiary will be assigned by an assignment substantially in the form of Exhibit C. --------- (2) Filing And Recording. As soon as practical after the Closing (but -------------------- in no event later than 60 days after the Closing Date), the Buyer will file and record (as is appropriate) with the appropriate governmental authorities all of the assignments delivered by the Seller pursuant to Section 3.5(1), and simultaneously with such filing and recording, the Buyer will pay all transfer, filing and recording fees and taxes applicable thereto or to the transactions evidenced thereby other than Seller's income taxes, if any. 3.6. Adjustments. ----------- (1) Amounts Received Prior To Closing. Seller shall be entitled to --------------------------------- retain all amounts received by the Seller prior to the Closing with respect to the Assets. The Payment Amount will be decreased by all amounts received by the Seller with respect to the Loans on and after the Cutoff Date on a dollar-for-dollar basis except to the extent Seller receives a payment that was due and owing prior to the Cutoff Date pursuant to the Documents evidencing a Loan, and such payment is not applicable to either principal or interest due under the Loan, e.g., a late payment fee, penalty or charge or expense reimbursement. (2) Final Adjustments. The Seller will use its commercially reasonable ----------------- efforts to provide the Buyer with accurate information necessary to compute the Purchase Price and to make the adjustments provided for by this Section 3.6. It is recognized, however, that payments may have been deposited directly into accounts of the Seller for which the Seller will not obtain an accounting for several days after the Closing and that some checks taken in payment may not be honored. Within 15 days following the Closing, the Seller will account to the Buyer for all payments under the Notes and the Documents that were received by the Seller and not taken into account in computing the adjustment to the Purchase Price pursuant to this Section 3.6 or for which checks were not honored, and within 25 days following the Closing, the Seller or the Buyer will make a remedial payment to the other of them, as is appropriate. (3) Misdirected Payments. If the Seller or the Buyer receives a -------------------- payment under any Asset or Document that, according to the provisions of this Agreement, belongs to the other of them, it will promptly pay such amount to the other of them, without interest on such payment. (4) Adjustments to Purchase Price. Within sixty (60) days after the ----------------------------- Closing the Seller may recalculate the Purchase Price due to misapplied payments, unapplied payments and accounting errors, and will notify the Buyer of the adjusted Purchase Price (the "Adjusted Purchase Price") resulting from such recalculation. If the Adjusted Purchase Price is greater than the Purchase Price paid by the Buyer, the Buyer will pay the difference to the Seller within thirty (30) days after the Seller notifies the Buyer of the Adjusted Purchase Price, and if the Adjusted Purchase Price is less than the Purchase Price paid by the Buyer, the Seller will refund the difference to the Buyer within thirty (30) days after the Seller notifies the Buyer of the Adjusted Purchase Price. 3.7. Transfer Of Files. Subject to the Seller's prior receipt of the ----------------- Purchase Price, at the Closing the Seller will deliver to the Buyer all of the Files. Buyer may defer delivery of the Files by Seller, upon request made by Buyer at any time prior to the Closing Date, for a period of not more than thirty (30) days following the Closing Date. The Files delivered to the Buyer will consist of all originals (as opposed to copies) in the Seller's possession or reasonable control. The Buyer will notify the Seller prior to the Closing Date of the address and the method of shipment for the delivery of the Files, and will tender to the Seller at the Closing an amount sufficient to cover the costs of delivery by such method. From and after delivery of the File(s) to Buyer, Seller shall have no responsibility therefor. 3.8. Goodbye Letters. At the Closing, the Seller will sign a written notice --------------- of the sale of each Note to the Buyer, substantially in the form of Exhibit D. --------- At the Buyer's own cost, the Buyer may mail such notices by first class mail to the obligors of the Notes promptly after the Closing, at the last known addresses of record of such obligors. 3.9. Other Documentation. On the written request of the Buyer, and subject ------------------- to obtaining any required governmental and required third-party approvals, the Seller will sign and deliver to the Buyer such other agreements, instruments and documents as are reasonably necessary to convey or perfect the Buyer's right, title and interest in the Assets, the Notes, the Documents and the Files (excluding the Excluded Documents) as contemplated by this Agreement at no additional cost or expense to Seller. Each such agreement, instrument or document must be prepared by the Buyer and tendered to the Seller on or before the 120th day following the Closing Date, and must be in a form and of a content reasonably satisfactory to the Seller. At the request of the Seller, each such agreement, instrument or document will specifically state in bold letters as follows: THIS DOCUMENT IS MADE WITHOUT RECOURSE AND WITHOUT REPRESENTATION OR WARRANTY OF ANY NATURE, EXPRESS OR IMPLIED, EXCEPT AS SET FORTH (IF AT ALL) IN THE PURCHASE AND SALE AGREEMENT DATED JANUARY 24, 2002, BETWEEN BUYER AND THOMAS F. LENNON, RECEIVER OF CAPITAL CONSULTANTS, LLC IN THE CASES OF SECURITIES AND EXCHANGE COMMISSION ---------------------------------- V. CAPITAL CONSULTANTS, LLC, ET. AL. (CASE NO. 00-1290-KI) AND ELAINE L. CHAO, - ------------------------------------ -------------- SECRETARY OF DEPARTMENT OF LABOR V. CAPITAL CONSULTANTS, LLC, ET. AL. (CASE NO. - --------------------------------------------------------------------- 00-1291-KI) PENDING IN THE UNITED STATES DISTRICT COURT, DISTRICT OF OREGON, AS SELLER. The Seller will not have any obligation, express or implied, to sign or deliver any such agreement, instrument or document not tendered to the Seller on or before the 60th day following the Closing Date, and the Buyer hereby releases the Seller from any such obligation that might otherwise exist. 3.10. Modification of the Documents. Until this Agreement is terminated or ----------------------------- until the Buyer defaults under or breaches this Agreement, the Seller will not amend, modify or discharge any of the Assets or the Documents, nor may the Seller release any obligor of any of the Loans or any collateral securing any of the Assets, without the prior written consent of the Buyer, except as provided by Section 3.12(1) below. 3.11. Post-Closing Collections. ------------------------ (1) Amounts Received After Closing. Any payment received by the Seller ------------------------------ subsequent to the Closing will belong to the Buyer, and the Seller will remit each such payment to the Buyer within thirty (30) days after receipt (without interest thereon), with negotiable instruments being endorsed where possible by the Seller without recourse and without warranties. (2) Post-Closing Collections of Items Received Prior to Closing. The ----------------------------------------------------------- Seller and the Buyer agree that the Seller retains the right to collect on any and all checks or other negotiable instruments which represent payments of principal, interest or any fees or other charges relating to any of the Assets, which payments were (i) received by Seller prior to the Cut-Off Date and reflected in the unpaid principal balances stated on Schedule I, or (ii) received by the Seller during the period on or after the Cut-Off Date and prior to or on the Closing Date and for which an adjustment to the Payment Amount was made pursuant to Section 3.3 above, regardless of whether such checks or other negotiable instruments are collected prior to, on or after the Closing Date. To the extent such payments were received by Seller prior to the Cut-Off Date but were not reflected in the unpaid principal balances stated on Schedule I, there shall be an adjustment to the Payment Amount pursuant to Section 3.3 above. 3.12. Servicing. The Assets are being sold to the Buyer on a --------- servicing-released basis, except for any Asset which is a participated Asset and as to which the Seller is not the present servicer pursuant to the respective participation agreement. As of the Closing, and except as provided in the preceding sentence, all rights, obligations, liabilities and responsibilities with respect to the servicing of the Assets will pass to the Buyer. The Seller will have no obligation to perform any servicing activities with respect to any Asset from and after the Closing Date, except for any obligation required by law. The Buyer will have no right to communicate with any obligor, the Seller's employees or attorneys and/or any third party which may have provided any information or appraisals to the Seller or otherwise taken any action with respect to any obligor, until after the Closing. (1) Interim Servicing/Buyer Bound. Between the Effective Date of this ----------------------------- Agreement and the Closing, the Seller will continue to service the Assets to the extent Seller was the servicer of the Assets prior to the Effective Date hereof, including the monitoring and maintenance of Uniform Commercial Code filings and continuations, and in connection therewith, the Seller will have the right to, among other things, postpone any pending foreclosure sale until after the Closing or complete any foreclosure proceeding and transfer the rights therein and in any foreclosed collateral to the Buyer on the Closing Date. Notwithstanding the provisions of Section 3.10 above, the Buyer will be bound by the actions taken by the Seller prior to the Closing Date. Seller will use reasonable efforts consistent with past practice to meet or toll any material proof of claim, discharge, limitation, notice, hearing, trial, penalty or payment date or any other material deadline in connection with the Assets after the date of this Agreement so as to minimize the adverse effect on the Assets taken as a whole if Seller failed to so act. (2) Servicer Requirements. The Buyer will be responsible for complying --------------------- with all state and federal laws, if any, with respect to ownership and/or servicing of any of the Assets from and after the Closing Date, including without limitation, the obligation to notify any obligor or guarantor of the transfer of servicing rights from the Seller to the Buyer. (3) Escrow Accounts. The Buyer and the Seller will promptly comply --------------- with all applicable laws, statutes, rules and regulations of all federal, state, local, governmental or quasi-governmental entities or authorities having jurisdiction with respect to the transfer of the Escrow Accounts, and the Buyer assumes on the Closing Date the Escrow Accounts held by the Seller and all obligations and duties with respect to the establishment, holding and management of the Escrow Accounts. Seller shall transfer to Buyer that sum of money held by Seller as of the Closing Date which represents collected and undisbursed escrow payments. Seller makes no warranties or representation, of any kind or nature, as to the sufficiency of this sum to discharge any obligations related in any manner to the escrow obligation, as to the accuracy of this sum, or as to the propriety of any previous disbursements or payments from any escrow account. 3.13. Borrower Claims and Counterclaims. As set forth in Section 6.3 below, --------------------------------- but subject to the representations and warranties of Seller set forth in Section 6.1 below, as set forth in Section 6.3 below, the Assets are being sold to Buyer "As-Is, Where-Is, With All Faults" free and clear of all security interests, liens, claims, encumbrances, and rights of ownership by, or of any other party, except as otherwise provided in Section 6.1(3). Further, the Loans are being sold free and clear of any claims, counterclaims, set off or offset claims by borrowers and/or guarantors against Seller unrelated to a Loan. However, the Loans are being sold subject to all defenses including recoupment claims and rights that borrowers and/or guarantors may assert as to the Loans up to the outstanding balance of the Loans. However, if any borrower and/or guarantor has asserted a claim relating to a Loan for an amount in excess of the outstanding Loan balance ("Excess Claim") (it being understood and agreed that the amount in excess of the outstanding Loan balance is the "Excess Amount" with respect to "Excess Claims"), Seller shall defend including by asserting that borrower and/or guarantor must have timely filed a proof of claim in the Receivership Cases for such Excess Claims. Seller will be responsible for defending against such Excess Claims (but only as to the Excess Amount of such Excess Claims) as part of the summary claims process. Seller shall not settle any Excess Claims (as to the Excess Amount) on any basis that would compromise the Buyer's efforts to collect upon or otherwise enforce the Loans without the written consent of the Buyer, which shall not be unreasonably withheld. Seller has previously provided Buyer with copies of (i) all claims filed in the Receivership Cases in response to the Order Establishing Bar Date for Submitting Proofs of Claim against CCL entered on August 27, 2001 and a copy of such Order and (ii) the Order Authorizing Summary Claims Procedure entered by the Court in the Receivership Cases on February 16, 2001. Buyer shall not settle any Loan obligations without obtaining a release of Seller, in his capacity as Receiver, with respect to any related Excess Claim. Seller and Buyer shall reasonably cooperate in opposing any claims that include Excess Claims. In connection with the defense of such Excess Claims the parties shall reasonably cooperate with each other and commit reasonable resources in providing a joint defense to such claims based on the size of the Excess Amount. 4. DUE DILIGENCE. Buyer understands, acknowledges and agrees that Buyer has had the right, at its sole cost and expense, to perform its due diligence of the Assets including, but not limited to: (1) Reviewing all of the Documents and Files; (2) Reviewing, inspecting and evaluating all collateral in the possession of Seller purportedly securing the Assets; (3) Performing public records searches to confirm owners, encumbrances, liens and lien positions; (4) Reviewing all materials, proposals, litigation files, insurance policies and claims and documents associated with the Claims; and (5) Reviewing the Order Authorizing Summary Claims Procedure entered on February 16, 2001; the Order Establishing Bar Date for Submitting Proofs of Claim against CCL entered on August 27, 2001; and the claims filed in connection therewith. Buyer has completed its due diligence review of the Assets and the transactions contemplated by this Agreement and the obligations of the parties hereunder are not subject to, or conditioned upon, any further due diligence or other review of the Assets. 5. TRANSACTION COSTS. 5.1. The Seller's Costs. The Seller will pay all of the fees and costs ------------------ incurred by the Seller concerning this Agreement and the transactions contemplated by it, including all fees and costs of Seller associated with obtaining the Sale Order. 5.2. The Buyer's Costs. The Buyer will pay all of the fees and costs ----------------- incurred by the Buyer concerning this Agreement and the transactions contemplated by it, including without limitation, all transfer and recording fees and taxes (excluding Seller's income taxes, if any) and all costs of its due diligence investigations. 6. WARRANTIES, REPRESENTATIONS, COVENANTS AND DISCLAIMERS. 6.1. Representations By Seller. On the Closing Date, the Seller shall ------------------------- represent and warrant to the Buyer as follows: (1) Authorization. Based on the Sale Order, the Receiver has full ------------- power and authority to execute and deliver this Agreement and the agreements, instruments and documents to be executed and delivered by the Seller pursuant to this Agreement and to perform its obligations hereunder, (2) Enforceability. Based on the Sale Order, when executed and -------------- delivered by the Seller, this Agreement and each agreement, instrument or document to be executed and delivered by the Seller pursuant to this Agreement will constitute the legal, valid and binding obligations of the Seller, enforceable against the Seller in accordance with their provisions, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the rights of creditors generally and by general principles of equity, provided, however, that this Agreement and each such other agreement, instrument or document (as applicable) is also executed and delivered by all other persons provided to be parties thereto, if any. (3) Title. Based solely on the Sale Order, the Seller, CCL or the ----- Investors, as applicable, has good and marketable title to the Assets. When assigned or negotiated by the Seller to the Buyer pursuant to this Agreement and in accordance with the Sale Order, the Assets, the Notes and the Documents will be free and clear of all security interests, liens, claims, encumbrances and rights of ownership by or of any other party, except for sales, use and transfer tax liens pertaining to the transactions contemplated by this Agreement. Further, the Loans are being sold free and clear of any claims, counterclaims, set off or offset claims by borrowers and/or guarantors against Seller unrelated to a Loan. (4) Settlements. Since the Cutoff Date, the Receiver has not settled, ----------- compromised, or released any of the parties to the Loans with respect to any Claims, and has not entered into any covenants not to sue binding upon the Buyer. (5) Unpaid Principal Balances. To the best of the Receiver's ------------------------- knowledge, the unpaid principal balances of the Loans (excluding any claimed reduction thereto by reason of defenses, counterclaims or offsets that borrower may claim to be entitled to of any nature other than on account of cash payments) are materially the same as stated on Schedule I after taking into account any payments that were received by the Seller between the Cutoff Date and the Closing Date and which were applied to reduce the unpaid principal balances of the Loans pursuant to the terms of the Documents and pursuant to Section 3.6 above, shall reduce the Purchase Price. 6.2. Representations, Covenants and Agreements By The Buyer. The Buyer ------------------------------------------------------ represents and warrants to the Seller as follows: (1) Organization. The Buyer is a limited partnership duly organized ------------ and in good standing under the laws of ______________ and has full power and authority to execute and deliver this Agreement and the agreements, instruments and documents to be executed and delivered by the Buyer pursuant to this Agreement and to perform its obligations hereunder, without contravening any covenant or obligation binding on it or its property and without obtaining the consent or approval of any body or person, whose consent or approval has not been obtained. (2) Enforceability. When executed and delivered by the Buyer, this -------------- Agreement and each agreement, instrument or document to be executed and delivered by the Buyer pursuant to this Agreement will constitute the legal, valid and binding obligation of the Buyer, enforceable against the Buyer in accordance with their provisions, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the rights of creditors generally and by general principles of equity, provided however, that this Agreement and each such other agreement, instrument or document (as applicable) is also executed and delivered by all other persons that are parties thereto, if any. (3) Sophisticated Investor. The Buyer is a sophisticated investor ---------------------- experienced in the type of transactions contemplated by this Agreement and in the collection of delinquent debt, has sufficient information concerning the Assets, Notes, Documents and related Files in order to make an informed decision to enter into this Agreement and the transactions contemplated hereby, and is not in a disparate bargaining position with respect to the Seller. (4) Access. The Buyer has been given adequate access and opportunity ------ to inspect, analyze and evaluate the Assets, Notes, Documents, Files and to conduct other investigations, including but not limited to, the due diligence investigation provided for in Section 4 above, that the Buyer has deemed necessary, and the Buyer will close the transactions contemplated by this Agreement based on such inspection, analysis, evaluation and investigations and not in reliance (in whole or in part) on any representation, warranty or covenant by the Seller, its employees agents, attorneys or representatives, express or implied, that is not specifically set forth in this Agreement. (5) Independent Evaluation. Buyer is an "accredited investor" as that ---------------------- term is defined by the Securities Act of 1933, as amended. In conjunction with its attorneys and advisors, the Buyer has made its own independent evaluation of each aspect of the transactions contemplated by this Agreement and the Assets, Notes, Documents, and related Files including without limitation: (a) the validity and enforceability of the Loans, the Equities, the Claims, the Notes and the Documents, (b) the existence of, title to, liens and encumbrances on, physical condition of and the value of any purported collateral for the Assets, the Notes and the Documents, and (c) the compliance of any such purported collateral with laws, ordinances, governmental rules and regulations, and obligations owed to and conditions in favor of third-parties, including without limitation, zoning regulations, building codes, restrictive covenants, easements, licenses, and those pertaining to environmental matters, hydrocarbons, hazardous or toxic materials, and underground storage tanks. (6) ERISA. The Buyer is not (a) an employee benefit plan that is ----- subject to the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or (b) an employee benefit plan that is subject to ERISA, and the transactions contemplated by this Agreement do not violate the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Internal Revenue Code of 1986, as amended. (7) Distribution. The Buyer is not purchasing the Assets in ------------ contemplation of, or for re-sale in connection with, any distribution, private placement or public offering of the Assets, the Notes, the Documents or any part thereof or interest therein, that would violate any law or governmental rule or regulation, in any manner. (8) Financial Condition of Buyer. Buyer represents and warrants that ---------------------------- it has sufficient assets and that its financial condition is such that it can pay the Purchase Price in cash at the Closing as contemplated by this Agreement. Buyer will provide Seller with appropriate documentation as Seller requests to evidence its financial condition both at the Effective Date, and from time to time, up to and including the Closing. (9) No Collusion. Neither Buyer nor any of its officers, directors, ------------ shareholders, agents, representatives, employees or parties in interest (i) has in any way colluded, conspired, connived or agreed, directly or indirectly, with any other firm or person to submit a collusive or sham offer to purchase the Assets, or any offer other than a bona fide offer, or (ii) has, in any manner, directly or indirectly, sought by agreement or collusion or communication or conference with any other firm or person to fix the price or prices, or to fix any overhead, profit or cost element of the Purchase Price or to secure any advantages against Seller. (10) Excluded Documents. Buyer understands that the Excluded Documents ------------------ may be missing or may have been removed from the File(s). The Excluded Documents may include significant and material information which, if made known to Buyer, could have a material, significant direct or indirect impact upon perceived, apparent or actual value of the Assets. Buyer agrees, acknowledges, confirms and understands that the Excluded Documents might, directly or indirectly, relate to or impact upon the perceived, apparent or actual (i) value, (ii) merits, (iii) risks, and/or (iv) hazards inherent with respect to the Assets. The risk that such Excluded Documents might be pertinent in order to make an informed decision with respect to the perceived, apparent or actual (i) value, (ii) merits, (iii) risks, and/or (iv) hazards associated with, or with respect to or in connection with the Assets are accepted by Buyer as a risk of entering into this Agreement. The risk that the Excluded Documents might be pertinent to Buyer in order for Buyer to make an informed decision with respect to the actual, apparent, or perceived value of the Assets shall be borne by Buyer. It is the express intention and understanding between Seller and Buyer that the Excluded Documents are not to be sold, transferred, assigned or conveyed by Seller to Buyer, and Buyer shall at no time ask for, seek or be provided access to any or all of such Excluded Documents. (11) Disclosure. Buyer acknowledges that (a) Seller may be in ---------- possession of material, nonpublic oral information and/or material nonpublic information included within the Excluded Documents regarding the Assets, including but not limited to, the issuers of the Equities and/or the Loans, their financial condition, results of operations, businesses, properties, assets, liabilities, management, projections, appraisals, plans and prospects, as well as information regarding the claims of creditors of such issuers; (b) such information may be materially adverse to the interests of Buyer; and (c) if Buyer were in possession of some or all of such information Buyer might not purchase any or all of the Assets pursuant to this Agreement. Buyer also acknowledges and agrees that Seller shall have no obligation to disclose to Buyer any of the information referred to in the preceding sentence except as set forth in Section 4 above. Seller acknowledges and agrees that it has a duty to provide found Documents to Buyer during the existence of the Receivership. In addition, Seller shall use reasonable efforts to maintain Original Loan Documents in the Files prior to the Closing. In that regard, Seller shall provide Buyer with a complete list of Original Loan Documents in the Files as of a specified date and attach such list (the "List of Original Loan Documents") as a Schedule hereto. If, notwithstanding the Receiver's reasonable efforts, one or more of the documents in the List of Original Loan Documents is missing at the Closing, then Seller will execute all documents reasonably necessary for Buyer to enforce the obligations under the missing Original Loan Documents pursuant to Section 6.5 herein. (12) Nondisclosure. Each of Buyer and Seller is in full compliance ------------- with its respective obligations under the terms of any Confidentiality Agreement executed by Buyer to review the information made available by Seller or its personnel, agents, representatives or independent contractors to all potential bidder(s) for the Assets, and the terms thereof are hereby incorporated herein subject to Buyer's ownership rights and interests acquired by Buyer hereunder. (13) Identity. Buyer is a "United States person" within the meaning of -------- Paragraph 7701(a)(30) of the Internal Revenue Code of 1986, as amended. (14) Insured Loan. If the Loans transferred pursuant to this Agreement ------------ are insured or guaranteed by any insurer or guarantor, including, without limitations, the United States Department of Housing and Urban Development or any other department or agency of any governmental unit, federal, state or local, or private mortgage insurer, Buyer represents that Buyer has been approved by such agency, insurer or guarantor and is an approved lender or mortgagee, as appropriate, if such approval is required. If Buyer has not been so approved, Buyer recognizes and acknowledges that any such insurance or guarantees may be terminated. With respect to any trust deed(s) or Loans as to which such insurance or guaranty is in full force and effect on the date of this Agreement, Buyer agrees to assume all of Seller's obligations under the contract of insurance with respect to the period after the Closing Date. Buyer agrees to indemnify and hold Seller harmless from and against any claims of breach of such insurance obligation to the extent that such breach is alleged to occur on or after the Closing Date. Buyer and Seller agree to cooperate as necessary to complete forms required by the insuring party to effect or complete the transfer to Buyer. (15) Investment Representation. Buyer is knowledgeable, sophisticated ------------------------- and experienced in business and financial matters that enable it to evaluate the merits and risks of the transactions contemplated by the Agreement; Buyer has previously invested in assets similar to the Assets and fully understands the risks associated with Buyer's investment in the Assets; and Buyer is able to bear the economic risk of its investment in the Assets and is presently able to afford the complete loss of such investment. Buyer is not purchasing the Assets with a view to, or for offer or sale in connection with, any distribution (within the meaning of the Securities Act of 1933, as amended or otherwise) of the Assets or any portion thereof in any transaction that would be in violation of any laws, including but not limited to, the securities laws of the United States of America or any State thereof. Buyer acknowledges that the Assets may have limited or no liquidity and it has the financial capability to hold the Assets for an indefinite period of time. 6.3. Disclaimers. BUYER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS SET FORTH ----------- IN THIS AGREEMENT, SELLER HAS NOT MADE OR GIVEN, DOES NOT MAKE, AND SPECIFICALLY DISCLAIMS ANY STATEMENTS, OPINIONS, ADVICE, GUARANTIES, PROMISES, COVENANTS, AGREEMENTS, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND OR CHARACTER, WRITTEN OR ORAL, PAST, PRESENT OR FUTURE, CONCERNING ANY OF THE ASSETS, OR THE MARKETABILITY, VALUE, NATURE, QUALITY OR CONDITION OF OR ANY USES TO WHICH THE ASSETS MAY OR MAY NOT BE PUT, INCLUDING BUT NOT LIMITED TO (A) THE CONDITION OR TITLE TO THE ASSETS; (B) THE NATURE OR PHYSICAL CONDITION OF THE ASSETS; (C) THE INCOME OR EXPENSES, GENERATED, PAID OR INCURRED IN CONNECTION WITH THE ASSETS; (D) THE SUITABILITY, SALEABILITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE OF THE ASSETS BY BUYER; (E) THE CONFORMITY OF THE ASSETS WITH ANY APPLICABLE LAWS, RULES OR REGULATIONS; (F) THE VALIDITY, PRIORITY OR PERFECTION OF ANY COLLATERAL DOCUMENT; (G) THE STATE OF TITLE, PRIORITY OF LIENS, ZONING, TAX CONSEQUENCES, PHYSICAL CONDITION, UTILITY CAPACITY OR COMMITMENT FOR UTILITY CAPACITY, OPERATING HISTORY OR PROJECTIONS, VALUATIONS, LOCATION, USE, QUALITY, DESCRIPTION, DURABILITY OR (H) THE NECESSITY OF BUYER TO OBTAIN ANY NECESSARY GOVERNMENTAL APPROVALS OR PERMITS FOR BUYER'S INTENDED USE OF THE ASSETS. BUYER ACKNOWLEDGES FOR BUYER AND BUYER'S SUCCESSORS AND ASSIGNS, (A) THAT BUYER HAS BEEN GIVEN A REASONABLE OPPORTUNITY TO INSPECT AND INVESTIGATE THE ASSETS, EITHER INDEPENDENTLY OR THROUGH AGENTS OF BUYER'S CHOOSING AND (B) THAT BUYER IS ACQUIRING THE ASSETS BASED UPON BUYER'S OWN INVESTIGATION AND INSPECTION THEREOF. BUYER AGREES THAT THE ASSETS SHALL BE SOLD AND THAT BUYER SHALL ACCEPT POSSESSION OF THE ASSETS WITHIN THIRTY (30) DAYS OF THE DATE OF THE CLOSING IN THEIR "AS-IS, WHERE-IS, WITH ALL FAULTS" CONDITION WITH NO RIGHT OF SET-OFF OR REDUCTION IN THE PURCHASE PRICE AND THAT, EXCEPT AS SET FORTH IN THIS AGREEMENT, SUCH SALE SHALL BE WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. EXCEPT AS THE SAME MAY BE SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE SELLER DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND COVENANTS OF EVERY NATURE WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WITH RESPECT TO: MERCHANTABILITY; NEGOTIABILITY; STATUS AS A HOLDER IN DUE COURSE; CREDITWORTHINESS OF ANY MAKER, ACCOMMODATION PARTY, ENDORSER, GUARANTOR, OR OTHER OBLIGOR UNDER OR WITH RESPECT TO ANY LOAN, NOTE OR DOCUMENT; EXISTENCE, CONDITION, HABITABILITY, MERCHANTABILITY, MARKETABILITY, FREEDOM FROM TITLE DEFECTS, DELINQUENCY, PAYMENT HISTORY, OR VALUE OF ANY COLLATERAL FOR ANY LOAN, NOTE, EQUITY, DOCUMENT OR OTHER ASSET; COMPLIANCE OF ANY COLLATERAL WITH ANY LAW, INCLUDING ANY USURY LAWS, GOVERNMENTAL REGULATION, RESTRICTIVE COVENANT, INCLUDING WITHOUT LIMITATION, ZONING ORDINANCES, BUILDING CODES, HEALTH REGULATIONS, USE AND SET BACK RESTRICTIONS, AND THOSE PERTAINING TO HAZARDOUS, TOXIC OR SIMILAR MATERIALS; EXISTENCE OR NAMED PAYEE OF ANY INSURANCE OR THE VALIDITY OF ANY CERTIFICATE OF INSURANCE WITH RESPECT TO ANY COLLATERAL FOR ANY LOAN, NOTE , EQUITY, DOCUMENT OR OTHER ASSET OR ON THE LIFE OF ANY PERSON LIABLE FOR ANY OBLIGATION UNDER OR WITH RESPECT TO ANY LOAN, NOTE, EQUITY, DOCUMENT OR OTHER ASSET; BUYER FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE ASSETS WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND OTHER THAN AS SPECIFICALLY SET FORTH IN SECTION 6.1, SELLER MAKES NO REPRESENTATION OR WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT CERTAIN EXCLUDED DOCUMENTS MAY HAVE BEEN OMITTED OR REMOVED FROM THE FILE(S). BUYER FURTHER ACKNOWLEDGES AND AGREES THAT SUCH EXCLUDED DOCUMENTS WHICH SELLER MAY HAVE REMOVED FROM THE LOAN FILE(S), IF DISCLOSED TO BUYER, COULD HAVE AN IMPACT UPON AND AFFECT, AMONG OTHER THINGS, THE DECISION OF BUYER TO PURCHASE THE ASSETS, THE ACTUAL OR PERCEIVED VALUE OF THE ASSETS, AND THE ULTIMATE RECOVERY OF THE ASSETS. EFFECTIVENESS OR ENFORCEABILITY OF ANY LOAN, NOTE, EQUITY, DOCUMENT OR OTHER ASSET IN ACCORDANCE WITH ITS TERMS OR OTHERWISE; COMPLETENESS OF ANY FILE; GENUINENESS AND COMPLETENESS OF ANY ITEM IN ANY FILE AND ANY OTHER MATTERS CONCERNING THE ASSETS. BY INITIALING BELOW, BUYER HEREBY WAIVES THE PROVISIONS OF ANY STATUTE OR BODY OF LAWS IN OREGON OR ANY OTHER JURISDICTION IN CONNECTION WITH THE MATTERS WHICH ARE SUBJECT TO THE ACKNOWLEDGMENTS, WAIVERS AND RELEASES CONTAINED IN THIS SECTION 6.3. BUYER'S INITIALS. ____________________ 6.4. Post-Closing Covenants of Buyer. ------------------------------- (1) IRS Reporting. The Buyer agrees to submit all IRS forms and ------------- information returns for all Assets transferred to the Buyer pursuant to this Agreement for the full calendar year in which the Closing occurs and thereafter. (2) Files and Records. The Buyer agrees to abide by all applicable ----------------- state and federal laws, rules and regulations regarding the handling and maintenance of all documents and records relating to the Assets, including without limitation, the length of time such documents and records are to be retained. The Buyer further agrees: (a) to allow the Seller the continuing right to use, inspect and make extracts from or copies of any such documents or records during normal business hours on the Seller's reasonable notice to the Buyer for any lawful purpose at Seller's cost; (b) to allow the Seller the possession, custody and use of original documents for any lawful purpose and on reasonable terms and conditions including Seller's duty to reasonably safeguard such original documents while such documents are in Seller's actual possession; and (c) to give reasonable notice to the Seller of the Buyer's intent to destroy or dispose of any documents or files and to allow the Seller, at its own expense, to recover the same from the Buyer. (3) Notices of Claims. The Buyer will promptly notify the Seller of ----------------- any claim, threatened claim or litigation against the Seller or its predecessors that comes to the Buyer's attention and that relates to any Asset. (4) Release of Seller. The Buyer agrees that it will not renew, ----------------- extend, renegotiate, compromise, settle or release any Loan or Note or any right of the Buyer founded on or growing out of this Agreement, except on payment in full thereof, unless all obligors on said Loan or Note or right first release and discharge the Seller and its predecessor(s), attorneys, agents and assigns (each a "Released Party") from all demands, claims, causes of action, losses, damages, liabilities, obligations, remedies, penalties, costs and expenses which any such obligor may have against any such Released Party arising from or growing out of the Note. (5) Assets in Litigation. With respect to any Asset which is the -------------------- subject of any type of pending litigation, the Buyer will notify the Seller at the address provided in Section 10.2 within sixty (60) days after the Closing of the name of the attorney selected by the Buyer to represent the Buyer's interest in the litigation. The Buyer will, within sixty (60) days after the Closing, notify the clerk of the court and all counsel of record that ownership of the Asset was transferred from the Seller to the Buyer. The Buyer will have its attorney file appropriate pleadings with the court within sixty (60) days after the Closing substituting the Buyer's attorney for the Seller's attorney and also removing the Seller as a party to the litigation and substituting the Buyer as the real party in interest. Should the Buyer fail to comply with the provisions of this Section 6.(5) within the applicable time period, the Seller may, at its option, dismiss with or without prejudice, or withdraw from, any such pending litigation. The Buyer agrees to reimburse the Seller, on demand, for the Seller's legal expenses (including without limitation, reasonable attorneys' fees) in such litigation in the event Buyer breaches its obligations hereunder. (6) Assets in Bankruptcy. In accordance with Bankruptcy Rule 3001(c), -------------------- the Buyer agrees to take all actions necessary to file within sixty (60) days after the Closing: (1) proofs of claim in pending bankruptcy cases involving any Assets for which a proof of claim has not already been filed, and (2) evidence of the terms of the purchase of the Assets with the appropriate bankruptcy court in cases in which proofs of claim have been filed. The Buyer will prepare and provide to the Seller within sixty (60) days after the Closing, an assignment of claim and affidavit in the form required by the respective bankruptcy court, for each Asset which is in bankruptcy as of the Closing. The Buyer releases the Seller from any claim, demand, suit or cause of action that the Buyer may have as a result of the Seller's failure to file any such proofs of claim, and the Buyer further agrees to reimburse the Seller for any cost or expense incurred by the Seller as a result of the Buyer's failure to file an assignment of claim and affidavit as required by this Section 6.4(6). 6.5. Further Assurances. From time to time, upon the request of either ------------------ party, the other party agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable laws including, but not limited to, executing, acknowledging and delivering such documents as may be necessary to consummate and make effective the transactions contemplated by this Agreement as promptly as practicable. 7. USE OF SELLER'S NAME. The Buyer will not in any manner (directly or impliedly) use the Seller's name or the originating institution's name or any name deceptively similar to that of the Seller or the originating institution, including without limitation, in making, maintaining or prosecuting any claim, in any civil action or foreclosure proceeding, before any administrative agency, or in any manner which could mislead any person with respect to the Seller having any right, title or interest in, to or under any of the Assets. 8. INDEMNITIES AND REMEDIES. 8.1. Indemnification By Buyer. The Buyer will indemnify and hold harmless ------------------------ the Seller from all demands, claims, causes of action, losses, damages, liabilities, obligations, remedies, penalties, costs and expenses (including without limitation, reasonable attorneys' fees) arising out of or pertaining to: (1) any claim brought by a third party under or with respect to any of the Assets, arising from or relating to actions (or failure to act or omissions) by, on behalf of, or at the request of Buyer or any of its agents, representatives, officers, directors or employees after the Closing; and (2) any material misrepresentation or breach of any warranty made by the Buyer in or pursuant to this Agreement or any agreement, instrument, document or other writing executed by the Buyer in favor of the Seller in connection with this transaction. 8.2. Buyer's Default. If the Buyer fails to consummate the purchase of the --------------- Assets pursuant to this Agreement on or before the Closing Date or fails to perform any of the Buyer's other obligations under this Agreement either prior to or on the Closing Date, or breaches any other agreement, including any Confidentiality Agreement, relating to the subject matter hereof, by and between the Buyer and the Seller for any reason, then the Seller may seek specific performance of this Agreement by the Buyer and/or exercise any other right or remedy which the Seller may have at law or in equity. In such event the Buyer will indemnify and hold harmless the Seller from all demands, claims, causes of action, losses, damages, liabilities, obligations, remedies, penalties, costs and expenses (including without limitation, reasonable attorneys' fees) arising out of or pertaining to such default by the Buyer. As an alternative, the Seller may elect, in its sole and absolute discretion, by giving written notice to the Buyer, to terminate this Agreement and retain the Deposit, free of any claims of the Buyer or any other person or entity with respect thereto, after which termination neither party will have any further rights or obligations under this Agreement. Any such election by the Seller will be in full liquidation of all damages suffered by the Seller and will be the sole and exclusive remedy of the Seller with respect to such default by the Buyer. The Buyer acknowledges that the Seller will suffer damages in the event of such a default, that the amount of such damages would be difficult to determine, and that the amount of the Deposit is a reasonable amount for such damages. In the absence of such an election by the Seller, all other remedies of the Seller are cumulative and not exclusive of any other remedy available to the Seller, whether pursuant to this Agreement or available to the Seller at law or in equity. Buyer may eliminate Seller's election hereunder, by increasing the Deposit to a total of $5 million no later than five (5) days prior to the Auction, in which event the Seller's sole and exclusive remedy for Buyer's breach shall be retention of Buyer's Deposit as liquidated damages. 8.3. Seller's Default. If the Seller fails to consummate the sale of the ---------------- Assets pursuant to this Agreement on or before the Closing Date or fails to perform any of the Seller's other obligations under this Agreement either prior to or on the Closing Date then the Buyer's sole remedy shall be to terminate this Agreement and the return of the Deposit(s) to the extent paid to the date of termination by Buyer in full liquidation of all damages suffered by Buyer and as Buyer's sole and exclusive remedy with respect to such default by Seller. 8.4. Buyer's Release of Claims. Except as otherwise specifically provided ------------------------- in this Agreement, the Buyer releases and forever discharges the Seller and its agents, representatives, servants, directors, officers, members, employees, shareholders, successors, assigns and affiliates (collectively the "Related Persons") of and from any and all demands, claims, causes of action, losses, damages, liabilities, obligations, remedies, penalties, costs and expenses that the Buyer now has or may in the future have against the Seller and/or any Related Person in any manner on account of, arising out of, or related to the Assets. 8.5. Limitations On Damages. Neither the Seller nor the Buyer will be ---------------------- entitled to any consequential, incidental, special or exemplary damages arising out of or pertaining to any breach of this Agreement or of any agreement, instrument or document delivered pursuant to this Agreement. 9. COMPLIANCE WITH LAWS. The Seller and the Buyer, at their sole cost and expense, will make all filings and reports and send all notices necessary to comply with all laws and rules and regulations of any governmental authority, concerning the transactions contemplated by this Agreement. 10. BROKERS. The Seller and the Buyer represent and warrant to each other that it did not engage any finder, broker, or intermediary with respect to this Agreement or the transactions contemplated hereby or directly or indirectly cause any finder's fee, commission or other compensation or expense reimbursement to become owing to any third-party with respect to this Agreement or the transactions contemplated hereby. The Seller and the Buyer will defend, indemnify and hold harmless the other of them from all demands, claims, causes of action, losses, damages, liabilities, obligations, remedies, penalties, costs and expenses (including without limitation, reasonable attorneys' fees) with respect to its breach of its representations and warranties set forth in this Section 10. 11. NOTICES. 11.1. Writing Required. All notices and communications required or ---------------- permitted under this Agreement must be in writing and will be deemed to have been sufficiently given or made on actual receipt during normal business hours (or if received other than during normal business hours, on the beginning of the next business day) by the intended recipient (regardless of the manner of delivery, including without limitation, by telecopier, facsimile, delivery service, mail or hand delivery); provided however, that a notice or other communication sent by U.S. mail will be deemed to have been received on the third business day following the depositing thereof in the U.S. mails, first class postage prepaid, and addressed to the intended recipient at the address set forth in this Section 11. 11.2. Addresses. Notice and communications required or permitted pursuant --------- under this Agreement will be delivered at the following addresses: If to the Buyer: To: MTGLQ Investors, LP c/o Goldman Sachs Mortgage Company 85 Broad Street New York, NY 10004 Fax: 212-902-1828 With a Copy to: Leon Simson, Esq. Ball Janick LLP 101 SW Main, Suite 1100 Portland, OR 97204 Fax: (503) 295-1058 If to the Seller: To: Thomas F. Lennon, Receiver Capital Consultants, LLC 2300 SW First Avenue Portland, OR 97201 Fax: (503) 241-0448 and 7777 Alvarado Road, Suite 712 La Mesa, CA 91941 Fax: (619) 465-9288 With a copy to: David L. Osias, Esq. Allen Matkins Leck Gamble & Mallory LLP 501 W. Broadway, Suite 900 San Diego, CA 92101 Fax: (619) 233-1158 11.3. Changes. The Seller and the Buyer may change their respective ------- addresses set forth in Section 11.2, by a written notice of such change to the other of them that is delivered at least 10 days prior to the effective date of such change. 12. [INTENTIONALLY OMITTED]. ------------------------ 13. GENERAL PROVISIONS. 13.1. Time. Time is of the essence hereof. ---- 13.2. Entire Agreement. This Agreement, the Exhibits and Schedules hereto ---------------- contain the entire understanding and agreement between the Seller and the Buyer and supersedes all prior understandings, agreements, warranties, representations and communications between the Seller and the Buyer with respect to the subject matter hereof, except for the Confidentiality Agreements by and between the Seller and the Buyer. 13.3. Amendments. This Agreement can be amended only by a writing signed by ---------- the Seller and the Buyer. 13.4. Survival. Subject to any limitations set forth in this Agreement, all -------- representations, warranties, indemnities and covenants of the Seller and the Buyer will survive the Closing for a period of one (1) year and the execution and delivery of all agreements, instruments and documents executed or delivered pursuant to this Agreement, without being merged into the same. 13.5. Assignments. Neither the Seller nor the Buyer may assign this ----------- Agreement or any right hereunder without the prior written consent of the other party. Notwithstanding the foregoing, the Buyer may assign its rights hereunder to an assignee in which Buyer controls and owns at least a seventy-five percent (75%) ownership interest. It shall be a condition to any assignment permitted pursuant hereto that the proposed assignee execute such documents as Seller may require, including, without limitation, a confidentiality agreement acceptable to Seller and an assumption agreement acceptable Seller which shall in no event relieve Buyer of any liability or obligation hereunder. 13.6. Third-Party Beneficiaries. This Agreement is for the sole benefit of ------------------------- the Seller and the Buyer and their successors and permitted assigns. Neither this Agreement nor the transactions contemplated by this Agreement or any agreement, instrument or document created, signed or delivered pursuant hereto will create in any other person any right, benefit or interest or estop the Seller or the Buyer with respect to any of the Assets, Notes, the Documents or any amount payable pursuant thereto or otherwise. 13.7. Construction. This Agreement will be construed without reference as ------------ to who prepared it. 13.8. Controlling Law; Jurisdiction; Venue. THIS AGREEMENT WILL BE GOVERNED ------------------------------------ BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF OREGON AND FEDERAL RECEIVERSHIP LAW, AS APPLICABLE, WITHOUT REFERENCE TO THE CONFLICTS OF LAW PROVISIONS THEREOF. THE U.S. DISTRICT COURT, FOR THE DISTRICT OF OREGON SHALL RETAIN JURISDICTION TO ENFORCE THE PROVISIONS OF THIS AGREEMENT, THE PROCESS ORDER, THE SALE ORDER AND THE PROVISIONS OF THIS AGREEMENT AND THE DOCUMENTS IN ALL RESPECTS, AND TO ADJUDICATE ANY DISPUTES THAT MAY ARISE IN THE FUTURE WITH RESPECT TO SAME. 13.9. Waiver Of Jury. EACH OF THE SELLER AND THE BUYER VOLUNTARILY AND -------------- IRREVOCABLY WAIVES ANY CONSTITUTIONAL OR OTHER RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY CLAIM OR CAUSE OF ACTION ASSERTED IN ANY CIVIL ACTION BY OR AGAINST THE OTHER OF THEM, CONCERNING THIS AGREEMENT, ANY AGREEMENT, INSTRUMENT OR DOCUMENT DELIVERED OR TO BE DELIVERED PURSUANT TO THIS AGREEMENT, ANY ACT OR FAILURE TO ACT WITH RESPECT TO THIS AGREEMENT OR ANY SUCH AGREEMENT, INSTRUMENT OR DOCUMENT, OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, WHETHER SUCH CLAIM OR CAUSE OF ACTION ARISES UNDER CONTRACT, IN TORT OR OTHERWISE. 13.10. Binding Effect. This Agreement will be binding on the Seller and the -------------- Buyer and will enure to the benefit of their successors and permitted assigns. 13.11. Headings. The Section and other headings contained in this Agreement -------- are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. 13.12. Expenses. Except as otherwise expressly provided herein, each party -------- to this Agreement shall pay its own costs and expenses in connection with the transactions contemplated hereby. 13.13. Counterparts. This Agreement may be executed in one or more ------------ counterparts, each of which shall for all purposes be deemed to be an original and all of which shall constitute the same instrument, but only one of which need be produced. 13.14. Facsimile Signatures. Any signature page delivered by a fax machine -------------------- or telecopy machine shall be binding to the same extent as an original signature page, with regard to any agreement subject to the terms hereof or any amendment thereto. Any party who delivers such a signature page agrees to later deliver an original counterpart to any party which requires it. Dated January 24, 2002. CAPITAL CONSULTANTS, LLC, Buyer: an Oregon limited liability company MTGLQ Investors, LP, a limited partnership By: /s/ Jed Schaefer By: /s/ Thomas F. Lennon ----------------- -------------------- Name: Jed Schaefer Name: Thomas F. Lennon Title: Attorney-in-Fact____________________ Title: Receiver SCHEDULE I ---------- Description Of Loans
As of 9/15/01 Loan Principal No. Borrower Interest Rate Balance -- -------- ------------- ------- PRIVATE DEBT 3002 Homer Williams 15% $ 318,047.00 3671 Homer Williams 17% $ 600,000.00 4091 Ambitech Inc 6.50% $ 135,466.72 5173 Schott/Reinmuth Prime + 5% $ 1,200,000.00 5269 Oregon Auto Center II 17% $ 973,708.52 8915 Glen Grodem Prime $ 100,000.00 8916 Rembold Trusts Inc./Piacentini Prime $ 600,000.00 Subtotal Private Debt $ 3,927,222.24 7 PRIVATE DEBT WITH EQUITY KICKER 2551 Azumano Travel Service 13.50% $ 1,502,619.79 3961 Watershed Holdings 12% $ 3,500,000.00 3962 Reinmuth/Schott/Gallarda 0% $ 51,500.00 5098 Hamlin Gourmet Foods 0% $ 162,832.98 Subtotal Private Debt -with Equity Kicker $ 5,216,952.77 4 LOANS WITH ADDITIONAL COLLATERAL 2512 Cascade General 9% $ 433,333.39 3092 Pacific Gateway/Azumano Prime + 5% $ 600,000.00 4072 Broken Top Associates Prime + 4% $ 4,315,635.07 4802 Oregon Auto Center Prime + 4% $ 2,600,000.00 4831 Pacific States Prime + 5% $ 2,123,000.00 5251 Washington Alder Prime + 3.35% $19,763,500.00 5265 A & G Precision Parts LLC Prime + 5% $ 4,120,000.00 5275 Bayside, Ltd. Prime + 5% $30,564,085.00 5321 Calafate Prime + 5% $ 5,390,000.00 Subtotal Loans with Additional Cash/Other Collateral $69,909,553.46 9 REAL ESTATE MORTGAGES 2111 Marine Finance Corp/Astoria Metals Prime + 3.35% $ 2,562,742.88 3561 Rest Haven Memorial Assoc 10% - 1st 5 years (September 2001) $ 471,002.18 4112 Zelinsky & Abrams ARM adjusts every 6 months (Cap 1%) $ 127,075.43 4121 Zelinsky & Abrams ARM adjusts every 6 months (Cap 1%) $ 103,966.58 4716 Stephen Shohet ARM adjusts every 6 months (Cap 1%) $ 460,414.39 4727 Paul Schmitt ARM adjusts every 3 months (Cap .5%) $ 197,000.31 4738 AAA Commercial Leasing ARM adjusts every 3 months (Cap .5%) $ 166,708.87 4794 Homer Williams 10.35% $ 107,103.94 5032 Lerner & Gillary ARM adjusts every 3 months (Cap .5%) $ 180,326.97 5043 Chan, Et Al ARM adjusts every 3 months (Cap .5%) $ 436,704.00 5205 Heine & Bettencourt ARM adjusts every 3 months (Cap .5%) $ 341,114.92 5267 Lovejoy Center Inc. 9.75% $ 573,325.89 5285 Wu ARM adjusts every 5 Yrs (Cap 5%) $ 664,107.46 5289 Johnson ARM adjusts every 5 Yrs (Cap 5%) $ 222,036.17
5291 Parkway Properties ARM adjusts every 5 Yrs (Cap 5%) $ 440,479.43 5311 Foti ARM adjusts every 3 months (Cap .5%) $ 434,705.36 5313 Bowman Family Trust ARM adjusts every 5 Yrs (Cap 5%) $ 401,641.03 5315 3620 Investors ARM adjusts every 3 months (Cap .5%) $ 453,196.22 5317 TSE ARM adjusts every 3 months (Cap .5%) $ 281,160.85 5323 Lembi LLC ARM adjusts every 5 Yrs (Cap 5%) $ 190,954.58 5327 Beta Rho Alumni Assoc 9.00% $ 947,421.50 6511 Robert Kreutzer 10% $ 139,147.47 6801 Gresham Transfer 10.50% $ 129,793.96 7471 Frank Light 10% $ 28,330.12 8762 Governor Hotel Assoc 9% $ 9,385,444.15 8851 Miller/Brams 10.25% $ 195,706.95 9241 Forum Investors 9.75% $ 1,900,996.07 9284 Forest Park Estates Prime + 5%, adjusted quarterly $ 137,923.56 9621 Crossings Aviation 12% $ 1,219,662.64 Subtotal RE Mortgages $ 22,900,193.88 29 OTHER 9842 Yellowstone Theatre 8.00% $ 3,227,124.18 7931 Governor Hotel 0% $ 6,285,866.90 2462 Astoria Metals/Doug Watson 8.25% $ 43,838.45 Subtotal Other $ 9,556,829.53 3 AUTO 3388 Brooks Financial #7 Prime + 3% $ 4,921,780.45 3440 Beacon Financial #7 Prime + 3% $ 3,366,668.59 3745 Beacon Financial #5 Prime + 3% $ 3,375,116.02 4215 Beacon Financial #3 Prime + 3% $ 3,795,496.07 4618 Beacon Financial #4 Prime + 3% $ 10,559,003.15 5142 Beacon Financial #6 Prime + 3% $ 3,377,391.60 5208 Creditmart Prime + 3.75% $ 3,265,219.18 5273 Creditmart #2 Prime + 3.75% $ 539,871.46 5283 Creditmart #3 Prime + 3.75% $ 430,457.38 5299 Creditmart #4 Prime + 3.75% $ 554,521.79 5305 Creditmart #5 Prime + 3.75% $ 725,935.56 5307 Creditmart #6 Prime + 3.75% $ 898,800.93 5309 Creditmart #7 Prime + 3.75% $ 1,037,978.37 5325 Brooks Financial #1 Prime + 3% $ 3,338,616.04 5329 Brooks Financial #2 Prime + 3% $ 4,026,636.67 5335 Brooks Financial #3 Prime + 3% $ 3,580,268.83 5337 Brooks Financial #4 Prime + 3% $ 3,808,956.93 5339 Brooks Financial #5 Prime + 3% $ 4,261,044.24 5347 Brooks Financial #6 Prime + 3% $ 3,717,851.73 5351 Beacon Financial #1 Prime + 3% $ 11,931,262.39 Subtotal Other $ 71,512,877.38 TOTAL $183,023,629.26
SCHEDULE I ERRATA TO SCHEDULE 1 TO OVERBID PURCHASE AGREEMENT BY AND ---------------------------------------------------------- BETWEEN MTGLQ INVESTORS, LP AND THOMAS F. LENNON, RECEIVER FOR CAPITAL ---------------------------------------------------------------------- CONSULTANTS, LLC ---------------- Subsequent to the execution of the definitive Purchase and Sale Agreement By and Between MTGLQ Investors, LP, a limited partnership, and Thomas F. Lennon, Receiver for Capital Consultants, LLC, an Oregon limited liability company, et al. dated October 31, 2001 ("Purchase Agreement"), it was discovered that the following immaterial discrepancies exist between the loan balances as of September 15, 2001 reflected in Schedule I to the Purchase Agreement and the actual loan balances as of that date: Real Estate Mortgages: - --------------------- (1) Loan No.: 4716 Borrower: Stephen Shohet Schedule I reflects that the ARM adjusts every six (6) months as of September 15, 2001. In fact, the ARM adjusts every three (3) months. (2) Loan No.: 5291 Borrower: Parkway Properties Schedule I reflects a loan balance as of September 15, 2001 of $440,479.43. In fact, the loan was paid off in August 2001. The balance at date of payoff was $440,145.32. (3) Loan No.: 6801 Borrower: Gresham Transfer Schedule I reflects a loan balance as of September 15, 2001 of $129,793.96. In fact, the loan was paid off in August 2001. The balance at date of payoff was $127,152.93. Private Debt - ------------ (1) Loan No.: 5269 Borrower: Oregon Auto Center II Schedule I reflects a loan balance as of September 15, 2001 of $973,708.52. In fact, the loan balance as of that date was $973,658.52. ERRATA TO SCHEDULE I SCHEDULE II BUYER SHALL ACQUIRE ALL OF SELLER'S, CCL'S OR INVESTORS' RIGHT, TITLE AND INTEREST IN THE FOLLOWING ENTITIES, WHETHER SUCH INTEREST IS BY WAY OF COMMON STOCK, PREFERRED STOCK, MEMBERSHIP INTEREST, PARTNERSHIP INTEREST, WARRANT OR OTHERWISE: 1. A-FEM MEDICAL CORPORATION 2. EOH SALEM HOLDING LLC 3. EOH CORVALLIS HOLDING LLC 4. EOH PORTLAND HOLDING LLC 5. AMERICAN PHYSICIANS NETWORK 6. RESQNET.COM INC. 7. EVI CORPORATION 8. EVI CORPORATION 9. EXPERT SYSTEMS PUBLISHING 10. PROFESSIONAL SPORTS & ENTERTAINMENT ASSOCIATION OF TENNESSEE, L.P. SCHEDULE II EXHIBIT A --------- ALLONGE This allonge is made with respect to the following described promissory note: Original Principal Amount: $ Dated: Named Payee(s): Maker(s): Pay to the order of __________________________, WITHOUT RECOURSE AND WITHOUT REPRESENTATION OR WARRANTY OF ANY NATURE, EXPRESS OR IMPLIED, EXCEPT AS SET FORTH (IF AT ALL) IN THE PURCHASE AND SALE AGREEMENT DATED ____________________, BETWEEN THOMAS F. LENNON, RECEIVER OF CAPITAL CONSULTANTS, LLC, AN OREGON LIMITED LIABILITY COMPANY IN THE CASES OF SECURITIES AND EXCHANGE ----------------------- COMMISSION V. CAPITAL CONSULTANTS, LLC, ET. AL. (CASE NO. 00-1290-KI) AND ELAINE - ----------------------------------------------- ------ L. CHAO, SECRETARY OF DEPARTMENT OF LABOR V. CAPITAL CONSULTANTS, LLC, ET. AL. - ------------------------------------------------------------------------------ (CASE NO. 00-1291-KI) PENDING IN THE UNITED STATES DISTRICT COURT, DISTRICT OF OREGON, AS SELLER, AND MTGLQ INVESTORS, LP, AS BUYER. Dated:____________________ CAPITAL CONSULTANTS, LLC, an Oregon limited liability company By: ---------------------------------- Name: Thomas F. Lennon Title: Receiver EXHIBIT A EXHIBIT B --------- ASSIGNMENT ---------- Thomas F. Lennon, Receiver of Capital Consultants, LLC, an Oregon limited liability company in the cases of Securities and Exchange Commission v. ------------------------------------- Capital Consultants, LLC, et. al. (Case No. 00-1290-KI) and Elaine L. Chao, - --------------------------------- --------------- Secretary of Department of Labor v. Capital Consultants, LLC, et. al. (Case No. - --------------------------------------------------------------------- 00-1291-KI) pending in the United States District Court, District of Oregon ("Assignor"), in consideration of Ten Dollars ($10.00) and other valuable consideration (the receipt and sufficiency of which are acknowledged), hereby sells, grants, assigns, transfers and conveys to MTLGQ Investors, LP ("Assignee"), all of Assignor's right, title and interest, if any (whether now owned or hereafter acquired), in, to and under the following described properties, rights and interests: (a) the Loans; (b) the Documents; (c) all of Assignor's rights and privileges available under the Loans and the Documents on and after the Closing Date; and (d) all amounts owing to Assignor as of the Closing Date under the Loans and the Documents (regardless of whether such amounts are then due or payable), including without limitation, all accrued and unpaid interest, fees and costs. The capitalized terms used above have the meanings set forth below: "Closing Date" means _____________. ------------ "Loans" means collectively all of the loans and other ----- indebtedness referred to in Schedule I. "Documents" means with respect to each of the Loans: (1) all --------- written contracts, agreements, instruments and documents relating to such Loan; (2) all written security agreements, pledge agreements, financing statements, mortgages, deeds of trust, assignments of leases and/or rents, and other writings creating, evidencing or perfecting liens, security interests, pledges, hypothecations or other encumbrances securing such Loan; (3) all written guaranties of or indemnification agreements relating to such Loan; (4) all certificates of title, insurance policies, stock certificates, certificates of deposit, certificates of membership interests, certificates of partnership interests and other agreements, instruments or documents securing such Loan; (5) all other collateral in the possession of Assignor securing such Loan; (6) all written disbursement and payment histories relating to such Loan; and (7) all written amendments, assignments, extensions and reinstatements of and all supplements to any of the items listed in (1) through (4) above. This General Assignment is made WITHOUT RECOURSE AND WITHOUT REPRESENTATION OR WARRANTY OF ANY NATURE, EXPRESS OR IMPLIED, EXCEPT AS SET FORTH (IF AT ALL) IN THE PURCHASE AND SALE AGREEMENT DATED _____________ ___, 200_, BETWEEN THOMAS F. LENNON, RECEIVER OF CAPITAL CONSULTANTS, LLC, AN OREGON LIMITED LIABILITY COMPANY IN THE CASES OF SECURITIES AND EXCHANGE COMMISSION V. ------------------------------------- CAPITAL CONSULTANTS, LLC, ET. AL. (CASE NO. 00-1290-KI) AND ELAINE L. CHAO, - --------------------------------- --------------- SECRETARY OF DEPARTMENT OF LABOR V. CAPITAL CONSULTANTS, LLC, ET. AL. (CASE NO. - --------------------------------------------------------------------- 00- EXHIBIT B 1291-KI) PENDING IN THE UNITED STATES DISTRICT COURT, DISTRICT OF OREGON, AS SELLER, AND _________________________, AS BUYER. IN WITNESS WHEREOF, Assignor has executed and delivered this General Assignment. Dated:____________________ CAPITAL CONSULTANTS, LLC, an Oregon limited liability company By: ----------------------------------- Name: Thomas F. Lennon Title: Receiver EXHIBIT B EXHIBIT C --------- [TO BE MODIFIED AS NECESSARY BASED UPON RECORDING REQUIREMENTS OF STATE WHERE THE PROPERTY IS LOCATED] RECORDING REQUESTED BY AND PLEASE RETURN TO: ______________________ ______________________ ______________________ ______________________ ________________________________________________________________________________ This Space For Recording Office Use Only ASSIGNMENT Thomas F. Lennon, Receiver of Capital Consultants, LLC, an Oregon limited liability company in the cases of Securities and Exchange Commission v. ------------------------------------- Capital Consultants, LLC, et. al. (Case No. 00-1290-KI) and Elaine L. Chao, - -------------------------------- --------------- Secretary of Department of Labor v. Capital Consultants, LLC, et. al. (Case No. - -------------------------------------------------------------------- 00-1291-KI) pending in the United States District Court, District of Oregon ("Assignor"), in consideration of Ten Dollars ($10.00) and other valuable consideration, the receipt and sufficiency of which are acknowledged, hereby sells, grants, assigns, transfers and conveys to ___________________ ("Assignee"), with a mailing address at _____________________________________, Attn: ________________________, all of Assignor's right, title and interest, if any, now owned or hereafter acquired, in, to and under the following described mortgage, deed of trust, collateral assignment, other encumbrance or subordination agreement (as applicable): [insert description of instrument, including recording information] as amended, assigned and/or supplemented by the following described instrument(s): [insert description of instrument, including recording information] To have and to hold unto Assignee, its successor and assigns forever. This Assignment is made WITHOUT RECOURSE AND WITHOUT REPRESENTATION OR WARRANTY OF ANY NATURE, EXPRESS OR IMPLIED, EXCEPT AS SET FORTH (IF AT ALL) IN THE PURCHASE AND SALE AGREEMENT DATED __________________, BETWEEN THOMAS F. LENNON, RECEIVER OF CAPITAL CONSULTANTS, LLC, AN OREGON LIMITED LIABILITY COMPANY IN THE CASES OF SECURITIES AND EXCHANGE COMMISSION V. CAPITAL --------------------------------------------- CONSULTANTS, LLC, ET. AL. (CASE NO. 00-1290-KI) AND ELAINE L. CHAO, SECRETARY OF - ------------------------ -------------------------------- EXHIBIT C DEPARTMENT OF LABOR V. CAPITAL CONSULTANTS, LLC, ET. AL. (CASE NO. 00-1291-KI) - ------------------------------------------------------- PENDING IN THE UNITED STATES DISTRICT COURT, DISTRICT OF OREGON, AS SELLER, AND _____________________________, AS BUYER. IN WITNESS WHEREOF, Assignor has executed and delivered this Assignment. Dated _______________. CAPITAL CONSULTANTS, LLC, an Oregon limited liability company Witness (if required): By:____________________________ Name: Thomas F. Lennon ___________________________ Title: Receiver EXHIBIT C STATE OF _______________ ) ) ss. COUNTY OF ______________ ) On ______________________, before me, ______________________, a Notary Public in and for said state, personally appeared Thomas F. Lennon, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. ___________________________________ Notary Public in and for said State (SEAL) EXHIBIT C EXHIBIT D [letterhead of Seller] [date] [name and address of debtor] Re: Loan evidenced by a $__________ promissory note dated _________, made payable to the order of ____________________ by ___________________, [and held by ______________________________. Dear [name of debtor]: ___________________________, has transferred all of its right, title and interest (if any) in and to the above referenced promissory note and all collateral for this note to _____________________. After your receipt of this notice, you should send all payments with respect to this loan as follows: _________________________ _________________________ _________________________ Any questions that you have should be addressed to [insert name, address and telephone number of Buyer's contact person]. Sincerely yours, [name] [title] EXHIBIT D EXHIBIT E --------- FORM OF SALE ORDER EXHIBIT E SCHEDULE OF ORIGINAL LOAN DOCUMENTS PURSUANT TO SECTION 6.2(11) OF THAT CERTAIN OVERBID PURCHASE CONTRACT DATED JANUARY 24, 2002 Loan Name: Cascade General, Inc. - Loan No. 2512 - ------------------------------------------------ . Promissory Note dated 4/6/98 in the amount of $2,000,000. (Supercedes and replaces the Note dated 3/25/97) . Promissory Note dated 3/25/97 in the amount of $13,645,000. (Amends and restates the Note dated 10/21/94) . Promissory Note dated 10/21/94 in the amount of $8,645,000. . Guaranty dated 10/21/94 by Ponderosa Acquisition Corporation . Stock Pledge Agreement dated 10/21/94 by Ponderosa Acquisition Corporation . Collateral Escrow Deposit Agreement dated 10/21/94 . Invoice Confirmation Agreement dated 10/94 between Cascade General, Inc., Capital and Yergen and Meyer . Line of Credit Partial Subordination Agreement dated 3/20/95 . Security Agreement and Collateral Assignment of Accounts Receivable Contract Rights and Claims Proceeds dated 10/21/94 . Amended Security Agreement and Collateral Assignment of Contract Rights and Claims Proceeds dated 4/6/98 . Amendment to Loan Documents (Cascade General 1998 Note) dated 8/15/01 . Fifth Loan Modification Agreement (Cascade General Insured Line of Credit) dated 4/6/98 . Fourth Loan Modification Agreement dated 8/6/97 . Third Amendment to Loan Documents dated 3/25/97 . Second Loan Modification Agreement dated 8/16/95 . Loan Modification Agreement dated 3/20/95 . Loan Agreement Accounts Receivable Financing dated 10/21/94 Loan Name: Azumano Travel, Inc. and Pacific Gateway, Inc. - Loan No. 2551 - ------------------------------------------------------------------------- . Promissory Note dated 12/23/94 in the amount of $1,200,000 . Loan Agreement dated 12/23/94 . Security Agreement and Stock Pledge dated 2/3/97 by Azumano Travel Service, Inc. (formerly known as Azumano Travel, Inc.) . Security Agreement and Stock Pledge dated 12/23/94 by Azumano Travel Inc. . Security Agreement and Stock Pledge dated 12/23/94 by Azumano Holding, Inc. . Confirmation of Guarantee dated 8/31/98 by Sho Dozono . Confirmation of Guarantee dated 3/13/98 by Sho Dozono . Confirmation of Guarantee dated 8/16/97 by Sho Dozono . Confirmation of Guarantee dated 2/3/97 by Sho Dozono . Confirmation of Guaranty dated 3/15/95 by Sho Dozono . Guarantee dated 12/23/94 by Sho Dozono . Stock Certificate No. 1 for 100 shares of Pacific Gateway, Inc. and assignment endorsed in blank dated 12/23/94 . Stock Certificate No. 15 for 333.33 shares of Azumano Travel Service, Inc. and assignment endorsed in blank dated 2/3/97 . Stock Certificate No. 1 for 1,000 shares of Azumano Travel, Inc. and assignment endorsed in blank dated 12/23/94 . Sixth Amendment to Loan Documents dated 8/31/98 . Fifth Amendment to Loan Documents dated 3/13/98 . Fourth Amendment to Loan Documents dated 8/16/97 . Third Amendment to Loan Documents dated 5/5/97 . Second Amendment to Loan Documents dated 2/3/97 . First Amendment to Loan Documents dated 3/15/95 (2) Loan Name: Homer G. Williams - Loan No. 3002 - --------------------------------------------- . Promissory Note dated 9/29/95 in the amount of $1,050,000 . First Amendment to Loan Documents dated 3/25/97 . Second Amendment to Loan Documents dated 3/5/98 . Assignment and Security Agreement dated 9/29/95 Loan Name: Azumano Travel Service, Inc., Pacific Gateway, Inc., and Away Travel - -------------------------------------------------------------------------------- Service, Inc. - Loan No. 3092 - ----------------------------- . Promissory Note dated 3/31/00 in the amount of $1,245,000 (amends and restates Note dated 11/29/95) . Promissory Note dated 11/29/95 in the amount of $400,000 . Loan and Security Agreement dated 3/31/00 . Confirmation of Amended and Restated Guaranty dated 10/30/01 by Sho Dozono and Loen Dozono . Confirmation of Amended and Restated Guaranty dated 3/30/01 by Sho Dozono and Loen Dozono . Amended and Restated Guaranty by Sho Dozono and Loen Dozono dated 3/31/00 . Amended and Restated Guaranty by Sho Dozono dated 7/8/98 . Confirmation of Guarantee dated 2/3/97 by Sho Dozono . Confirmation of Guarantee dated 10/8/96 by Sho Dozono . Guarantee dated 11/29/95 by Sho Dozono . Limited Power of Attorney dated 3/31/00 . Escrow Deposit Agreement dated 3/31/00 . Escrow Deposit Agreement dated 8/26/99 . Assignment of Certificate of Deposit dated 11/29/95 . Security Agreement, Assignment of Contract Rights and Receivables dated 11/29/95 . Notification Letter of Union Bank of CA dated 4/19/00 . CD (expired) from Bank of America . First Amendment to Loan Documents dated 10/8/96 . Second Amendment to Loan Documents dated 2/3/97 . Third Amendment to Loan Documents dated 7/8/98 . Fourth Amendment to Loan Documents dated 3/30/01 . Fifth Amendment to Loan Documents dated 10/30/01 Loan Name: Rest-Haven Memorial Association - Loan No. 3561 - ----------------------------------------------------------- . Promissory Note dated 7/31/96 in the amount of $500,000 . Guarantee dated 7/31/96 by Charles M.B. Wiper, III and Charles Wiper, Inc. . Security Agreement dated 7/31/96 . Line of Credit Trust Deed and Security Agreement dated 7/31/96 Loan Name: Homer G. Williams - Loan No. 3671 - --------------------------------------------- . Demand Note dated 6/21/96 in the amount of $600,000 . Security Agreement dated 6/21/96 Loan Name: Lovejoy Center, Incorporated - Loan No. 5267 - -------------------------------------------------------- . Promissory Note dated 8/13/98 in the amount of $610,000 . Deed of Trust, Security Agreement, Assignment of Rents and Fixture Filing dated 8/13/98 . Environmental Indemnity dated 8/13/98 . Memorandum regarding Insurance dated 8/13/98 . Guaranty dated 8/13/98 by Kim Hutchinson, and Trustees of the Helen E. Hutchinson Support Trust . Loan Agreement dated 8/28/98 . Security Agreement dated 8/28/98 . Original Title Policy dated 8/14/98 Loan Name: Glen Grodem - Loan No. 8915 - --------------------------------------- . Promissory Note dated 11/20 98 in the amount of $100,000 Loan Name: Franklin Piacentini and Rembold Trusts, Inc. - Loan No. 8916 - ------------------------------------------------------------------------ . Promissory Note dated 11/24/98 in the amount of $675,000 . Notes Promissory Note dated 10/6/98 in the amount of $1,000,000 between Joseph E. Weston ("Borrower") and Franklin D. Piacentini ("Lender") . Guaranty Notes Promissory Note ($1M) from Weston Holding Co., L.L.C. in favor of Franklin Piacentini . Security Agreement: General Pledge dated 11/24/98 . Settlement Agreement dated 11/24/98 CREDITMART - MASTER LOAN DOCUMENTS - ---------------------------------- . Pledge and Security Agreement dated 5/15/98 . Servicing Agreement dated 5/15/98 . Purchase Agreement dated 5/15/98 . Master Loan and Security Agreement dated 5/15/98 . Custodian Agreement with Bank One Trust dated 6/19/98 . Letter Amendment to Custodian Agreement with Bank Trust . Custodian Agreement with Hamilton Bank dated 5/15/98 . Stock Power (Assignment separate from Certificate) dated 5/15/98 signed by Kenye Echtenthal . Stock Power (Assignment separate from Certificate) dated 5/15/98 signed by Norman L. Madan . Stock Power (Assignment separate from Certificate) dated 5/15/98 signed by Anne Byer . Stock Power (Assignment separate from Certificate) dated 5/15/98 signed by Timothy B. Gamwell . Stock Certificate No. 7 for 25 shares of Florida Auto Finance Corp. . Stock Certificate No. 8 for 6.25 shares of Florida Auto Finance Corp . Stock Certificate No. 4 for 12 1/2shares of Florida Auto Finance Corp . Stock Certificate No. 9 for 6.25 shares of Florida Auto Finance Corp Loan Name: Creditmart, Inc. - Loan No. 5208 - ------------------------------------------- . Promissory Note dated 5/15/98 in the amount of $8,591,000 . Guaranty dated 5/15/98 by Norman L. Madan, Anne Byer, Kenye Echtenthal and Timothy B. Gamwell . Seller's Certificate dated 5/15/98 . Borrower's Certificate dated 5/15/98 . Escrow Deposit Agreement dated 7/26/99 . Assignment dated 5/15/98 Loan Name: Creditmart, Inc. - Loan No. 5273 - ------------------------------------------- . Promissory Note dated 9/30/98 in the amount of $1,412,000 . Confirmation of Guaranty and Stock Pledge dated 9/30/98 . Security Agreement dated 9/30/98 . Assignment dated 9/28/98 . Borrower's Certificate dated 9/28/98 . Seller's Certificate dated 9/28/98 Loan Name: Creditmart, Inc. - Loan No. 5283 - ------------------------------------------- . Promissory Note dated 11/5/98 in the amount of $876,000 . Confirmation of Guaranty and Stock Pledge dated 11/5/98 . Security Agreement dated 11/5/98 . Assignment dated 11/4/98 . Borrower's Certificate dated 11/5/98 Loan Name: Creditmart, Inc. - Loan No. 5299 - ------------------------------------------- . Promissory Note dated 12/2/98 in the amount of $1,550,000 . Confirmation of Guaranty and Stock Pledge dated 12/2/98 . Security Agreement dated 12/2/98 . Assignment dated 12/1/98 . Borrower's Certificate dated 12/2/98 . Seller's Certificate dated 12/2/98 Loan Name: Creditmart, Inc. - Loan No. 5305 - ------------------------------------------- . Promissory Note dated 1/13/99 in the amount of $1,419,000 . Confirmation of Guaranty and Stock Pledge dated 1/13/99 . Security Agreement dated 1/13/99 . Assignment dated 1/13/99 . Seller's Certificate dated 1/13/99 Loan Name: Creditmart, Inc. - Loan No. 5307 - ------------------------------------------- . Promissory Note dated 2/15/99 in the amount of $1,626,000 . Confirmation of Guaranty and Stock Pledge dated 2/15/99 . Security Agreement dated 2/15/99 . Assignment dated 2/15/99 . Seller's Certificate dated 2/15/99 . Borrower's Certificate dated 2/15/99 Loan Name: Creditmart, Inc. - Loan No. 5309 - ------------------------------------------- . Promissory Note dated 3/22/99 in the amount of $1,772,000 . Confirmation of Guaranty and Stock Pledge dated 3/22/99 . Security Agreement dated 3/22/99 . Assignment dated 3/22/99 . Seller's Certificate dated 3/22/99 . Borrower's Certificate dated 3/22/99 Loan Name: Oregon Auto Center, Inc. - Loan #4802 - ------------------------------------------------- . Secured Promissory Note dated August 1, 1997 in the amount of $2,000,000 . First Amendment to Loan Documents dated June 18, 1999 . Loan and Security Agreement dated August 1, 1997 . Escrow deposit Agreement (Cash Collateral Account) dated June 6, 2000 . Escrow deposit Agreement dated August 1, 1997 . Lockbox Agreement dated June 8, 1999 . Lockbox Agreement dated August 1, 1997 . First Amendment to Lockbox Agreement and Escrow deposit Agreement dated April 9, 1998 . Amended and Restated Guaranty dated 8/1/00 by Reza Lankarani, Farahnaz Lankaranifard, Ali Mehkikhan, Deena Lyn Mehdikhan, Brian S. Stanislowski, Luann Stanislowski, Oregon Auto Center II, Inc. and ASR L.L.C. . Guaranty dated June 18, 1999 by Oregon Auto Center II, Inc. and ASR L.L.C. . Confirmation of Guaranty dated June 18, 1999 by Ali Mehkikhan, Reza Lankarani and Brian Stanislowski . Guaranty dated August 1, 1997 by Ali R. Mehdikhan, Brian Scott Stanislowski, Gholamreza Lankaranifard . Limited Power of Attorney dated August 1, 1997 . Stock Power (Assignment Separate from Certificate) dated June 18, 1999 signed by Brian S. Stanislowski . Stock Certificate #10 for 25,000 shares of Oregon Auto Center, Inc. . Stock Power (Assignment Separate from Certificate) dated June 18, 1999 signed by Reza Lankarani . Stock Certificate #9 for 25,000 shares of Oregon Auto Center, Inc. . Stock Power (Assignment Separate from Certificate) dated June 18, 1999 signed by Ali Mehdikhan . Stock Certificate #8 for 50,000 share of Oregon Auto Center, Inc . Pledge and Security Agreement dated June 18, 1999 Loan Name - Oregon Auto Center II, Inc. - Loan #5269 - ----------------------------------------------------- Promissory Note dated August 28, 1998 in the amount of $1,000,000 . Stock Power(Assignment Separate from Certificate) dated August 28, 1998 signed by Brian S. Stanislowski . Stock Certificate #2 for 2,250 shares of Oregon Auto Center II, Inc. . Stock Power (Assignment Separate from Certificate) dated August 28, 1998 signed by Reza Lankarani . Stock Certificate #3 for 2,250 shares of Oregon Auto Center II, Inc. . Stock Power (Assignment Separate from Certificate) dated August 28, 1998 signed by Ali Mehdikhan . Stock Certificate #1 for 4,500 share of Oregon Auto Center II, Inc . Stock Power (Assignment Separate from Certificate) dated August 28, 1998 signed by Madjid Okhovat . Stock Certificate #4 for 1,000 share of Oregon Auto Center II, Inc . Guaranty dated August 28, 1998 by Ali Mehkikhan, Gholamreza Lankaranifard, Brian S. Stanislowski, Madjid Okhovat and Oregon Auto Center, Inc. . Pledge and Security Agreement dated August 28, 1998 . Loan Agreement dated August 28, 1998 Loan Name - Hamlin Gourmet Foods, Inc. - Loan #5098 - --------------------------------------------------- . Amended and Restated Promissory Note dated September 29, 1999 in the amount of $200,000 (amends and restates Note dated 12/30/97) . Promissory Note dated December 30, 1997 for $200,000 . Share Certificate Transfer Endorsement (Assignment Separate from Certificate) dated September 29, 1999 signed by Dennis Hamlin . Stock Certificate #2 for 100 share of Hamlin Gourmet Foods, Inc . Warrant to Purchase Common Stock (No. 2) dated September 29, 1999 . Warrant to Purchase Common Stock (No. 1) dated December 30, 1997 . First Amendment to Loan Documents dated September 29, 1999 . Put Agreement dated September 29, 1999 . Employment Agreement for Dennis E. Hamlin dated September 29, 1999 . Stock Pledge Agreement dated December 30, 1997 . Guarantee dated December 30, 1997 by Dennis E. Hamlin . Registration Rights Agreement dated December 30, 1997 . Security Agreement dated December 30, 1997 . Loan Agreement dated December 30, 1997 . Stockholders Affidavit of Lost Certificate by Dennis E. Hamlin. . Consent Resolutions of Sole shareholder and Director of Hamlin Mineral Properties Inc., by Dennis E. Hamlin dated 12/30/97. Loan Name - A & G Precision Parts - Loan #5265 - ---------------------------------------------- . Promissory Note dated August 17, 1998 in the amount of $4,120,000 . Loan Agreement dated August 17, 1998 . Purchase Agreement dated August 14, 1998 . Assignment of Purchase Agreement dated August 17, 1998 . Assignment and Security Agreement dated August 17, 1998 . Security Agreement dated August 17, 1998 . Guaranty dated August 17, 1998 by John M. Brazier, Walter M. Glass, Jr., John P. Raynor, John M. Probandt and Dennis P. Walker . Escrow Deposit Agreement dated August 31, 1999 . Consent and Acknowledgment dated 8/14/98 . Share Certificate Transfer Endorsement (Assignment separate from Certificate) dated August 14, 1998 signed by John M. Probandt . Stock certificate #001 for 2,000 shares of The John M. Probandt Company, LLC. . Share Certificate Transfer Endorsement (Assignment separate from Certificate) dated August 15, 1998 signed by John P. Raynor . Stock certificate #002 for 2,000 shares of The John M. Probandt Company, LLC. . Share Certificate Transfer Endorsement (Assignment separate from Certificate) dated August 18, 1998 signed by John M. Brazier . Stock certificate #003 for 2,000 shares of The John M. Probandt Company, LLC. . Share Certificate Transfer Endorsement (Assignment separate from Certificate) dated August 15, 1998 signed by Walter M. Glass Jr. . Stock certificate #004 for 2,000 shares of The John M. Probandt Company, LLC. . Share Certificate Transfer Endorsement (Assignment separate from Certificate) dated August 15, 1998 signed by Dennis P. Walker . Stock certificate #005 for 2,000 shares of The John M. Probandt Company, LLC. Loan Name: Broken Top Associates, L.L.C. - Loan No. 4072 - -------------------------------------------------------- . Promissory Note dated 7/1/97 in the amount of $5,500,000.00. . Guaranty dated 7/1/97 by Homer G. Williams, Joseph E. Weston, Weston Holding Company, L.L.C., and HGW, Inc. . Loan Agreement dated 7/1/97 . Pledge And Assignment For Security dated 7/1/97 . BTC and BTD Assignment and Security Agreement dated 7/1/97 . BTA Assignment and Security Agreement dated 7/1/97 . Assignment of Purchase Agreement dated 7/1/97 Loan Name: Homer Williams - Loan No. 4794 - ----------------------------------------- . Promissory Note dated 7/11/97 in the amount of $2,400,000.00. Loan Name: Pacific States Health & Welfare Trust (formerly known as Teamsters - ----------------------------------------------------------------------------- Misc Employees Health & Welfare Trust Fund) - Loan No. 4831 - ----------------------------------------------------------- . Promissory Note dated 8/29/97 in the amount of $1,765,000.00. . First Amendment to Loan Documents dated 3/30/98 . Second Amendment to Loan Document dated 12/17/98 . Escrow Deposit Agreement dated 2/2/00 . Loan and Security Agreement dated 8/29/97 . Collection Escrow Agreement Loan Name: Thomas Schott/James Reinmuth - Loan No. 5173 - ------------------------------------------------------- . Promissory Note dated 2/19/98 in the amount of $1,200,000.00. . First Amendment to Loan Agreement dated 2/19/98 . Loan Agreement dated 1/29/98 . Certificate of Borrowers dated 2/19/98 Loan Name: Beta Rho Alumni Association - Loan No. 5327 - ------------------------------------------------------ . Promissory Note dated 7/16/99 in the amount of $848,716.00. . Loan Modification Agreement dated 10/28/99 . Modification of Deed of Trust dated 10/28/99 . Commercial Deed of Trust and Security Agreement with Assignment of Rents and Fixture Filing dated 7/16/99 . Subordination Agreement dated 7/16/99 . Environmental Agreement dated 7/16/99 . Assignment of Plans and Specifications dated 7/16/98 . Assignment of Construction Contract dated 7/16/99 . Assignment of Permits, Licenses, and Approvals dated 7/16/99 . Construction Loan Agreement dated 7/16/99 . Policy of Title Insurance dated 7/16/99 Loan Name: Yellowstone Theatre and Film Venture- Loan No. 9842 - -------------------------------------------------------------- . Promissory Note dated 7/30/93 in the amount of $3,665,000.00. . Deed of Trust and Security Agreement dated 7/30/93 . Hazardous Substance Indemnity dated 7/30/93 . Guaranty dated 7/30/93 by Jonathan D. Stern and Lewis S. Robinson III . Security Agreement, Assignment of Contract Rights and Receivables dated 7/30/93 . Assignment of Contracts dated 7/30/93 . Assignment of Engineer's Agreement dated 7/30/93 . Assignment of Construction Contract dated 7/30/93 . Assignment of Architect's Agreement and Plans dated 7/30/93 . Loan Agreement dated 7/30/93 . License Agreement dated 7/30/93 . Two (2) Side Letter Agreements dated 8/11/93 . Title Policy Loan Name: Forest Park Estate - Loan No. 9284 - ----------------------------------------------- . Promissory Note dated 3/13/92 in the amount of $1,100,000 . Confirmation of Guaranty dated 9/25/98 by Homer G. Williams and HGW, Inc . Confirmation of Guaranty dated 4/11/96 by Homer G. Williams and HGW, Inc. . Confirmation of Guaranty dated 2/28/95 by Homer G. Williams . Guarantee dated 3/13/92 by Homer G. Williams and HGW, Inc. (2) . Environmental Indemnity dated 6/7/95 . First Amendment to Loan Documents dated 2/28/95 . Second Amendment to Loan Documents dated 4/11/96 . Third Amendment to Loan Documents dated 9/25/98 . Second Amendment to Deed of Trust and Security Agreement dated 9/25/98 . Deed of Trust and Security Agreement dated 6/7/95 . Assignment for Security dated 3/13/92 (2) . Title Policy Loan Name: Frank Light - Loan No. 7471 - --------------------------------------- . Promissory Note dated 10/8/87 in the amount of $220,000 . First Amendment to Promissory Note dated 5/1/91 (2) . Confirmation of Guaranty dated 3/29/96 by Bill L. and Deanna L. McCabe . Assumption Agreement dated 9/7/95 . Assignment, Assumption and Consent dated 5/1/91 . Guarantee dated 5/1/91 by Bill L. and Deanna L. McCabe . First Amendment to Commercial Deed of Trust dated 5/1/91 . Commercial Deed of Trust and Security Agreement dated 10/8/87 . Title Policy Loan Name: Watershed Holdings, Inc. - Loan No. 3961 - ---------------------------------------------------- . Second Amended and Restated Promissory Note dated 9/8/98 in the amount of $4,500,000 . Shareholder Guaranty dated 9/7/98 by Maurice W. Gallarda . Shareholder Guaranty dated 9/8/98 by Thomas H. Schott . Shareholder Guaranty dated 9/8/98 by James E. Reinmuth . Perix Industries Warrant to Purchase Common Stock dated 9/8/98 . Perix Pledge and Assignment Agreement dated 9/8/98 . Watershed Pledge and Assignment Agreement dated 9/8/98 . Subsidiary Security Agreement dated 9/8/98 (Stealth) . Subsidiary Security Agreement dated 9/8/98 (Park) . Security Agreement dated 9/8/98 . Subsidiary Guaranty dated 9/8/98 by Stealth Industries, Inc. . Subsidiary Guaranty dated 9/8/98 by Park Environmental Corp. . Stock Assignment separate from Certificate dated 9/7/98 by Maurice W. Gallarda . Stock Assignment separate from Certificate dated 9/8/98 by Watershed Holdings, Inc. . Stock Certificate No. 6 for 100,000 shares of Park Environmental Corporation . Stock Certificate No. 7 for 5,500 shares of Park Environmental Corporation . Stock Certificate No. 8 for 5,500 shares of Park Environmental Corporation . Stock Assignment separate from Certificate dated 9/8/98 by Watershed Holdings Inc. . Stock Certificate No. 4 for 100,000 shares of Stealth Industries, Inc. . Stock Certificate No. 5 for 5,500 shares of Stealth Industries, Inc. . Stock Certificate No. 6 for 5,500 shares of Stealth Industries, Inc. . Stock Assignment separate from Certificate dated 9/8/98 by Perix Industries . Stock Certificate No. 20 for 1,000 shares of Watershed Holdings, Inc. . Stock Assignment separate from Certificate by Thomas H. Schott . Stock Certificate No. 265 for 400,000 shares of Perix Industries . Stock Assignment separate from Certificate by James E. Reinmuth . Stock Certificate No. 266 for 400,000 shares of Perix Industries . Shareholder Pledge and Assignment Agreement dated 9/8/98 - Schott . Shareholder Pledge and Assignment Agreement dated 9/8/98 - Reinmuth . Shareholder Pledge and Assignment Agreement dated 9/8/98 - Gallarda . Registration Rights Agreement dated 9/8/98 . Amended and Restated Loan Agreement dated 9/8/98 . Sierra Laboratories, Inc. Guaranty dated 12/16/96 . Guaranty - Gary Hall dated 12/13/96 . Guaranty - Richard Kenneth Forsyth dated 11/15/96 . Pledge of Shares - Watershed Holdings, Inc. dated 12/16/96 . Pledge of Shares - Gary H. Hall dated 12/96 . Pledge of Shares of Watershed - Perix Industries dated 9/8/98 . Warrant Agreement - 10% of Company dated 12/20/96 Note: File also contains the original documents, which were replaced by these documents Loan Name: Maurice W. Gallarda, James E. Reinmuth, Thomas H. Schott - Loan No. - ----------------------------------------------------------------------------- 3962 - ---- . Note and Voting Agreement dated 9/8/98 . Irrevocable Proxy dated 9/8/98 by Thomas H. Schott . Irrevocable Proxy dated 9/8/98 by James E. Reinmuth . Irrevocable Proxy dated 9/8/98 by Maurice W. Gallarda Loan Name: Astoria Metal Corporation/Douglas T. Watson - Loan No. 2462 - ---------------------------------------------------------------------- . Amended Promissory Note dated 5/7/97 in the amount of $100,000 . Second Loan Modification Agreement dated 5/7/97 . Settlement Agreement and Mutual Release dated 4/23/97 . Subordination Agreement dated 4/30/97 . Subordination Agreement dated 2/11/97 . Amended Security Agreement dated 5/7/97 . Assignment from CCL to 520 SW Yamhill dated 4/25/00 (CCL's collection entity) Loan Name: Brooks Financial LLC - MASTER LOAN DOCUMENTS - -------------------------------------------------------- . Master Loan and Security Agreement dated 6/4/99 . Guaranty dated 6/4/99 by Norman L. Madan, Anne Byer, Kenye Echtenthal and Timothy B. Gamwell . Amended and Restated Custodian Agreement dated 9/30/99 . Escrow Deposit Agreement dated 7/99 . Assignment and Security Agreement dated 6/4/99 . Unit Certificate Transfer Endorsement (Assignment separate from Certificate) dated 6/4/99 by Marie Durham . Unit Certificate Transfer Endorsement (Assignment separate from Certificate) dated 6/4/99 by Norman Madan . Unit Certificate Transfer Endorsement (Assignment separate from Certificate) dated 6/4/99 by Timothy B. Gamwell . Unit Certificate Transfer Endorsement (Assignment separate from Certificate) dated 6/4/99 by Kenye Echtenthal . Unit Certificate Transfer Endorsement (Assignment separate from Certificate) dated 6/4/99 by Anne Byer . Certificate No. 101 for 470 units of Brooks Financial LLC . Certificate No. 102 for 240 units of Brooks Financial LLC . Certificate No. 103 for 120 units of Brooks Financial LLC . Certificate No. 104 for 120 units of Brooks Financial LLC . Certificate No. 105 for 50 units of Brooks Financial LLC . Escrow Deposit Agreement dated 6/4/99 . Custodian Agreement with Bank One Trust Company dated 6/4/99 . Servicing Agreement (Furniture Financing Purchasing Agreement) dated 6/4/99 . Purchase Agreement (Furniture Financing Purchasing Agreement) dated 6/4/99 . Servicing Agreement (Motor Vehicle Financing Purchasing Agreement) dated 6/4/99 . Purchase Agreement (Motor Vehicle Financing Purchasing Agreement) dated 6/4/99 . Membership Certificate No. 001 for 600,000 units of Oxbow Capital 1999 Fund B, LLC dated 7/30/99 . Membership Certificate No. 002 for 526,800 units of Oxbow Capital 1999 Fund B, LLC dated 8/10/99 . Membership Certificate No. 003 for 73,200 units of Oxbow Capital 1999 Fund B, LLC dated 8/25/99 . Membership Certificate No. 004 for 600,000 units of Oxbow Capital 1999 Fund B, LLC dated 9/10/99 . Membership Certificate No. 005 for 600,000 units of Oxbow Capital 1999 Fund B, LLC dated 10/6/99 . Membership Certificate No. 006 for 755,700 units of Oxbow Capital 1999 Fund B, LLC dated 11/8/99 . Membership Certificate No. 007 for 800,000 units of Oxbow Capital 1999 Fund B, LLC dated 12/2/99 . Membership Certificate No. 008 for 150,000 units of Oxbow Capital 1999 Fund B, LLC dated 1/6/00 Loan Name: Brooks Financial LLC - Loan No. 5325 - ------------------------------------------------ . Promissory Note dated 6/4/99 in the amount of $4,390,000 . Assignment (Motor Vehicle Financing Purchasing Agreement) dated 6/4/99 . Assignment (Furniture Financing Purchasing Agreement) dated 6/4/99 . Seller's Certificate (Motor Vehicle Financing Purchasing Agreement) dated 6/4/99 . Seller's Certificate (Furniture Financing Purchasing Agreement) dated 6/99 Loan Name: Brooks Financial LLC - Loan No. 5329 - ------------------------------------------------ . Promissory Note dated 7/6/99 in the amount of $5,550,000 . Security Agreement dated 7/6/99 . Confirmation of Guaranty and Assignment dated 7/6/99 . Assignment of Put and Call Agreement and Security Agreement dated 7/7/99 . Consent and Acknowledgment dated [7/99] . Assignment (Motor Vehicle Financing Purchasing Agreement) dated 7/6/99 . Seller's Certificate (Motor Vehicle Financing Purchasing Agreement) dated 7/6/99 . Borrower's Certificate dated 7/6/99 Loan Name: Brooks Financial LLC - Loan No. 5335 - ------------------------------------------------ . Promissory Note dated 8/5/99 in the amount of $4,753,000 . Security Agreement dated 8/5/99 . Confirmation of Guaranty and Assignment dated 8/5/99 . Amended and Restated Assignment of Put and Call Agreement and Security Agreement dated 8/9/99 . Consent and Acknowledgment dated 8/9/99 . Assignment (Motor Vehicle Financing Purchasing Agreement) dated 8/5/99 . Seller's Certificate (Motor Vehicle Financing Purchasing Agreement) dated 8/5/99 . Borrower's Certificate dated 8/5/99 Loan Name: Brooks Financial LLC - Loan No. 5337 - ------------------------------------------------ . Promissory Note dated 9/3/99 in the amount of $5,569,000 . Security Agreement dated 9/3/99 . Confirmation of Guaranty and Assignment dated 9/3/99 . Confirmation of Assignment of Put and Call Agreement and Security Agreement dated 9/3/99 . Assignment (Motor Vehicle Financing Purchasing Agreement) dated 9/3/99 . Seller's Certificate (Motor Vehicle Financing Purchasing Agreement) dated 9/3/99 . Borrower's Certificate dated 9/3/99 Loan Name: Brooks Financial LLC - Loan No. 5339 - ------------------------------------------------ . Promissory Note dated 10/1/99 in the amount of $6,066,000 . Security Agreement dated 10/1/99 . Confirmation of Guaranty and Assignment dated 10/1/99 . Confirmation of Amended and Restated Assignment of Put and Call Agreement and Security Agreement dated 10/1/99 . Consent and Acknowledgment dated 10/1/99 . Consent and Acknowledgement dated [10/99] . Assignment (Motor Vehicle Financing Purchasing Agreement) dated 10/1/99 . Seller's Certificate (Motor Vehicle Financing Purchasing Agreement) dated 10/1/99 . Borrower's Certificate dated 10/1/99 Loan Name: Brooks Financial LLC - Loan No. 5347 - ------------------------------------------------ . Promissory Note dated 11/2/99 in the amount of $5,038,000 . Security Agreement dated 11/2/99 . Confirmation of Guaranty and Assignment dated 11/2/99 . Confirmation of Amended and Restated Assignment of Put and Call Agreement and Security Agreement dated 11/2/99 . Assignment (Motor Vehicle Financing Purchasing Agreement) dated 11/2/99 . Seller's Certificate (Motor Vehicle Financing Purchasing Agreement) dated 11/2/99 . Borrower's Certificate dated 11/2/99 Loan Name: Brooks Financial LLC - Loan No. 3388 - ------------------------------------------------ . Promissory Note dated 12/3/99 in the amount of $6,732,000 . Security Agreement dated 12/3/99 . Confirmation of Guaranty and Assignment dated 12/3/99 . Confirmation of Amended and Restated Assignment of Put and Call Agreement and Security Agreement dated 12/1/99 . Consent and Acknowledgment dated 12/1/99 . Assignment (Motor Vehicle Financing Purchasing Agreement) dated 12/3/99 . Borrower's Certificate dated 12/3/99 . Second Amendment to Put and Call Agreement dated 12/1/99 . Third Amendment to Put and Call Agreement dated 12/21/99 . Confirmation of Amended and Restated Assignment of Put and Call Agreement and Security Agreement dated 12/21/99 . Consent and Acknowledgement dated 12/21/99 Loan Name - Calafate Cayman Holdings, Inc - Loan #5321 - ------------------------------------------------------ . Amended and Restated Promissory Note effective as of May 5, 1999 in the amount of $6,350,000 . Amended and Restated Loan Agreement effective as of May 5, 1999 . Amended and Restated Guaranty effective as of May 5, 1999 by Foxglove, L.L.C., Trillium Corporation, David R. and Kay E. Syre and Calafate Forestal Limitada . Amended and Restated Assignment and Security Agreement effective May 5, 1999 . Amended and Restated Consent and Acknowledgement effective May 5, 1999 . Restated and Amended Lumber Purchase Agreement and Put Option dated May 5, 1999 . Amended and Restated Assignment of Lumber Purchase Agreement and Put Option effective 5/5/99 . Amended and Restated Escrow Deposit Agreement effective May 5, 1999 . Assignment Separate from Certificate by Trillium Corporation . Stock Certificate No. 001 for two (2) shares of Trillium Cayman Holdings (Brazil) . Borrower's Certificate dated 5/5/99 . Amended and Restated Escrow Deposit Agreement (Cash Collateral Account) effective 5/5/99 . Escrow Deposit Agreement (Cash Collateral Account) dated October 18, 1999 . Assignment of Contract dated 5/3/99 . Assignment of Timber Sale Agreement dated May 5, 1999 . Guaranty - Trillium Corp., David R. Syre, Kay E. Syre dated 5/5/99 . Guaranty - Foxglove LLC for Calafate Forestral Limitada dated 5/5/99 . Lumber Purchase Contract and Put Option with Foxglove LLC and Calafate Forestral Limitada Note: The file contains the original documents that were amended by the above documents Loan Name - Washington Alder - Loan #5251 - ----------------------------------------- . Promissory Note dated June 25, 1998 in the amount of $10,000,000 . First Amendment to Loan Documents dated June 7, 1999 . Loan Agreement dated June 25, 1998 . Guaranty dated October 23, 1998 with Susquehanna LLC . Guaranty dated 6/25/97 . Confirmation of Guaranty dated June 4, 1999 executed by Susquehanna LLC . Confirmation of Guaranty dated June 4, 1999 executed by Digger Mountain Forestry LLC, Dunes LLC, Lake Forest LLC, Michael E. Haglund, Melissa L. Haglund, Victor P. Musselman, Douglas L. Bean, Wesley W. Kirtley, Thomas F. Haley and Scott W. Horngren and acknowledged by Debra B. Musselman . Leasehold Deed of Trust, Security Agreement, Assignment of Rents and Fixture Filing dated June 25, 1998 . First Amendment to Leasehold Deed of Trust, Security Agreement, Assignment of Rents and Fixture Filing dated June 7, 1999 . Security Agreement dated June 25, 1998 . Assignment and Security Agreement dated June 25, 1998 . Escrow Deposit Agreement (Cash Collateral Account) dated August 20, 1999 . Consent to Leasehold Deed of Trust dated 6/25/98 . Consent to Amendment to Leasehold Deed of Trust dated 6/10/99 . Subordination Agreement dated June 25, 1998 . First Amendment to Subordination Agreement dated June 7, 1999 . Consent and Acknowledgement dated June 25, 1998 . Assignment and Security Agreement dated October 23, 1998 . Escrow Deposit Agreement dated June 8, 1999 . Lockbox Agreement dated June 8, 1999 . Assignment of Purchase Agreement dated June 25, 1998 . Purchase Agreement dated June 25, 1998 . Amendment to Washington Alder LLC Lumber Supply and Sales Agreement dated June 30, 1999 . Assignment of Lumber Supply and Sales Agreement dated June 7, 1999 . Assignment of Lumber Supply and Sales Agreement dated October 29, 19999 . Share Certificate Transfer Endorsement (Assignment separate from certificate) dated June 25, 1998 by Michael L. Knobel . Certificate No. 1 for 100,000 shares of Washington Alder LLC . Share Certificate Transfer Endorsement (Assignment separate from Certificate) dated October 23, 1998 signed by Susquehanna LLC . Certificate No. 11 for 97,733 shares of Washington Alder LLC . Share Certificate Transfer Endorsement (Assignment separate from Certificate) dated June 24, 1998 executed by Terry D. Rismoen . Certificate No 2 for 100,000 shares of Washington Alder LLC . Share Certificate Transfer Endorsement (Assignment separate from certificate) dated June 24, 1998 executed by Michael S. Persons . Certificate No. 3 for 100,000 shares of Washington Alder LLC. . Share Certificate Transfer Endorsement (Assignment separate from certificate) dated June 25, 1998 executed by Michael E. Haglund for Digger Mountain Forestry LLC . Certificate No. 5 for 162,892 shares of Washington Alder LLC . Share Certificate Transfer Endorsement (Assignment separate from certificate) dated June 25, 1998 executed by Douglas L. Bean . Certificate No 6 for 130,309 shares of Washington Alder LLC . Share Certificate Transfer Endorsement (Assignment separate from certificate) dated June 25, 1998 executed by Dunes, LLC . Certificate No 7 for 130,309 shares of Washington Alder LLC . Share Certificate Transfer Endorsement (Assignment separate from certificate) dated June 25, 1998 executed by LakeForest, LLC . Certificate No 8 for 97,733 shares of Washington Alder LLC . Share Certificate Transfer Endorsement (Assignment separate from certificate) dated June 25, 1998 executed by Scott W. Horngren . Certificate No. 10 for 28,593 shares of Washington Alder LLC . Various spousal consents . Intercreditor Agreement dated 10/26/98 . Title Policy Loan Name - Miller/Brams/Lyons - Loan No. 8851 - ---------------------------------------------- . Promissory Note dated April 15, 1991 in the amount of $1,012,500 . Trust Deed dated August 30, 1996 . Trust Deed dated 9/30/99 . Guarantee - dated April 15, 1991 with Corinne D. Miller . Guarantee - dated April 15, 1991 with John B. Brams . Guarantee - dated April 15, 1991 with Thomas S. Miller . Guarantee - dated April 15, 1991 with Peter B. Lyon, M.D. . Title Policies (2) Loan Name: Beacon Financial - MASTER LOAN DOCUMENTS - ---------------------------------------------------- . Guaranty dated 1/3/00 by Norman L. Madan, Anne Byer, Kenye Echtenthal and Timothy B. Gamwell . Master Loan and Security Agreement dated 1/3/00 . First Amendment to Master Loan and Security Agreement dated 2/9/00 . Unit Certificate Transfer Endorsement (Assignment separate from certificate) dated 1/3/00 signed by Marie Durham . Unit Certificate Transfer Endorsement (Assignment separate from certificate) dated 1/3/00 signed by Norman Madan . Unit Certificate Transfer Endorsement (Assignment separate from certificate) dated 1/3/00 signed by Timothy B. Gamwell . Unit Certificate Transfer Endorsement (Assignment separate from certificate) dated 1/3/00 signed by Kenye Echtenthal . Unit Certificate Transfer Endorsement (Assignment separate from certificate) dated 1/3/00 signed by Anne Byer . Certificate No. 101 for 120 units of Beacon Financial Group, LLC . Certificate No. 102 for 470 units of Beacon Financial Group, LLC . Certificate No. 103 for 120 units of Beacon Financial Group, LLC . Certificate No. 104 for 50 units of Beacon Financial Group, LLC . Certificate No. 105 for 240 units of Beacon Financial Group, LLC . Assignment and Security Agreement dated 1/3/00 . Escrow Deposit Agreement dated 1/3/00 . Addendum to Service Agreement (not dated) . Purchase Agreement (Motor Vehicle Financing Purchasing Agreement) dated 1/8/00 . Servicing Agreement (Motor Vehicle Financing Purchasing Agreement) dated 1/8/00 . Letter dated 4/20/00 from Beacon to Mellon United National Bank . Letter dated 1/11/00 from Beacon to Bank One . Custodian Agreement dated 1/8/00 Loan Name: Beacon Financial - Loan No. 5351 - -------------------------------------------- . Second Amended and Restated Promissory Note dated 5/16/00 in the amount of $13,437,000.00 (replaces Note dated 1/3/00 in amount of $8,107,000) . Amended and Restated Promissory Note dated 1/3/00 in the amount of $8,107,000 (replaces Note dated 1/3/00 in the amount of $1,955,000) . Promissory Note dated 1/3/00 in the amount of $1,955,000 . Confirmation of Guaranty and Assignment dated 5.16.00 . Confirmation of Guaranty and Assignment dated 1/3/00 . Assignment dated 2/9/00 . Assignment dated 5/11/00 . Borrower's Certificate dated 5/16/00 . Seller's Certificate (Motor Vehicle Financing Purchasing Agreement) dated 5/16/00 . Borrower's Certificate dated 2/9/00 . Seller's Certificate (Motor Vehicle Financing Purchasing Agreement) dated 2/9/00 . Premium Recoveries, Inc. Consent and Acknowledgement dated 1/3/00 Loan Name: Beacon Financial - Loan No. 4215 - ------------------------------------------- . Promissory Note dated 1/3/00 in the amount of $5,521,000.00 . Confirmation of Guaranty and Assignment dated 1/3/00 . Seller's Certificate (Furniture Financing Purchasing Agreement) dated 8/30/00 . Borrowers Certificate dated 1/8/00 . Assignment dated 1/8/00 . Seller's Certificate (Motor Vehicle Financing Purchasing Agreement) dated 1/8/00 . Assignment (Furniture Financing Purchasing Agreement) dated 8/30/00 . Purchase Agreement(Furniture Financing Purchase Agreement) dated 8/30/00 . Servicing Agreement (Furniture Financing Purchasing Agreement) dated 8/30/00 Loan Name: Beacon Financial - Loan No. 4618 - ------------------------------------------- . Amended and Restated Promissory Note dated 3/13/00 in the amount of $11,885,000.00 (replaces Note dated 3/13/00 in amount of $6,585,000) . Promissory Note dated 3/13/00 in the amount of $6,585,000.00. . Confirmation of Guaranty and Assignment dated 4/8/00. . Confirmation of Guaranty and Assignment dated 3/13/00 . Assignment dated 4/8/00 . Assignment dated 3/13/00 . Seller's Certificate (Motor Vehicle Financing Purchasing Agreement) dated 4/8/00 . Borrower's Certificate dated 4/8/00. . Borrowers Certificate dated 3/13/00 . Seller's Certificate (Motor Vehicle Financing Purchasing Agreement) dated 3/13/00 Loan Name: Beacon Financial - Loan No. 3745 - ------------------------------------------- . Promissory Note dated 6/14/00 in the amount of $3,500,000.00 . Confirmation of Guaranty and Assignment dated 6/14/00 by Norman L. Maden, Anne Byer, Kenye Echtenthal, and Timothy B. Gamwell . Assignment of Put and Call Agreement and Security Agreement dated 6/15/00 . Put and Call Agreement dated 6/15/00 . Assignment dated 6/14/00 . Seller's Certificate (Motor Vehicle Financial Purchasing Agreement) dated 6/14/00 . Borrower's Certificate dated 6/14/00 . Consent and Acknowledgment dated 6/15/00 Loan Name: Beacon Financial - Loan No. 3440 - -------------------------------------------- . Promissory Note dated 8/15/00 in the amount of $3,500,000.00. . Confirmation of Guaranty and Assignment dated 8/15/00 by Norman L. Madan, Anne Byer, Kenye Echtenthal, and Timothy B. Gamwell . Seller's Certificate (Motor Vehicle Financing Purchasing Assignment) dated 8/15/00 . Assignment dated 8/15/00 . Borrowers Certificate dated 8/15/00 . Consumer Loan Servicing Agreement, Inc. Consent and Acknowledgment dated 8/00 . Servicing Agreement (Credit Card Financing Agreement) dated 8/00 Loan Name: Beacon Financial - Loan No. 5142 - ------------------------------------------- . Promissory Note dated 7/11/00 in the amount of $3,500,000.00 . Confirmation of Guaranty and Assignment dated 7/11/00 . Assignment dated 7/11/00 . Seller's Certificate(Motor Vehicle Financing Purchase Agreement) dated 7/11/00 . Borrower's Certificate dated 7/11/00 Loan Name - Governor Hotel Associates - Loan #8762 - -------------------------------------------------- . Promissory Note - Dated February 22, 1991 - for $7,650,000 . Guarantee - dated February 22, 1991 . Confirmation of Guaranty dated June 12, 1992 . Second Confirmation of Guaranty - dated July 24, 1992 . Confirmation of Guaranty - dated November 1, 1992 . Fourth Confirmation of Guaranty - dated February 16, 1993 . Construction Loan Agreement - dated February 22, 1991 . Deed of Trust and Security Agreement - dated February 22, 1991 . Trust Deed - dated July 24, 1992 - with Edward R. Derksen . Hazardous Substance Indemnity - dated February 22, 1991 . Assignment of Leases and Rents - dated February 22, 1991 . Security Agreement, Assignment of Contract Rights and Receivables dated July 24, 1992 . Agreement for Services Administering Construction Loan - dated February 22, 1991 . Assignment of Architect's Agreement and Plans - dated February 21, 1991 . Fourth Amendment to Loan Documents - dated March 16, 1994 . Third Amendment to Loan Documents - dated November 1, 1992 . Second Amendment to Loan Documents - dated July 24, 1992 . First Amendment to Loan Documents - dated June 12, 1992 . Fourth Amendment to Deed of Trust - dated March 16, 1994 . Third Amendment to Deed of Trust - dated November 1, 1992 . Second Amendment to Deed of Trust - dated July 23, 1992 . First Amendment to Deed of Trust - dated June 12, 1992 . Numerous Tenant Subordination Agreements from 1991 . Title Policy . Subordination Agreement - dated 2/19/91 between Oregon Laborer-s Employers Pension Trust Fund ("Lender") and Capital Consultants, Inc. ("Agent") . Assignment of Construction Contract . Assignment of Contracts dated February 22, 1991 Loan Name - Crossing Aviation - Loan #9621 - ------------------------------------------ . Promissory Note dated June 28, 1993 in the amount of $1,650,000 . Guarantee dated 6/28/93 by Richard W. Boehlke . Agreement effective date December 30, 1998 . Deed of Trust Modification Agreement dated December 30, 1998 with Crossing Ventures, Inc . Deed of Trust Modification Agreement dated December 30, 1998 with Crossing Aviation, Inc . Deed of Trust and Security Agreement dated June 28, 1993 with Crossing Ventures, Inc . Deed of Trust and Security Agreement dated June 28, 1993 with Crossing Aviation, Inc . Assignment of Leases and Rents dated June 28, 1993. . Subordination Agreement dated June 28, 1993 between Air Gemini, Inc. et al, and Crossing Aviation, Inc. . Environmental Indemnity dated June 28, 1993 . Security Agreement, Assignment of Contract Rights and Receivables dated June 28, 1993 . Misc assignment documents from Capital to 520 SW Yamhill (CCL's collection entity) Loan Name: Marine Finance Corporation - Loan #2111 - -------------------------------------------------- . Misc assignment documents from Capital to 520 SW Yamhill (CCL's collection entity) . Amended Promissory Note dated October 27, 1994 for $3,645,000 . Promissory Note dated November 19, 1993 for $7,961,982.73 . Promissory Note dated November 19, 1993 for $602,909.27 . Security Agreement dated November 19, 1993 . Lockbox Agreement dated September 6, 1994 . Modification Agreement dated November 19, 1993 with Douglas T. Watson and Karen A. Watson . Modification Agreement dated December 2, 1993 with Marine Finance Corporation . Stock Pledge Agreement dated October 27, 1994. . Stock Pledge Agreement dated November 19, 1993 . Stock Certificate #1 for 1,000 shares of Marine Finance Corporation. . Lockbox Agreement dated December 20, 1994 . Fourth Modification Agreement dated October 27, 1994 with Douglas T. Watson and Karen A. Watson . Fourth Modification Agreement dated October 27, 1994 with Marine Finance Corporation and Astoria Metal Corporation . Fourth Modification Agreement dated October 27, 1994 with Marine Finance Corporation and Astoria Metal Corporation . Amended Security Agreement dated October 27, 1993 with Marine Finance Corporation and Astoria Metal Corporation . Second Modification Agreement dated December 2, 1993 with Douglas T. Watson and Karen A. Watson . Second Modification Agreement dated August 26, 1994 with Marine Finance Corporation . Second Modification Agreement dated December 2, 1993 with Marine Finance Corporation . Second Modification Agreement dated December 2, 1993 with Marine Finance Corporation . Guaranty dated October 27, 1994 by Douglas T. Watson and Karen A. Watson . Guaranty dated November 19, 1993 by Douglas T. Watson and Karen A. Watson . Third Modification Agreement dated August 26, 1994 by Marine Finance Corporation . Third Modification Agreement dated August 26, 1994 . Third Modification Agreement dated August 26, 1994 . Third Modification Agreement dated October 27, 1994 . Third Modification Agreement dated August 26, 1994 . Security Agreement dated November 19, 1993 by Marine Finance Corporation . Security Agreement dated October 27, 1994 by Astoria Metal Corporation . Deed of Trust and Assignment of Rents dated November 19, 1993 . Fifth Modification to Consent, Assumption, Modification and Consolidation Agreement dated October 27, 1994 . First Modification to Consent, Assumption, Modification and Consolidation Agreement dated December 2, 1993 . Second Modification to Consent, Assumption, Modification and Consolidation Agreement dated June 21, 1994 . Third Modification to Consent, Assumption, Modification and Consolidation Agreement dated August 26, 1994 . Fourth Modification to Consent, Assumption, Modification and Consolidation Agreement dated October 21, 1994 . Consent, Assumption and Modification Agreement dated November 19, 1993 . Second Modification Agreement dated August 26, 1994 . Title Policy TAMALPAIS BANK (Formerly known as SRT&L - --------------------------------------- Original Loan Participation Agreement dated 2/25/97 Original Participation Certificates for the following Loans: #4716 Shohet (2) #4727 Schmitt #4738 AAA Commercial #4112 Zelinsky #4121 Zelinsky #5205 Heine & Bettencourt #5289 Johnson #5285 Wu #5032 Lerner & Gillary #5311 Foti #5315 3260 Investors #5317 Tse #5313 Bowman #5323 Lembi #5043 Chan 1. Loan Name: Governor Hotel - Loan No. 7931 ----------------------------------------- MISSING ORIGINAL DOCS 2. Loan Name: Robert Kreutzer - Loan No. 6511 ------------------------------------------ MISSING ORIGINAL DOCS 3. Loan Name: Bayside, Ltd. - Loan No. 5275/5276 --------------------------------------------- . Original U. S. $20,000,000 Credit Agreement dated between Bayside, LTD. as Borrower and Citibank, N.A. as Bank . Original Amended and Restated Pledge Agreement dated as of December 16, 1997 from Bayside, Ltd. . Original Amended and Restated Pledge Agreement dated as of December 16, 1997 from Bayside, Ltd. and Talmata Corporation (Acknowledgment and Consent of Lenga Patagonia S.A. not executed) . Original Amended and Restated Pledge Agreement dated as of December 16, 1997 from Savia International, Ltd. . Original Amended and Restated Pledge Agreement dated as of December 16, 1997 from Beacon Group, LLC . Original Amended and Restated Pledge Agreement dated as of December 16, 1997 from Trillium Corporation . Original Certification of Real Property Schedule . Original Opinion Letter dated December 16, 1997 from Perkins Coie . Promissory Note dated 12/30/98 in the amount of $50,000,000. . Escrow Deposit Agreement dated 12/30/98 . Consent and Acknowledgment dated 12/30/98 . Guaranty dated 12/30/98 by Trillium Corporation, David R. and Kay E. Syre, and Savia International Ltd. . Pledge Agreement from Trillium Corporation dated 12/30/98 . Pledge Agreement from Savia International Ltd. dated 12/30/98 . Pledge Agreement from Bayside, Ltd dated 12/30/98 . General Security Agreement dated 12/30/98 with Savia Int'l Ltd., Bayside Ltd., Talmata Corp., Lenga Patagonia SA, Forestral Trillium Limitada . Amended and Restated Credit Agreement dated 12/30/98 . Timber Sale Agreement (Chile) dated 12/30/98 . Timber Sale Agreement (Argentina) dated 12/30/98 . Put Option and Timber Purchase Agreement dated 12/30/98 . Termination and Release Agreement dated 12/30/98 with Citibank, Capital, Savia, Beacon and Trillium . Assignment of Participation Interests dated 12/30/98 . Assignment Agreement between Capital, Citibank and Bayside dated 12/30/98 . Affidavit of Lost Note by Citibank dated 12/30/98 . Officer's Certificate Re Real Property Schedule dated 12/30/98 . Escrow Deposit Agreement dated 10/18/99 . greement Re Carbon Rights . Consentimento (in Spanish) dated 12/30/98 with English translation attached . Pledge Agreement by Bayside, Ltd and Talmata Corporation dated 12/30/98 . Assignment Separate from Certificate dated 12/30/98 signed by Bayside . Stock Certificate No. 1 for Lenga Patagonia for 3,477,496 shares . Assignment Separate from Certificate dated 12/30/98 signed by Talmata . Stock Certificate No. 2 for Lenga Patagonia for 669 shares . Assignment Separate from Certificate dated 12/30/98 signed by Trillium Corporation . Stock Certificate No. 1 for 2,000,000 shares (Class B 12% Convertible preferred) of Savia International Ltd . Assignment Separate from Certificate dated 12/30/98 signed by Trillium Corporation . Stock Certificate No. 1 for 10,000 shares (12% Snr Conv Pref) of Savia International Ltd . Assignment Separate from Certificate dated 12/30/98 signed by Trillium Corporation . Stock Certificate No. 24 for 1,434,897 shares (Class A 12% Jr conv Pref) of Savia International Ltd. . Assignment Separate from Certificate dated 12/30/98 signed by Trillium Corporation . Stock Certificate No. 11 for 858,600 shares (common) of Savia International Ltd . Assignment Separate from Certificate (undated) signed by Trillium Corporation . Stock Certificate No. 1 for 500,000 shares (1999 Senior conv pref) of Savia International Ltd . Assignment Separate from Certificate dated 12/30/98 signed by Bayside, Ltd. . Stock Certificate No. 3 for 10,000 shares (common) of Talmata Corporation . Assignment Separate from Certificate dated 12/30/98 signed by Savia International Ltd . Stock Certificate No. 131 for 18,265,362 shares (common) of Bayside . Assignment Separate from Certificate dated 3/10/99 signed by Trillium Corporation . Stock Certificate No. 2 for 2,000,000 shares (Class B 12% Con Pref) of Savia International Ltd. . Letter dated 12/23/98 from Chilean counsel attached to "authorized copies of five (5) documents noting that these are "for all legal purposes the official documents evidencing the collateral thereby created" with the following documents or copies thereof attached thereto: . Public Deed of Joint and Several Guaranty and Mortgage . Public Deed of Joint and Several Guaranty and Commercial Pledge over Credits . Public Deed of Joint and Several Guaranty and Pledge without Conveyance . Public Deed . Public Deed of Release and Pledge . Amendment No. 1 to Amended and Restated Guaranty with the Beacon Group, LLC dated 7/1/98 . Amendment No. 1 to Amended and Restated Guaranty with Trillium Corp. and Citibank dated 7/1/98 . Promissory Note from Savia International, Ltd. to CCI - $5,940,000 dated 9/30/98 . Assignment and Security Agreement of Put Option and Agreement of Purchase and Sale of Participation Interests dated 10/16/98 . Assignment and Security Agreement - $5,940,000 dated 10/16/98 . Guaranty of David R. Syre and Trillium Corporation with Spousal Consent . Security Agreement and Assignment of Participation Interests for Security Purposes dated 10/16/98 . RE: Beacon/Trillium-Citibank Loans Assignment of Participation Interest between Trillium and Savia, and Beacon and Savia dated 10/16/98 . Put Option and Agreement of Purchase and Sale of Participation Interests between Savia and Syre dated 10/16/98 . Amended and Restated Guaranty between Beacon Group LLC and Citibank dated 12/16/97 . Amended and Restated Guaranty between Trillium Corp. and Citibank dated 12/16/97 . Consent and Acknowledgment by David R. Syre dated 10/16/98 PRIVATE EQUITY INVESTMENTS -------------------------- Original Documentation in Capital Consultants Office A-Fem Medical Series A. Convertible Preferred Stock - --------------------------------------------------- August 1998 Recapitalization - ---------------------------- (4,316,405 shares; 50,000 warrant shares) Plan and Agreement for Recapitalization A-Fem Medical Corporation Registration Rights Agreement Stock Certificate #PA1 representing 10,400 shares issued to Capital Consultants, Inc. as agent for Client No. 157-80, dated August 31, 1998 Stock Certificate #PA3 representing 17,185 shares issued to Capital Consultants, Inc. as agent for Client No. 463, dated August 31, 1998 Stock Certificate #PA4 representing 38,529 shares issued to Capital Consultants, Inc. as agent for Client No. 507-81, August 31, 1998 Stock Certificate #PA6 representing 31,200 shares issued to Capital Consultants, Inc. as agent for Client No. 520-88, dated August 31, 1998 Stock Certificate #PA7 representing 38,529 shares issued to Capital Consultants, Inc. as agent for Client No. 556, dated August 31, 1998 Stock Certificate #PA9 representing 26,028 shares issued to Capital Consultants, Inc. as agent for Client No. 604-88, dated August 31, 1998 Stock Certificate #PA11 representing 12,480 shares issued to Capital Consultants, Inc as agent for Client No. 625-88, dated August 31, 1998 Stock Certificate #PA12 representing 5,208 shares issued to Capital Consultants, Inc. as agent for Client No. 632-80, dated August 31, 1998 Stock Certificate #PA13 representing 20,619 shares issued to Capital Consultants, Inc. as agent for Client No. 632-88, dated August 31, 1998 Stock Certificate #PA14 representing 19,566 shares issued to Capital Consultants, Inc. as agent for Client No. 636-88, dated August 31, 1998 Stock Certificate #PA15 representing 5,208 shares issued to Capital Consultants, Inc. as agent for Client No. 640-80, dated August 31, 1998 Stock Certificate #PA16 representing 5,208 shares issued to Capital Consultants, Inc. as agent for Client No. 660, dated August 31, 1998 Stock Certificate #PA17 representing 20,834 shares issued to Capital Consultants, Inc. as agent for Client No. 660-88, dated August 31, 1998 Stock Certificate #PA18 representing 15,625 shares issued to Capital Consultants, Inc. as agent for Client No. 682-80, dated August 31, 1998 Stock Certificate #PA19 representing 40,099 shares issued to Capital Consultants, Inc as agent for Client No. 688-88, dated August 31, 1998 Stock Certificate #PA20 representing 2,604 shares issued to Capital Consultants, Inc. as agent for Client No. 693-88, dated August 31, 1998 Stock Certificate #PA21 representing 38,529 shares issued to Capital Consultants, Inc. as agent for client No. 703-88, dated August 31, 1998 Stock Certificate #PA22 representing 31,200 shares issued to Capital Consultants, Inc as agent for Client No. 706-88, dated August 31, 1998 Stock Certificate #PA23 representing 31,200 shares issued to Capital Consultants, Inc. as agent for Client No. 711-88, dated August 31, 1998 Stock Certificate #PA24 representing 13,021 shares issued to Capital Consultants, Inc. as agent for Client No. 783-88, dated August 31, 1998 Stock Certificate #PA25 representing 10,417 shares issued to Capital Consultants, Inc., as agent for Client No. 815-88, dated August 31, 1998 Stock Certificate #PA26 representing 5,208 shares issued to Capital Consultants, Inc. as agent for Client No. 818-88, dated August 31, 1998 Stock Certificate #PA27 representing 1,302 shares issued to Capital Consultants, Inc. as agent for Client No. 826-88, dated August 31, 1998 Stock Certificate #PA28 representing 7,812 shares issued to Capital Consultants, Inc. as agent for Client No. 827-88, dated August 31, 1998 Stock Certificate #PA29 representing 13,021 shares issued to Capital Consultants, Inc. as agent for Client No. 843-88, dated August 31, 1998 Stock Certificate #PA30 representing 15,625 shares issued to Capital Consultants, Inc. as agent for Client No. 884-88, dated August 31, 1998 Stock Certificate #PA31 representing 7,813 shares issued to Capital Consultants, Inc. as agent for Client No. 050-15, dated August 31, 1998 Stock Certificate #PA32 representing 7,706 shares issued to Capital Consultants, Inc. as agent for Client No. 050-20, dated August 31, 1998 Stock Certificate #PA38 representing 48,512 shares issued to Capital Consultants, Inc., dated August 31, 1998 Purchase Warrant Certificate #98P-2, issued to Capital Consultants, Inc., for itself and as agent for its Clients, exercisable to Purchase 50,000 Preferred Stock, dated August 31, 1998 August 31, 1998 Purchase of New Shares - -------------------------------------- (650,000 shares; 130,000 warrant shares) Preferred Stock and Warrant Purchase Agreement Stock Certificate #PA34 representing 2,604 shares issued to Capital Consultants, Inc. as agent for Client No. 604-88, dated August 31, 1998 Stock Certificate #PA36 representing 15,625 shares issued to Capital Consultants, Inc. as agent for Client No. 682-80, dated August 31, 1998 Stock Certificate #PA37 representing 15,625 shares issued to Capital Consultants, Inc. as agent for Client No. 884-88, dated August 31, 1998 Stock Purchase Warrant No. 98P-1 to purchase 130,000 shares of Series A Convertible Preferred Stock issued to certain investors (each an "Investor" and collectively, the "Investors") acting through their agent, Capital Consultants, Inc. ("CCI") October 8, 1998 Purchase of New Shares - -------------------------------------- (286,000 shares; 200,000 warrant shares) A-Fem Medical Corporation Registration Rights Agreement, dated October 8, 1998 Preferred Stock and Warrant Purchase Agreement, dated October 8, 1998 Stock Certificate #PA39 representing 182,010 shares issued to Capital Consultants, Inc. as agent for Client No. 285, dated 1998 Stock Certificate #PA40 representing 103,990 shares issued to Capital Consultants, Inc. as agent for Client No. 621-88, dated 1998 Stock Purchase Warrant No. 98P-3 to purchase 127,280 shares of Series A Convertible Preferred Stock granted to Capital Consultants, Inc. as Agent for Client No. 285 Stock Purchase Warrant No. 98P-4 to purchase 72,720 shares of Series A Convertible Preferred Stock granted to Capital Consultants, Inc. as Agent for Client No. 621-88 November 6, 1998 Purchase of New Shares - --------------------------------------- (521,000 shares; 104,200 warrant shares) A-Fem Medical Corporation Amended and Restated Registration Rights Agreement, dated November 6, 1998 Preferred Stock and Warrant Purchase Agreement, dated November 6, 1998 Stock Certificate #PA41 representing 510,323 shares issued to Capital Consultants, Inc. as agent for Client No. 285, dated November 6, 1998 Stock Certificate #PA42 representing 7,917 shares issued to Capital Consultants, Inc. as agent for Client No. 99, dated November 6, 1998 Stock Certificate #PA43 representing 2,760 shares issued to Capital Consultants, Inc. as agent for Client No. 604-88, dated November 6, 1998 Stock Purchase Warrant No. 98P-5 to purchase 102,065 shares of Series A Convertible Preferred Stock granted to Capital Consultants, Inc. as Agent for Client No. 285 Stock Purchase Warrant No. 98P-6 to purchase 1,583 shares of Series A Convertible Preferred Stock granted to Capital Consultants, Inc. as Agent for Client No. 99 Stock Purchase Warrant No. 98P-7 to purchase 552 shares of Series A Convertible Preferred Stock granted to Capital Consultants, Inc. as Agent for Client No. 604-88 March 9, 1999 Purchase of New Shares - ------------------------------------ (156,250 shares; 31,250 warrant shares) A-Fem Medical Corporation Amended and Restated Registration Rights Agreement, dated March 9, 1999 Preferred Stock and Warrant Purchase Agreement, dated March 9, 1999 Stock Purchase Warrant No. 99P-8 to purchase 31,250 shares of Series A Convertible Preferred Stock granted to Capital Consultants, Inc. as Agent for Client No. 285 April 15, 1999 Purchase of New Shares - ------------------------------------- (104,170 shares; 20,834 warrant shares) A-Fem Medical Corporation Amended and Restated Registration Rights Agreement, dated April 15, 1999 Preferred Stock and Warrant Purchase Agreement, dated April 15, 1999 Stock Purchase Warrant No. 99P-9 to purchase 20,834 shares of Series A Convertible Preferred Stock granted to Capital Consultants, Inc. as Agent for Client No. 285 May 10, 1999 Purchase of New Shares - ----------------------------------- (104,170 shares; 20,834 warrant shares) A-Fem Medical Corporation Amended and Restated Registration Rights Agreement, dated May 10, 1999 Preferred Stock and Warrant Purchase Agreement, dated May 10, 1999 Stock Purchase Warrant No. 99P-10 to purchase 20,834 shares of Series A Convertible Preferred Stock granted to Capital Consultants, Inc. as Agent for Client No. 285 June 15, 1999 Purchase of New Shares - ------------------------------------ (104,170 shares; 20,834 warrant shares) A-Fem Medical Corporation Amended and Restated Registration Rights Agreement, dated June 15, 1999 Preferred Stock and Warrant Purchase Agreement, dated June 15, 1999 Stock Purchase Warrant No. 99P-11 to purchase 20,834 shares of Series A Convertible Preferred Stock granted to Capital Consultants, Inc. as Agent for Client No. 285 July 21, 1999 Purchase of New Shares - ------------------------------------ (104,170 shares; 20,834 warrant shares) A-Fem Medical Corporation Amended and Restated Registration Rights Agreement, dated July 21, 1999 Preferred Stock and Warrant Purchase Agreement, dated July 21, 1999 Stock Purchase Warrant No. 99P-12 to purchase 20,834 shares of Series A Convertible Preferred Stock granted to Capital Consultants, Inc. as Agent for Client No. 285 August 19, 1999 Purchase of New Shares - -------------------------------------- (104,170 shares; 20,834 warrant shares) A-Fem Medical Corporation Amended and Restated Registration Rights Agreement, dated August 19, 1999 Preferred Stock and Warrant Purchase Agreement, dated August 19, 1999 Stock Purchase Warrant No. 99P-13 to purchase 20,834 shares of Series A Convertible Preferred Stock granted to Capital Consultants, Inc. as Agent for Client No. 285 September 22, 1999 Purchase of New Shares - ----------------------------------------- (260,400 shares; 52,080 warrant shares) A-Fem Medical Corporation Amended and Restated Registration Rights Agreement, dated September 22, 1999 December 17, 1999 Purchase of New Shares - ---------------------------------------- (260,400 shares; 118,364 warrant shares) A-Fem Medical Corporation Amended and Restated Registration Rights Agreement, dated December 17, 1999 March 24, 2000 Purchase of New Shares - ------------------------------------- (260,415 shares; 174,365 warrant shares) A-Fem Medical Corporation Amended and Restated Registration Rights Agreement, dated March 24, 2000 July 21, 2000 Purchase of New Shares - ------------------------------------ (86,805 shares; 79,861 warrant shares) A-Fem Medical Corporation Amended and Restated Registration Rights Agreement, dated July 21, 2000 Preferred Stock and Warrant Purchase Agreement dated July 21, 2000 August 21, 2000 Purchase of New Shares - -------------------------------------- (86,805 shares; 79,861 warrant shares) A-Fem Medical Corporation Amended and Restated Registration Rights Agreement, dated August 21, 2000 Preferred Stock and Warrant Purchase Agreement dated August 21, 2000 September 21, 2000 Purchase of New Shares - ----------------------------------------- (86,805 shares; 79,861 warrant shares) A-Fem Medical Corporation Amended and Restated Registration Rights Agreement, dated September 21, 2000 Preferred Stock and Warrant Purchase Agreement dated September 21, 2000 EOH Salem Holding LLC - --------------------- Articles of Organization for EOH Salem Holding LLC (w/copy of recorded Articles of Organization) dated December 4, 1998; Filed December 8, 1998 Operating Agreement dated December 8, 1998 Unanimous Written Consent of Members and Manager to Actions Without a Meeting dated December 17, 1998 EOH Corvallis Holding LLC - ------------------------- Articles of Organization for EOH Corvallis Holding LLC (w/copy of recorded Articles of Organization) dated December 4, 1998; Filed December 8, 1998 Operating Agreement dated December 8, 1998 Unanimous Written Consent of Member and Manager to Actions Without a Meeting dated December 17, 1998 EOH Portland Holding LLC - ------------------------ Articles of Organization for EOH Portland Holding LLC (w/copy of recorded Articles of Organization) dated December 4, 1998; Filed December 7, 1998 Operating Agreement dated December 7, 1998 Unanimous Written Consent of Member and Manager to Actions Without a Meeting dated December 17, 1998 American Physicians Network - --------------------------- Stock and Warrant Purchase Agreement, dated December 31, 1996 RegistrationRights Agreement dated December 31, 1996 Stock and Warrant Purchase Agreement dated May 29, 1998 Registration Rights Agreement dated May 29, 1998 Stock Certificate #1 of 1,300,000 shares of Series A-1 Voting Preferred Stock issued to Capital Consultants, Inc., as Agent for Account 285 dated December 31, 1996 Stock Certificate #11 of 500,000 shares of Series A-1 Voting Preferred Stock issued to Capital Consultants, Inc., as Agent for Certain Participant Investors dated November 8, 1997 Stock Certificate #12 of 500,000 shares of Series A-1 Voting Preferred Stock issued to Capital Consultants, Inc., as Agent for Certain Participant Investors, dated May 29, 1998 Warrant No. B-14 to Purchase 1,000,000 Shares of Series B Voting Preferred Stock issued to Capital Consultants, Inc., as agent for certain participant investors, dated December 31, 1996 Warrant No. B-15 to Purchase 300,000 Shares of Series B Voting Preferred Stock issued to Capital Consultants, Inc., as agent for certain participant investors, dated December 31, 1996 Amendment to Warrants (Nos. B-14 & B-15) dated November 7, 1997 Warrant No. B-22 to Purchase 500,000 Shares of Series B Voting Preferred Stock issued to Capital Consultants, Inc., as agent for certain participant investors dated November 7, 1997 Warrant No. B-23 to Purchase 500,000 Shares of Series B Voting Preferred Stock issued to Capital Consultants, Inc., as agent for certain participant investors dated May 29, 1998 Amendment to Warrants (Nos. B-14, B-15 and B-22) dated May 29, 1998 ResQNet.com, Inc. - ----------------- Stock Certificate No. 89 representing 1,000 shares of 8% Cumulative Convertible Preferred Stock (Series A) issued to Capital Consultants as agent for Client #544.88, dated December 16, 1999 Stock Certificate No. 91 representing 500 shares of 8% Cumulative Convertible Preferred Stock (Series A) issued to Capital Consultants as agent for Client #683.88, dated December 16, 1999 Stock Certificate No. 92 representing 250 shares of 8% Cumulative Convertible Preferred Stock (Series A) issued to Capital Consultants as agent for Client #818.88, dated December 16, 1999 Stock Certificate No. 93 representing 300 shares of 8% Cumulative Convertible Preferred Stock (Series A) issued to Capital Consultants as agent for Client #507.81, dated December 16, 1999 Stock Certificate No. 94 representing 1,500 shares of 8% Cumulative Convertible Preferred Stock (Series A) issued to Capital Consultants as agent for Client #738.88, dated December 16, 1999 EVI Corporation Series A - ------------------------ Stock Certificate No. A-48 representing 125,000 shares of Series A Voting Preferred Stock issued to Capital Consultants, Inc., dated December 29, 1994 Stock Certificate No. A-52 representing 25,000 shares of Series A Voting Preferred Stock issued to Capital Consultants, Inc., dated May 28, 1997 EVI Corporation Series B - ------------------------ Stock Certificate No. PB10 representing 25,000 shares of Series B Voting Preferred Stock issued to Capital Consultants, Inc., dated December 31, 1997 Stock Certificate No. 46 representing 3,000 shares of Common Stock issued to Capital Consultants, dated December 31, 1999 Stock Certificate No. PB-148 representing 13,919 shares of Series B Voting Preferred Stock issued to Capital Consultants, Inc., dated November 15, 2000 Stock Certificate No. PB11 representing 25,000 shares of Series B Voting Preferred Stock issued to Donald E. Tykeson Trust, UTA 6/29/83, dated December 31, 1997 Stock Certificate No. 84 representing 3,000 shares of Common Stock issued to Donald E. Tykeson Trust, dated December 31, 1999 Stock Certificate No. PB-147 representing 13,919 shares of Series B Voting Preferred Stock issued to Donald E. Tykeson Trust, dated November 15, 2000 Expert Systems Publishing Company - --------------------------------- Stock Certificate No. 62 representing 7,107 shares of Common Stock issued to Capital Consultants, Inc., dated October 29, 1993 Stock Certificate No. 125 representing 17,556 shares of Common Stock issued to Capital Consultants, Inc., dated February 7, 2000 EX-99.3 5 dex993.txt ASSIGNMENT AND ASSUMPTION AGREEMENT EXHIBIT 99.3 ASSIGNMENT AND ASSUMPTION AGREEMENT This Assignment and Assumption Agreement is made effective as of February 5, 2002, by and between MTGLQ INVESTORS, L.P., a Delaware limited liability company ("Assignor"), and PNW, LLC, a Delaware limited liability company ("Assignee"). RECITALS WHEREAS, Assignor has entered into an Overbid Purchase Contract dated as of January 24, 2002 by and between Assignor, as Buyer thereunder, and Thomas F. Lennon, Receiver for Capital Consultants, LLC, an Oregon limited liability company, in the cases of Securities and Exchange Commission v. Capital Consultants, LLC, et al. (Case No. 00-1290-KI) and Elaine L. Chau, Secretary of Department of Labor v. Capital Consultants, LLC, et al. (Case No. 00-1291-KI) pending in the United States District Court, District of Oregon, as Seller thereunder (the "Overbid Contract"); and WHEREAS, pursuant to Section 13.5 of the Overbid Contract, Assignor has the right to assign its rights under the Overbid Contract upon the terms and conditions set forth therein; and WHEREAS, Assignor desires to assign a portion of its rights in the Overbid Contract to Assignee pursuant to this Agreement and the balance of its rights in the Overbid Contract to HWY, LLC pursuant to a separate Assignment and Assumption Agreement. AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Assignor and Assignee agree to the following: 1. Definitions. Capitalized terms used, but not otherwise defined ----------- herein, shall have meanings ascribed to them in the Overbid Contract. 2. Relationship. Each of Assignee and HWY, LLC is wholly owned by ------------ Assignor. 3. Assignment. Assignor does hereby assign, sell, and transfer to ---------- Assignee that portion of Seller's right, title and interest in and to the Overbid Contract applicable to all of the Loans except for the two Loans referred to as "Calafate Cayman Holdings, Inc - Loan #5321" and "Bayside, Ltd. - Loan #5275/5276." 4. Assumption of Liabilities. Assignee hereby accepts the foregoing ------------------------- assignment, assumes all of Assignor's obligations under the Overbid Contract and agrees to perform all of the obligations of Assignor under the Overbid Contract insofar as it relates to the Assets referenced in Section 3 above (including but not limited to Assignor's indemnification obligations under Section 8.1 of the Overbid Contract). 5. Not Release. This Agreement and the assignment evidenced hereby will not ----------- release or relieve Assignor of any liability or obligation under the Overbid Contract. 6. Binding Effect. This Agreement shall be binding upon and inure to the -------------- benefit and be enforceable by the parties and their permitted successors and assigns. 7. Controlling Law; Jurisdiction; Venue. This Agreement will be governed by ------------------------------------ and construed in accordance with the laws of the State of Oregon and Federal Receivership Law, as applicable, without reference to the conflicts of law provisions thereof. The U.S. District Court, for the District of Oregon shall retain jurisdiction to enforce the provisions of this Agreement in all respects, and to adjudicate any disputes that may arise in the future with respect to the same. 8. Counterpart Execution. This Agreement may be executed in counterparts, --------------------- each of which shall be fully effective as an original and all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties have caused this Assignment and Assumption Agreement to be signed effective this __ day of February, 2002. MTGLQ INVESTORS, L.P. PNW, LLC By: /s/ Jed Schaefer By: /s/ Jed Schaefer ---------------- ---------------- Print Name: Jed Schaefer Print Name: Jed Schaefer Title: Attorney-in-Fact Title: Attorney-in-Fact Consent by Seller Seller hereby consents to the foregoing Assignment and Assumption Agreement. THIS DOCUMENT IS MADE WITHOUT RECOURSE AND WITHOUT REPRESENTATION OR WARRANTY OF ANY NATURE, EXPRESS OR IMPLIED, EXCEPT AS SET FORTH (IF AT ALL) IN THE OVERBID CONTRACT. Thomas F. Lennon, Receiver for Capital Consultants, LLC, an Oregon limited liability company, in the cases of Securities and Exchange Commission v. Capital Consultants, LLC, et al. (Case No. 00-1290-KI) and Elaine L. Chau, Secretary of Department of Labor v. Capital Consultants, LLC, et al. (Case No. 00-1291-KI) pending in the United States District Court, District of Oregon /s/ Thomas F. Lennon - -------------------- Effective February 6, 2002 EX-99.4 6 dex994.txt ASSIGNMENT DATED FEBRUARY 6, 2002 EXHIBIT 99.4 ASSIGNMENT PNW, LLC, a Delaware limited liability company ("Assignor"), in consideration of the purchase price of One Dollar ($1.00), the receipt and sufficiency of which are acknowledged, hereby sells, grants, assigns, transfers and conveys to Goldman Sachs & Co., a New York Limited Partnership ("Assignee"), all of Assignor's right, title and interest, if any (whether now owned or hereafter acquired), in, to and under the following described properties, rights and interests: (a) the Equity Assets and (b) the Documents, as such terms are defined below: "Equity Assets" means the assets referred to as the "A-Fem ------------- Medical Series A. Convertible Preferred Stock" on pages 23 through 28 (excluding and ending at the listing for "EOH Salem Holding LLC) set forth in the Schedule of Original Loan Documents attached to the Overbid Purchase Contract dated January 24, 2002 between MTGLQ Investors, LP, as buyer thereunder, and Thomas F. Lennon, Receiver for Capital Consultants, LLC, and Oregon Limited Liability Company in the cases of Securities and Exchange Commission v. Capital --------------------------------------------- Consultants, LLC, et. al. (U.S. District Court, District of Oregon Case No. - ------------------------- 00-1290-K-1) and Elaine Chau, Secretary of Department of Labor v. Capital -------------------------------------------------------- Consultants, LLC, et. al. (U.S. District Court, District of Oregon Case No. - ------------------------- 00-1291-K-1), as seller thereunder. "Documents" means with respect to the Equity Asset: (1) all --------- written contracts, agreements, instruments and documents relating to the Equity Asset; (2) all written security agreements, pledge agreements, financing statements, mortgages, deeds of trust, assignments of leases and/or rents, and other writings creating, evidencing or perfecting liens, security interests, pledges, hypothecations or other encumbrances securing the Equity Asset; (3) all written guaranties of or indemnification agreements relating to the Equity Asset; (4) all certificates of title, insurance policies, stock certificates, certificates of deposit, certificates of membership interests, certificates of partnership interests and other agreements, instruments or documents securing the Equity Asset; (5) all other collateral in the possession of Assignor securing the Equity Asset; (6) all written disbursement and payment histories relating to the Equity Asset; and (7) all written amendments, assignments, extensions and reinstatements of and all supplements to any of the items listed in (1) through (4) above. IN WITNESS WHEREOF, Assignor has executed and delivered this Assignment. Dated: February 6, 2002 PNW, LLC By: /s/ Jed Schaefer ---------------- Name: Jed Schaefer Title: Attorney-in-Fact EX-99.5 7 dex995.txt PREFERRED STOCK AND PURCHASE WARRANT AGREEMENT EXHIBIT 99.5 A-FEM MEDICAL CORPORATION PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT Certain investors (each an "Investor" and collectively, the "Investors") acting through their agent, Capital Consultants LLC ("CCL"), have agreed to purchase an aggregate of 86,805 shares of Series A Convertible Preferred Stock (the "Shares"), $.01 par value per share, of A-Fem Medical Corporation, a Nevada corporation (the "Company"), and warrants to purchase 79,861 shares of such Series A Convertible Preferred Stock in the form attached as Exhibit A (the "Warrants") in consideration of the payment of the sum of $166,665.60 (the "Consideration"). The Shares and Warrants are sometimes hereafter referred to collectively as the "Securities." Delivery and payment for the Securities shall occur as set forth in paragraph I. I. CLOSING. Closing of the transaction will occur when this Agreement is executed. At closing, the Company will cause certificates for the Shares and the Warrants to be delivered to CCL as agent for the Investors against payment of the Consideration. II. INVESTOR REPRESENTATIONS. CCL, individually and, to CCL's reasonable belief, on behalf of each of the Investors, represents, warrants, acknowledges and agrees that the following are true as of the date first below written: 2.1 The Securities are not being registered under the Securities Act of 1933, as amended (the "Act"), and applicable state securities laws in reliance upon exemptions from registration and cannot be sold, transferred or otherwise disposed of by the Investor unless they are subsequently registered under the Act and applicable state securities laws or an exemption from such registration is available at the time of the desired sale. Therefore, the Investor must bear the economic risk of an investment in such Securities for an indefinite period. The Investor's right to require registration under federal or state securities laws of such Securities is set forth in the Registration Rights Agreement attached hereto as Exhibit B. The Investor will under no circumstances attempt to assign or otherwise transfer all or any portion of such Securities except in accordance with federal and state securities laws; 2.2 No state or federal agency or instrumentality has made any finding or determination as to the fairness of the terms of the offering or the investment in the Securities, nor has any state or federal agency or instrumentality made any recommendation with respect to any purchase or investment in the Securities; 2.3 The Company has not paid and will not pay any commission or similar remuneration directly or indirectly to any person in connection with the acquisition of the Securities by the Investor, and no dealer, salesman, or any other person (other than officers of the Company) has been authorized to give any information or to make any representations in connection with the offer and sale of the Securities, and if given or made, such other information or representation must not have been relied upon as having been authorized by the Company; 2.4 The Company will rely materially upon the representations, warranties, covenants, and agreements of the Investor set forth herein for the purpose of offering and selling the Securities to the Investor; 2.5 The Investor is acquiring such Securities solely for investment for its own account and has no agreement, understanding or arrangement to subdivide, sell, assign, transfer or otherwise dispose of all or any part of such Securities to any other persons; 2.6 The Investor and CCL have such substantial knowledge and experience in financial and business matters in general, and in similar investments in particular, that they are capable of reading and understanding information about the Company and evaluating the merits and risks of an investment in the Company and the merits and risks of the acquisition of the Securities; 2.7 The Investor is familiar with the nature of and risk attending investments having the special characteristics of common stock interests in the Company and has determined on the basis of its own familiarity and knowledge of such investments that the purchase of the Securities is consistent with its investment objectives and income prospects and is making such an investment based on its own independent investigation; 2.8 Investment in the Securities involves a degree of risk of loss by the Investor of the entire investment and there is no assurance, and the Investor has received no assurance, of any income from the investment in the Securities; 2.9 The Investor is aware that the Securities being offered have not been approved or disapproved by the SEC or any state securities agency, nor has any such regulatory body reviewed any information with respect to the offer and sale of such Securities; 2.10 CCL and the Investor understand that no private placement memorandum has been prepared for this investment offering, but CCL and the Investor have received and read information with regard to this investment and the Company, as required by applicable securities laws and as required to allow CCL and the Investor to adequately evaluate the investment and its related merits and risks. CCL and the Investor have the capability to determine what documents and information are necessary for CCL and the Investor to adequately evaluate the Company and this investment, and CCL and the Investor also have the capability to request, review and evaluate the necessary information; 2.11 CCL and the Investor have had the opportunity to (i) examine and have examined sources of information that they have deemed necessary or appropriate to reach an informed investment decision concerning the purchase of the Securities, including, without limitation, the physical facilities, financial statements, books, records and files of the Company, and (ii) had reasonable opportunity to meet with representatives of the Company and questioned the directors, shareholders and officers of the Company to the extent that they have deemed necessary or appropriate so as to receive answers and to verify the accuracy of the information obtained in the above examination. CCL and the Investor acknowledge receipt of: a registration statement on Form S-2, filed with the SEC on June 22, 2000 relating to common stock of the Company; the Company's annual report to the Securities and Exchange Commission (the "SEC") on Form 10-KSB for the year ended December 31, 1999; the Company's quarterly reports on Form 10-QSB for the quarters ended March 31, 2000 and June 30, 2000; the proxy statement relating to the Company's 1997 Annual Meeting; and the proxy statement relating to a Special Meeting of the Company's shareholders held on December 12, 1997. CCL and the Investor acknowledge that the Company continues to lose money, that it will require additional financing in both the short and long term if it is to stay in business and that the failure to obtain additional financing would likely result in the cessation of business; 2.12 The Investor is an "accredited investor" as defined in Securities and Exchange Commission Rule 501(a) of Regulation D (17 CFR 230.501(a)) and is a resident of one of the jurisdictions identified on Schedule 1; 2.13 The financial condition of the Investor is such that the Investor is under no present need to dispose of any portion of the Securities to satisfy any existing or contemplated indebtedness; 2.14 Each certificate representing the Securities shall be endorsed with the following legend together with any other legends required by law: "The securities evidenced by this Certificate have not been registered under the Securities Act of 1933, as amended (the "Act"), or any applicable state law, and no interest therein may be sold, distributed, assigned, offered, pledged or otherwise transferred unless (a) there is an effective registration statement under such Act and applicable state securities laws covering any such transaction involving said securities or (b) this corporation receives an opinion of legal counsel for the holder of these securities (concurred in by legal counsel for this corporation) stating that such transaction is exempt from registration or this corporation otherwise satisfies itself that such transaction is exempt from registration. Neither the offering of the securities nor any offering materials have been reviewed by an administrator under the Act or any applicable state law." The Company need not effect a transfer of the Securities, unless the conditions specified in the aforementioned legend is satisfied. The Company shall also make a notation on its stock transfer books of the foregoing restrictions on transferability and will instruct its transfer agent, if one is appointed, not to register the transfer of any of such Securities unless the conditions specified in the foregoing legend are satisfied; 2.15 CCL has full power and authority to execute and deliver this Agreement. This Agreement has been duly and validly executed and delivered by CCL on behalf of the Investors and constitutes a legal, valid and binding obligation of CCL and the Investors enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, and other similar laws affecting the rights and remedies of creditors generally and general principles of equity; and 2.16 The execution and delivery of this Agreement, and the terms, conditions, and provisions of this Agreement will not conflict with, or result in the breach of any term of, any corporate charter, partnership agreement, or trust agreement, or any indenture, mortgage, deed of trust, or other material agreement or instrument to which the Investor is a party, and will not constitute an event that, with the giving of notice, lapse of time or any other action by a third party, could result in any default under any of the foregoing that will result in the creation of any lien, charge, encumbrance, or security interest upon the Securities. 2.17 CCL represents the holders of 7,405,330 shares of Series A Convertible Preferred Stock ("Series A") and the holders of Warrants to purchase 1,124,151 shares of Series A and is authorized to consent on behalf of such holders to the issuance of the Shares, the Warrants, and the Series A issuable on exercise of the Warrants, and to waive the provisions of Section 3.2.2(b) of the Company's Certificate of Designation dated August 28, 1998, as amended, with respect to such issuance, and hereby consents to such issuance and waives such provisions. III. REPRESENTATIONS AND WARRANTIES OF A-FEM. The Company represents and warrants to the Investors and to CCL that: 3.1 The Company is a corporation duly organized, validly existing and in good standing under the laws of Nevada and has the requisite corporate power and authority necessary to own, lease and operate the properties it purports to own, operate or lease and to carry on its business as it is now being conducted. The Company is duly qualified or licensed as a foreign corporation to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary, except for such failures to be so duly qualified or licensed and in good standing that would not, either individually or in the aggregate, have a Material Adverse Effect. The term "Material Adverse Effect" means any change or effect that is or is reasonably likely to be materially adverse to the business, assets (including intangible assets), financial condition, results of operations, or prospects of the Company taken as a whole. 3.2 The Company has all necessary corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by the Company and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action on the part of the Company and no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or to consummate the transactions so contemplated. This Agreement has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery by CCL on behalf of the Investors, constitutes a legal, valid and binding obligation of the Company. 3.3 The execution and delivery of this Agreement by the Company does not, and the performance of this Agreement by the Company shall not, (i) conflict with or violate the Articles of Incorporation or Bylaws of the Company, (ii) conflict with or violate any law, rule, regulation, order, judgment or decree applicable to the Company, or (iii) result in any breach of or constitute a default under, or impair the Company's rights, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a lien or encumbrance on any of the properties or assets of the Company pursuant to, any material note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which the Company is a party or by which the Company or its properties are bound or affected, except for any such breaches, defaults or other occurrences that would not, individually or in the aggregate, have a Material Adverse Effect. 3.4 The Company has filed all forms, reports and documents required to be filed with the SEC since June 30, 1993, and has heretofore delivered to CCL in the form filed with the SEC, Annual Report on Form 10-KSB for the fiscal year ended December 31, 1999, and a Quarterly Reports on Form 10-QSB for the fiscal quarters ended March 31, 2000 and June 30, 2000 (the "SEC Reports"). The SEC Reports as amended (i) were prepared in accordance with the requirements of the Act or the Securities Exchange Act of 1934, as amended, as the case may be, and (ii) did not at the time they were filed (or if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Except as previously disclosed to CCL, since June 30, 2000, the Company has conducted its business only in the ordinary course of business and in a manner consistent with past practice and, since such date, there has not been (i) any change in the financial condition, results of operations or business of the Company having a Material Adverse Effect or, to the knowledge of the Company, any development that could reasonably be expected to have a Material Adverse Effect, other than as disclosed in the SEC Reports, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any assets of the Company having a Material Adverse Effect; or (iii) any declaration, payment, or setting aside for payment of any dividends. There are no actions, suits, or proceedings pending or, to the knowledge of the Company, threatened against the Company, nor is the Company subject to any order, judgment, or decree that would have a Material Adverse Effect. 3.5 The Securities, when issued, sold and delivered in accordance with the terms hereof for the consideration expressed herein, will be duly and validly issued, fully paid and nonassessable and free of any liens or encumbrances created by the Company and free of any restrictions imposed under the Nevada Control Share Acquisition Act and the issuance of the Securities is not a prohibited transaction under the Nevada Business Combination Act. The issuance of the Securities will not constitute a change in control under any agreement applicable to the Company, including an agreement between the Company and Proctor & Gamble. IV. SUPERSEDES PRIOR NEGOTIATION. This Purchase Agreement supersedes in its entirety prior negotiations with CCL concerning an investment in the Company. V. COUNTERPARTS. This Agreement may be executed in any number of counterparts, and each such counterpart shall be deemed to be an original instrument. All such counterparts together shall constitute one agreement. [this space intentionally left blank] IN WITNESS WHEREOF, the Investor and the Company have executed this Purchase Agreement dated effective as of September 21, 2000. CAPITAL CONSULTANTS LLC as Agent for the Investors By: Its: Address: A-FEM MEDICAL CORPORATION By: Steven T. Frankel Its: Chief Executive Officer Address: A-FEM Medical Corporation Suite J-5 10180 S.W. Nimbus Avenue Portland, OR 97223 Rider A A-FEM MEDICAL CORPORATION SCHEDULE 1 Per Section 2.12 of the A-Fem Medical Corporation Preferred Stock and Warrant Purchase Agreement dated September 21, 2000, Capital Consultants LLC represents that each Investor is a resident of one of the following jurisdictions: Oregon Washington Idaho Texas New Mexico Arizona Colorado Nevada EX-99.6 8 dex996.txt STOCK PURCHASE WARRANT DATED SEPTEMBER 21, 2000 EXHIBIT 99.6 (And Exhibit A to Preferred Stock and Warrant Purchase Agreement) WARRANT TO PURCHASE PREFERRED STOCK THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE LAW, AND NO INTEREST HEREIN MAY BE SOLD, DISTRIBUTED, ASSIGNED, OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (i) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS COVERING ANY SUCH TRANSACTION INVOLVING SAID SECURITIES, (ii) THIS CORPORATION RECEIVES AN OPINION OF LEGAL COUNSEL FOR THE HOLDER OF THESE SECURITIES SATISFACTORY TO THIS CORPORATION STATING THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION, OR (iii) THIS CORPORATION OTHERWISE SATISFIES ITSELF THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION. No. 00P-19 WARRANT TO PURCHASE SHARES OF CONVERTIBLE PREFERRED STOCK STOCK PURCHASE WARRANT TO PURCHASE SHARES OF CONVERTIBLE PREFERRED STOCK OF A-FEM MEDICAL CORPORATION For value received as set forth in that certain Preferred Stock and Warrant Purchase Agreement between certain investors (each an "Investor" and collectively, the "Investors") acting through their agent, Capital Consultants LLC ("CCL"), and A-Fem Medical Corporation, a Nevada corporation (the "Company") dated September 21, 2000, the Company grants to Capital Consultants LLC as Agent for Client No. [285], the Holder, as hereinafter defined, the right, subject to the terms of this Warrant, to purchase 79,861 shares of the Company's Series A Convertible Preferred Stock, par value $.01 per share, at $.01 per share, as adjusted (the "Exercise Price"). Section 1. Definitions. As used in this Warrant, unless the context otherwise requires: 1.1. "Exercise Date" means any date when this Warrant is exercised in the manner indicated in Sections 2.1 and 2.2. 1.2. "Expiration Date" means 5:00 p.m. Pacific Time, ten years from the date hereof. 1.3. "Holder" means (i) CCL, as agent for any Investor it represents and (ii) each Investor. 1.4. "Securities Act" means the Securities Act of 1933, as amended from time to time, and all rules and regulations promulgated thereunder, or any act, rules or regulations that replace the Securities Act or any such rules and regulations. 1.5. "Preferred Stock" means shares of the class designated as Series A Convertible Preferred Stock, par value $.01 per share, of the Company. 1.6. "Common Stock" means shares of the class designated as Common Stock, par value $.01 per share, of the Company. 1.7. "Warrant Shares" means any shares of Preferred Stock issued or issuable upon exercise of this Warrant. Section 2. Duration and Exercise of Warrant. 2.1 Exercise Period. Subject to the provisions of Sections 2.4, 4 and 6 hereof, this Warrant may be exercised, in whole or in part, during the period commencing on the date two years after the date hereof and ending on the Expiration Date. After the Expiration Date this Warrant shall become void, and all rights to purchase Warrant Shares hereunder shall thereupon cease. 2.2 Method of Exercise. This Warrant may be exercised by the Holder, in whole or in part, by (i) surrendering this Warrant to the Secretary of the Company, (ii) tendering to the Company payment in full by cash or by check acceptable to the Company of the Exercise Price for the Warrant Shares for which exercise is made and (iii) executing and delivering to the Secretary of the Company an Exercise Form, in the form attached to this Warrant. Upon exercise, the Holder shall be deemed to be the holder of record of the Warrant Shares for which exercise is made, even though the transfer or registrar books of the Company may then be closed or certificates representing such Warrant Shares may not then be actually delivered to the Holder. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. In lieu of any fractional share to which the Holder would otherwise be entitled, the Company shall round up or down the number of shares to the nearest whole share. 2.3 Certificates. As soon as practicable after the exercise, at the Company's expense, certificates for such Warrant Shares shall be delivered to the Holder and, unless this Warrant has expired, a warrant representing the number of Warrant Shares, if any, with respect to which this Warrant shall not have been exercised shall be issued to the Holder. 2.4 Securities Act Compliance. Unless the transfer of the Warrant Shares shall have been registered under the Securities Act, as a condition of the delivery of certificates for the Warrant Shares, the Company may require the Holder to deliver to the Company, in writing, representations regarding the Holder's sophistication, investment intent, acquisition for Holder's own account and such other matters as are reasonable and customary for purchasers of securities in an unregistered private offering. The Company may place conspicuously upon each Warrant and upon each certificate representing the Warrant Shares a legend substantially in the following form, the terms of which are agreed to by the Holder: "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE LAW, AND NO INTEREST THEREIN MAY BE SOLD, DISTRIBUTED, ASSIGNED, OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (i) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS COVERING ANY SUCH TRANSACTION INVOLVING SAID SECURITIES, (ii) THIS CORPORATION RECEIVES AN OPINION OF LEGAL COUNSEL FOR THE HOLDER OF THESE SECURITIES SATISFACTORY TO THIS CORPORATION STATING THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION, OR (iii) THIS CORPORATION OTHERWISE SATISFIES ITSELF THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION." 2.5 Taxes. The Company shall not be required to pay any tax that may be, payable in respect of any transfer of this Warrant. Section 3. Validity and Reservation of Warrant Shares. The Company covenants that all shares of Preferred Stock issued upon exercise of this Warrant, pursuant to the terms and conditions herein, will be validly issued, fully paid, nonassessable and free of preemptive rights. The Company agrees that, as long as this Warrant may be exercised, the Company will reserve from its authorized and unissued Preferred Stock a sufficient number of shares to provide for the issuance of the Preferred Stock upon exercise of, this Warrant (and shares of its Common Stock for issuance on conversion of such Preferred Stock). Section 4. Limited Rights of Warrant Holder. The Holder shall not, solely by virtue of being the Holder of this Warrant, have any of the rights of a holder of Preferred Stock of the Company, either at law or equity, until such Warrant shall have been exercised and the Holder shall be deemed to be the holder of record of Warrant Shares as provided in this Warrant, at which time the person or entity in whose name the certificate for Warrant Shares being purchased is to be issued shall be deemed the holder of record of such shares for all purposes. Section 5. Loss of Warrant. Upon receipt by the Company of reasonably satisfactory evidence of the loss, theft, destruction or mutilation of this Warrant and either (in the case of loss, theft or destruction) reasonable indemnification and a bond satisfactory to the Company if requested by the Company or (in the case of mutilation) the surrender of this Warrant for cancellation, the Company will execute and deliver to the Holder, without charge, a new Warrant of like tenor and amount. Section 6. Adjustments. The Exercise Price and the number of shares purchasable under this Warrant are subject to adjustment from time to time as follows: 6.1 Merger, Sale of Assets, etc. If at any time while this Warrant, or any portion thereof, is outstanding and unexpired there shall be a reorganization (other than a combination, reclassification, exchange or subdivision of shares provided for herein), merger or consolidation of the Company with or into another corporation, or the sale or transfer of all or substantially all of the Company's properties and assets to any other person, then, as a part of such reorganization, merger, consolidation, transfer or sale, provision shall be made so that the Holder of this Warrant shall thereafter be entitled to immediately exercise this Warrant and to receive upon exercise of this Warrant, and upon payment of the Exercise Price then in effect, the number of shares of stock or other securities or property of the Company, or of the successor corporation resulting from such reorganization, merger, consolidation, transfer or sale, to which a holder of the shares deliverable upon exercise of this Warrant would have been entitled to receive in such reorganization, merger, consolidation or sale, all subject to adjustment as provided herein. 6.2 Reclassification, etc. If the Company, at any time while this Warrant or any portion hereof, remains outstanding and unexpired by reclassification of securities or otherwise, shall change any of the securities as to which purchase rights under this Warrant exist into the same or a different number of securities of any other class or classes, this Warrant shall thereafter represent the right to acquire such number and kind of securities as would have been issuable as the result of such change with respect to the securities that were subject to the purchase rights under this Warrant immediately prior to such reclassification or other change and the Exercise Price thereof shall be appropriately adjusted, all subject to further adjustments as provided in this Section. 6.3 Split, Subdivision or Combination of Shares. If the Company at any time while this Warrant, or any portion hereof, remains outstanding and unexpired shall split, subdivide or combine the securities as to which purchase rights under this Warrant exist, into a different number of securities of the same class, the Exercise Price for such securities shall be proportionately decreased in the case of a split or subdivision or proportionately increased in the case of a combination. 6.4 Adjustments for Dividends in Stock or Other Securities or Property. If while this Warrant, or any portion hereof, remains outstanding and unexpired, the holders of the securities as to which purchase rights under this Warrant exist at the time shall have received, or on or after the record date for the determination of eligible shareholders, shall have become entitled to receive, without payment therefore, other or additional stock or other securities or property (other than cash) of the Company by way of dividend, then and in each such case, this Warrant shall represent the right to acquire, in addition to the number of shares of the security receivable upon exercise of this Warrant, and without payment of any additional consideration therefor, the amount of such other or additional stock or other securities or property (other than cash) of the Company that such holder would hold on the date of such exercise had it been the holder of record of the security receivable upon exercise of this Warrant on the date hereof and had thereafter, during the period from the date hereof to and including the date of such exercise, retained such shares and/or all other additional stock available by it as aforesaid during such period, giving effect to all adjustment called for during such period by the provisions of this Section 6. 6.5 Certificate of Adjustments. Upon the occurrence of each adjustment or readjustment pursuant to this Section 6, the Company, at its expense, shall promptly compute such adjustment or readjustment in accordance with the terms hereof and furnish to the Holder of this Warrant a certificate, signed by the Chairman of the Board, the President or the Chief Financial Officer, setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based. The Company shall, upon the written request at any time of any such Holder, furnish or cause to be furnished to such Holder a certificate setting forth: (A) such adjustments and readjustments, (B) the Exercise Price at the time in effect and (C) the number of shares and the amount, if any, of other property that at the time would be received upon the exercise of the Warrant. 6.6 No Impairment. The Company will not, by any voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying out of all the provisions of this Section 6 and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holder of this Warrant against impairment. Section 7. Registration Rights. Upon exercise of this Warrant, the Holder shall have and be entitled to exercise, together with all other holders of Registrable Securities possessing registration rights under that certain A-Fem Medical Corporation Amended and Restated Registration Rights Agreement, of even date herewith, between the Company and CCL ("Investors' Rights Agreement"), the rights of registration granted under the Investors' Rights Agreement to Registrable Securities (with respect to the shares of common stock issuable upon conversion of the Preferred Stock issuable upon exercise of this Warrant). By its receipt of this Warrant, Holder agrees to be bound by the Investors' Rights Agreement. Section 8. Miscellaneous. 8.1 Successors and Assigns. All the covenants and provisions of this Warrant that are by or for the benefit of the Company shall bind and inure to the benefit of its successors and assigns hereunder. 8.2 Notice. Any notice or demand pursuant to this Warrant shall be given in writing and shall be deemed effectively given upon personal delivery to the party to be notified or three days following deposit with the United States Post Office, postage prepaid, registered or certified with return receipt requested and addressed to the party to be notified as provided below: If to the Company: A-Fem Medical Corporation Suite J-5 10180 S.W. Nimbus Avenue Portland, OR 97223 (503) 968-8800 If to the Holder: Capital Consultants LLC Suite 200 2300 SW First Ave. Portland, OR 97201 Each party may specify a different address than set forth above by 10 days' advance notice thereof given in the foregoing manner. 8.3 Applicable Law. The validity, interpretation and performance of this Warrant shall be governed by the laws of the State of Oregon as applied to agreements among Oregon residents entered into and to be performed entirely within the State of Oregon. 8.4 Headings. The Article headings herein are for convenience only and are not part of this Warrant and shall not affect the interpretation thereof. 8.5 Amendments; Waiver. This Warrant and any term hereof may be changed, waived, discharged or terminated only by an instrument in writing signed by the party against which enforcement of such change, waiver, discharge or termination is sought. No waivers of, or exceptions to any term, condition or provision of this Warrant, in any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any such term, condition or provision. Dated: September 21, 2000 A-FEM MEDICAL CORPORATION By: Steven T. Frankel Its: Chief Executive Officer EXERCISE FORM (To Be Executed by the Holder to Exercise the Warrant in Whole or in Part) To: A-FEM MEDICAL CORPORATION I, the undersigned, hereby irrevocably elect to exercise the right of purchase represented by Warrant No. ____ for, and to purchase thereunder, ______ shares of Series A Convertible Preferred Stock for a purchase price of $.01 per share, as provided for therein. I hereby tender payment herewith to the order of A-FEM MEDICAL CORPORATION in the amount of $_________. I request that certificates for such shares of Series A Convertible Preferred Stock be issued and delivered as stated below, and, if said number of shares of Series A Convertible Preferred Stock shall not be all the shares of Series A Convertible Preferred Stock purchasable thereunder, that a new Warrant for the balance remaining of the shares of Series A Convertible Preferred Stock purchasable under the within Warrant be registered and delivered to me, as stated below: Signature: Name: Address: Deliver to: Address: Note: Signature must correspond with the name as written upon the face of the Warrant in every particular, without alteration or enlargement or any change whatsoever. EX-99.7 9 dex997.txt AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT EXHIBIT 99.7 (and Exhibit B to Preferred Stock and Warrant Purchase Agreement) A-FEM MEDICAL CORPORATION AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT This Amended and Restated Registration Rights Agreement is entered into as of the 21st day of September, 2000, by and between A-Fem Medical Corporation, a Nevada corporation ("A-Fem"), and Capital Consultants LLC, an Oregon limited liability company, as agent for certain investors it represents (in its capacity as agent, Capital Consultants LLC is referred to herein as "CCL") and replaces and supersedes those certain Registration Rights Agreements entered into by and between A-Fem and CCL dated as of August 31, 1998, October 8, 1998, November 6, 1998, March 9, 1999, April 15, 1999, May 10, 1999, June 15, 1999, July 21, 1999, August 19, 1999, September 22, 1999, December 17, 1999, March 24, 2000, July 21, 2000, and August 21, 2000. The parties agree as follows: 1. Definitions 1.1 The terms "Form S-1," "Form S-2" and "Form S-3" mean such respective forms under the Securities Act of 1933, as amended ("the 1933 Act"), as in effect on the date hereof or any successor registration forms to Form S-1, Form S-2 and Form S-3, respectively, under the 1933 Act subsequently adopted by the Securities and Exchange Commission or any other federal agency at the time administering the 1933 Act (the "SEC"). 1.2 The terms "register," "registered," and "registration" refer to a registration effected by preparing and filing a registration statement or similar document in compliance with the 1933 Act and the declaration or ordering of effectiveness of such registration statement or document. 1.3 The term "Registrable Securities" means the shares of the common stock of A-Fem (the "Common Stock") to be issued upon conversion of the shares of convertible preferred stock (the "Preferred Stock") to be issued pursuant to (i) the Preferred Stock and Warrant Purchase Agreement dated as of August 31, 1998, (ii) the Plan and Agreement for Recapitalization dated as of September 1, 1998, (iii) the Stock Purchase Warrant (No. 98P-1) to purchase 130,000 shares of Preferred Stock, (iv) the Preferred Stock and Warrant Purchase Agreement dated as of October 8, 1998, (v) the Stock Purchase Warrant (No. 98P-3) to purchase 127,280 shares of Preferred Stock, (vi) the Stock Purchase Warrant (No. 98P-4) to purchase 72,720 shares of Preferred Stock, (vii) the Preferred Stock and Warrant Purchase Agreement dated as of November 6, 1998, (viii) the Stock Purchase Warrant (No. 98P-5) to purchase 102,065 shares of Preferred Stock, (ix) the Stock Purchase Warrant (No. 98P-6) to purchase 1,583 shares of PreferredStock, (x) the Stock Purchase Warrant (No. 98P-7) to purchase 552 shares of Preferred Stock, (xi) the Preferred Stock and Warrant Purchase Agreement dated as of March 9, 1999, (xii) the Stock Purchase Warrant (No. 99P-8) to purchase 31,250 shares of Preferred Stock, (xiii) the Preferred Stock and Warrant Purchase Agreement dated as of April 15, 1999, (xiv) the Stock Purchase Warrant (No. 99P-9) to purchase 20,834 shares of Preferred Stock, (xv) the Preferred Stock and Warrant Purchase Agreement dated as of May 10, 1999, (xvi) the Stock Purchase Warrant (No. 99P-10) to purchase 20,834 shares of Preferred Stock, (xvii) the Preferred Stock and Warrant Purchase Agreement dated as of June 15, 1999, (xviii) the Stock Purchase Warrant (No. 99P-11) to purchase 20,834 shares of Preferred Stock, (xix) the Preferred Stock and Warrant Purchase Agreement dated as of July 21, 1999, (xx) the Stock Purchase Warrant (No. 99P-12) to purchase 20,834 shares of Preferred Stock, (xxi) the Preferred Stock and Warrant Purchase Agreement dated August 19, 1999, (xxii) the Stock Purchase Warrant (No. 99P-13) to purchase 20,834 shares of Preferred Stock, (xxiii) the Preferred Stock and Warrant Purchase Agreement dated as of September 22, 1999, (xxiv) the Stock Purchase Warrant (No. 99P-14) to purchase 52,080 shares of Preferred Stock, (xxv) the Preferred Stock and Warrant Purchase Agreement dated as of December 17, 1999, (xxvi) the Stock Purchase Warrant (No. 99P-15) to purchase 118,364 shares of Preferred Stock, (xxvii) the Preferred Stock and Warrant Purchase Agreement dated as of March 24, 2000, (xxviii) the Stock Purchase Warrant (No. 00P-16) to purchase 174,365 shares of Preferred Stock, (xxix) the Preferred Stock and Warrant Purchase Agreement dated as of July 21, 2000, (xxx) the Stock Purchase Warrant (No. 00P-17) to purchase 79,861 shares of Preferred Stock, (xxxi) the Preferred Stock and Warrant Purchase Agreement dated as of August 21, 2000, (xxxii) the Stock Purchase Warrant (No. 00P-18) to purchase 79,861 shares of Preferred Stock, (xxxiii) the Preferred Stock and Warrant Purchase Agreement dated as of September 21, 2000, and (xxxiv) the Stock Purchase Warrant (No. 00P-19) to purchase 79,861 shares of Preferred Stock, and any Common Stock issued as a dividend or other distribution with respect to, or any other securities issued in exchange for, or in replacement of, such shares of Common Stock. As to any particular Registrable Securities, such securities will cease to be Registrable Securities when (i) they have been effectively registered under the 1933 Act and disposed of in accordance with the registration statement covering them, or (ii) they may be sold by a Holder without effective volume limitations pursuant to Rule 144 (or any similar provision that is in force) under the 1933 Act. 1.4 The term "Holder" means (i) CCL, provided that it holds any Registrable Securities as agent for any investor it represents, (ii) each of the investors for whom CCL holds the Registrable Securities and (iii) any assignee in accordance with Section 9. 2. Registration Rights 2.1 Demand Registration Rights (a) If A-Fem shall receive, at any time after the date hereof, a written request from the Holders of at least 30% of the Registrable Securities then outstanding (the "Initiating Holders") that A-Fem file a registration statement under the Securities Act covering the registration of such Initiating Holders' Registrable Securities, then A-Fem shall, within five days after the receipt of such request, give written notice of such request to all Holders and shall, subject to the limitations set forth below, use its best efforts to file as soon as practicable, a registration statement under the Securities Act of all Registrable Securities that the Holders request to be registered in a written request to be given within five days of the mailing of such notice by A-Fem, and shall use its best efforts to cause such registration statement to be declared effective as soon as practicable. (b) A-Fem is obligated to effect only two registrations pursuant to this Section 2.1; provided, however, that if A-Fem is eligible to register securities on Form S-3, then A-Fem is obligated to effect a registration on such Form S-3 each time such registration is requested by the Holders pursuant to this Section 2.1. (c) Notwithstanding the foregoing, if A-Fem shall furnish to the Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the President of A-Fem stating that, in the good faith judgment of the Board of Directors of A-Fem, it would be seriously detrimental to A-Fem and its shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, A-Fem shall have the right to defer such filing for not more than 60 days after receipt of the request of the Initiating Holders. (d) Subject to Section 2.1(c), if A-Fem fails to file a registration statement within 20 business days after receipt of the request of the Initiating Holders ("Deadline"), then A-Fem will grant to the Holders requesting registration ten-year warrants, with an exercise price of $1.92 per share, to purchase the number of shares of common stock of A-Fem determined by the product of (1) number of days elapsed between the Deadline and the date the registration statement is filed; and (2) 1% of the Registrable Shares that the Holders requested to be registered. The warrants will contain terms, conditions and adjustments similar to warrants previously issued to the Holders, and the warrant will be issued within 30 days of the date the registration statement is filed. No such warrant will be issued to any Holder who fails to promptly supply information concerning such Holder to be included in the Registration Statement. 2.2 Incidental Registration Rights (a) If at any time after the date hereof A-Fem proposes to register any of its securities under the 1933 Act (except for registration of shares solely in connection with an employee benefit plan or a merger or consolidation) in any public offering, whether or not for sale for its own account, it will at such time give prompt written notice to Holder of its intention to do so and of Holder's rights under this Section 2. (b) Upon the written request of Holder made within 30 days after the receipt of any such notice (which request shall specify the number of Registrable Securities intended to be disposed of by Holder), A-Fem will use its best efforts to effect the registration under the 1933 Act and applicable state securities laws of all Registrable Securities in connection therewith that A-Fem has been so requested to register by Holder. (c) If the managing underwriter for any underwritten offering in a registration pursuant to this Section 2.2 shall inform in writing A-Fem and Holder of its belief that the number of securities requested to be included in such registration would materially and adversely affect its ability to effect such offering, then A-Fem will include in such registration the number that A-Fem is so advised can be sold in (or during the time of) such offering, first, all securities proposed by A-Fem to be sold for its own account, and second, such Registrable Securities and other securities of A-Fem requested to be included in such registration by persons exercising their incidental registration rights, pro rata on the basis of the number of shares of such securities so proposed to be sold and so requested to be included. 3. Obligations of A-Fem Whenever required under this Agreement to use its best efforts to effect the registration of Registrable Securities, A-Fem shall, as expeditiously as possible: 3.1 Prepare and file with the SEC a registration statement with respect to such Registrable Securities and use its best efforts to cause such registration statement to become and remain effective for the period of the distribution contemplated thereby determined as provided hereafter. 3.2 Prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the 1933 Act with respect to the disposition of all securities covered by such registration statement. 3.3 Furnish to Holder such reasonable number of copies of a prospectus, including any preliminary prospectus, in conformity with the requirements of the 1933 Act, and any amendments or supplements thereto and such other documents as Holder may reasonably request in order to facilitate the disposition of Registrable Securities owned by Holder. 3.4 Use its best efforts to register and qualify the securities covered by such registration statement under such other securities or Blue Sky laws of all 50 states, provided that A-Fem shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states. 3.5 In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter of such offering. Holder shall also enter into and perform its obligations under such an agreement, including furnishing any opinion of counsel or entering into a lock-up agreement reasonably requested by the managing underwriter and take such other actions as are reasonably required in order to expedite or facilitate the disposition of the Registrable Securities to be so included in the registration statement. 3.6 Notify Holder, at any time when a prospectus relating thereto covered by such registration statement is required to be delivered under the 1933 Act, of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing and promptly file such amendments and supplements that may be required on account of such event and use its best efforts to cause each such amendment and supplement to become effective. 3.7 Furnish, at the request of any Holder requesting registration of Registrable Securities pursuant to Section 2, on the date that such Registrable Securities are delivered to the underwriters for sale in connection with a registration pursuant to Section 2, if such securities are being sold through underwriters, or, if such securities are not being sold through underwriters, on the date that the registration statement with respect to such securities becomes effective, (i) an opinion, dated such date, of the counsel representing A-Fem for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to the Holders requesting registration of Registrable Securities and (ii) a letter dated such date, from the independent certified public accountants of A-Fem, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to the Holders requesting registration of Registrable Securities. 3.8 Otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make available to its security holders, as soon as reasonably practicable, but not later than 18 months after the effective date of the registration statement, an earnings statement covering the period of at least 12 months beginning with the first full month after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act. 3.9 Use its best efforts to list the Restricted Securities covered by such registration statement with any securities exchange on which the Common Stock of A-Fem is then listed. For purposes of Sections 3.1 and 3.2, the period of distribution of Registrable Securities in a firm commitment underwritten public offering shall be deemed to extend until each underwriter has completed the distribution of all securities purchased by it, and the period of distribution of Registrable Securities in any other registration shall be deemed to extend until the earlier of the sale of all Registrable Securities covered thereby and one year after the effective date thereof. 4. Preparation; Information; Reasonable Investigation 4.1 Furnish Information. It shall be a condition precedent to the obligations of A-Fem to take any action pursuant to this Agreement that Holder shall furnish to A-Fem such information regarding Holder, the Registrable Securities held by Holder, and the intended method of disposition of such securities as shall be required to effect the registration of Holder's Registrable Securities. 4.2 Preparation; Reasonable Investigation. In connection with the preparation and filing of any registration statement under the 1933 Act pursuant to this Agreement, A-Fem will give Holder and Holder's counsel, accountants or underwriters the opportunity to participate in the preparation of such registration statement, each prospectus included therein or filed with the SEC, and each amendment thereof or supplement thereto, and will give Holder such access to its books and records and such opportunities to discuss the business of A-Fem with its officers and the independent public accountants who have certified its financial statements as shall be necessary, in the opinion of Holder's counsel, accountants or underwriters, to conduct a reasonable investigation within the meaning of the 1933 Act. 5. Expenses of Registration All expenses (other than underwriting discounts and commissions and transfer taxes, if any) relating to Registrable Securities incurred in connection with the registrations, filings or qualifications pursuant to this Agreement, including without limitation all registration, filing and qualification fees, printing and accounting fees, fees and disbursements of counsel for A-Fem, and fees and disbursements of counsel to Holder, shall be borne by A-Fem. 6. Indemnification If any Registrable Securities are included in a registration statement under this Agreement: 6.1 A-Fem Indemnification. To the extent permitted by law, A-Fem will indemnify and hold harmless and defend Holder, the officers, directors, partners, agents and employees of Holder or any underwriter (as defined in the 1933 Act), and each person, if any, who controls Holder or underwriter within the meaning of the 1933 Act or the Securities Exchange Act of 1934, as amended (the "1934 Act"), against any losses, claims, damages or liabilities (joint or several) to which they may become subject under the 1933 Act, the 1934 Act or other federal or state law, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (a "Violation"): (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by A-Fem of the 1933 Act, the 1934 Act, any state securities law or any rule or regulation promulgated under the 1933 Act, the 1934 Act or any state securities law. A-Fem will pay or reimburse such Holder, officer, director, partner, agent, employee, underwriter, or controlling person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action. The indemnity agreement contained in this Section 6.1 shall not apply to amounts paid in settlement of any loss, claim, damage, liability or action if such settlement is effected without the consent of A-Fem (which consent shall not be unreasonably withheld), nor shall A-Fem be liable to Holder in any such case for any such loss, claim, damage, liability or action (a) to the extent that it arises solely from or is based solely upon a Violation that occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by or on behalf of Holder or its controlling person, or (b) if such untrue statement or alleged untrue statement or omission or alleged omission was contained in a preliminary prospectus and corrected in a final or amended prospectus, and Holder failed to deliver a copy of the final or amended prospectus at or prior to the confirmation of the sale of the Registrable Securities to the person asserting any such loss, claim, damage or liability in any case where such delivery is required by the 1933 Act. 6.2 Holder Indemnification. To the extent permitted by law, Holder will indemnify and hold harmless A-Fem, each of its directors, each of its officers who have signed the registration statement, and each person, if any, who controls A-Fem within the meaning of the 1933 Act, against any losses, claims, damages or liabilities (joint or several) to which A-Fem or any such director, officer or controlling person, under the 1933 Act, the 1934 Act or other federal or state law, insofar as such losses, claims, damages or liabilities (or actions in respect thereto) arise out of or are based upon any Violation, in each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by or on behalf of Holder expressly for use in connection with such registration; and Holder will reimburse any legal or other expenses reasonably incurred by A-Fem or any such director, officer or controlling person, in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the indemnity agreement contained in this Section 6.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of Holder, which consent shall not be unreasonably withheld, nor, in the case of a sale directly by A-Fem of its securities (including a sale of such securities through any underwriter retained by A-Fem to engage in a distribution solely on behalf of A-Fem), shall Holder be liable to A-Fem in any case in which such untrue statement or omission or alleged untrue statement or alleged omission was contained in a preliminary prospectus and corrected in a final or amended prospectus, and A-Fem failed to deliver a copy of the final or amended prospectus at or prior to the confirmation of the sale of the securities to the person asserting any such loss, claim, damage or liability in any case where such delivery is required by the 1933 Act; and provided, further, that the indemnification obligation of Holder shall be limited to the aggregate public offering price of the Registrable Securities sold by Holder pursuant to such registration. 6.3 Notice, Defense and Counsel. Promptly after receipt by an indemnified party under this Section 6 of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 6, deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume and control the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action, if materially and adversely prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice, but the omission so to deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this Section 6. 6.4 Contribution. If the indemnification provided for in this Section 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any losses, claims, damages or liabilities referred to herein, the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall, to the extent permitted by applicable law, contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other, in connection with the Violation(s) that resulted in such loss, claim, damage or liability, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by a court of law by reference to, among other things, whether the untrue or allegedly untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. 6.5 Survival of Rights and Obligations. The obligations of A-Fem and Holder under this Section 6 shall survive the completion of any offering of Registrable Securities in a registration statement whether under this Agreement or otherwise. 7. Reports Under the 1934 Act. With a view to making available to Holder benefits of Rule 144 promulgated under the 1933 Act and any other rule or regulation of the SEC that may at any time permit Holder to sell securities of A-Fem to the public without registration, A-Fem agrees to use its best efforts to: (a) make and keep public information available, as those terms are understood and defined in Rule 144, at all times; (b) file with the SEC in a timely manner all reports and other documents required of A-Fem under the 1933 Act and the 1934 Act; and (c) furnish to Holder, so long as Holder owns any Registrable Securities, forthwith upon request (i) a written statement by A-Fem that it has complied with the reporting requirements of Rule 144, the 1933 Act and the 1934 Act (at any and all times after it has become subject to such reporting requirements), or that it qualifies as a registrant whose securities may be resold pursuant to Form S-2 or S-3 (at any time after it so qualifies), (ii) a copy of the most recent annual or quarterly report of A-Fem and such other reports and documents so filed by A-Fem, and (iii) such other information as may be reasonably requested in availing Holder of any rule or regulation of the SEC that permits the selling of any such securities without registration or pursuant to such form. 8. Lock-Up Agreement Holder, if requested by A-Fem and an underwriter of A-Fem's securities (in a firmly underwritten public offering), shall agree not to sell or otherwise transfer or dispose of any Registrable Securities or other securities of A-Fem held by Holder for a specified period of time (not to exceed 90 days) following the effective date of a registration statement pursuant to which A-Fem proposes to sell its securities to the public generally, provided, however, that holders of at least five percent of A-Fem's Common Stock and all officers and directors of A-Fem enter into similar agreements. 9. Assignment of Registration Rights The right to cause A-Fem to register Common Stock pursuant to this Agreement may not be assigned or transferred without the prior written consent of A-Fem, which consent will not be unreasonably withheld. 10. Amendment Any provision of this Agreement may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of A-Fem and the Holders of a majority of the Registrable Securities. Any amendment or waiver effected in accordance with this Section shall be binding upon each Holder and A-Fem. 11. Termination of Registration Rights No Holder shall be entitled to exercise any right provided for in this Agreement after five (5) years following the date hereof. 12. Attorneys' Fees In the event any legal action is brought by any party to enforce the terms of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and expenses in addition to any other relief deemed appropriate by the trial court or any appellate court or any bankruptcy court. 13. Successors Subject to Section 9 hereof, this Agreement shall bind and inure to the benefit of the successors and assigns of A-Fem and the Holders. 14. Entire Agreement This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior arrangements or understandings. 15. Notices All notices, requests, consents and other communications required or provided for herein to any party shall be deemed to be sufficient if contained in a written instrument, and shall be deemed to be given when: (a) delivered in person; (b) sent by first-class registered or certified mail with postage prepaid; (c) delivered by overnight receipted courier service; or (d) sent by facsimile transmission with delivery confirmed and followed by delivery pursuant to (b) hereof, which notice is addressed to the party at the address set forth below, or such other address as may hereafter be designated in writing by the party. If to A-Fem: 10180 S.W. Nimbus Avenue, Suite J-5 Portland, OR 97223 Attention: Steven T. Frankel, President and Chief Executive Officer Telephone: (503) 968-8800 Facsimile: (503) 639-3674 with a copy to: Patrick J. Simpson Perkins Coie, LLP 1211 SW Fifth Avenue, Suite 1500 Portland, OR 97204-3715 Telephone: (503) 727-2000 Facsimile: (503) 727-2222 If to the Holder: Capital Consultants LLC 2300 SW First Avenue, Suite 200 Portland, OR 97201 Attention: Jeffrey L. Grayson Telephone: (503) 241-1200 Facsimile: (503) 241-0207 with a copy to: Carmen M. Calzacorta Schwabe, Williamson & Wyatt 1211 SW Fifth Avenue, Suite 1600-1800 Portland, OR 97204 Telephone: (503) 796-2994 Facsimile: (503) 796-2900 16. Event of Default An Event of Default shall have occurred under this Agreement if A-Fem shall fail to perform any obligation under this Agreement within thirty (30) days after notice from any Holder specifying the nature of the failure of default. 17. Counterparts This Agreement may be executed in any number of counterparts, and each such counterpart shall be deemed to be an original instrument. All such counterparts together shall constitute one agreement. 18. Headings The headings of the various sections of this Agreement have been inserted for convenience of reference only and shall not be deemed to be a part of this Agreement. 19. Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon. [this space intentionally left blank] IN WITNESS WHEREOF, the parties hereto have executed or caused their duly authorized representatives to execute this Agreement as of the date first hereinabove written. Holder by: CAPITAL CONSULTANTS LLC, as agent By: Its A-FEM: A-FEM MEDICAL CORPORATION By: Steven T. Frankel Its: Chief Executive Officer EX-99.8 10 dex998.txt POWER OF ATTORNEY RELATING TO GOLDMAN, SACHS & CO. EXHIBIT 99.8 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS that GOLDMAN, SACHS & CO. (the "Company") does hereby make, constitute and appoint each of Hans L. Reich and Roger S. Begelman, acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the "Act"), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof. THIS POWER OF ATTORNEY shall remain in full force and effect until either revoked in writing by the undersigned or until such time as the person or persons to whom power of attorney has been hereby granted cease(s) to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates. IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of December 8th, 2000. GOLDMAN, SACHS & CO. By: /s/ Gregory K. Palm ------------------- Name: Gregory K. Palm Title: Managing Director EX-99.9 11 dex999.txt POWER OF ATTORNEY RELATING TO GOLDMAN SACHS GROUP EXHIBIT 99.9 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS that THE GOLDMAN, SACHS GROUP, INC. (the "Company") does hereby make, constitute and appoint each of Hans L. Reich and Roger S. Begelman, acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the "Act"), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof. THIS POWER OF ATTORNEY shall remain in full force and effect until either revoked in writing by the undersigned or until such time as the person or persons to whom power of attorney has been hereby granted cease(s) to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates. IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of December 8th, 2000. THE GOLDMAN SACHS GROUP, INC. By: /s/ Gregory K. Palm -------------------- Name: Gregory K. Palm Title: Executive Vice President and General Counsel -----END PRIVACY-ENHANCED MESSAGE-----