Exhibit 10.1
MUTUAL RESCISSION OF
SECURITIES EXCHANGE AGREEMENT
This Mutual Rescission of Securities Exchange Agreement (the
"Rescission Agreement") is entered into effective this 18th day of December,
2003 by and between Anza Capital, Inc., a Nevada corporation ("Anza"), American
Residential Funding, Inc., a Nevada corporation ("AMRES"), and Sutter Holding
Company, Inc., a Delaware corporation ("Sutter"). Each of Anza, AMRES, and
Sutter shall be referred to as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, the Parties entered into that certain Securities Exchange
Agreement dated July 18, 2003 (the "Exchange Agreement");
WHEREAS, Section 4 of the Exchange Agreement provides that any Party
may rescind that agreement by giving advance written notice to the other
Parties;
WHEREAS, the Parties desire to waive any advance notice provisions in
the Exchange Agreement and rescind the Exchange Agreement in its entirety,
effective immediately.
NOW, THEREFORE, for good and adequate consideration, the receipt of
which is hereby acknowledged, the Parties covenant, promise and agree as
follows:
AGREEMENT
1. RESCISSION: Effective on the date hereof, the Exchange Agreement is
hereby rescinded in its entirety, and upon the completion of the deliveries set
forth in Section 2 below, the obligations of each Party to the other Parties
shall be terminated. All agreements entered into as contemplated by the Exchange
Agreement, including but not limited to the Irrevocable Proxy's, are terminated
effective on the date hereof.
2. DELIVERIES: Within five (5) business days of the execution of this
Rescission Agreement, the following shall occur:
(a) AMRES shall deliver to Sutter Sixty Six Thousand Four Hundred Ninety
Six (66,496) shares of Sutter common stock (the "Sutter Shares"), along
with a medallion guaranteed stock power sufficient for Sutter to cancel
the Sutter Shares;
(b) Sutter shall deliver to AMRES One Million (1,000,000) shares of
Series A Preferred Stock of AMRES (the "AMRES Shares"), endorsed or
accompanied by a stock power sufficient for AMRES to cancel the AMRES
Shares; and
(c) Sutter shall deliver to ANZA warrants to acquire One Million
(1,000,000) shares of Anza common stock, which Sutter hereby
acknowledges will be terminated effective on the date hereof.
3. REPRESENTATIONS AND WARRANTIES: Each of the Parties hereby
represents, warrants and agrees as follows:
(a) Each Party has all requisite corporate power and authority to enter
into and perform this Rescission Agreement and to consummate the
transactions contemplated hereby.
(b) Each Party hereby agrees to indemnify and defend the other Parties
and their directors and officers and hold them harmless from and against
any and all liability, damage, cost or expense incurred on account of or
arising out of the actions of an indemnifying party for:
(i) Any breach of or inaccuracy in representations, warranties
or agreements herein;
(ii) Any action, suit or proceeding based on a claim that any of
said representations, warranties or agreements were inaccurate or misleading or
otherwise cause for obtaining damages or redress from an indemnifying party or
any of its directors or officers.
(c) The representations, warranties and agreements contained in this
Rescission Agreement shall be binding on each Parties' successors, assigns,
heirs and legal representatives and shall inure to the benefit of the respective
successors and assigns of the other Parties.
4. This Rescission Agreement may not be amended, canceled, revoked or
otherwise modified except by written agreement subscribed by all of the Parties
to be charged with such modification.
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5. All Parties hereto agree to pay their own costs and attorneys' fees
except as follows:
(a) In the event of any action, suit or other proceeding instituted to
remedy, prevent or obtain relief from a breach of this Agreement,
arising out of a breach of this Agreement, involving claims within the
scope of the releases contained in this Agreement, or pertaining to a
declaration of rights under this Agreement, the prevailing Party shall
recover all of such Party's attorneys' fees and costs incurred in each
and every such action, suit or other proceeding, including any and all
appeals or petitions therefrom.
(b) As used herein, attorneys' fees shall be deemed to mean the full and
actual costs of any legal services actually performed in connection
with the matters involved, calculated on the basis of the usual fee
charged by the attorneys performing such services.
6. This Agreement and the rights of the parties hereunder shall be
governed by and construed in accordance with the laws of the State of California
including all matters of construction, validity, performance, and enforcement
and without giving effect to the principles of conflict of laws. Venue for any
action brought under this Agreement shall be in the appropriate court in either
Orange County or San Francisco County, California, at the discretion of the
Party first bringing the action.
7. The Parties agree and stipulate that each and every term and
condition contained in this Agreement is material, and that each and every term
and condition may be reasonably accomplished within the time limitations, and in
the manner set forth in this Agreement.
8. The Parties agree and stipulate that time is of the essence with
respect to compliance with each and every item set forth in this Agreement.
9. This Agreement, along with the exhibits hereto, sets forth the
entire agreement and understanding of the Parties hereto and supersedes any and
all prior agreements, arrangements and understandings related to the subject
matter hereof. No understanding, promise, inducement, statement of intention,
representation, warranty, covenant or condition, written or oral, express or
implied, whether by statute or otherwise, has been made by any party hereto
which is not embodied in this Agreement or the written statements, certificates,
or other documents delivered pursuant hereto or in connection with the
transactions contemplated hereby, and no Party hereto shall be bound by or
liable for any alleged understanding, promise, inducement, statement,
representation, warranty, covenant or condition not so set forth.
10. This Agreement may be executed in one or more counterparts, each of
which when executed and delivered shall be an original, and all of which when
executed shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Parties hereto, agreeing to be bound hereby,
execute this Agreement upon the date first set forth above.
"AMRES" "Anza"
American Residential Funding, Inc. Anza Capital, Inc.
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By: Vincent Rinehart By: Vincent Rinehart
Its: President Its: President
"Sutter"
Sutter Holding Company, Inc.
- ----------------------------------
By: Robert E. Dixon
Its: Co-CEO and President
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