LOAN SALE AGREEMENT Dated and Effective as of April 30, 2007 by and between DATA SALES GROUP, INC., SELLER, and CS FINANCING CORPORATION, BUYER
Exhibit 10.15
Dated
and
Effective as of April 30, 2007
by
and
between
DATA
SALES GROUP, INC.,
SELLER,
and
CS
FINANCING CORPORATION,
BUYER
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THIS
LOAN SALE AGREEMENT ("Agreement
"), is made and entered into as of the 30th day of April, 2007, by and
between Data Sales Group, Inc. ("Seller"), a Minnesota corporation, having
an
address of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
and CS Financial Corporation ("Buyer"), a California corporation, having an
address of21 ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
RECITALS
A. Seller
is the owner of and wishes to
sell the Loan (as defined in Article 1 below) on the
terms and subject to the conditions
set forth herein.
B. Buyer
wishes to purchase the Loan, on
the terms and subject to the conditions set forth herein.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual promises herein set
forth and other valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, Seller and Buyer agree as follows:
ARTICLE
1
DEFINITIONS
For
purposes of this Agreement, the following terms shall have the meanings
indicated:
Section
1.1 “Agreement”
means
this Loan Sale Agreement,
including all Exhibits and Schedules hereto.
Section
1.2 “Assigned
Rights” means all right,
title and interest
in, to and under the Loan and the Loan Documents, including, without limitation,
all rights to principal, interest, fees, costs and expenses payable thereunder
commencing as of the Closing Date and all other rights and claims
thereunder.
Section
1.3 “Assignment
of Assigned
Rights” means the
document to be delivered on the Closing
Date by Buyer and Seller, the
form of which is attached hereto as Exhibit A,
whereby Seller assigns to Buyer, and
Buyer accepts from Seller, the Assigned Rights.
Section
1.4 “Business
Day” means any day on
which Seller is open
for business other than a Saturday, a Sunday or a state or Federal holiday
in
the State of California.
Section
1.5 "Closing"
means
the occurrence of all acts
required by this Agreement to assign and transfer the Assigned Rights from
Seller to Buyer and for Buyer to accept and assume the Assigned Rights from
Seller.
Section
1.6 “Closing
Date” means April 30,
2007, or such other
date upon which Buyer and Seller may mutually agree.
Section
1.7 “Closing
Documents” means all documents
described herein
that are required to be delivered at the Closing by Seller or
Buyer.
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Section
1.8 “Collateral”
means
the guaranty of ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ securing the Loan Note as described in the Loan
Documents.
Section
1.9 “Collateral
Document” means the guaranty
agreement of
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ securing the Loan Note.
Section
1.10 “Loan”
means
(a) the obligation evidenced by
the Loan Note, the Loan Documents and/or any amendment thereto; (b) all rights,
powers, liens or security interests of Seller in or under any Collateral
Document; and (c) any judgments founded upon the Loan Note or any other Loan
Document, to the extent attributable thereto, or any lien
arising
therefrom.
Section
1.11 “Loan
Documents" means all of the
agreements,
certificates, legal opinions or other documents related to, or evidencing,
the
Loan, as obtained at the time of its origination and any subsequent
modification, including, but not limited to, the Loan Note, the Collateral
Document, the Debt Subordination Agreement dated as of August 7,2006, loan
agreements, guarantees, and credit reports.
Section
1.12 “Loan
Files” means all documents,
the Loan Note
and the Collateral Document, in the possession of Seller pertaining to the
Loan.
Section
1.13 “Loan
Note” means that certain
Amended and
Restated Subordinated Promissory Note dated August 7, 2006 evidencing
an indebtedness of the principal sum of $2,000,000.00 executed by Assured
Financial, LLC, a Minnesota limited liability company, as borrower,
(“Borrower”), in favor of Seller, as lender.
Section
1.14 “Obligor”
means
Assured Financial, LLC, a
Minnesota limited liability company, and any other person or entity obligated
for the Loan.
Section
1.15 “Purchase
Price” means the sum of Two Million
Twenty Four Thousand Six Hundred Fifity Seven Dollars and 54/100
($2,024,657.54).
ARTICLE
2
PURCHASE
AND SALE OF THE ASSIGNED RIGHTS
Section
2.1 Agreement
to Sell and Purchase Assigned Rights. On the Closing Date, Seller agrees to
sell, transfer and assign, and Buyer agrees to purchase the Assigned
Rights.
Section
2.2 Assignment
of Assigned Rights. On the Closing Date, Seller and Buyer shall each execute
and deliver to each other an Assignment of Assigned Rights in the form of
Exhibit A hereto, executed by an authorized representative of Seller and
Buyer, which Assignment of Assigned Rights shall sell, transfer, assign,
set-over, convey and delegate to Buyer the Assigned Rights.
Section
2.3 Consideration
for Assigned Rights. As consideration for the transfers and assignments
hereunder by Seller, Buyer shall pay the Purchase Price to Seller.
ARTICLE
3
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF BUYER
Buyer
hereby represents, warrants and covenants as of the date hereof and as of the
Closing Date that:
Section
3.1 Authorization and
Compliance. Buyer is
duly and legally authorized to enter into this Agreement and has complied with
all laws, rules, regulations, charter provisions and bylaws to which it may
be
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subject,
and that the undersigned
representative is authorized to act on behalf of and bind Buyer to the terms
of
this Agreement.
Section
3.2 Binding Obligation
of
Buyer. Assuming due
authorization, execution and delivery by each other party hereto, this Agreement
and all of the obligations of Buyer hereunder are the legal, valid and binding
obligations of Buyer, enforceable in accordance with the terms of this
Agreement, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at
law).
ARTICLE
4
REPRESENTATIONS
AND WARRANTIES OF SELLER
Section
4.1 Authorization and
Compliance. Seller is
duly and legally authorized to enter into this Agreement and has complied with
all laws, rules, regulations, charter provisions and bylaws to which it may
be
subject, and that the undersigned representative is authorized to act on behalf
of and bind Seller to the terms of this Agreement.
Section
4.2 Binding Obligation
of
Seller. Assuming due
authorization, execution and delivery by each
other party hereto, this Agreement
and all of the obligations of Seller hereunder are the legal, valid and binding
obligations of Seller enforceable in accordance with the terms of this
Agreement, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at
law).
Section
4.3 Seller is the owner and holder of the Loan Documents and has not
previously granted, assigned, pledged or transferred the Assigned Rights, there
are no outstanding agreements to sell the Assigned Rights to which Seller is
a
party, nor rights of first refusal to purchase the Assigned Rights, the Assigned
Rights are free from all liens and encumbrances; Seller has good right to sell
the Assigned Rights and Seller will defend the same from the claims of all
others.
Section
4.4 No
litigation is pending or, to the best of the Seller's knowledge, threatened
against the Seller that would prohibit the execution or delivery of, or
performance under, this Agreement by the Seller
Section
4.5 Seller
hereby represents that the outstanding principal balance of the Loan is
$2,000,000, as of the date hereof, and that the accrued interest thereon is
$24,657.54, as of the date hereof, and that Obligor, the payor under the Loan
Note, has no defense, set-off or claim against said indebtedness.
ARTICLE
5
CONDITIONS
PRECEDENT
Section
5.
1 Notwithstanding
anything in this Agreement to the contrary, Buyer's obligation to purchase
the
Assigned Rights and Obligations shall be subject to and contingent upon the
satisfaction of each of the following conditions precedent, prior to or on
the
Closing Date:
(a)
All
Closing Documents necessary to consummate the transactions contemplated in
this
Agreement shall have been executed and delivered by Seller and Buyer as required
by this Agreement.
(b)
Neither Buyer nor Seller shall have terminated this Agreement pursuant to the
terms of this Agreement.
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(c)
Seller’s delivery to Buyer of a certificate executed and delivered by Obligor to
Seller confirming Obligor’s unqualified consent to Seller’s assignment of (i)
the Loan Note; (ii) the Debt Subordination Agreement dated as of August 7,
2006;
and (iii) the Guaranty dated as of August 7, 2006 made by ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ in favor of Seller.
(d)
Seller’s delivery to Buyer of a certificate executed and delivered by ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ to Seller confirming ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ unqualified consent
to Seller’s assignment of the Loan Note.
Section
5.2 Failure
or Waiver of Conditions Precedent. In the event any of the
conditions
set forth in Section 5.1 do not occur as of the Closing Date, or have not
been waived in writing by Buyer or Seller, respectively, the party for whose
benefit the failed condition exists may terminate this Agreement by written
notice to the other party, and neither party shall have any further obligation
to the other, other than as a result of a breach by Seller or Buyer as the
case
may be, or as stated in this Agreement.
ARTICLE
6
CLOSING
Section
6.1 Closing.
The Closing shall occur on the Closing Date and, upon the agreement of Seller
and Buyer, shall be conducted either by mail or in person at the place
designated by Buyer and reasonably acceptable to Seller.
Section
6.2 Deliveries
by Seller. At Closing, Seller shall deliver to Buyer the
following:
(a)
a
counterpart Assignment and Assumption
of Assigned Rights, executed by Seller;
(b) the
original Loan Note endorsed to the order of Buyer, together with an allonge
therefor;
(c) Assignment
of the Guaranty dated as of August 7, 2006 made by
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ in favor of Seller; and
(d) the
documents set forth in Section 5.1 above, if not previously provided to
Buyer.
Section
6.3 Delivery
of Collateral Documents Seller agrees to make available to Buyer at Buyer’s
place of business on the Closing Date each original Collateral Document in
Seller's possession affecting the Loan, together with copies of the contents
of
the Loan Files.
Section
6.4 Closing
Costs. Seller and Buyer shall each pay the fees and expenses of their
respective legal counsel incurred in connection with this transaction. On the
Closing Date, Buyer shall deposit with the Seller, by wire transfer of
immediately available funds, the Purchase Price.
ARTICLE
7
BREACH
OF THE AGREEMENT
Section
7.1 Seller's
Breach. If Seller breaches this Agreement, and Buyer does not close the
transactions contemplated hereunder or such breach is discovered
after Closing, Seller shall be allowed a reasonable opportunity to cure the
breach. If the breach cannot be cured Buyer may, at Buyer's option, pursue
all
of Buyer's rights and remedies that Buyer may have under this Agreement and
at
law and/or in equity.
Section
7.2 Buyer's
Breach. If Buyer defaults under this Agreement, Seller's sole and exclusive
remedy at law shall be to terminate this Agreement.
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Section
7.3 Survival.
The parties agree that Seller's and Buyer's warranties and representations
contained in this Agreement and in any document (including any
certificate) executed pursuant to this Agreement shall survive the
Closing.
ARTICLE
8
NOTICES
Unless
otherwise provided for herein, all notices and other communications required
or
permitted hereunder shall be in writing (including a writing delivered by
facsimile transmission and simultaneously sent by regular mail) and shall be
deemed to have been duly given (a) when delivered, if sent by registered or
certified mail (return receipt requested), (b) when delivered, if delivered
personally or by facsimile or (c) on the second following Business Day, if
sent
by overnight mail or overnight courier, in each case to the parties at the
following addresses (or at such other addresses as shall be specified by like
notice):
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If
to the Buyer:
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CS
Financing Corporation
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Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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No. ▇▇▇-▇▇▇-▇▇▇▇
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with
a copy to:
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Keesal,
Young & ▇▇▇▇▇
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Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
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If
to the Seller:
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Data
Sales Group, Inc.
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Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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ARTICLE
9
MISCELLANEOUS
PROVISIONS
Section
9.1 Severability.
Each part of this Agreement is intended to be severable. If any term, covenant,
condition or provision hereof is unlawful, invalid, or unenforceable for any
reason whatsoever, and such illegality, invalidity, or unenforceability does
not
affect the remaining parts of this Agreement, then all such remaining parts
hereof shall be valid and enforceable and have full force and effect as if
the
invalid or unenforceable part had not been included.
Section
9.2 Rights
Cumulative; Waivers. The rights of each of the parties under this Agreement
are cumulative and may be exercised as often as any party considers appropriate.
The right of each of the parties hereunder shall not be capable of being waived
or varied otherwise than by an express waiver or variation in writing. Any
failure to exercise or any delay in exercising any of such rights shall not
operate as a waiver or variation of that or any other such right. Any defective
or partial exercise of any of such right shall not preclude any other or further
exercise of that or any other such right. No act or course of conduct or
negotiation on the part of any party shall in any way preclude such party from
exercising any such right or constitute suspension or any variation of any
such
right.
Section
9.3 Headings.
The headings of the Articles and Sections contained in this Agreement are
inserted for convenience only and shall not affect the meaning or interpretation
of this Agreement or any provision hereof.
Section
9.4 Construction.
Unless the context otherwise requires, singular nouns and pronouns, when used
herein, shall be deemed to include the plural of such noun or pronoun and a
pronoun of one gender shall be deemed to include the equivalent pronoun of
the
other gender.
Section
9.5 Prior
Understandings. This Agreement supersedes any and all prior discussions and
agreements between Seller and Buyer with respect to the purchase of the Loans
and other matters contained herein, and this Agreement contains the sole and
entire understanding between the parties hereto with respect to the transactions
contemplated herein.
Section
9.6 Integrated
Agreement. This Agreement and all Schedules and Exhibits hereto constitute
the final complete expression of the intent and understanding of Buyer and
Seller. This Agreement shall not be altered or modified except by a subsequent
'writing, signed by Buyer and Seller.
Section
9.7 Counterparts.
This Agreement may be executed by fax (if promptly followed by the original)
and
in any number of counterparts, each of which shall constitute one and the same
instrument, and either party hereto may execute this Agreement by signing any
such counterpart.
Section
9.8 Survival.
Each and every covenant hereinabove made by the parties to this Agreement shall
survive the Closing, and shall not merge into the Closing Documents, but instead
shall he independently enforceable for such period.
Section
9.9 Governing
Law. This Agreement shall be construed, and the rights and obligations of
the Seller and the Buyer hereunder determined, in accordance with the law of
the
State of California.
Section
9.10 Expenses.
Except as expressly set forth to the contrary in this Agreement, each party
hereto shall be responsible for and bear all of its own respective expenses,
including without limitation, expenses of legal counsel, accountants, and other
advisors, incurred at any time in connection with pursuing or consummating
this
Agreement and the transactions contemplated thereby.
7
Section
9.11 Brokers.
Each party to this Agreement represents and warrants to the other that, in
connection with the sale and purchase of the Loan, the party so representing
and
warranting has not dealt with any broker, agent or finder, and there is no
commission, charge or other compensation due on account thereof. Buyer and
Seller shall indemnify and hold each other harmless against and from any
inaccuracy in such representation. The rights, obligations, warranties and
representations of the parties hereto under the provisions of this Section
9.11 survive Closing or any termination of this Agreement before
Closing.
Section
9.12 Further
Assurances. Each party shall provide to the other party such other
information regarding the Loans or the Collateral as the other party may
reasonably request, and each party shall execute and deliver such other
documents, deliver such other items and take such other actions as may be
reasonably requested to allow the completion and consummation (or termination,
as appropriate) of all tasks and the transactions contemplated by this
Agreement.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first above written.
BUYER:
CS FINANCING CORPORATION
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Title:
CEO
SELLER:
DATA SALES GROUP, INC.
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Partner
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EXHIBIT
A
FORM
OF ASSIGNMENT OF ASSIGNED
RIGHTS AND OBLIGATIONS
This
Assignment and Assumption of Assigned Rights and Obligations is entered into
by
and between DATA SALES GROUP, INC., a Minnesota corporation ("Assignor") and
CS
FINANCING CORPORATION, a California corporation ("Assignee").
RECITALS
Assignor
and Assignee entered into that certain Loan Sale Agreement effective April
30,
2007 (the "Loan Sale Agreement").
The
Loan
Sale Agreement provides for the sale and transfer by Assignor to Assignee of
certain Assigned Rights and Obligations (such term and all other capitalized
terms used herein and not otherwise defined herein have the definitions ascribed
to them in the Loan Sale Agreement).
In
exchange for the Purchase Price set forth in the Loan Sale Agreement and such
other good and valuable consideration as provided in the Loan Sale Agreement,
Assignor hereby agrees to sell to Assignee the Assigned Rights and Obligations
as set forth in the Loan Sale Agreement and pursuant to the terms, conditions
and provisions hereof.
NOW,
THEREFORE, premises considered:
Assignor
hereby transfers, assigns and conveys all right, title, interest and obligations
in, to and under the Loans and the Loan Documents set forth on Schedule 1
hereto, including, without limitation, all rights to principal, interest, fees,
costs and expenses payable thereunder after the Closing Date and all other
rights and claims thereunder.
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Dated:
April 30, 2007
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ASSIGNOR: DATA
SALES GROUP, INC.
/s/▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:
Partner
ASSIGNEE: CS
FINANCING CORPORATION
/s/▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Name:▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Its:
Chief Executive Officer
9
SCHEDULE
1
ASSIGNMENT
OF ASSIGNED RIGHTS AND OBLIGATIONS
1. Amended
and Restated Subordinated Promissory Note dated August 7, 2006, evidencing
an
indebtedness in the principal sum of $2,000,000.00, executed by Assured
Financial, LLC, a Minnesota limited liability company, as borrower, in favor
of
Data Sales Group, Inc., as lender;
2. Debt
Subordination Agreement dated August 7, 2006;
3. Guaranty
Agreement made by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ in favor of Data Sales Group,
Inc.;
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10