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Exhibit 10.5
AGREEMENT OF
PURCHASE AND SALE OF ASSETS
BY AND AMONG
CYGNET FINANCIAL SERVICES, INC.
AND
MOUNTAIN PARKS FINANCIAL SERVICES, INC.
DATED AS OF
JULY 31, 1998
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TABLE OF CONTENTS
ARTICLE 1
PURCHASE AND SALE OF ASSETS..............................................1
1.1 Purchase and Sale of the Assets....................................1
1.2 Assets Not Being Acquired..........................................2
1.3 Assumed Liabilities................................................2
1.4 Liabilities Not Being Assumed......................................2
1.5 Purchase Price.....................................................2
1.6 Allocation of Purchase Price; Accounting Treatment.................2
1.7 Transfer Fees and Taxes............................................2
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF PURCHASER..............................3
2.1 Organization and Qualification.....................................3
2.2 Authority Relative to this Agreement...............................3
2.3 No Conflicts.......................................................3
2.4 No Consents........................................................3
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER.................................3
3.1 Organization and Qualification.....................................3
3.2 Authority Relative to this Agreement...............................4
3.3 No Conflicts.......................................................4
3.4 No Consents........................................................4
3.5 No Material Adverse Changes........................................4
3.6 Good Title to and Condition of Acquired Assets.....................4
3.7 Compliance with Laws...............................................4
3.8 Disclosure.........................................................5
ARTICLE 4
CONDUCT OF SELLER PENDING THE CLOSING....................................5
4.1 Conduct of Servicing Business Pending the Closing..................5
4.2 Servicing Business Relationships...................................5
4.3 Access to Information..............................................5
4.4 Notification of Certain Matters....................................5
4.5 Transfer of Permits................................................5
4.6 Closing............................................................6
ARTICLE 5
ADDITIONAL AGREEMENTS....................................................6
5.1 Employment.........................................................6
5.2 Expenses...........................................................6
5.3 Public Announcements...............................................6
5.4 Additional Agreements..............................................6
ARTICLE 6
CONDITIONS...............................................................7
6.1 Conditions to Obligations of Each Party............................7
6.2 Additional Conditions to Obligation of Seller......................7
6.3 Additional Conditions to Obligation of Purchaser...................8
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ARTICLE 7
THE CLOSING..............................................................8
7.1 Closing............................................................8
7.2 Seller's Obligations...............................................8
7.3 Purchaser's Obligations............................................9
ARTICLE 8
INDEMNITIES.............................................................10
8.1 Survival of Representations and Warranties........................10
8.2 Nature of Statements..............................................10
8.3 Indemnification of Purchaser by Seller............................10
8.4 Indemnification of Seller by Purchaser............................10
8.5 Procedure for Indemnification.....................................11
ARTICLE 9
TERMINATION.............................................................12
9.1 Termination.......................................................12
9.2 Effect of Termination.............................................12
ARTICLE 10
GENERAL PROVISIONS......................................................12
10.1 Notices...........................................................12
10.2 Counterparts......................................................13
10.3 Governing Law.....................................................13
10.4 Assignment........................................................13
10.5 Further Assurances................................................13
10.6 Gender and Number.................................................14
10.7 Schedules and Exhibits............................................14
10.8 Waiver of Provisions..............................................14
10.9 Litigation Costs..................................................14
10.10 Section and Paragraph Headings....................................14
10.11 Amendment.........................................................14
10.12 Transaction Expenses..............................................14
10.13 Severability......................................................14
10.14 Extent of Obligations.............................................14
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INDEX OF SCHEDULES
Schedule 1.1(b) Acquired FFE
Schedule 1.1(c) Acquired Permits
Schedule 1.1(d) Acquired Intangible Property
Schedule 1.1(e) Assumed Agreements
Schedule 1.2 Assumed Liabilities
Schedule 3.5 No Material Adverse Changes
Schedule 3.7 Compliance with Law; Permits
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AGREEMENT OF PURCHASE AND SALE OF ASSETS
This AGREEMENT OF PURCHASE AND SALE OF ASSETS (the "Agreement") is made as
of July 31, 1998, by and among CYGNET FINANCIAL SERVICES, INC., an Arizona
corporation ("Purchaser") and MOUNTAIN PARKS FINANCIAL SERVICES, INC., a
Colorado corporation ("Seller").
RECITALS
A. Seller engages in the business of purchasing and servicing motor
vehicle installment sales contracts.
B. Upon the terms and subject to the conditions set forth herein, Seller
desires to sell to Purchaser, and Purchaser desires to purchase from Seller,
selected assets of Seller related to the servicing operations of its business
(the "Servicing Business"), all to be completed on or before the date set forth
in Section 7.1 of this Agreement (the "Closing Date").
NOW, THEREFORE, in consideration of the covenants and mutual agreements
set forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in reliance upon the
representations and warranties contained herein, the parties hereto do hereby
agree as follows:
ARTICLE 1.
PURCHASE AND SALE OF ASSETS
1.1 Purchase and Sale of the Assets. Upon the terms and subject to the
conditions set forth herein, and in reliance on the respective representations
and warranties of the parties, Seller agrees to sell, transfer, assign, and
deliver to Purchaser, and Purchaser agrees to purchase from Seller, all of
Seller's right, title, and interest in and to those assets, rights, and
properties of the Seller relating to the Servicing Business, as specified below
(the "Acquired Assets"):
(a) That certain [Lease] (the "Assumed Lease") dated January 29,
1997 by and between Cherry Creek Place III Associates, Limited, as Lessor,
and Seller, as Lessee, covering the property located at ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the "Acquired Facility");
(b) Such furniture, leasehold improvements, fixtures, equipment,
supplies, other goods, and all other appurtenances in and to the premises
utilized by Seller in the operation of the Servicing Business at the
Acquired Facility ("Acquired FFE"), as specified on a Schedule 1.1(b) to
be prepared by Seller and delivered to Purchaser prior to the Closing;
(c) Such assignable title, claims, and rights under License and
Permits (as defined in Section 3.26), ("Acquired License and Permits"),
as specified on a Schedule 1.1(c) to be prepared by Seller and delivered
to Purchaser prior to the Closing;
(d) Certain additional items of intangible property used or owned by
Seller related to the Servicing Business, the Acquired Assets or the
Acquired Facility, that are identified on Schedule 1.1(d) ("Intangible
Property") to be prepared by Seller and delivered to Purchaser prior to
the Closing;
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(e) All agreements relating to the Servicing Business, the Acquired
Assets, or the Acquired Facility that Purchaser agrees to assume and that
are listed in a Schedule 1.1(e) ("Assumed Agreements"), to be prepared by
Seller and delivered to Purchaser prior to the Closing; and
(f) All books of account, records, files, supplier lists and
information, employee files (except items which may not be provided under
federal or state law) operating manuals, catalogs, technical information
sheets and other materials and data associated with, used, or employed by
Seller in the operation of the Servicing Business and ownership of the
Acquired Assets.
1.2 Assets Not Being Acquired. Anything contained herein to the contrary
notwithstanding, the Seller is not transferring any assets other than those
specifically identified in the Schedules to Section 1.1 above.
1.3 Assumed Liabilities. From and after the Closing Date, Purchaser shall
assume only those liabilities of Seller (the "Assumed Liabilities") as specified
in Schedule 1.3 hereto. It is expressly understood and agreed that Purchaser
shall not be liable for any of the obligations or liabilities of Seller of any
kind or nature other than those specifically assumed by Purchaser under this
Section 1.3.
1.4 Liabilities Not Being Assumed. Anything contained herein to the
contrary notwithstanding, the Purchaser is expressly not assuming any
liabilities or obligations, whether fixed or contingent, known or unknown,
matured or unmatured, executory or non-executory, of Seller (except as set forth
in Section 1.2 above), which liabilities and obligations shall at and after the
Closing remain the exclusive responsibility of Seller.
1.5 Purchase Price. At the Closing, upon the terms and subject to the
conditions set forth herein, Purchaser shall pay to Seller in consideration for
the Acquired Assets, by wire transfer of immediately available funds to an
account designated by Seller, the aggregate amount of Five Hundred Thousand
Dollars ($500,000) (the "Purchase Price").
1.6 Allocation of Purchase Price; Accounting Treatment. At Closing, the
Purchase Price will be allocated among the Acquired Assets by both Seller and
Purchaser in a manner proposed by Purchaser and consented to by Seller, which
consent shall not be unreasonably withheld or delayed (the "Purchase Price
Allocation"). Seller and Purchaser hereby agree to report this transaction for
federal tax purposes in accordance with the allocation of the Purchase Price
described above. Such allocation shall be reported by Purchaser and Seller on
Internal Revenue Service Form 8594, Asset Acquisition Statement, which will be
filed with Purchaser's and Seller's Federal Income Tax Return for the tax year
that includes the Closing Date. To the extent not specified above, the parties
further agree to coordinate their accounting for the transaction.
1.7 Transfer Fees and Taxes. Seller shall pay any and all transfer and
assumption fees and expenses and sales and use taxes arising out of the transfer
of the Acquired Assets and shall pay its portion, prorated as of the Closing
Date, of state and local real and personal property taxes relating to the
Acquired Assets. Purchaser shall not be responsible for any payroll, excise,
income, business, occupation, withholding, or similar tax, or any taxes of any
kind related to any period prior to the Closing Date.
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ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF PURCHASER
As of the date hereof and as of the Closing Date, Purchaser hereby
represents and warrants to Seller each of the following:
2.1 Organization and Qualification. Purchaser is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Delaware, and has the requisite corporate power and authority to own and operate
its properties and to carry on its business as now conducted in every
jurisdiction where the failure to do so would have a material adverse effect on
its business, properties, or ability to conduct the business currently conducted
by it.
2.2 Authority Relative to this Agreement. Purchaser has the requisite
corporate power and authority to enter into this Agreement and to carry out its
obligations hereunder. The execution and delivery of this Agreement by Purchaser
and the consummation by Purchaser of the transactions contemplated hereby have
been duly authorized by the Board of Directors of Purchaser, and no other
corporate proceedings on the part of Purchaser are necessary to authorize this
Agreement and such transactions. This Agreement has been duly executed and
delivered by Purchaser and constitutes a valid and binding obligation of
Purchaser, enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization,
or other similar laws relating to the enforcement of creditors' rights generally
and by general principles of equity.
2.3 No Conflicts. Purchaser is not subject to, or obligated under, any
provision of (a) its Certificate of Incorporation or Bylaws, (b) any material
agreement, arrangement, or understanding, (c) any material license, franchise,
or permit, or (d) any law, regulation, order, judgment, or decree, which would
be breached or violated, or in respect of which a right of termination or
acceleration would arise, or pursuant to which any encumbrance on any of its or
any of its subsidiaries' material assets would be created, by its execution,
delivery, and performance of this Agreement and the consummation by it of the
transactions contemplated hereby.
2.4 No Consents. Except for such filings to be made pursuant to federal or
state securities or other laws and regulations, including any required filing
under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended, and
the rules and regulations thereunder (the "H-S-R Act") or for Permits necessary
to own the Acquired Assets or operate the Servicing Business, no authorization,
consent, or approval of, or filing with, any public body, court, or authority is
necessary on the part of Purchaser for the consummation by Purchaser of the
transactions contemplated by this Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
As of the date hereof and as of the Closing Date, the Seller, hereby
represents and warrants to Purchaser each of the following:
3.1 Organization and Qualification. Seller is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Colorado, and has the requisite corporate power and authority to own and operate
its properties and to carry on its business as now conducted in every
jurisdiction where the failure to be so qualified would have a material adverse
effect on its business, properties, or ability to conduct the business currently
conducted by it.
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3.2 Authority Relative to this Agreement. Seller has the requisite
corporate power and authority to enter into this Agreement and to carry out its
obligations hereunder. The execution and delivery of this Agreement by Seller
and the consummation by Seller of the transactions contemplated hereby have been
duly authorized by the Board of Directors of Seller and Seller's parent and no
other corporate proceedings on the part of Seller are necessary to authorize
this Agreement and such transactions. This Agreement has been duly executed and
delivered by Seller and constitutes a valid and binding obligation of Seller
enforceable in accordance with its terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization, or other similar laws
relating to the enforcement of creditors' rights generally and by general
principles of equity.
3.3 No Conflicts. Seller is not subject to, or obligated under, any
provision of (a) its Articles of Incorporation or Bylaws, (b) any material
agreement, arrangement, or understanding, (c) any material license, franchise,
or permit or (d) any law, regulation, order, judgment, or decree, which would be
breached or violated, or in respect of which a right of termination or
acceleration would arise, or pursuant to which any encumbrance on any of the
Acquired Assets would be created, by its execution, delivery, and performance of
this Agreement and the consummation by it of the transactions contemplated
hereby and thereby.
3.4 No Consents. No authorization, consent, or approval of, or filing
with, any public body, court, or authority is necessary on the part of Seller or
any Lessor for the consummation by Seller or any Lessor of the transactions
contemplated by this Agreement.
3.5 No Material Adverse Changes. Except as set forth in Schedule 3.5
hereto, since the date of the Current Financial Statements, there has not been
any material adverse change in the assets, financial condition, or operating
results, customer, employee, or supplier relations, business condition or
prospects, or financing arrangements of Seller.
3.6 Good Title to and Condition of Acquired Assets. The Acquired Assets
that are tangible assets are in good condition and repair, ordinary wear and
tear excepted, and are usable in the ordinary course of business. Seller has
good and marketable title to all the Acquired Assets, free and clear of all
liens, interests of third parties (except the rights of any lessor identified on
Schedule 1.1(e)) encumbrances and security interests. Seller is not in default,
and no circumstances exist which could result in such default, under any
equipment leases, nor is any other party to any of such equipment leases in
default.
3.7 Compliance with Laws. Seller and its officers, directors, agents, and
employees have complied with all applicable laws and regulations of foreign,
federal, state, and local governments and all agencies thereof which affect the
Servicing Business or any of Seller's assets and to which Seller may be subject,
and no claims have been filed or threatened against Seller alleging a violation
of any such law or regulation, except (i) where the failure to so comply would
not have a material adverse effect upon Seller's business, property or ability
to conduct the business currently conducted by it or (ii) as set forth in
Schedule 3.7 hereto. Neither Seller nor any of the Shareholders has given or
agreed to give any money, gift, or similar benefit (other than incidental gifts
of articles of nominal value) to any actual or potential customer, supplier,
governmental employee, or any other person in a position to assist or hinder
Seller in connection with any actual or proposed transaction. Seller possesses
all approvals, authorizations, certificates, consents, registrations,
franchises, licenses, permits, rights, variances, and waivers necessary for the
lawful conduct of the Servicing Business and the ownership or operation of the
Acquired Assets and the Acquired Facility except (i) where the failure to so
comply would not have a material adverse effect upon Seller's business, property
or ability to conduct the business currently conducted by it or (ii) as set
forth in Schedule 3.7 hereto.
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3.8 Disclosure. Neither this Agreement nor any of the Schedules or
Exhibits hereto or documents or agreements to be delivered hereunder contains
any untrue statement of a material fact or omits to state a material fact
necessary to make the statements contained herein or therein, in light of the
circumstances in which they were made, not misleading, and there is no fact
which has not been disclosed to Purchaser which materially adversely affects or
could reasonably be anticipated to materially adversely affect the assets,
including the Acquired Assets, financial condition or results of operations,
customer, employee or supplier relations, business condition, prospects, or
financing arrangements of Seller.
ARTICLE 4
CONDUCT OF SELLER PENDING THE CLOSING
Seller hereby covenants and agrees that from the date hereof to the
Closing Date, unless Purchaser shall otherwise agree in writing or except as
otherwise expressly contemplated or permitted by this Agreement:
4.1 Conduct of Servicing Business Pending the Closing. Except as
specifically contemplated in this Agreement, from the date hereof to the Closing
Date, the Servicing Business of Seller shall be conducted only in, and Seller
shall take no action except in the ordinary course, on an arm's length basis,
and in accordance with all applicable laws, rules, and regulations and past
custom and practice.
4.2 Servicing Business Relationships. Seller will preserve intact Seller's
business organization and goodwill, keep available the services of its officers
and employees as a group, and maintain satisfactory relationships with
suppliers, distributors, customers, and others having business relationships
with it.
4.3 Access to Information. Purchaser and its counsel, accountants, and
other representatives shall have the opportunity to make a complete due
diligence review of the books, records, business, and affairs of Seller,
including, without limitation, the Acquired Assets, Acquired Facility, and all
other matters relating thereto. In the event Purchaser, in its reasonable
business discretion, determines that prior to the Closing Date there has been
any material change in or material misrepresentation about the Servicing
Business, Acquired Assets, Acquired Facility or matters relating thereto,
Purchaser shall have no further obligation to proceed with the transaction, and
the parties shall have no further liability to one another, except as expressly
provided herein. To facilitate the due diligence review, Seller shall provide to
Purchaser and its agents reasonable access to all of Seller's records and
documents during customary business hours.
4.4 Notification of Certain Matters. Seller shall (i) confer on a regular
basis with representatives of Purchaser and report operational matters and the
general status of ongoing operations, (ii) notify Purchaser of any material
adverse change in the normal course of its business or in the operation of its
properties and of any governmental or third party complaints, investigations, or
hearings (or communications indicating that the same may be contemplated); (iii)
not take any action which would render, or which reasonably may be expected to
render, any representation or warranty made by it in this Agreement untrue at,
or at any time prior to, the Closing; and (v) promptly notify Purchaser if
Seller shall discover that any representation or warranty made by it in this
Agreement was when made, or has subsequently become, untrue.
4.5 Transfer of Permits. Seller will use its best efforts to assist
Purchaser to effect the assignment or other transfer of Permits from Seller to
Purchaser as of or as soon as practicable after the Closing Date.
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4.6 Closing. Seller shall use its best efforts to cause the conditions
specified in Section 6.3 hereof to be satisfied at or prior to the Closing Date
hereof.
ARTICLE 5
ADDITIONAL AGREEMENTS
5.1 Employment. After the Closing Date Purchaser agrees to hire all or
substantially employees of Seller currently employed at the Acquired Facility
for a minimum of 90 days or on other terms and conditions acceptable to
Purchaser, and Seller will cooperate with Purchaser to that end. All employees
of Seller currently employed at the Acquired Facility to be hired by Purchaser
will be terminated by Seller on or before the Closing Date. Seller shall be
responsible for any severance and/or other payments, including, but not limited
to, accrued vacation and sick time, sick pay, and other compensation, benefits,
and perquisites, incurred in connection therewith and during the period prior to
the Closing Date. Seller agrees not to solicit any of the employees currently
employed at the Acquired Facility to be hired by Purchaser for a period of two
years after the Closing Date.
5.2 Expenses. Seller shall pay the costs and expenses of Seller and
Purchaser shall pay the costs and expenses of Purchaser, incurred in connection
with this Agreement and the transactions contemplated hereby. Notwithstanding
the foregoing, in the event any party breaches the terms of this Agreement prior
to the Closing, and the transactions contemplated hereby are not consummated,
the breaching party agrees to pay the non-breaching party an amount equal to all
of the expenses incurred by the non-breaching party in connection with this
Agreement, and otherwise related to the transactions contemplated hereby,
including, but not limited to, all fees and expenses incurred by the
non-breaching party to accountants, attorneys, and finders, brokers or
consultants. Nothing herein shall be deemed to limit the right or remedy of a
party in the event of a breach of this Agreement by the other party.
5.3 Public Announcements. The parties hereto shall not issue any press
release or public announcement, including announcements by any party for general
reception by or dissemination to employees, agents, or customers, with respect
to this Agreement and the other transactions contemplated by this Agreement
without the prior written consent of the other parties hereto (which consent
shall not be withheld unreasonably); provided, however, that Seller or Purchaser
may make any disclosure or announcement that, in the opinion of its counsel, it
is obligated to make pursuant to applicable law or regulation of the Nasdaq
Stock Market, Inc. or any national securities exchange, as applicable, in which
case the announcing party shall reasonably consult with the other party prior to
making such disclosure or announcement, and provided further that, upon
execution of this Agreement, Purchaser may make a public announcement of such
occurrence in a press release reviewed and reasonably approved by Seller prior
to publication.
5.4 Additional Agreements. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to take, or cause to be taken, all
action and to do, or cause to be done, all things necessary, proper, or
advisable to consummate and make effective as promptly as practicable the
transactions contemplated by this Agreement, including obtaining all necessary
waivers, consents, and approvals and effecting all necessary registrations and
filings and submissions of information requested by governmental authorities.
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ARTICLE 6
CONDITIONS
6.1 Conditions to Obligations of Each Party. The respective obligations of
each party to effect the transactions contemplated hereby shall be subject to
the fulfillment at or prior to the Closing of the following conditions:
(a) There shall not be threatened, instituted, or pending any action
or proceeding, before any court or governmental authority or agency,
domestic or foreign: (i) challenging or seeking to make illegal, or to
delay or otherwise directly or indirectly to restrain or prohibit, the
consummation of the transactions contemplated hereby, or seeking to obtain
damages in connection therewith; (ii) seeking to prohibit direct or
indirect ownership or operation by Purchaser or any of its subsidiaries of
all or a material portion of the Servicing Business or the Acquired Assets
of Seller, or to compel Purchaser or any of its subsidiaries to divest of
or to hold separately all or a material portion of the Servicing Business
or the Acquired Assets of Seller as a result of the transactions
contemplated hereby; (iii) seeking to impose or confirm limitations on the
ability of Purchaser effectively to exercise directly or indirectly full
rights of ownership of any of the Acquired Assets or properties of Seller;
(iv) seeking or causing any material diminution in the direct or indirect
benefits expected to be derived by Purchaser as a result of the
transactions contemplated by this Agreement; (v) invalidating or rendering
unenforceable any material provision of this Agreement (including without
limitation any of the documents or agreements to be delivered hereunder);
or (vi) which otherwise might materially adversely affect Purchaser or any
of its subsidiaries or the Acquired Assets or Servicing Business;
(b) There shall not be any action taken, or any statute, rule,
regulation, judgment, order, or injunction proposed, enacted, entered,
enforced, promulgated, issued, or deemed applicable to the transactions
contemplated hereby by any federal, state, or foreign court, government,
or governmental authority or agency, which may, directly or indirectly,
result in any of the consequences referred to in (a) above or otherwise
prohibit consummation of the transactions contemplated hereby;
(c) No party hereto shall have terminated this Agreement as
permitted herein; and
(d) There shall not have occurred any of the following events that
could have a material adverse effect on Purchaser or Seller: (i) a
declaration of a banking moratorium or any suspension of payments in
respect of banks in the United States or any limitation by United States
authorities on the extension of credit by lending institutions; (ii) a
commencement of war, armed hostilities, or other international or national
calamity directly or indirectly involving the United States; or (iii) in
the case of any of the foregoing existing at the date hereof, a material
acceleration or worsening thereof.
6.2 Additional Conditions to Obligation of Seller. The obligation of
Seller to effect the transactions contemplated hereby is also subject to the
fulfillment at or prior to the Closing of the following conditions:
(a) The representations and warranties of Purchaser set forth in
Article 2 shall be true and correct as of the Closing Date as if made at
and as of the Closing Date, and Purchaser shall in all material respects
have performed each obligation and agreement and complied with each
covenant to be performed and complied with by it hereunder at or prior to
the Closing; and
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(b) Purchaser shall have furnished to Seller: (i) a copy of the text
of the resolutions by which the corporate action on the part of Purchaser
necessary to approve this Agreement and the transactions contemplated
herein were taken; and (ii) a certificate executed on behalf of Purchaser
by its corporate secretary or one of its assistant corporate secretaries
certifying to Seller that such copy is a true, correct, and complete copy
of such resolutions and that such resolutions were duly adopted and have
not been amended or rescinded.
6.3 Additional Conditions to Obligation of Purchaser. The obligations of
Purchaser to effect the transactions contemplated herein are also subject to the
fulfillment at or prior to the Closing of the following conditions:
(a) The representations and warranties of Seller in this Agreement
shall be true and correct as of the Closing Date as if made at and as of
the Closing Date, and Seller shall in all material respects have performed
each obligation and agreement and complied with each covenant to be
performed and complied with by them hereunder at or prior to the Closing;
(b) Seller shall have furnished to Purchaser a certificate in which
it shall certify that the conditions set forth in Section 6.3(a) have been
fulfilled;
(c) Seller shall have furnished to Purchaser: (i) copies of the
texts of the resolutions by which the corporate action on the part of
Seller necessary to approve this Agreement and the transactions
contemplated hereby were taken; and (ii) certificates of Seller certifying
to Purchaser that such copies are true, correct, and complete copies of
such resolutions and that such resolutions were duly adopted and have not
been amended or rescinded;
(d) There shall have been no damage, destruction, or loss of or to
any property or properties owned or used by Seller, whether or not covered
by insurance, which in the aggregate may have a material adverse effect on
the Servicing Business;
(e) Receipt and approval of the Schedules to be prepared by Seller,
all updated as of the Closing Date, and preparation of and agreement as to
all closing documents, agreements and procedures required under this
Agreement; and
(f) The form and substance of all certificates, instruments, and
other documents delivered to Purchaser under this Agreement shall be
satisfactory in all respects to Purchaser and its counsel.
ARTICLE 7
THE CLOSING
7.1 Closing. The closing (the "Closing") of the transactions contemplated
herein shall be held on or before July 31, 1998 (the "Closing Date"), at a time
and place as the parties shall mutually agree.
7.2 Seller's Obligations. In addition to any other documents required to
be delivered by Seller at Closing, Seller, shall deliver to Purchaser at Closing
the following documents:
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(a) An executed ▇▇▇▇ of Sale and Assignment of Lease and other
instruments of transfer, with such warranties of title as are set forth
herein, dated as of the Closing Date, conveying to Purchaser all of
Seller's right, title, and interest in and to the Acquired Assets, all in
form and substance satisfactory to Purchaser;
(b) The Assumed Lease contemplated by Section 1.1 and lease
assignments with respect to each item of personal property which is leased
by Seller and which is to be assumed by Purchaser hereunder, properly
executed and acknowledged by Seller, and accompanied by all consents of
lessors required by this Agreement and the leases being assigned, and such
subordination agreements, non-disturbance certificates and other documents
as Purchaser shall have reasonably requested;
(c) Executed assignments of all assignable Acquired License and
Permits and Intangibles and executed assignment and assumption agreements
with respect to all Assumed Agreements, with all necessary consents
thereto;
(d) All books, records, and other data relating to the Acquired
Assets and the Servicing Business (other than corporate records);
(e) The certificate(s) as provided for in Section 6.3(b) hereof;
(f) Certified resolutions and the certificates provided for in
Section 6.3(c) hereof; and
(g) Such other documents as Purchaser or its counsel or any lender
or lessor of Purchaser may reasonably request in order to effectuate the
transactions contemplated under this Agreement.
Seller at any time before or after the Closing, will execute, acknowledge, and
deliver any further deeds, assignments, conveyances, and other assurances,
documents, and instruments of transfer reasonably requested by Purchaser, and
will take any other action consistent with the terms of this Agreement that may
reasonably be requested by Purchaser, for the purpose of assigning,
transferring, granting, conveying, and confirming to Purchaser, or reducing to
possession, any or all property to be conveyed and transferred by this
Agreement.
7.3 Purchaser's Obligations. Purchaser shall deliver to Seller at Closing
the following documents:
(a) Wire transfer in the amount of the Purchase Price, payable as
provided in Section 1.4 hereof;
(b) Executed counterparts of such of the closing documents of Seller
as shall require acceptance by Purchaser; and
(c) Certified resolutions of the Board of Directors of Purchaser as
provided for in Section 6.2(b) hereof.
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ARTICLE 8
INDEMNITIES
8.1 Survival of Representations and Warranties. Regardless of any
investigation at any time made by or on behalf of any party hereto, or of any
information any party may have in respect thereof, all covenants, agreements,
representations, and warranties made hereunder or pursuant hereto or in
connection with the transactions contemplated hereby shall survive the Closing.
8.2 Nature of Statements. All statements contained herein, in any Schedule
or Exhibit hereto, or in any certificate or other written instrument delivered
by or on behalf of Seller, or Purchaser pursuant to this Agreement, or in
connection with the transactions contemplated hereby, shall be deemed
representations and warranties by Seller, or Purchaser, as the case may be.
8.3 Indemnification of Purchaser by Seller. Seller shall indemnify,
defend, and hold harmless Purchaser from and against any and all costs,
expenses, losses, damages, fines, penalties, or liabilities (including, without
limitation, interest which may be imposed in connection therewith, court costs,
litigation expenses, and reasonable attorneys' and accounting fees) ("Actual
Loss") incurred by Purchaser, directly or indirectly, with respect to, in
connection with, arising from, or alleged to result from, arise out of, or be in
connection with:
(a) A breach by Seller of any representation or warranty made by
Seller and contained in this Agreement or in any certificate or other
document delivered by Seller to Purchaser hereunder or thereunder;
(b) A breach by Seller of any covenant, restriction, or agreement
made by or applicable to Seller and contained in this Agreement or in any
certificate or other document delivered by said party or affiliate to
Purchaser or any affiliate hereunder or thereunder; and
(c) Except for any Assumed Liabilities, any other liability,
obligation, claim, complaint, debt, suit, cause of action, investigation,
or proceeding of any kind whatsoever, against or relating to Seller, the
Servicing Business, the Acquired Assets, or the Acquired Facility, whether
instituted or commenced prior to or after the Closing Date and which
relates to or arises from the business or assets of Seller on or before
the Closing Date or, with respect to the continuing business activities of
Seller, after the Closing Date.
8.4 Indemnification of Seller by Purchaser. Purchaser shall indemnify,
defend, and hold Seller harmless from and against any Actual Losses incurred by
the Seller with respect to, in connection with, arising from, or alleged to
result from, arise out of, or be in connection with:
(a) A breach by Purchaser of any representation or warranty made by
Purchaser and contained in this Agreement or in any certificate or other
document delivered by Purchaser to the Seller hereunder or thereunder;
(b) A breach by Purchaser of any covenant, restriction, or agreement
made by or applicable to Purchaser and contained in this Agreement or in
any certificate or other document delivered by Purchaser to the Seller
hereunder or thereunder;
(c) All loss, expense, or damage suffered as the direct result of
Purchaser's failure to pay the Assumed Liabilities in accordance with the
terms of this Agreement; and
(d) Any other liability, obligation, claim, complaint, debt, suit,
cause of action, investigation, or proceeding of any kind whatsoever
instituted or commenced after the
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Closing Date which relates to or arises from Purchaser's operation of its
separate and independent business after the Closing Date, except for any
claims arising out of Seller's liabilities to Purchaser or obligations to
Purchaser.
8.5 Procedure for Indemnification.
(a) The party which is entitled to be indemnified hereunder (the
"Indemnified Party") shall promptly give notice hereunder to the party
required to indemnify (the "Indemnifying Party") after obtaining written
notice of any claim as to which recovery may be sought against the
indemnifying party because of the indemnity in Section 8.3 and Section 8.4
hereof and, if such indemnity shall arise from the claim of a third party,
shall permit the Indemnifying Party to assume the defense of any such
claim and any litigation resulting from such claim. Notwithstanding the
foregoing, the right to indemnification hereunder shall not be affected by
any failure of an Indemnified Party to give such notice, or delay by an
Indemnified Party in giving such notice, unless, and then only to the
extent that, the rights and remedies of the Indemnifying Party shall have
been prejudiced as a result of the failure to give, or delay in giving,
such notice. Failure by an Indemnifying Party to notify an Indemnified
Party of its election to defend any such claim or action by a third party
within 15 days after notice thereof shall have been given to the
Indemnifying Party shall be deemed a waiver by the Indemnifying Party of
its right to defend such claim or action.
(b) If the Indemnifying Party assumes the defense of such claim or
litigation resulting therefrom, the obligations of the Indemnifying Party
hereunder as to such claim shall include taking all steps necessary in the
defense or settlement of such claim or litigation and holding the
Indemnified Party harmless from and against any and all damages caused by
or arising out of any settlement approved by the Indemnifying Party or any
judgment in connection with such claim or litigation. The Indemnifying
Party shall not, in the defense of such claim or any litigation resulting
therefrom, consent to entry of any judgment (other than a judgment of
dismissal on the merits without costs) except with the written consent of
the Indemnified Party, or enter into any settlement (except with the
written consent of the Indemnified Party) which does not include as an
unconditional term thereof the giving by the claimant or the plaintiff to
the Indemnified Party a release from all liability in respect of such
claim or litigation. Anything in this Section 8.5 to the contrary
notwithstanding, the Indemnified Party may, with counsel of its choice and
at its expense, participate in the defense of any such claim or
litigation.
(c) If the Indemnifying Party shall not assume the defense of any
such claim by a third party or litigation resulting therefrom after
receipt of notice from such Indemnified Party, the Indemnified Party may
defend against such claim or litigation in such manner as it deems
appropriate, and unless the Indemnifying Party shall deposit with the
Indemnified Party a sum equivalent to the total amount demanded in such
claim or litigation plus the Indemnified Party's estimate of the costs of
defending the same, the Indemnified Party may settle such claim or
litigation on such terms as it may deem appropriate and the Indemnifying
Party shall promptly reimburse the Indemnified Party for the amount of
such settlement and for all damages incurred by the Indemnified Party in
connection with the defense against or settlement of such claim or
litigation.
(d) The Indemnifying Party shall promptly reimburse the Indemnified
Party for the amount of any judgment rendered with respect to any claim by
a third party in such litigation and for all damage incurred by the
Indemnified Party in connection with the defense against such claim or
litigation, whether or not resulting from, arising out of, or incurred
with respect to, the act of a third party.
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ARTICLE 9
TERMINATION
9.1 Termination. This Agreement may be terminated at any time prior to the
Closing:
(a) By mutual written consent of duly authorized officers of
Purchaser and Seller;
(b) By Purchaser if, from the date of this Agreement to the Closing
Date there has been any material adverse change in or material
misrepresentation about the Servicing Business, Acquired Assets, Acquired
Facility or matters relating thereto;
(c) By either Purchaser or Seller if the other party breaches any of
its material representations, warranties, or covenants contained herein
and, if such breach is curable, such breach is not cured within five (5)
business days after notice thereof;
(d) By either Purchaser or Seller if the transactions contemplated
herein shall not have been consummated on or before August 15, 1998 or
such later date as may be mutually agreed upon by the parties; provided,
however, that no party shall have the right to terminate this Agreement
unilaterally if the event giving rise to such right is primarily
attributable to such party or to any affiliated party.
9.2 Effect of Termination. In the event of termination of this Agreement
as provided in Section 9.1, this Agreement shall become void and there shall be
no liability or further obligation hereunder on the part of Purchaser or Seller
or their respective shareholders, officers, or directors, except as set forth in
Article 10 and Sections 5.2 and 5.5 hereof, and except for liability arising
from a breach of this Agreement.
ARTICLE 10
GENERAL PROVISIONS
10.1 Notices. All notices, consents, and other communications hereunder
shall be in writing and deemed to have been duly given when (i) delivered by
hand, (ii) sent by telecopier (with receipt confirmed), provided that a copy is
mailed by registered mail, postage pre-paid return receipt requested, or (iii)
when received by the addressee, if sent by Express Mail, Federal Express, or
other express delivery service (postage pre-paid return receipt requested), in
each case to the appropriate addresses and telecopier numbers set forth below
(or to such other addresses and telecopier numbers as a party may designate as
to itself by notice to the other):
If to Purchaser: Cygnet Financial Services, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
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With a copy to: ▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇ ▇▇▇▇▇, Esq.
If to Seller: Mountain Parks Financial Services, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
With a copy to: Community First Bankshare, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇ ▇▇▇▇▇▇▇
And a copy to: ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L.P.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
10.2 Counterparts. This Agreement may be executed in any number of
counterparts, and each counterpart shall constitute an original instrument, but
all such separate counterparts shall constitute one and the same agreement.
10.3 Governing Law. The validity, construction, and enforceability of this
Agreement shall be governed in all respects by the laws of the State of Arizona,
without regard to its conflict of laws rules.
10.4 Assignment. This Agreement shall not be assigned by operation of law
or otherwise, except that Purchaser may assign all or any portion of its rights
under this Agreement to any wholly owned subsidiary, but no such assignment
shall relieve Purchaser of its obligations hereunder, and except that this
Agreement may be assigned by operation of law to any corporation or entity with
or into which Purchaser may be merged or consolidated or to which Purchaser
transfers all or substantially all of its assets, and such corporation or entity
assumes this Agreement and all obligations and undertakings of Purchaser
hereunder.
10.5 Further Assurances. At any time on or after the date hereof, the
parties hereto shall each perform such acts, execute and deliver such
instruments, assignments, endorsements and other documents and do all such other
things consistent with the terms of this Agreement as may be reasonably
necessary to accomplish the transaction contemplated in this Agreement or
otherwise carry out the purpose of this Agreement.
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10.6 Gender and Number. The masculine, feminine, or neuter pronouns used
herein shall be interpreted without regard to gender, and the use of the
singular or plural shall be deemed to include the other whenever the context so
requires.
10.7 Schedules and Exhibits. The Schedules and Exhibits referred to herein
are incorporated herein by such reference as if fully set forth in the text
hereof. Any Schedules and Exhibits referred to herein that are not attached
hereto upon execution of this Agreement shall be prepared and attached to this
Agreement as soon as reasonably possible after execution of this Agreement and
on or before the Closing Date. All Schedules shall be updated as of the Closing
Date. All documents and agreements delivered to Purchaser in connection with its
investigation of Seller shall be complete and accurate and reflect all
amendments thereto.
10.8 Waiver of Provisions. The terms, covenants, representations,
warranties, and conditions of this Agreement may be waived only by a written
instrument executed by the party waiving compliance. The failure of any party at
any time to require performance of any provisions hereof shall, in no manner,
affect the right at a later date to enforce the same. No waiver by any party of
any condition, or breach of any provision, term, covenant, representation, or
warranty contained in this Agreement, whether by conduct or otherwise, in any
one or more instances, shall be deemed to be or construed as a further or
continuing waiver of any such condition or of the breach of any other provision,
term, covenant, representation, or warranty of this Agreement.
10.9 Litigation Costs. If any legal action or any arbitration or other
proceeding is brought for the enforcement of this Agreement, or because of an
alleged dispute, breach, default, or misrepresentation in connection with any of
the provisions of this Agreement, the successful or prevailing party or parties
shall be entitled to recover reasonable attorneys' fees, accounting fees, and
other costs incurred in that action or proceeding, in addition to any other
relief to which it or they may be entitled.
10.10 Section and Paragraph Headings. The Article and Section headings in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
10.11 Amendment. This Agreement may not be amended except by an instrument
in writing approved by the parties to this Agreement and signed on behalf of
each of the parties hereto.
10.12 Transaction Expenses. Except as otherwise expressly provided herein,
each party shall bear its own expenses incident to this Agreement and the
transactions contemplated hereby, including without limitation, all fees of
counsel, consultants, and accountants.
10.13 Severability. If any term, provision, covenant, or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void,
or unenforceable, the remainder of the terms, provisions, covenants, and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired, or invalidated and the court shall modify this
Agreement or, in the absence thereof, the parties shall negotiate in good faith
to modify this Agreement to preserve each party's anticipated benefits under
this Agreement.
10.14 Extent of Obligations. All covenants, representations, warranties,
indemnities, and agreements made by Seller, Shareholders, and Lessors herein
shall be deemed joint and several as to each of them.
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IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to be
executed on the date first written above by their respective officers thereunder
duly authorized.
CYGNET FINANCIAL SERVICES, INC., an
Arizona corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
MOUNTAIN PARKS FINANCIAL SERVICES, INC., a
Colorado corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: CEO
15
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SCHEDULE 1.1(b)
SEE ATTACHED
[OMITTED]
21
SCHEDULE 1.1(c)
NONE
22
SCHEDULE 1.1(d)
NONE
23
SCHEDULE 1.1(e)
1. Agreement with ▇▇▇▇▇▇ Business Systems (relating to two fax/copiers and
one copier).
2. US West Communications Digital Service Rate Stability Plan Agreement dated
September 17, 1997.
3. Voice Data Agreement with World Com, dated March 27, 1997.
4. Hardware and Operating System Maintenance Agreement, executed by Megasys,
Inc. on October 22, 1997.
5. Pitney ▇▇▇▇▇ Rental Agreement dated April 21, 1997.
24
SCHEDULE 1.3
ASSUMED LIABILITIES
1. Any and all obligations owing to the Landlord of the Acquired Facility as
provided in that certain [Assumption Agreement] which arose after the
effective date of this Agreement.
2. Any and all obligations of Seller due and owing any other party to the
Assumed Agreements which arose after the effective date of this Agreement.
25
SCHEDULE 3.5
NONE
26
SCHEDULE 3.7
NONE