Exhibit 10.11
BROKERAGE ASSET PURCHASE AGREEMENT
THIS AGREEMENT, is made and entered into this 31st day of December, 1995 by
and between Norcom Resources, Inc., a Minnesota corporation ("Buyer") and Global
MAINTECH, Inc., a Minnesota corporation ("Seller").
WHEREAS, Seller has been in the mainframe brokerage business for over three
years and has determined to exit the mainframe brokerage business ("Brokerage
Business"); and,
WHEREAS, Buyer or Buyer's executive officer and principal shareholder has
had numerous years of experience in this same business and is interested in
remaining in this business; and,
WHEREAS, the parties hereto mutually agree on the terms of a sale of the
Brokerage Business from Seller to Buyer.
NOW, THEREFORE, in consideration of the covenants and agreements contained
in this Agreement and other good and valuable consideration, the receipt and
adequacy of which are acknowledged by Buyer and Seller, the parties agree as
follows:
ARTICLE 1.
PURCHASE OF ASSETS; LIMITED ASSUMPTION OF LIABILITIES
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1.1 Purchase of Assets from Seller. Subject to the terms and conditions
hereof, Seller agrees on the Closing Date (as hereinafter defined) to assign,
sell, transfer, convey, and deliver to Buyer, and Buyer agrees on the Closing
Date to purchase from Seller, all of the assets and personal property of Seller
(excepting only the assets specifically identified as "Excluded Assets" in
Section 1.2) related to or used in the operation of its brokerage business,
wherever the same may be located (collectively referred to as the "Brokerage
Assets"), including without limitation, the following:
(a) All of Seller's right title and interest in the brokerage business;
(b) Office furniture and warehouse equipment, including those items
identified on Exhibit 1.1 (b) ("Equipment");
(c) The vehicle identified as the Infiniti, 4 door model Q45, 1994 model
year, serial number JNKNGO1DORM251284 ("Vehicle") and subject to a lease as
provided in subsection 3.3(c) hereof.
(d) All intangible personal property, business records, customer lists and
goodwill related to the brokerage business, provided that Buyer will
provide copies thereof or access thereto upon request by Seller for
reasonable business purposes, ("Intangible Property").
(e) All inventory, including raw materials, supplies, work in process and
finished inventory of the brokerage business as of the date of this
Agreement ("Inventory") a partial list of which is attached on Exhibit 1.1
(e).
(f) All permits, licensing approvals and notifications, governmental or
otherwise, relating to the brokerage business ( "Licenses and Permits");
and
(g) All other contract rights related to the brokerage business, subject to
the terms and conditions thereof ("Contracts").
1.2 Excluded Assets. Notwithstanding anything herein to the contrary,
Buyer does not purchase, and Seller does not sell, any of the following assets
("Excluded Assets"):
(a) Seller's corporate minute book and corporate records (provided that
Seller will provide copies thereof relating to the brokerage business to
Buyer upon request by Buyer for reasonable business purposes).
(b) Any repayments or deposits of obligations which Buyer does not assume
under Section 1.3 below.
(c) All notes receivable, rights to payment and accounts receivable of the
brokerage business as of the date of this Agreement ("Accounts
Receivable").
(d) (i) All assumed names under which Seller conducts its business
including Maintech and MAINTECH Resources,
(ii) All common law tradenames, trademarks or service marks and all
goodwill associated therewith ("Trademarks");
It is not the intention of either parties herein to include any assets
which are not specifically defined as Brokerage Assets or to include by error
any assets defined as Brokerage Assets which the Seller does not own as of the
date of this Agreement. Any such assets under lease by Seller to either R. P.
Capital Corporation and Data Sales Co. attached hereto as Exhibits 1.2.1 and
1.2.2 are to be used by Buyer and buyer agrees to allow Seller to retake such
assets under lease at the end of the lease term or if it can be arranged with
Lessor, Seller will allow Buyer to purchase said assets at its cost at the end
of the respective lease terms. This right to usage during the lease term does
not constitute an assignment of either of said leases.
1.3 Liabilities and Obligations Assumed. Buyer shall not assume any
liabilities, obligations or undertakings of Seller of any kind or nature
whatsoever, whether fixed or
contingent, known or unknown, determined or determinable, due or not yet due
(excepting only liabilities and obligations specifically identified on Exhibit
1.3 (a)). By way of example, and not by way of limitation, buyer specifically
disclaims responsibility for:
(a) Any federal, state or local taxes (or claims for refunds relating to
such liabilities) based upon or measured by income or profits from
operation of its brokerage business through the date of this Agreement; and
(b) Any obligation incurred by Seller for accounting, legal or other
professional fees which are related to the consummation of the transaction
contemplated herein.
1.4 Sales, Use and Deed Taxes. Seller shall be responsible for payment of
any sales, use or deed taxes and related transfer or filing fees assessable with
respect to the transfer of the Brokerage Assets contemplated herein.
ARTICLE 2.
PURCHASE PRICE AND PAYMENT
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2.1 Purchase Price. The purchase price for the Brokerage Assets shall be
the sum of seventy thousand Dollars ($70,000) and the sum of the liabilities
assumed on Exhibit 1.3("Purchase Price").
2.2 Payment of Purchase Price. The Purchase Price shall be paid as
follows:
(a) Cash Payment. Buyer shall deliver to Seller at the Closing $1.00 the
receipt and sufficiency of which is hereby acknowledged.
(b) Notes. Buyer shall deliver its two Notes, in the form attached
hereto as:
Exhibit 2.2 (i) the first payable to the order of Seller in the amount
of $35,000, payable in twelve equal monthly installments beginning
March 31, 1996 of two thousand nine hundred sixteen Dollars and sixty-
seven cents ($2,916.67), each of which shall be deemed to include
interest at the rate of ten and one-quarter percent (10.25%) per annum
on the unpaid balance ("Note 1"). Said Note 1 shall provide for
Buyer's right to offset against its obligations thereunder any amounts
due Buyer from Seller pursuant to this Agreement.
Exhibit 2.2 (ii) the second payable to the order of Seller in the
amount of $35,000, payable in one installment on March 31, 1997 which
payment shall be deemed to include interest at the rate of ten and
one-quarter percent (10.25%) per annum on the unpaid balance ("Note
2"). Said Note 2 shall provide for Buyer's right to offset against its
obligations thereunder any amounts due Buyer from Seller pursuant to
this Agreement.
(c) Assumption of certain liabilities. Buyer shall negotiate to pay the
third parties, to whom the liabilities listed on Exhibit 1.3 are due,
directly with the third party(s).
2.3 Allocation of Purchase Price. The purchase price is hereby allocated
among the Brokerage Assets as set forth in Exhibit 2.3.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF SELLER
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Seller makes the following representations and warranties to the best of
its knowledge to Buyer with the intention that Buyer may rely upon the same and
acknowledge that the same shall be true on the date hereof and as of the Closing
Date (as if made at the Closing) and shall survive the Closing of this
transaction.
3.1 Organization. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Minnesota, has all
requisite power and authority, corporate and otherwise, to own its properties
and assets and to conduct its business.
3.2 Financial Statements. Seller has furnished Buyer with a true and
complete copy of its balance sheets, statements of changes in financial
condition and statements of income for the fiscal year ending December 31, 1994
and for interim quarterly periods ended September 30, 1995 of Buyer's parent
company and monthly internal income statements for October and November 1995
referred to as "division allocation of standard operating income/expense" and
information sheet known as "spin-off.xls" which serves as an initial issues
worksheet for the sale of the Brokerage Assets, all of which are attached hereto
as Exhibit 3.2.
3.3 Title to Assets. Except as listed below, Seller holds good and
marketable title to the Brokerage Assets free and clear of all liens,
encumbrances, licenses or leases:
(a) Pursuant to a Secured Promissory Note and Security Agreement dated
December 6, 1994 as amended, the holder, Global MAINTECH Corporation,
formerly known as Mirror Technologies, Incorporated, has a security
interest in the Brokerage Assets. A copy of the release of the security
interest in the Brokerage Assets by Global MAINTECH Corporation is attached
hereto as Exhibit 3.3 (a).
(b) Pursuant to a Promissory Note dated June 15, 1994, ▇▇▇▇ ▇. ▇▇▇▇▇▇ held
a security interest in the Brokerage Assets. ▇▇. ▇▇▇▇▇▇ canceled this June
15, 1994 Promissory Note and for value received accepted an unsecured
Promissory Note dated December 31, 1995 in the amount of $100,000. A copy
of this December 31, 1995 unsecured Promissory Note is attached hereto as
Exhibit 3.3 (b).
(c) Seller assigns the leases of the Vehicle from Infiniti Financial
Services a copy of which is attached hereto as Exhibit 3.3 (c).
3.4 Inventory. The Inventory represents the stock in trade and normal
supplies of Seller on hand as of the close of business on the date of this
Agreement. Due to the nature of the Inventory and Buyer's extensive experience
in selling the Inventory, the Seller makes no representations and warranties as
to the merchantability or saleability or condition of the Inventory.
3.5 Licenses and Permits. The Seller is not aware of any permits,
licenses, approvals and notifications, governmental or otherwise, the absence of
which would have a material adverse effect on its brokerage business. Seller
will cooperate with Buyer if any Licenses or Permits owned by Seller as of the
Closing Date are required to be transferred to Buyer to reasonably complete this
transaction.
3.6 Employee Plans. None of the Seller's employee plans are a part of
this Agreement and any employees of Seller relating to the Brokerage Assets are
considered to have resigned. Accordingly, Seller makes no representation or
warranties as regards its employee plans except that any vested benefits of the
resigned employees of the brokerage business are fully funded.
3.7 Insurance. Seller has maintained through the date of this Agreement
insurance on Seller's tangible real and personal property and assets, whether
owned or leased, against loss or damage by fire or other casualty.
3.8 Binding Obligation. This Agreement constitutes the legal, valid and
binding obligation of Seller in accordance with the terms hereof. Seller has all
requisite corporate power and authority, including the approval of its Board of
Directors, to execute, perform, carry out the provisions of and consummate the
transactions contemplated in this Agreement.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF BUYER
---------------------------------------
Buyer makes the following representations and warranties to the best of its
knowledge to Seller, with the intention that Seller may rely upon the same, and
acknowledge that the same shall be true as of the Closing Date (as if made at
the Closing) and shall survive the Closing of this transaction.
4.1 Organization. Buyer is a corporation, duly organized, validly
existing in good standing under the laws of the State of Minnesota, and has all
requisite power and authority, corporate and otherwise, to own its properties
and conduct the business in which it is presently engaged.
4.2 Corporate Authority. Buyer has all requisite power and authority,
including the approval of its Board of Directors, to execute, perform and carry
out the provisions in this Agreement.
4.3 Breaches of Contracts; Required Consents. Neither the execution and
delivery of this Agreement by Buyer, nor compliance by Buyer with the terms and
provisions of this Agreement, will:
(a) Conflict with or result in a breach of: (i) any of the terms,
conditions or provisions of the Articles of Incorporation, Bylaws or other
governing instruments of Buyer, (ii) any judgment, order, decree or ruling
to which the Buyer is a party, (iii) any injunction of any court or
governmental authority to which it is subject, or (iv) any agreement,
contract or commitment which is material to the financial condition of
Buyer; or
(b) Require the affirmative consent or approval of any third party.
4.4 Binding Obligation. This Agreement constitutes the legal, valid and
binding obligation of Buyer in accordance with the terms hereof. Buyer is not
subject to any charter, mortgage, lien, lease, agreement, contract, instrument,
law, rule, regulation, order, judgment or decree, or other restriction of any
kind or character, which would prevent the consummation of the transactions
contemplated in this Agreement.
4.5 Completeness of Disclosure. No representation in this Article
contains any untrue statement of a material fact or omits to state any material
fact the omission of which would be misleading.
ARTICLE 5.
CONDUCT AND TRANSACTIONS OF SELLER'S BUSINESS PRIOR TO CLOSING
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The principal officer and shareholder of Buyer has also been an executive
officer of Seller. Accordingly, Seller and Buyer agree that Buyer will conduct
the brokerage business from the date of this Agreement under Buyer's name and
any profits or losses arising from the conduct of the business after the date of
this Agreement to the Closing Date will accrue to the Buyer.
5.1 Access to Information. From the date of this Agreement to Closing
Date, Buyer shall give Seller and Seller's authorized representatives, full
access to all of the property, books, contracts, commitments and records
relating to its business and shall furnish to Seller during such period all such
information concerning its business or the Brokerage Assets as Seller reasonably
may request ("Confidential Information"). Requests for business records covering
such period may be made any time in the future so long as Seller has a
reasonable business reason for making the request.
5.2 Restrictions in Operation of its Business. Buyer represents and
covenants that and during the period from the date of this Agreement to the
Closing (except as Seller otherwise has consented in writing):
(a) The brokerage business will be conducted only in the usual and
ordinary manner.
(b) Buyer will not sell, dispose, transfer, assign or otherwise remove any
of the Brokerage Assets except inventory in the ordinary course of
business.
(c) Buyer shall use its best efforts to preserve the organization related
to the Brokerage Assets and to keep available during such period the
employees formerly associated with the Brokerage Assets and the Seller as
of the date of this Agreement. After the date of this Agreement the Seller
will no longer be responsible for the salaries of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇ and Seller will treat these former employees as
having voluntarily resigned.
5.3 No Solicitation of Other Offers. Buyer and Seller agree that without
the other's consent, prior to Closing Date or the termination of this Agreement
pursuant to Section 6.4, neither Buyer nor Seller nor any representatives of
said parties will enter into any negotiations with or solicit any written offer,
inquiry or proposal from any other person with respect to the sale, merger or
other acquisition of the Brokerage Assets. Such consent by either party will not
be unreasonably withheld.
ARTICLE 6.
CONDITIONS OF CLOSING; ABANDONMENT OF TRANSACTION
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6.1 Conditions to Obligations of Buyer to Proceed on the Closing Date. The
obligations of Buyer to proceed on the Closing Date shall be subject (at its
discretion) to the satisfaction, on or prior to the Closing, of all of the
following conditions:
(a) Truth of Representations and Warranties and Compliance with
Obligations. The representation and warranties of Seller herein shall
be true in all material respects on the Closing Date with the same effect
as though made at such time. Seller shall have performed all material
obligations and complied with all material covenants and conditions prior
to or as of the Closing Date. Seller shall have delivered to Buyer a
certificate of Seller in form and substance satisfactory to Buyer dated as
of the Closing Date and executed by the any two of the Chief Executive
Officer, President or Chief Financial Officer of Seller to all such
effects.
(b) Assignments. Seller shall have executed and delivered to Buyer
documents assigning all of its right, title and interest in the Intangible
Property, the Vehicle and related lease.
(c) Release Secured Claims. Seller shall have obtained full and complete
releases of all security interests, or other encumbrances upon the
Brokerage Assets, including those set forth in Exhibit 3.3 (a).
(d) Delivery of Documents. Seller shall have delivered all documents
required to be delivered at Closing pursuant to Section 7.2 hereof.
(e) Litigation Affecting Closing. No suit, action or other proceeding
shall be pending or threatened by or before any court or governmental
agency in which it is sought to restrain or prohibit or to obtain damages
or other relief in connection with this Agreement or the consummation of
the transaction contemplated by this Agreement, and no investigation that
may result in any such suit, action or other proceeding shall be pending or
threatened.
6.2 Conditions to Obligations of Seller to Proceed on the Closing Date.
The obligation of Seller to proceed on the Closing Date shall be subject (at its
discretion) to the satisfaction, on or before the Closing, of the following
conditions:
(a) Truth of Representations and Warranties and Compliance with
Obligations. The representations and warranties of Buyer herein contained
shall be true in all material respects on the Closing Date with the same
effect as though made at such times. Buyer shall have performed all
material obligations and complied with all material covenants and
conditions prior to or as of the Closing Date. Buyer shall have delivered
to Seller a certificate in form and substance reasonably satisfactory to
Seller dated as of the Closing Date and executed by its President to all
such effects.
(b) Delivery of Documents. Buyer shall have delivered all documents
required to be delivered at Closing pursuant to Section 7.3 hereof.
(c) Required Consents. All required consents shall have been received
from governmental agencies whose approval is required to consummate the
transaction contemplated herein.
(d) Litigation Affecting Closing. No suit, action or other proceeding
shall be pending or threatened by or before any court or governmental
agency in which it is sought to restrain or prohibit or to obtain damages
or other relief in connection with this Agreement or the consummation of
the transaction contemplated by this Agreement, and no investigation that
might eventuate in any such suit, action or other proceeding shall be
pending or threatened.
6.3 Absence of Exhibits. The parties acknowledge that Exhibits ???????
are not attached hereto and that only a preliminary version of Exhibits ?????
have been attached hereto. The parties agree to use their best efforts to
negotiate in good faith the final form of such Exhibits, and no party may
decline to proceed at the Closing unless the other party has failed to negotiate
in good faith concerning a material portion of any such Exhibit.
6.4 Termination of Agreement. This Agreement and the transactions
contemplated herein may be terminated at or prior to the Closing Date as
follows:
(a) By mutual written consent of all parties.
(b) By Buyer pursuant to written notice delivered at or prior to the
Closing if Seller has failed in any material respect to satisfy all of the
conditions to Closing set forth in Section 6.1 or if the parties have been
unable after good faith efforts to reach agreement on any issue arising
under Section 6.3.
(c) By Seller pursuant to written notice delivered at or prior to the
Closing if Buyer has failed in any material respect to satisfy the
conditions set forth in Section 6.2 or if the parties have been unable
after good faith efforts to reach agreement on any issue arising under
Section 6.3.
6.5 Consequences of Termination. In the event of termination of this
Agreement, each party will return to the other all documents and materials
obtained from the other in connection with the transaction contemplated by this
Agreement and will not use and will keep confidential all Confidential
Information about the other party obtained pursuant to this Agreement pursuant
to the terms of Section 5.1 hereof. However, Seller does not agree to re-hire
any employees solely as a result of termination hereunder.
ARTICLE 7
CLOSING
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7.1 Closing. The closing of the transaction contemplated by this
Agreement ("Closing") shall be held at the offices of Buyer on March 20, 1996 at
4:00 p.m., or at such later date or time or place as the parties may mutually
agree upon in writing. Such date of Closing is referred to herein as the Closing
Date.
7.2 Documents to be Delivered by Seller. Seller agrees to deliver the
following documents, duly executed as appropriate, to Buyer at the Closing:
(a) Articles of Incorporation of Seller certified by the Secretary of State
of Minnesota.
(b) Bylaws of Seller certified by the Seller's Secretary.
(c) Certificate of Good Standing of Seller dated no earlier than forty
(40) days prior to Closing Date.
(d) Certified copies of corporate resolutions of Seller authorizing it to
enter into this Agreement and to consummate the transactions contemplated
herein.
(e) A ▇▇▇▇ of Sale for the assignment and transfer of the Purchases Assets.
(f) Appropriate assignment documents assigning Seller's title and interest
in the Equipment and Vehicle Lease.
(g) Certificate of Seller's CEO or President and CFO regarding
representations and warranties as required under Section 6.1 (a).
(h) Such other documents as Buyer may reasonably request for the purpose
of assigning, transferring, granting, conveying, and confirming to Buyer or
reducing to its possession any and all of the Brokerage Assets.
7.3 Documents Delivered by Buyer. Buyer agrees to deliver the following
documents, duly executed as appropriate, to Seller at the Closing:
(a) Articles of Incorporation of Buyer certified by the Secretary of State
of Minnesota.
(b) Bylaws of Buyer certified by the Seller's Secretary.
(c) Certificate of Good Standing of Buyer dated no earlier than forty (40)
days prior to Closing Date.
(d) Certified copies of corporate resolutions of Buyer authorizing it to
enter into this Agreement and to consummate the transactions contemplated
herein.
(e) The sum of $1.00.
(f) Certificate of Buyer's CEO or President regarding representations and
warranties as required under Section 6.2 (a).
(h) Such other documents as Seller may reasonably request to carry out the
transactions contemplated under this Agreement.
7.4 Assignment and Assumption of Certain Contracts. Effective upon
consummation of all transactions hereon as of the date of this Agreement, Seller
hereby assigns to Buyer all of Seller's rights, title and benefit under the
Intangible Property and Vehicle and lease associated with the Vehicle. Buyer
hereby assumes all risks of ownership related to the Brokerage Assets including
all liabilities or obligations arising thereafter with respect to the Brokerage
Assets.
ARTICLE 8.
POST CLOSING OBLIGATIONS
------------------------
8.1 Further Documents and Assurances. At any time and from time to time
after the Closing Date, each party shall, upon request of another party,
execute, acknowledge and deliver all such further and other assurances and
documents, and will take such action consistent with terms of this Agreement, as
may be reasonably requested to carry out the transactions contemplated herein
and to permit each party to enjoy its rights and benefits hereunder. If
requested by Buyer, Seller further agrees to prosecute or otherwise enforce in
its own name for the benefit of Buyer, any claim, right or benefit transferred
by this Agreement that may require prosecution or enforcement in Seller's name.
Any prosecution or enforcement of claims, rights, or benefits under this
provision shall be solely at Buyer's expense (and if requested by Seller,
shall be evidenced by a prepayment of such estimated expense), unless the
prosecution or enforcement is made necessary by a breach of this Agreement on
the part of Seller.
ARTICLE 9.
INDEMNIFICATION
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9.1 Indemnification by Seller. Subject to the limitations set forth in
Section 9.2, Seller shall indemnify and hold Buyer harmless at all times and
after the date of this Agreement, against and in respect of all damages, losses,
costs and expenses (including reasonable attorneys' fees) which Buyer may suffer
or incur in connection with any of the following matters:
(a) Any claim, demand, action or proceeding asserted by any person
respecting any liabilities of Seller which are not expressly assumed by
Buyer under this Agreement.
(b) The breach by Seller of any of its representations, warranties or
covenants in this Agreement.
(c) The rights of Buyer with respect to any claims arising under Section
9.1 shall be limited to recovery of actual losses, costs and expenses
(including reasonable attorneys' fees). Buyer hereby waives any remedy or
right of rescission arising on the basis of such claims.
9.2 Indemnification by Buyer. Buyer shall indemnify and hold Seller
harmless at all times from and after the date of this Agreement, against and in
respect of all losses, damages, costs and expenses (including reasonable
attorneys' fees) which Seller may suffer or incur in connection with any of the
following matters:
(a) The breach by Buyer of any representation, warranties or covenants in
this Agreement.
(b) Any claim, demand, action or proceeding asserted by any person against
Seller relating to any obligation or liability assumed by Buyer hereunder
or to any obligation or liability relating to its business incurred after
the date of this Agreement.
9.3 Third Party Claims. If a claim by a third party is made against any
of the indemnified parties, and if any of the indemnified parties intends to
seek indemnity with respect to such claim under this Article, such indemnified
party shall promptly notify the indemnifying party of such claim. The
indemnifying party shall have sixty (60) days after receipt of the above-
mentioned notice to undertake, conduct and control, through counsel of such
party's own choosing (subject to the consent of the indemnified party, such
consent not to be unreasonably withheld) at such party's expense, the settlement
or defense of it, and the indemnified party shall cooperate with the
indemnifying party in connection with such efforts; provided that: (i) the
indemnifying party shall not by this Agreement permit to exist any lien,
encumbrance or other adverse charge upon any asset of any indemnified party,
(ii) the indemnifying party shall permit the indemnified party to participate in
such settlement or defense through counsel chosen by the
indemnified party, provided that the fees and expenses of such counsel shall be
borne by the indemnified party, and (iii) the indemnifying party shall agree
promptly to reimburse the indemnified party for the full amount of any loss
resulting from such claim and all related expense incurred by the indemnified
party pursuant to this Article. So long as the indemnifying party is reasonably
contesting any such claim in good faith, the indemnified party shall not pay or
settle any such claim. If the indemnifying party does not notify the indemnified
party within sixty (60) days after receipt of the indemnified party's notice of
a claim of indemnity under this Article that such party elects to undertake the
defense of such claim, the indemnified party shall have the right to contest,
settle or compromise the claim in the exercise of the indemnified party's
exclusive discretion at the expense of the indemnifying party.
9.4 Prepayment. In the event Seller has a claim against Buyer for
indemnification pursuant to this Article, such claim may be made by Seller in
the amount of the estimated costs which shall be prepaid or bonded. If not so
prepaid, Seller shall have the right to contest, settle or compromise the claim
in the exercise of Seller's exclusive discretion at the expense of the Buyer.
ARTICLE 11.
GENERAL
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11.1 Counterparts. This Agreement may be executed in counterparts and by
different parties on different counterparts with the same effect as if the
signatures thereto were on the same instrument. This Agreement shall be
effective and binding upon all parties hereto at such time as all parties have
executed a counterpart of this Agreement.
11.2 Exhibits. Each Exhibit delivered pursuant to the terms of this
Agreement shall be in writing and shall constitute a part of this Agreement.
11.3 Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed to have been given, when
received, if delivered by hand or telegram, or mail, return receipt requested,
postage prepaid and addressed to the appropriate party at the following
addresses:
If to Seller: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
If to Buyer: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Addresses may be changed by written notice given pursuant to this Section,
however any such notice shall not be effective, if mailed, until three (3)
working days after depositing in the mails or when actually received, whichever
occurs first.
11.4 Successors and Assigns. Neither Seller or Buyer shall assign or
transfer any of its rights or obligations hereunder without the prior written
consent of the other party which
consent shall not be unreasonably withheld. Provided however, that a merger or
acquisition of the entire legal entity of either party hereto shall be permitted
without obtaining written consent of the other party.
11.5 Expenses. Except as otherwise provided herein, each party hereto
shall each bear and pay for its own costs and expenses incurred by it or on its
behalf in connection with the transactions contemplated hereby, including,
without limitation, all fees and disbursements of attorneys, accountants and
financial consultants incurred through the Closing Date.
11.6 Entire Agreement. This Agreement, together with the Exhibits and
the related written agreements specifically referred to herein, represents the
only agreement among the parties concerning the subject matter hereof and
supersedes all prior agreements whether written or oral, relating thereto.
11.7 Modification and Waiver. No purported amendment, modification or
waiver of any provision hereof shall be binding unless set forth in a written
document signed by all parties ( in the case of amendments or modifications) or
by the party to be charged thereby (in the case of waivers). Any waiver shall be
limited to the circumstance or event specifically referenced in the written
waiver document and shall not be deemed a waiver of any other term hereof or of
the same circumstance or event upon any recurrence thereof.
11.8 Governing Law. This Agreement and the legal relations between the
parties shall be governed by and construed in accordance with the laws of the
State of Minnesota.
11.9 Knowledge. Knowledge, as used in this Agreement or the instruments,
certificates or other documents required under this Agreement, means actual
knowledge of a fact or constructive knowledge if a reasonably prudent person in
a like position would have known, or should have known, the fact.
11.10 Benefit. Nothing in this Agreement, expressed or implied, is
intended to confer on any person other than the parties to this Agreement or
their permitted successors or assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
Each of the parties hereto has caused this Brokerage Asset Purchase
Agreement to be executed in the manner appropriate to each, to be effective as
of the day and year first above written.
Norcom Resources, Inc. (Buyer) Global MAINTECH, Inc. (Seller)
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------- --------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Its: President Its: Chief Executive Officer
BROKERAGE ASSET PURCHASE AGREEMENT
PROMISSORY NOTE 1
$35,000 December 31, 1995
FOR VALUE RECEIVED, Norcom Resources, Inc. (hereinafter referred to as
"Borrower") promises to pay to the order of Global MAINTECH, Inc. (hereinafter
referred to as "Lender") the sum of thirty-fifty thousand Dollars ($35,000) to
include interest at the rate of ten and one-quarter percent (10.25%) per annum
on the unpaid balance. This Note 1 represents the unpaid balance due arising out
of Asset Purchase Agreement dated as of December 31, 1995 ("Agreement") relating
to the purchase of inventory and certain equipment. Such inventory and equipment
were transferred by said Agreement to Borrower and comprise the principal assets
of Borrower. Borrower acknowledges receipt of such inventory and equipment and
represents that such inventory and equipment constitute adequate consideration
for its assumption of the obligation for the unpaid purchase price thereof in
the form of its promise to pay the amounts due hereunder.
The term for this Note 1 is 15 months, maturing on March 31, 1997.
Beginning March 31, 1996 payments on this Note 1 shall be payable in twelve
equal monthly installments of two thousand nine hundred sixteen Dollars and
sixty-seven cents ($2,916.67), each of which shall be deemed to include interest
at the rate of ten and one-quarter percent (10.25%) per annum on the unpaid
balance. The last such payment is due March 31, 1997. Each payment made on this
Note 1 shall be applied first against interest and the remainder against
principal based on actual days elapsed in a year of 365 days.
This Note 1 is secured by a security interest in 600,000 shares of common
stock of Global MAINTECH Corporation ("Stock") owned by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ in
accordance with the terms and conditions of a Security Agreement from Borrower
dated as of the same date herewith. In the event of default in any covenant or
payment herein or in any covenant, term or condition contained in the Security
Agreement, the entire outstanding principal balance hereunder and interest
accrued hereon shall become immediately due and payable, at the option of Holder
hereof and without notice. Provided however, that the Holder may not exercise
its right to use its security interest in the common stock of Global MAINTECH
Corporation to offset an acceleration of principal arising from a default until
the final maturity date of April 1, 1997. The Holder of this Note 1 need not
grant nor permit any grace period after default before accelerating the debt
created hereby.
The Borrower shall have the right to pre-pay the principal balance due
under this Note 1 in whole or in part at any time without premium or penalty,
and any partial pre-payment(s) shall be applied in reduction of the principal
last to mature hereunder. Pre-payment may include the Buyer's right to offset
against its obligations hereunder any amounts due Buyer from Seller pursuant to
this Agreement.
The undersigned hereof:
A. Agrees to pay this Note 1 and guarantees payment hereof;
B. Waives demand, presentment, protest and notice of dishonor;
C. Consents to the extensions and renewals hereof without notice;
D. Consents to the extension, renewal, exchange, surrender or release of
any collateral securing this Note 1 with or without consideration;
E. Agrees in the case of any default to pay all costs of collection,
including reasonable attorneys' fees, and interest per annum at the rate
of twelve and one-quarter percent (12.25%) or the maximum rate of
interest whichever is lower or late charges permitted by law.
This Note 1 shall be governed by the laws of the State of Minnesota.
Borrower: Norcom Resources, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: President
As regards the Common Stock Collateral, only
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
BROKERAGE ASSET PURCHASE AGREEMENT
----------------------------------
EXHIBIT 2.2.1 (b)
PROMISSORY NOTE 2
$35,000 December 31, 1995
FOR VALUE RECEIVED, Norcom Resources, Inc. (hereinafter referred to as
"Borrower") promises to pay to the order of Global MAINTECH, Inc. (hereinafter
referred to as "Lender") the sum of thirty-fifty thousand Dollars ($35,000) to
include interest at the rate of ten and one-quarter percent (10.25%) per annum
on the unpaid balance. This Note 2 represents the unpaid balance due arising out
of Asset Purchase Agreement dated as of December 31, 1995 ("Agreement") relating
to the purchase of inventory and certain equipment. Such inventory and equipment
were transferred by said Agreement to Borrower and comprise the principal assets
of Borrower. Borrower acknowledges receipt of such inventory and equipment and
represents that such inventory and equipment constitute adequate consideration
for its assumption of the obligation for the unpaid purchase price thereof in
the form of its promise to pay the amounts due hereunder.
The term for this Note 2 is 15 months, maturing on March 31, 1997. One
payment on the date of maturity shall be deemed to include interest at the rate
of ten and one-quarter percent (10.25%) per annum on the unpaid balance. Payment
made on this Note 2 shall be applied first against interest and the remainder
against principal based on actual days elapsed in a year of 365 days.
This Note 2 is secured by a security interest in 600,000 shares of common
stock of Global MAINTECH Corporation owned by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ in accordance
with the terms and conditions of a Security Agreement from Borrower dated as of
the same date herewith. In the event of default in any covenant or payment
herein or in any covenant, term or condition contained in the Security
Agreement, the entire outstanding principal balance hereunder and interest
accrued hereon shall become immediately due and payable, at the option of Holder
hereof and without notice. Provided however, that the Holder may not exercise
its right to use its security interest in the common stock of Global MAINTECH
Corporation to offset an acceleration of principal arising from a default until
the final maturity date of March 31, 1997. The Holder of this Note 2 need not
grant nor permit any grace period after default before accelerating the debt
created hereby.
The Borrower shall have the right to pre-pay the principal balance due
under this Note 2 in whole or in part at any time without premium or penalty,
and any partial pre-payment(s) shall be applied in reduction of the principal
last to mature hereunder. Pre-payment may include the Buyer's right to offset
against its obligations hereunder any amounts due Buyer from Seller pursuant to
this Agreement.
The undersigned hereof:
A. Agrees to pay this Note 2 and guarantees payment hereof;
B. Waives demand, presentment, protest and notice of dishonor;
C. Consents to the extensions and renewals hereof without notice;
D. Consents to the extension, renewal, exchange, surrender or release of
any collateral securing this Note 2 with or without consideration;
E. Agrees in the case of any default to pay all costs of collection,
including reasonable attorneys' fees, and interest per annum at the rate
of twelve and one-quarter percent (12.25%) or the maximum rate of
interest whichever is lower or late charges permitted by law.
This Note 2 shall be governed by the laws of the State of Minnesota.
Borrower: Norcom Resources, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: President
As regards the Common Stock Collateral, only
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
BROKERAGE ASSET PURCHASE AGREEMENT
EXHIBIT 2.2.2 (a)
SECURITY AGREEMENT
NOTE 1
For value received Norcom Resources, Inc., a Minnesota corporation located at
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (herein referred to as
("Borrower") grants to Global MAINTECH, Inc., (herein referred to as ("Lender"),
a security interest to secure the payment of that certain promissory note dated
December 31, 1995, executed and delivered by the Borrower to the Lender in the
original principal sum of thirty-five thousand Dollars ($35,000), interest and
other charges as therein provided (herein referred to as ("Note 1"). This
security interest also secures all extensions, renewals, and replacements of
Note 1. Such obligations are herein collectively referred to as the ("Secured
Obligation"). To secure payment of the Secured Obligation, the Borrower grants
the Lender a security interest in the following property (hereinafter referred
to as the "Collateral"): 600,000 shares of common stock of Global MAINTECH
Corporation ("Stock") owned by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇. The Collateral shall include
all substitutions and replacements for and proceeds of any and all of the
foregoing property, and all accessions, accessories, attachments, parts,
equipment, and repairs now or hereafter attached or affixed to or used in
connection with such Collateral.
Borrower warrants, represents, and agrees that:
1. The Collateral will be kept at the following locations ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇ or ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ and will not be moved from such locations unless, prior
to any such removal, Borrower has given written notice to the Lender of
the location or locations to which Borrower desires to remove the
Collateral; and the Lender has given its written consent to such
removal.
2. Borrower's place of business is located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇; ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇'▇ address is ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and Borrower will notify the Lender in
writing of any change in location of Borrower's place of business.
3. Borrower, or in the case of the Stock, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ have title to
and will at all times keep the Collateral free of all liens and
encumbrances, except the security interest created hereby, and has full
power and authority to execute this Security Agreement, to perform
Borrower's obligations hereunder, and to subject the Collateral to the
security interest created hereby. Borrower will pay all fees,
assessments, charges, or taxes arising with respect to the Collateral.
There is no encumbrance or security interest with respect to all or any
part of the Collateral which either (i) is superior to the Lender's
security interest hereunder, or (ii) has not been disclosed to the
Lender by the Borrower. All costs of keeping the Collateral free of
encumbrances and security interests prohibited by this Agreement and of
removing same if they should arise, shall be borne and paid by Borrower.
4. Borrower will at any time or times hereafter execute such financing
statements and other documents and instruments and perform such acts as
the Lender may from time to time request to establish, maintain,
perfect, and enforce a valid security interest in the Collateral, and
will pay all costs of filing and recording.
5. Borrower will keep the Collateral in good condition and insure it
against loss or damage by fire, theft, physical damage, and against such
other risk, in such amounts, in such companies and upon such terms as
Lender may reasonably require. Borrower will obtain loss payable
endorsements on applicable insurance policies in favor of Borrower and
Lender as their interests may appear and at Lender's request will
deposit the insurance policies with Lender. Borrower will cause each
insured to agree, by policy endorsement or by issuance of Certificate of
Insurance or by independent instrument furnished to Lender, that such
insurer will give 30 days written notice to Lender before such policy
will be altered or canceled. Borrower irrevocably appoints Lender as
Borrower's attorney-in-fact to make any claim for, to negotiate
settlement of the claims, to receive for and to execute and endorse any
documents, checks, or other instruments in payment for loss, theft, or
damage under any insurance policy covering the Collateral.
6. Upon default by Borrower in the performance of the obligations
hereunder, the Lender shall have the authority, but shall not be
obligated to: (i) effect such insurance and pay the premiums thereof;
and (ii) pay and discharge any fees, assessments, charges, taxes, liens,
and encumbrances on the Collateral. All sums so advanced or paid by the
Lender shall be payable by Borrower on demand with interest at the
default rate or the maximum rate allowed by law whichever is lower and
shall be part of the Secured Obligations.
7. Borrower will not sell, lease, or otherwise dispose of the Collateral
other than in the ordinary course of its business thereof.
8. Borrower will keep and maintain accurate records with respect to the
Collateral, and with respect to the general business of Borrower, and
will make the same available to the Lender at its request for
examinations and inspections; and will make and render to the Lender
such reports, accounting, and statements as the Lender may from time to
time request with respect to the Collateral; will permit any authorized
representative of the Lender to examine and inspect, during normal
business hours, any and all premises where the Collateral is or may be
kept or located.
9. The occurrence of any of the following events will constitute a Default:
(a) failure of Borrower to pay when due any amount payable under any of
the secured obligations; (b) failure to perform any agreement of
borrower contained herein or in any other agreement with the Lender; (c)
any statement, representation of warranty of Borrower made herein or at
any time furnished to the Lender is untrue in any respect as of the date
made; (d) entry of any judgment against Borrower; (e) borrower becomes
insolvent or is generally not paying its debts as such debts become due;
(f) appointment of or assignment to a custodian, as that term is defined
in the United States Bankruptcy Code, or loss, substantial damage to,
destruction, theft, encumbrance, levy, seizure, or attachment of any
portion of the Collateral; (g) commencement of any proceeding or filing
of a petition by or against Borrower under the provisions of the United
States Bankruptcy Code or under any insolvency law or other statute or
law providing for the modification or adjustments of the rights of
creditors; or, (h) dissolution, or transfer of a substantial part of the
property of Borrower.
10. Whenever a default shall exist, the Lender may at its option and
without demand or notice declare all or any part of the secured
obligation immediately due and payable; and the Lender may exercise, in
addition to the rights and remedies granted hereby, all rights and
remedies of the secured party under the Uniform Commercial Code or any
other applicable law. Provided however, that the Holder may not
exercise its right to use its security interest in the
common stock of Global MAINTECH Corporation to offset an acceleration
of principal arising from a default until the final maturity date of
March 31, 1997.
11. Borrower agrees in the event of default, to make the Collateral
available to the Lender at a place or places to be designated by the
Lender, which is reasonably convenient to both parties, and to pay all
costs of the Lender, including reasonable attorneys fees in the
collection of any of the secured obligations and the enforcement of any
of the Lender's rights. If any notification of intended disposition of
any of the Collateral is required by law, such notification shall be
deemed properly given if mailed a reasonable time before such
disposition, postage prepaid, addressed to the Borrower at the address
shown above. The Lender's duty of care with respect to the Collateral
in its possession such be deemed fulfilled if the Lender exercises
reasonable care in physically safekeeping such Collateral, and the
Lender need not otherwise preserve, protect, insure, or care for any
Collateral. The Lender shall not be obligated to preserve any rights
the Borrower may have against prior parties, to realize on the
Collateral at all or in any particular manner or order, or to apply any
cash proceeds of Collateral in any particular order of application. No
delay or failure by the Lender in the exercise of any right or remedy
shall preclude other or further exercise thereof or the exercise of any
other rightful remedy.
12. This Agreement is governed by the laws of the State of Minnesota.
Executed this 20th day of March, 1996.
Borrower: Norcom Resources, Inc.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: President
As regards the Common Stock Collateral, only
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
BROKERAGE ASSET PURCHASE AGREEMENT
EXHIBIT 2.2.2 (b)
SECURITY AGREEMENT
NOTE 2
For value received Norcom Resources, Inc., a Minnesota corporation located at
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (herein referred to as
("Borrower") grants to Global MAINTECH, Inc., (herein referred to as ("Lender"),
a security interest to secure the payment of that certain promissory note dated
December 31, 1995, executed and delivered by the Borrower to the Lender in the
original principal sum of thirty-five thousand Dollars ($35,000), interest and
other charges as therein provided (herein referred to as ("Note 2"). This
security interest also secures all extensions, renewals, and replacements of
Note 2. Such obligations are herein collectively referred to as the ("Secured
Obligation"). To secure payment of the Secured Obligation, the Borrower grants
the Lender a security interest in the following property (hereinafter referred
to as the "Collateral"): 600,000 shares of common stock of Global MAINTECH
Corporation ("Stock") owned by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇. The Collateral shall include
all substitutions and replacements for and proceeds of any and all of the
foregoing property, now or hereafter attached or affixed to or used in
connection with such Collateral.
Borrower warrants, represents, and agrees that:
1. The Collateral will be kept at the following locations ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇ or ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ and will not be moved from such locations unless, prior
to any such removal, Borrower has given written notice to the Lender of
the location or locations to which Borrower desires to remove the
Collateral; and the Lender has given its written consent to such
removal.
2. Borrower's place of business is located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇; ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇'▇ address is ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and Borrower will notify the Lender in
writing of any change in location of Borrower's place of business.
3. Borrower, or in the case of the Stock, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ have title to
and will at all times keep the Collateral free of all liens and
encumbrances, except the security interest created hereby, and has full
power and authority to execute this Security Agreement, to perform
Borrower's obligations hereunder, and to subject the Collateral to the
security interest created hereby. Borrower will pay all fees,
assessments, charges, or taxes arising with respect to the Collateral.
There is no encumbrance or security interest with respect to all or any
part of the Collateral which either (i) is superior to the Lender's
security interest hereunder, or (ii) has not been disclosed to the
Lender by the Borrower. All costs of keeping the Collateral free of
encumbrances and security interests prohibited by this Agreement and of
removing same if they should arise, shall be borne and paid by Borrower.
4. Borrower will at any time or times hereafter execute such financing
statements and other documents and instruments and perform such acts as
the Lender may from time to time request to establish, maintain,
perfect, and enforce a valid security interest in the Collateral, and
will pay all costs of filing and recording.
5. Borrower will keep the Collateral in good condition and insure it
against loss or damage by fire, theft, physical damage, and against such
other risk, in such amounts, in such companies
and upon such terms as Lender may reasonably require. Borrower will
obtain loss payable endorsements on applicable insurance policies in
favor of Borrower and Lender as their interests may appear and at
Lender's request will deposit the insurance policies with Lender.
Borrower will cause each insured to agree, by policy endorsement or by
issuance of Certificate of Insurance or by independent instrument
furnished to Lender, that such insurer will give 30 days written notice
to Lender before such policy will be altered or canceled. Borrower
irrevocably appoints Lender as Borrower's attorney-in-fact to make any
claim for, to negotiate settlement of the claims, to receive for and to
execute and endorse any documents, checks, or other instruments in
payment for loss, theft, or damage under any insurance policy covering
the Collateral.
6. Upon default by Borrower in the performance of the obligations
hereunder, the Lender shall have the authority, but shall not be
obligated to: (i) effect such insurance and pay the premiums thereof;
and (ii) pay and discharge any fees, assessments, charges, taxes,
liens, and encumbrances on the Collateral. All sums so advanced or paid
by the Lender shall be payable by Borrower on demand with interest at
the default rate or the maximum rate allowed by law whichever is lower
and shall be part of the Secured Obligations.
7. Borrower will not sell, lease, or otherwise dispose of the Collateral
other than in the ordinary course of its business thereof.
8. Borrower will keep and maintain accurate records with respect to the
Collateral, and with respect to the general business of Borrower, and
will make the same available to the Lender at its request for
examinations and inspections; and will make and render to the Lender
such reports, accounting, and statements as the Lender may from time to
time request with respect to the Collateral; will permit any authorized
representative of the Lender to examine and inspect, during normal
business hours, any and all premises where the Collateral is or may be
kept or located.
9. The occurrence of any of the following events will constitute a
Default: (a) failure of Borrower to pay when due any amount payable
under any of the secured obligations; (b) failure to perform any
agreement of borrower contained herein or in any other agreement with
the Lender; (c) any statement, representation of warranty of Borrower
made herein or at any time furnished to the Lender is untrue in any
respect as of the date made; (d) entry of any judgment against
Borrower; (e) borrower becomes insolvent or is generally not paying its
debts as such debts become due; (f) appointment of or assignment to a
custodian, as that term is defined in the United States Bankruptcy
Code, or loss, substantial damage to, destruction, theft, encumbrance,
levy, seizure, or attachment of any portion of the Collateral; (g)
commencement of any proceeding or filing of a petition by or against
Borrower under the provisions of the United States Bankruptcy Code or
under any insolvency law or other statute or law providing for the
modification or adjustments of the rights of creditors; or, (h)
dissolution, or transfer of a substantial part of the property of
Borrower.
10. Whenever a default shall exist, the Lender may at its option and
without demand or notice declare all or any part of the secured
obligation immediately due and payable; and the Lender may exercise, in
addition to the rights and remedies granted hereby, all rights and
remedies of the secured party under the Uniform Commercial Code or any
other applicable law. Provided however, that the Holder may not
exercise its right to use its security interest in the common stock of
Global MAINTECH Corporation to offset an acceleration of principal
arising from a default until the final maturity date of March 31, 1997.
11. Borrower agrees in the event of default, to make the Collateral
available to the Lender at a place or places to be designated by the
Lender, which is reasonably convenient to both parties, and to pay all
costs of the Lender, including reasonable attorneys fees in the
collection of any of the secured obligations and the enforcement of any
of the Lender's rights. If any notification of intended disposition of
any of the Collateral is required by law, such notification shall be
deemed properly given if mailed a reasonable time before such
disposition, postage prepaid, addressed to the Borrower at the address
shown above. The Lender's duty of care with respect to the Collateral
in its possession such be deemed fulfilled if the Lender exercises
reasonable care in physically safekeeping such Collateral, and the
Lender need not otherwise preserve, protect, insure, or care for any
Collateral. The Lender shall not be obligated to preserve any rights
the Borrower may have against prior parties, to realize on the
Collateral at all or in any particular manner or order, or to apply any
cash proceeds of Collateral in any particular order of application. No
delay or failure by the Lender in the exercise of any right or remedy
shall preclude other or further exercise thereof or the exercise of any
other rightful remedy.
12. This Agreement is governed by the laws of the State of Minnesota.
Executed this 20th day of March, 1996.
Borrower: Norcom Resources, Inc.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: President
As regards the Common Stock Collateral, only
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
BROKERAGE ASSET PURCHASE AGREEMENT
EXHIBIT 1.1 (b)
EQUIPMENT LIST
Office desks, chairs and file storage for five offices. Four desktop
personal computers, one portable personal computer, and computer networking
equipment.
Warehouse equipment:
One banding tool;
One-half ownership interest or residual interest in forklift; and,
All other equipment located in warehouse at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
December 31, 1995.
All of the above which may be subject to lease (attached hereto on Exhibits
1.2.1 and 1.2.2) shall remain on lease and are not being assigned to Buyer.
Buyer agrees to be maintain such equipment in good condition normal wear and
tear excepted.
BROKERAGE ASSET PURCHASE AGREEMENT
EXHIBIT 1.1 (c)
VEHICLE LEASE
BROKERAGE ASSET PURCHASE AGREEMENT
EXHIBIT 1.1 (e)
PARTIAL LIST OF INVENTORY
BROKERAGE ASSET PURCHASE AGREEMENT
EXHIBIT 1.2.1
LEASE WITH R.P. CAPITAL CORPORATION
BROKERAGE ASSET PURCHASE AGREEMENT
EXHIBIT 1.2.2
LEASE WITH DATA SALES CO.
BROKERAGE ASSET PURCHASE AGREEMENT
EXHIBIT 1.3 (a)
LIABILITIES ASSUMED BY BUYER AS OF DECEMBER 31, 1995
The following three liabilities are assumed by Buyer:
1. That certain Vehicle lease attached as Exhibit 3.3 (c).
2. Broward County/MLC penalty (project # s-495-1731) in the amount of
$28,000 at December 31, 1995.
3. Liability to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ for HH TCM ( broker ▇▇▇▇ ▇▇▇▇▇▇▇) in
the amount of $25,000 at December 31, 1995.
All other known liabilities identified on the financial statements of Seller as
of December 31, 1995 shall remain the obligation of Seller. If however, Seller
remains an obligor for items 2 and/or 3 above, Buyer agrees to grant Seller a
security interest in an additional 883,334 shares of common stock owned by
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ which security interest will be recorded in a form
substantially equal to the form used in Exhibit's 2.2.2 (a) and (b). The terms
of the security interest will allow Seller to offset any payments made by seller
on or before March 31, 1997 or any obligations remaining of items 2 or 3 above,
as verified by the third party, as of March 31, 1997 to which Seller remains
obligated ("Third Party Obligation"), against the common stock collateral. The
offset will be calculated as the Third Party Obligation divided by a common
share price of $.06 and will be determined as of March 31, 1997. Seller and
Buyer agree that at the time of Closing herein, neither party can determine if
the third parties in item 2 or 3 above will agree to release Seller of these
obligations. And further agree to make this determination by April 30, 1996. If
by that ▇▇▇▇ ▇▇▇▇▇▇ does not have in its possession a signed release of
liability, then, for these purposes, it will be deemed to be still liable for
items 2 and 3 above and the security interest described above will be documented
by the Seller and Buyer.
NOTE: In exchange for the liabilities assumed by Buyer in this Exhibit
1.3(a) Global MAINTECH, Inc. agrees to:
(i) reduce the original debt from Buyer from $100,000 to $70,000;
and,
(ii) reduce the financial exposure to Data Sales Co. from $190,000,
before accrued interest to $70,000. This reduces the joint and
several liability of ▇▇▇▇ ▇▇▇▇▇▇▇▇, one of the two guarantors of the
Data Sales Co. note. Global MAINTECH, Inc. is more reasonably
assured of meeting the payment requirements on the remaining $70,000
of Data Sales debt.
Approval and acceptance of terms on the 20th day of March 1996:
Global MAINTECH, Inc. Norcom Resources, Inc. As regards the Common
Stock Collateral, only
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------- ----------------------- -----------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: CEO Title: President
BROKERAGE ASSET PURCHASE AGREEMENT
EXHIBIT 2.3
ALLOCATION OF PURCHASE PRICE
Both parties to this Agreement agree the Purchase Price shall be allocated
entirely to the Inventory.
BROKERAGE ASSET PURCHASE AGREEMENT
EXHIBIT 3.2
FINANCIAL STATEMENTS
1. Exhibit 3.2.1 financial statements of Seller as of and for the year
ended December 31, 1994.
2. Exhibit 3.2.2 interim quarterly financial statements as of and for the
nine months ended September 30, 1995 of Seller's parent company.
3. Exhibit 3.2.3 monthly internal incomes statements for October and
November 1995 (division allocation of standard operating income/expense).
4. Exhibit 3.2.4 Brokerage spin-off issues named "Spin-off.xls".
BROKERAGE ASSET PURCHASE AGREEMENT
EXHIBIT 3.3 (a)
RELEASE OF SECURITY INTEREST
Global MAINTECH Corporation which possesses a security interest in the
Inventory, as defined in the Brokerage Asset Purchase Agreement dated
December 31, 1995, pursuant to that certain Secured Promissory Note dated
December 6, 1994 between Global MAINTECH Corporation (f/k/a Mirror
Technologies, Incorporated) and Global MAINTECH, Inc., as amended, hereby
renounces and releases said security interest as regards the Inventory.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------- -----------------------
▇▇▇▇▇ ▇▇▇▇▇▇, CFO ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, CEO
BROKERAGE ASSET PURCHASE AGREEMENT
EXHIBIT 3.3 (b)
Burger Note
BROKERAGE ASSET PURCHASE AGREEMENT
OFFICERS' CERTIFICATE OF SELLER
The undersigned, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇, being the duly appointed
Chief Executive Officer and Chief Financial Officer, respectively of Global
MAINTECH, Inc. ("Seller") hereby certify, on behalf of Seller , pursuant to
Section 6.1 (a) of that certain Brokerage Asset Purchase Agreement between Buyer
and Seller dated December 31, 1995, that as of March 20, 1996, the Closing Date:
(a) The representations and warranties of Seller therein are true in all
material respects to the best of its knowledge on the Closing Date with the
same effect as though made at such time.
(b) Seller has performed all material obligations and complied with all
material covenants and conditions prior to or as of the Closing Date.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
this 20th day of March, 1996.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, CEO
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------
▇▇▇▇▇ ▇▇▇▇▇▇, CFO
BROKERAGE ASSET PURCHASE AGREEMENT
OFFICERS' CERTIFICATE OF BUYER
The undersigned, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, being the duly appointed President,
Norcom Resources, Inc. ("Buyer") hereby certifies, on behalf of Seller ,
pursuant to Section 6.2 (a) of that certain Brokerage Asset Purchase Agreement
between Buyer and Seller dated December 31, 1995, that as of March 20, 1996, the
Closing Date:
(a) The representations and warranties of Buyer therein are true in all
material respects to the best of its knowledge on the Closing Date with the
same effect as though made at such time.
(b) Buyer has performed all material obligations and complied with all
material covenants and conditions prior to or as of the Closing Date.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
this 20th day of March, 1996.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
BROKERAGE ASSET PURCHASE AGREEMENT
ASSIGNMENT PURSUANT TO SUBSECTION 6.1 (b)
Seller hereby assigns its rights, interests and obligations pursuant to
that certain lease of the Vehicle as defined with Infiniti Financial Services
attached to the Brokerage Asset Purchase Agreement as Exhibit 3.3 (c) to Buyer.
Seller also assigns its right, title and interest in the Intangible Property, as
defined, to Buyer. Excluded from the Intangible Property, as defined, are those
intangibles listed in subsection 1.2 (d) (i) & (ii).
Global MAINTECH, Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, CEO
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------
▇▇▇▇▇ ▇▇▇▇ er, CFO
BROKERAGE ASSET PURCHASE AGREEMENT
▇▇▇▇ OF SALE
For good and valuable consideration, the receipt of which is hereby
acknowledged, Global MAINTECH, Inc. ("Seller") does hereby sell, transfer and
convey to Norcom Resources, Inc. ("Buyer") its entire right, title and interest
in and to the Inventory, as defined, pursuant to the terms of the Brokerage
Asset Purchase Agreement between Buyer and Seller dated December 31, 1995 and
described below:
All inventory, including raw materials, supplies, work in process and
finished inventory of the brokerage business as of December 31, 1995 a
partial list of which is attached on Exhibit 1.1 (e) of the Brokerage
Asset Purchase Agreement. ("Inventory").
Seller makes no warranty or representation, either express or implied, as
to title to, as to the design or condition of, or as to quality of the material,
equipment or workmanship in, the Inventory, and Seller makes no warranty of
merchantability or fitness of the Inventory for any particular purpose or any
component thereof, or any other representation or warranty, express or implied,
with respect to any item of Inventory, either upon delivery thereof to Buyer, or
otherwise, except that Seller warrants that it has conveyed to Buyer all of its
right, title and interest in and to the Inventory and that the Inventory is free
and clear of encumbrances created by Seller unrelated to the transactions
contemplated by the Brokerage Asset Purchase Agreement.
Seller agrees to perform, upon the request and at the expense of Buyer,
such further acts and to execute such additional documents as may be necessary
to give effect to the transfer of the Inventory to Buyer in accordance with the
terms of this ▇▇▇▇ of Sale.
Global MAINTECH, Inc.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Its: CEO
Dated: March 20, 1996