MERCHANT ASSET PURCHASE AGREEMENT
THIS MERCHANT ASSET PURCHASE AGREEMENT (this "Agreement") is dated as of
the 29th day of May 1997 and is entered into by and between CRESTAR BANK, a
commercial bank organized under the laws of the Commonwealth of Virginia
("Seller"), and NOVA INFORMATION SYSTEMS, INC., a Georgia Corporation
("Purchaser").
BACKGROUND AND PURPOSE:
A. Seller is a party to certain Merchant Agreements with various Merchants
according to which Seller has agreed to provide certain services in connection
with Seller's Merchant Business.
B. Seller wishes to sell and transfer to Purchaser all of its rights under
the Merchant Agreements, and certain other assets utilized in connection with
the Merchant Business, and Purchaser wishes to purchase such rights and assets
in connection with the Merchant Business.
C. In addition, Seller wishes to assign to Purchaser and Purchaser wishes
to assume certain obligations of Seller under the Merchant Agreements. Seller
and Purchaser also are willing and able to undertake and perform certain other
obligations pursuant to and in connection with this Agreement, subject to the
terms and conditions hereof.
THE AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements contained in this
Agreement and other good and valuable consideration, the receipt and sufficiency
of which hereby are acknowledged, Seller and Purchaser hereby agree, on the
terms and conditions herein set forth, as follows:
The capitalized terms used herein shall have the meaning ascribed to such
terms in Section 12.1 hereof unless otherwise defined herein.
ARTICLE I
ASSETS SOLD; ASSUMPTION OF LIABILITIES
1.1 SALE AND PURCHASE. On the terms and subject to the conditions set
forth in this Agreement, and effective as of May 1, 1997 (the "Effective Date"),
Seller hereby sells, transfers and assigns to Purchaser and Purchaser hereby
purchases and accepts from Seller, all right, title and interest of Seller in
and to all of Seller's assets, both tangible and intangible (excluding trade
names, trade marks, service marks, copyrights or other intellectual property
relating to Seller's name and logo) owned by Seller and used in connection with
the Merchant Business, in existence on the date hereof and/or acquired by Seller
during the Transition Period, including without limitation the following
properties and assets (collectively, the "Assets Sold"):
(a) the Merchant Agreements and the Associate Bank Agreements, all
revenues relating to the Merchant Agreements and Associate Bank Agreements
resulting from original sales transactions occurring on or after the
Effective Date, and all pertinent books, records and documents relating to
the Merchant Agreements and Associate Bank Agreements (as further
specified in Section 1.5 hereof);
(b) the Equipment identified on Schedule 1.1 attached hereto and
related revenues accruing on or after the Effective Date;
(c) the Inventory;
(d) any reserve accounts established and maintained with Seller by
Merchants or Associate Banks in connection with the Merchant Business;
(e) any guaranties executed in connection with the Merchant Agreements
or the Associate Bank Agreements;
(f) the goodwill, intangible assets and value of the Merchant Business
as a going concern, to the extent any such value exists; and
(g) any "subsidies" granted to or received by Merchants, as set forth
on Schedule 1.1(g) attached hereto (collectively, the "Subsidies"), and the
continuing right to receive such subsidies.
1.2 TRANSFER AND ASSUMPTION OF ASSETS SOLD AND ASSUMED LIABILITIES.
Effective upon the Effective Date, Purchaser shall by written instrument in the
form of Exhibit 1.2 attached hereto (the "Assignment and Assumption Agreement")
assume and agree to pay and discharge when due the Assumed Liabilities. In
addition to the Assignment and Assumption Agreement, the sale, conveyance,
transfer, assignment and delivery of the Assets Sold by Seller to Purchaser
shall be effected by such deeds, bills of sale, endorsements, assignments,
transfers and other instruments of transfer and conveyance in such form,
including, without limitation, warranties of title (collectively, "Transfer
Documents"), as Purchaser may reasonably request, including such Transfer
Documents as Purchaser may reasonably request at and after the Transition Date.
1.3 LIABILITIES. It is understood and agreed that Purchaser shall not
assume or become liable for the payment of any debts, liabilities, losses,
Credit Losses, charge-backs, accounts payable, bank indebtedness, mortgages, or
other obligations of Seller, any Merchant, or any Associate Bank, whether the
same are known or unknown, now existing or hereafter arising, of whatever nature
or character, whether absolute or contingent, liquidated or disputed, except
for Assumed Liabilities.
1.4 SELLER'S TRANSITION COOPERATION.
(a) From and after the date hereof and until the Conversion Date,
Seller shall use all reasonable efforts in assisting Purchaser with the
"conversion" of the Merchant Business herein contemplated and the
transition of the Merchant Business from Seller to Purchaser, and shall
otherwise use all reasonable efforts to encourage Merchants to continue
doing business with Purchaser under the Merchant Agreement applicable to
such Merchant.
(b) Without limiting the generality of the foregoing, promptly
following the execution of this Agreement, Seller shall cause to be
delivered to each of the Merchants a notice, in a form mutually acceptable
to Seller and Purchaser, of the assignment by Seller to Purchaser,
effective as of the Effective Date, of all rights in and to said Merchant
Agreements. If Seller and Purchaser so agree, such notice may inform each
Merchant of Purchaser's intention to convert the Merchant to Purchaser's
network, as well as to a clearing bank and merchant accounting system
designated by Purchaser.
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(c) Without limiting the generality of the foregoing, Seller, in
cooperation with Purchaser, shall use all reasonable efforts to ensure that
the Associate Banks continue doing business with Purchaser in the same
manner as such business exists on the date hereof with Seller and as
contemplated by this Agreement.
1.5 BOOKS AND RECORDS.
(a) As soon after the Closing Date as is practicable, and in no event
later than ten (10) days following the Transition Date, Seller shall cause
to be delivered to Purchaser the originals or, in the event Seller is
entitled to keep the originals pursuant to this Section 1.5 or if Seller
does not have in its possession such originals, copies, of all books,
records and documents, or portions thereof, of Seller relating to the
Assets Sold; provided, however, that in no event shall such books, records
and documents include corporate books or records involving operations other
than the Merchant Business, and further provided that Seller may retain the
originals or copies of such documents other than the Merchant Agreements
and the Associate Bank Agreements as may be reasonably necessary for
Seller's business. In each case, however, the books and records relating to
the Assets Sold for the period prior to the Closing Date, wherever located,
that are held by a party hereto or under the control of a party hereto (the
"Inspected Party") shall be open for inspection by the other party, and
such other party's authorized agents and representatives and regulators
may, at such other party's own expense, make such copies of any excerpts
from such books, records and documents as it shall reasonably deem
necessary; provided, however, that any such inspection: (a) shall be
conducted during normal business hours from time to time reasonably
established by the Inspected Party; (b) shall, if the Inspected Party so
requests, be conducted in the presence of an officer or designated
representative of the Inspected Party; and (c) shall be conducted in
accordance with reasonable security programs and procedures from time to
time established by the Inspected Party, including but not limited to such
confidentiality agreements as the Inspected Party may reasonably request.
(b) All books and records relating to the Assets Sold shall be
maintained by Purchaser or Seller, as the case may be, for a period of
seven (7) years after the Closing Date, unless the parties shall,
applicable law permitting, agree upon a shorter period; provided, however,
that in the event that, as of the end of such period, any taxable year of
Purchaser or Seller is still under examination or open for examination by
any taxing authority and that party has given notice of that fact to the
other party, such books and records shall be maintained (or, alternatively,
delivered by the Inspected Party to the other party) until the date,
determined reasonably and in good faith, specified for maintenance of such
records in such notice. Prior to the destruction of any books and records
relating to the Assets Sold, the party in possession of such books and
records shall offer them to the other party hereto. Pursuant to the above,
Seller specifically agrees to make available to Purchaser, and promptly
deliver to Purchaser at Purchaser's request, any historical records of
Merchant sales and monthly statements;
(c) Seller covenants and agrees that it shall cause to be delivered to
Purchaser, within ten (10) days following the Transition Date, fully
executed originals (or, to the extent originals are not available, copies
of the fully executed originals) of (i) each Merchant Agreement to which a
Top 200 Merchant is a party that Bank has in its possession (as identified
in Section 6.6(b)), and (ii) each Associate Bank Agreement that Bank has in
its possession (as identified in Section 6.6(d)).
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ARTICLE II
CONSIDERATION FOR ASSETS SOLD; CLOSING
2.1 PURCHASE PRICE. At the Closing, Purchaser shall pay Seller $21,695,000
by wire transfer (with written wire transfer instructions to be provided by
Seller) in immediately available funds (the "Purchase Price") as consideration
for the Assets Sold.
2.2 CLOSING. The consummation of the purchase and sale of the Assets Sold
(the "Closing") shall take place on May 29, 1997 (the "Closing Date") to be
effective as of the Effective Date, and shall take place through the exchange,
via facsimile to be followed by hard copies via national overnight courier (e.g.
FedEx), of executed originals of this Agreement and all other agreements,
documents and instruments to be executed in connection herewith.
ARTICLE III
TRANSITION/CONVERSION PERIOD
3.1 ORDERLY TRANSITION. Seller covenants and agrees to use all reasonable
efforts, as reasonably instructed by Purchaser, to effect an orderly transition
of the Merchant Business until the Conversion Date in respect of the Assets Sold
and the Assumed Liabilities, including but not limited to fulfilling its
obligations under Section 1.4 hereof. In order to further such purpose, Seller
agrees that until the Conversion Date it shall execute such documents as are
reasonably deemed necessary or convenient by Purchaser to evidence the
agreements referred to in, and transactions contemplated by, this Agreement,
consistent with the rules and regulations of the Credit Card Associations and
Purchaser's practices and procedures.
3.2 SERVICES DURING THE TRANSITION PERIOD/CONVERSION PERIOD.
(a) During the Transition Period, Seller shall perform on behalf of and
for the account of Purchaser at the same location(s) presently used to
conduct the Merchant Business all of the services performed by Seller in
connection with the Merchant Business prior to the Closing Date, including
but not limited to the services set forth on Schedule 3.2(a) attached
hereto. Seller shall perform such services substantially in the same
manner and with no less than the same degree of care as performed in
connection with the Merchant Business prior to the Closing Date, and shall
otherwise continue to perform such services in a manner that shall not
adversely deviate from Seller's performance of such services during the
twelve month period prior to the Closing. In performing such services,
Seller shall follow the reasonable instructions of Purchaser.
(b) Without limiting the generality of the foregoing, until the
Conversion Date Seller shall continue to provide funds availability to
merchants as follows: (i) for paper-based transactions, Seller shall
continue to make funds available to merchants on the second business day
following the day such merchants deposit card transactions at Seller's
branch (provided such deposits are made prior to the 2:00 p.m. cut-off
time; deposits made after the 2:00 p.m. cut-off time shall be considered to
be deposited as of the following business day); and (ii) for electronic-
based transactions, Seller shall continue to make funds available to
merchants on the second business day following the day such merchants
transmit transaction batches through the POS network to the assigned POS
provider. Purchaser hereby acknowledges that Seller uses the services of
certain third party providers in connection with the provision of credit to
Merchants, and agrees that, notwithstanding anything to the contrary in
this Agreement, Seller shall not be liable to Purchaser with respect to any
deviation from the requirements
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of the foregoing sentence caused by any act or omission, beyond the control
of Seller, or Purchaser or any such third party provider.
3.3 REVENUE DURING THE CONVERSION PERIOD. In performing services during
the Conversion Period on behalf of and for the account of Purchaser, Seller
shall, beginning on the Effective Date and continuing throughout the Conversion
Period, on behalf of and for the account of Purchaser, collect revenue generated
by the Merchant Business, less interchange fees (collectively, "Revenue"). In
connection with the Conversion Period, Seller shall pay to Purchaser monthly (by
the 10th day of each month) Revenue for the immediately preceding calendar month
for (i) all original sales transactions generated pursuant to the Assets Sold
and occurring on or after the Effective Date, and (ii) all the other revenue
generated by the Assets Sold and occurring on or after the Effective Date. At
the time of each such payment, Seller shall also furnish to Purchaser a
certificate of an authorized financial officer of Seller certifying the amount
due to Purchaser and showing the calculation thereof in such reasonable detail
as Purchaser may request. Seller shall be entitled to retain any revenues
collected on or after the Closing Date attributed to original sales transactions
occurring prior to the Effective Date.
3.4 EMPLOYEES.
(a) During the Transition Period, Seller shall use all reasonable
efforts to ensure that the employees employed by Seller in the Merchant
Business on the date hereof, except for the Crestar Sales Force ("Merchant
Business Employees") will continue in the employ of Seller, performing the
duties relating to the Merchant Business theretofore performed by them, as
reasonably instructed by Purchaser during the Transition Period. Further,
Seller shall use all reasonable efforts to provide adequate and appropriate
skilled staffing in connection with the operation of the Merchant Business
during the Transition Period and, in addition, shall provide Purchaser with
written notification of any termination(s) of any employees utilized in the
Merchant Business. Without limiting the generality of the foregoing, in no
event will any Merchant Business Employee, at any time during the
Transition Period, be transferred, reassigned or otherwise diverted from
performing his or her customary duties in connection with the Merchant
Business to another position, or other duties, within or otherwise on
behalf of Bank, Crestar Financial Corporation, or any of their respective
affiliates or subsidiaries.
(b) Until the Conversion Date, Seller shall use all reasonable efforts
to ensure that suitable and competent personnel will be employed by Seller
to perform the clearing and settlement duties relating to the Merchant
Business theretofore performed by Seller, as reasonably instructed by
Purchaser.
(c) In the event that, notwithstanding Seller's compliance with its
obligations under Section 3.4(a) and 3.4(b) hereof, Seller shall experience
such staff attrition that its ability to perform its obligations under this
Article III is likely to be adversely affected, Purchaser may provide to
Seller such personnel as Seller may reasonably require in order to continue
to provide the services described in this Article III.
3.5 CLEARING BANK ARRANGEMENT.
(a) In order to permit an orderly transition of the processing of
Credit Card and Debit Card transactions, during the Conversion Period,
Seller shall continue to be a party (fulfilling Member responsibilities) to
the Merchant Agreements and the Associate Bank Agreements and Seller shall
act as a clearing bank for Purchaser with respect to Credit Card and Debit
Card transactions processed under the Merchant Agreements and the Associate
Bank Agreements, all in accordance with the rules and regulations of the
Credit Card Associations and the EFT Networks, for a period of time ending
not later than the Conversion Date.
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(b) At the request of Purchaser, Seller shall execute appropriate
documents to evidence the transfer of the clearing bank responsibilities
under the Merchant Agreements and/or the Associate Bank Agreements to the
person designated (in accordance with Section 2.4 of the Marketing
Agreement) by Purchaser. In addition, Seller shall render such other
necessary assistance as Purchaser may reasonably request. Seller shall
provide to Purchaser all information necessary for such transfer
(including, without limitation, standard deconversion master file tapes
from First Data Resources).
(c) Until the Conversion Date, and in performing services hereunder,
Seller shall comply in all material respects with the rules and regulations
of the Credit Card Associations and the EFT Networks, and shall not take,
or fail to take, any actions with respect to the Merchant Business which
would constitute a material violation of such rules and regulations.
3.6 THIRD PARTY SERVICE PROVIDER CONTRACTS. Purchaser acknowledges that
Seller has in effect the agreements identified on Schedule 3.6 with third party
service providers, and that Seller shall maintain such agreements until the
Conversion Date, unless such agreements can be earlier terminated upon mutual
agreement of the parties hereto. During the Conversion Period, Purchaser agrees
to undertake the operational responsibilities of Seller under all of the
agreements listed in Schedule 3.6 and Purchaser agrees to reimburse Seller for
Seller's costs incurred during the Conversion Period under each of these
agreements but only for point-of-sale services (e.g., network and equipment);
provided, however, that to the extent any rental collection obligations have
accrued prior to or during the Conversion Period but are not yet satisfied as of
the Conversion Date, Purchaser agrees that it shall remit rental payments
received by it from merchants in connection with such agreements and forward
them to the appropriate third party service provider and, further provided, that
this Section 3.6 shall in no event be construed to limit or alter the provisions
of Section 5.5 hereof, providing, among other things, that in no event shall
Purchaser be responsible for Termination Fees in excess of Thirty-Three Thousand
and No/100 Dollars ($33,000). In the event NOVA requires the services of the
service providers listed on Schedule 3.6 beyond the Conversion Date, and NOVA so
requests, NOVA agrees to assume the agreements from Bank as of the Conversion
Date.
3.7 CONVERSION. Purchaser shall use all reasonable efforts to complete the
conversion of the point-of-sale terminals utilized by Merchants to Purchaser's
network no later than the Conversion Date, and Seller shall use all reasonable
efforts, until the Conversion Date, to assist Purchaser in such conversion.
Purchaser acknowledges that it is responsbile for the direct costs of such
conversion.
3.8 TRANSITION DATE. In no event shall the Transition Date be extended
beyond June 30, 1997; provided, however, that if reasons, circumstances or other
factors beyond the reasonable control of Purchaser shall not allow Purchaser and
Seller to cause all processing services heretofore provided by Seller at
Seller's premises (except for clearing, settlement, or other "Member" services
in connection with Section 3.5 and the maintenance of certain agreements
pursuant to Section 3.6) to be transitioned from Seller's premises to
Purchaser's premises on or prior to the Transition Date, upon the request of
Purchaser the Transition Date may be extended upon such terms and conditions as
each of Purchaser and Seller may agree.
ARTICLE IV
CERTAIN COVENANTS AND AGREEMENTS OF SELLER
4.1 TRANSFER TAXES. All sales or transfer taxes, including stock transfer
taxes, document recording fees, real property transfer taxes, and excise taxes,
arising out of or in connection with the consummation of the transactions
contemplated hereby, shall be paid by Seller.
4.2 CONFIDENTIALITY OF INFORMATION. On and after the date hereof, Seller
and its officers, employees, agents and representatives shall treat all
information, books and records, originals or copies of books or records which
are retained or obtained by it pursuant to Section 1.5, all information learned
or obtained about Purchaser's business or relating to the Merchant Business, and
the terms and conditions of this Agreement, as confidential and will not
disclose such information to third parties except as required by law, as needed
in connection with a lawsuit, claim, litigation or other proceeding or in
connection with tax or regulatory matters and except to the
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extent that such information is already in the public domain, or subsequently
enters the public domain, other than as a result of the breach of Seller's
obligations under this Section 4.2. Seller and its officers, employees, agents
and representatives shall not use the information described in this Section 4.2
in any manner that might reasonably be anticipated to adversely affect the
Merchant Business or Purchaser's relations with Merchants, Associate Banks, or
with other persons or entities.
4.3 NOTICE OF BREACH OR POTENTIAL BREACH. Seller shall promptly notify
Purchaser of any change, circumstance or event that may prevent Seller from
complying with any of its obligations hereunder.
4.4 FURTHER ASSURANCES. On and after the Closing Date, Seller shall (i)
give such further assurances to Purchaser and execute, acknowledge and deliver
all such acknowledgments and other instruments and take such further action as
Purchaser may reasonably request to effectuate the transactions contemplated by
this Agreement, including the transfer of the Assets Sold and assumption of the
Assumed Liabilities, and (ii) use all reasonable efforts to assist Purchaser in
the orderly transition referred to in Article III.
4.5 SCHEDULE UPDATES. Seller agrees to update the Schedules identified on
Schedule 4.5 attached hereto at the times, and within the time periods,
identified on Schedule 4.5. All such updated Schedules shall be true, correct
and complete in all material respects with the same force and effect as though
made at the Closing Date, and Seller shall deliver to Purchaser a certificate
signed by a duly authorized executive officer to all such effects.
4.6 COLLECTIONS. Seller shall use all reasonable efforts after the
Transition Date to assist Purchaser, at Purchaser's request, in processing
amounts in respect of any charge-back or other Credit Loss received or
identified in connection with the Merchant Business and relating to or arising
out of any original sales transaction occurring on or after the Effective Date.
Purchaser shall be responsible for all costs and expenses relating to such
collection efforts, including costs and expenses of collection letters,
litigation, arbitration proceedings and similar actions. Without limiting the
foregoing, Seller agrees, if requested by Purchaser, to continue to maintain
Seller's BIN and ICA for the purpose of processing charge-backs for up to 180
days after the Conversion Date.
4.7 HSR FEES. Seller covenants and agrees that upon execution of this
Agreement it shall reimburse Purchaser, in the amount of Twenty Two Thousand
Five Hundred Dollars ($22,500), constituting fifty percent (50%) of the fees
paid by Purchaser in connection with the filing of the notification required by
HSR (as defined and provided in Section 8.2).
4.8 SUBSIDIES. Seller covenants and agrees that it shall continue to pay
or otherwise pass on to Purchaser, for the benefit of Purchaser, each of the
Subsidies.
ARTICLE V
CERTAIN COVENANTS AND AGREEMENTS OF PURCHASER
5.1 CONFIDENTIALITY OF INFORMATION. On and after the date hereof,
Purchaser and its officers, employees, agents and representatives shall treat
the terms and conditions of this Agreement, and all information learned, or
obtained about Seller's businesses, other than the Merchant Business, as
confidential and will not disclose such information to third parties except as
required by law, as needed in connection with a lawsuit, claim, litigation or
other proceeding or in connection with tax or regulatory matters and except to
the extent that such information is already in the public domain, or
subsequently enters the public domain, other than as a result of the breach of
Purchaser's obligations under this Section 5.1. Purchaser and its officers,
employees, agents, and representatives shall not use the information described
in this Section 5.1 in any manner that might reasonably
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be anticipated to materially adversely affect Seller's financial condition,
business, prospects or agreements or arrangements with any other person or
entity.
5.2 NOTICE OF BREACH OR POTENTIAL BREACH. Purchaser shall promptly notify
Seller of any change, circumstance or event that may prevent Purchaser from
complying with any of its obligations hereunder.
5.3 FURTHER ASSURANCES. On and after the Closing Date, Purchaser shall (i)
give such further assurances to Seller and execute, acknowledge and deliver all
such acknowledgments and other instruments and take such further action as
Seller may reasonably request to effectuate the transactions contemplated by
this Agreement, including the transfer of the Assets Sold and assumption of the
Assumed Liabilities and (ii) use all reasonable efforts to assist Seller in the
orderly transition referred to in Article III.
5.4 COLLECTIONS. Purchaser shall use all reasonable efforts after the
Transition Date to assist Seller, at Seller's request, in processing amounts in
respect of any charge-back or other Credit Loss received or identified in
connection with the Merchant Business and relating to or arising out of any
original sales transaction occurring prior to the Effective Date. Seller shall
be responsible for all costs and expenses relating to such collection efforts,
including costs and expenses of collection letters, litigation, arbitration
proceedings and similar actions.
5.5 REIMBURSEMENT TO SELLER OF TERMINATION FEES.
(a) Notwithstanding the exclusion from "Assumed Liabilities" of
penalties and fees that may be incurred by Seller in connection with the
termination of Seller's agreements relating to the Merchant Business with
any third party service providers (collectively, "Termination Fees"),
Purchaser covenants and agrees that it shall promptly reimburse Seller, in
an aggregate amount that will in no event exceed Thirty-Three Thousand and
No/100 Dollars ($33,000), for fifty percent (50%) of the aggregate
Termination Fees actually paid by Seller.
(b) Purchaser covenants and agrees that it shall promptly reimburse
Seller, in an aggregate amount that will in no event exceed Twelve Thousand
Five Hundred and No/100 Dollars ($12,500.00), for fifty percent (50%) of
the "deconversion" fees assessed by First Data Resources and actually paid
by Seller.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby makes the following representations and warranties to
Purchaser as of the date hereof and as of the Effective Date:
6.1 ORGANIZATION. Seller is a commercial bank duly chartered under the
laws of the Commonwealth of Virginia and is authorized to conduct its business
as presently conducted (including the Merchant Business) under those laws and
all other applicable laws.
6.2 AUTHORITY. Seller has the right, power, capacity and authority to
enter into and deliver the Operative Documents, to perform its obligations under
the Operative Documents, and to effect the transactions contemplated by the
Operative Documents, and no other person or entity has any interest in the
Merchant Business, the Merchant Agreements, or the Associate Bank Agreements
(other than the Merchants pursuant to the Merchant Agreements, and the Associate
Banks pursuant to the Associate Bank Agreements). The execution, delivery and
performance of the Operative Documents have been approved by all requisite
corporate action on
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the part of Seller, and when executed and delivered pursuant hereto (assuming
due execution and delivery by the other parties thereto), the Operative
Documents will constitute valid and binding obligations of Seller enforceable in
accordance with their terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization or similar laws of
general applicability affecting creditors' rights and by general equitable
principles.
6.3 NO VIOLATIONS.
(a) The execution and delivery by Seller of the Operative Documents,
and its performance thereunder, will not: (i) violate, conflict with,
result in a breach of or constitute (with or without notice or lapse of
time or both) a default under any material agreement, indenture, mortgage
or lease to which Seller is a party or by which Seller or its properties,
or the Merchant Business, are bound; (ii) constitute a material violation
by Seller of any law or government regulation applicable to Seller or the
Merchant Business; (iii) violate any provision of the Charter or Bylaws (or
similar governing documents) of Seller; or (iv) violate any order,
judgment, injunction or decree of any court, arbitrator or governmental
body against or binding upon Seller.
(b) With respect to the Merchant Business, Seller is not, and has not
been (by virtue of any past or present action, omission to act, contract to
which it is a party, or any occurrence or state of facts whatsoever) in
material violation of any applicable local, state or federal law,
ordinance, regulation, order, injunction or decree, or any other
requirement of any governmental body, agency or authority or court binding
on it, or relating to its property or business.
6.4 ASSETS SOLD. Seller is the owner of all right, title and interest in
and to the Assets Sold, free and clear of all title defects or objections,
assignments, liens, encumbrances of any nature whatsoever, restrictions,
security interests, rights of third parties, or other liabilities, and has good
and valid title to the Assets Sold. To the best of Seller's knowledge, the
Equipment being sold hereunder is in good operating condition, ordinary wear and
tear excepted, and has been reasonably maintained and repaired (the parties
acknowledge that certain items of the Equipment are being repaired as of the
date hereof). The Equipment is of the quantity and type represented on
Schedule 1.1, which schedule is true, accurate, correct and complete in all
material respects as of March 31, 1997. The Inventory, including all merchant
supplies, consists of items of a quality and quantity usable and saleable in the
ordinary course of the Merchant Business. Since March 31, 1997 no items of
Inventory or Equipment have been sold or disposed of except through sales or
transactions in the ordinary course of business, consistent with past practices.
The Assets Sold include all rights, properties and other assets necessary to
permit Purchaser to conduct the Merchant Business in substantially the same
manner as Seller's Merchant Business has heretofore been conducted, without any
need for replacement, refurbishment or extraordinary repair.
6.5 FINANCIAL INFORMATION CONCERNING THE MERCHANT BUSINESS.
(a) Purchaser has previously been provided with a Confidential
Offering Notice dated January 27, 1997 prepared by Bank and Xxxxx Xxxxxx
Inc. with respect to the Bank's Merchant Business (the "Offering Notice").
The pages within the Offering Notice entitled "Statement of Operating
Income", "Statement of Operating Income - Credit Only", and "Statement of
Operating Income - Debit Only" contain certain financial information with
respect to the Bank's Merchant Business for 1993, 1994, 1995 and year-to-
date through August 1996, and the pages entitled "Processing Income Detail"
contain certain financial and other information for 1995 and year-to-date
through August 1996 (collectively, the "Notice Statements," which are
attached hereto as part of Schedule 6.5(a)(i)). Schedule 6.5(a)(i)
contains updated information for 1995, 1996 and year-to-date through
April 1997 (collectively, the "Schedule 6.5(a)(i) Statements"). All of the
information contained in the respective Notice Statements, as updated in
the Schedule 6.5(a)(i) Statements, and the Schedule 6.5(a)(i) Statements
is true, accurate, complete and correct in all material respects and fairly
presents the
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information specified therein in respect of the Assets Sold as of and for
the periods indicated on such Statements. Except as set forth in Schedule
6.5(a)(ii), since April 30, 1997, there has been no material adverse change
in the Merchant Business.
(b) The information relative to Merchants' (i) Credit Card sales
volume and (ii) Debit Card sales volume set forth on Schedule 6.5(b) is
true, accurate, correct and complete in all material respects for the
periods indicated.
6.6 AGREEMENTS; MERCHANTS AND ASSOCIATE BANKS.
(a) Seller is not in default (and would not be in default upon notice,
lapse of time or both) under any material provision of the Merchant
Agreements or the Associate Bank Agreements. Complete lists of the
Merchants and the Associate Banks are set forth on Schedule 6.6(a)(i) and
6.6(a)(ii), respectively. Except as set forth on Schedule 6.6(a)(iii),
Seller does not have any reason to suspect, and has not received any notice
of, fraud by, or bankruptcy or contemplated bankruptcy of, any party or
guarantor to any of the Merchant Agreements or the Associate Bank
Agreements, and has not received any notice of default or adverse comment
from any regulatory authority in respect of any of the Merchant Agreements
or the Associate Bank Agreements. Except as set forth on Schedule
6.6(a)(iii), Seller has not given notice of its election to terminate any
of the Merchant Agreements or the Associate Bank Agreements.
(b) Except as set forth on Schedule 6.6(b)(i), Seller has in its
possession a fully executed original (or, to the extent originals are not
available, copies of the fully executed originals) of (i) each Merchant
Agreement to which a Top 200 Merchant is a party (collectively, the "Top
200 Merchant Agreements"), and (ii) substantially all other Merchant
Agreements. True, correct and complete copies of the Top 200 Merchant
Agreements (except as set forth on Schedule 6.6(b)(i)) have been provided
by Seller to Purchaser. Without regard to whether Seller has in its
possession an original or a copy of any particular Merchant Agreement, each
Merchant identified on Schedule 6.6(a)(i), other than the Merchants
identified on Schedule 6.6(b)(i), is a party to a written Merchant
Agreement with Seller, and all such agreements are freely assignable by
Seller without the consent of the applicable Merchant or any other party.
Except as set forth in Schedule 6.6(b)(ii), Seller does not have, nor does
Seller's conduct of the Merchant Business require, any "ACH" (Automated
Clearing House System) agreements with any Merchant. To the extent Seller
is a party to an ACH agreement with any merchant, all such ACH agreements
are freely assignable by Seller without the consent of the applicable
Merchant or any other party.
(c) Seller has obtained guaranties from principals or third parties of
the Top 200 Merchants listed on Schedule 6.6(c)(i), and, except as set
forth on Schedule 6.6(c)(ii), Seller has in its possession, and shall
deliver to Purchaser in accordance with Section 1.5 hereof, fully executed
originals (or, to the extent originals are not available, copies of the
fully executed originals) of all such guaranties included as part of
Merchant Agreements provided to Purchaser under Section 6.6(b)
(collectively, the "Guaranties," true, correct and complete copies of which
have been provided by Seller to Purchaser as part of the Merchant
Agreements provided to Purchaser under Section 6.6(b)). Each of the
Guaranties is freely assignable by Seller without the consent of the
applicable Merchant or any other party.
(d) Except for the Associate Bank Agreements to which Seller and each
of the Associate Banks listed on Schedule 6.6(a)(ii) are severally a party
(collectively, the "Associate Bank Agreements," true, correct and complete
copies of which have been provided by Seller to Purchaser, except as listed
on Schedule 6.6(d)(ii)), Seller has no agreements, written or oral, with
any agent bank, other association, institution, independent sales
organization, or any other third party which provides for any one or more
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of the following: (i) the deposit of Credit Card or Debit Card transaction
records for or on behalf of any third party; (ii) the settlement of Credit
Card or Debit Card transactions for or on behalf of any third party; (iii)
the processing of Credit Card or Debit Card transactions for or on behalf
of any third party; or (iv) the referral of merchants to Seller. Schedule
6.6(d)(i) sets forth certain financial and other information for the
Associate Banks and such information is true, accurate, complete and
correct in all material respects as of the date thereof and for the periods
indicated on such information. Except as set forth on Schedule 6.6(d)(ii),
Seller has in its possession, and shall deliver to Purchaser in accordance
with Section 1.5 hereof, a fully executed original (or, to the extent
originals are not available, copies of the fully executed originals) of
each Associate Bank Agreement, each of which is freely assignable by Seller
without the consent of the applicable Associate Bank or any other party.
(e) Except as set forth on Schedule 6.6(e)(i), and except for disputes
that have arisen in the ordinary course of business, Seller is not engaged
in any dispute with any Merchant or Associate Bank. Except as set forth on
Schedule 6.6(e)(ii), Seller does not have any reason to believe, and has
not received any notice, written or oral, that the consummation of the
transactions contemplated hereunder will have any adverse material effect
on (i) the business relationship of Seller with any Top 200 Merchant or any
Associate Bank, or (ii) Seller's Merchant Business as a whole.
(f) Seller is a member in good standing of the Credit Card
Associations. Except as set forth on Schedule 6.6(f)(i), Seller and the
Merchant Business are in compliance in all material respects with all
applicable rules and regulations and certification requirements of the
Credit Card Associations, including but not limited to applicable "Year
2000" certification requirements. Seller has provided to Purchaser true
and correct copies of all contracts and agreements between Seller and the
Credit Card Associations. Except as set forth on Schedule 6.6(f)(ii),
Seller has in its possession a fully executed original (or, to the extent
originals are not available, copies of the fully executed originals) of
each sponsorship agreement with each Associate Bank sponsored by Seller
into any Credit Card Association.
(g) Schedule 6.6(g) sets forth a complete and accurate list of all
rights and interests of Seller with respect to any reserve accounts
established and maintained by Merchants or Associate Banks and maintained
with Seller in connection with the Merchant Agreements or the Associate
Bank Agreements and the Merchant Business (collectively, the "Reserve
Accounts"), and indicates the amount contained in each such Reserve Account
as of the date thereof and further indicates the terms and conditions
relative to each of such Reserve Accounts. The Reserve Accounts are freely
assignable by Seller without the consent of the applicable Merchant or any
other party thereto.
(h) Schedule 6.6(h)(i) sets forth the credit and charge cards, other
than the Credit Card Associations, for which Seller has contracted to
provide authorization and data capture services, and Schedule 6.6(h)(i)
also identifies the Merchants to whom such non-Credit Card Association
services are provided. All such contracts and services are provided
through third-party point-of-sale processors, and Seller performs no
settlement functions in connection with such contracts and services.
Except as set forth on Schedule 6.6(h)(i), Seller has in its possession a
fully executed original (or, to the extent originals are not available,
copies of the fully executed originals) of each agreement identified on
Schedule 6.6(h)(i).
6.7 TOP 200 MERCHANTS. The Merchants listed on Schedule 6.7 are the two
hundred (200) Merchants with the highest dollar value of Credit Card
transactions processed during the twelve (12) month period ending December 31,
1996 (collectively, the "Top 200 Merchants").
6.8 EFT NETWORKS. Seller is a Principal or Sponsored member in good
standing of the electronic funds transfer networks identified on Schedule 6.8
attached hereto (the "EFT Networks"). Seller and the
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Merchant Business are in compliance in all material respects with all applicable
rules and regulations of the EFT Networks.
6.9 CONSENTS AND APPROVAL.
(a) Except as set forth in Section 8.2, no action of, or filing with,
any governmental or public body is required by Seller to authorize, or is
otherwise required in connection with, the execution and delivery by Seller
of this Agreement or the other Operative Documents or, if required, the
requisite filing has been accomplished and all necessary approvals
obtained.
(b) Except with respect to Seller's processing agreement with First
Data Resources dated September 30, 1994 (a true and correct copy of which
has been provided by Seller to Purchaser), no filing, consent or approval
is required by virtue of the execution hereof or any other Operative
Document by Seller or the consummation of any of the transactions
contemplated herein by Seller to avoid the violation or breach of, or the
default under, or the creation of a lien on any of the Assets Sold pursuant
to the terms of, any law, regulation, order, decree or award of any court
or governmental agency or any lease, agreement, contract, mortgage, note,
license, or any other instrument to which Seller is a party or to which it
or any of the Assets Sold is subject.
6.10 LEASES. Schedule 6.10(i) contains a complete and accurate list of all
(i) leases (including any capital leases) and lease-purchase arrangements
pursuant to which Seller leases real or personal property related to the
Merchant Business from others, and (ii) lease, rental and lease-purchase
agreements pursuant to which Seller leases property to any Merchant, Associate
Bank or other party in connection with the Merchant Business. Schedule 6.10(i)
specifies which of such leases, if any, are capital leases. Except as set forth
on Schedule 6.10(ii), Seller has made available to Purchaser a true, correct and
complete copy of each of the items listed on Schedule 6.10(i).
6.11 LITIGATION AND CLAIMS. Schedule 6.11: (i) sets forth all litigation,
claims, suits, actions, investigations, indictments or informations, proceedings
or arbitrations, grievances or other procedures (including grand jury
investigations, actions or proceedings, and product liability and workers'
compensation suits, actions or proceedings, and investigations conducted by any
Credit Card Association) that are pending, or to the knowledge of Seller,
threatened, in or before any court, commission, arbitration tribunal, or
judicial, governmental or administrative department, body, agency, administrator
or official, grand jury, Credit Card Association, or any other entity or forum
for the resolution of grievances, against Seller and relating in any way to the
Merchant Business (collectively "Claims"), and (ii) indicates which of such
Claims are being defended by an insurance carrier, and which of such Claims
being so defended are being defended under a reservation of rights. Seller has
made available to Purchaser true, correct and complete copies of all pleadings,
briefs and other documents filed in each pending litigation, claim, suit,
action, investigation, indictment or information, proceeding, arbitration,
grievance or other procedure listed in Schedule 6.11, and the judgments, orders,
writs, injunctions, decrees, indictments and information, grand jury subpoenas
and civil investigative demands, plea agreements, stipulations and awards listed
in Schedule 6.11.
6.12 REQUIRED LICENSES AND PERMITS. Except for such licenses, permits and
other authorizations that result from Seller's status as a commercial bank
organized under the laws of the Commonwealth of Virginia, no other licenses,
permits or other authorizations are necessary for the conduct by Seller of the
Merchant Business.
6.13 AGREEMENTS, CONTRACTS AND COMMITMENTS. Except for those agreements,
contracts and commitments set forth and identified with particularity in
Sections (or the corresponding Schedules) 6.6, 6.10, and 6.14:
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(a) Seller does not have any agreement, contract, commitment or
relationship, whether written or oral, related to the Merchant Business, by
which Purchaser could be bound;
(b) Seller is not subject to any contract or agreement related to the
Merchant Business limiting Seller's freedom to compete in the Merchant
Business;
(c) With respect to the Merchant Business, there is no contract,
agreement or other arrangement entitling any person or other entity to any
profits, revenues or cash flows of Seller or requiring any payments or
other distributions based on such profits, revenues or cash flows.
6.14 VENDORS AND SUPPLIERS. Schedule 6.14 sets forth a complete and
accurate list of each supplier to Seller of goods and services directly related
to the Merchant Business which are material to the conduct of the Merchant
Business as conducted by Seller. Seller has provided to Purchaser true and
correct copies of all agreements and contracts between Seller and those persons
and entities identified on Schedule 6.14 as being parties to written agreements.
6.15 AGREEMENTS IN FULL FORCE AND EFFECT. Except as expressly set forth in
Schedule 6.15, all contracts and agreements referred to, or required to be
referred to, herein or in any Schedule delivered hereunder, other than the
Merchant Agreements and the Associate Bank Agreements (which are represented in
Section 6.6), are valid and binding, and are in full force and effect and are
enforceable in accordance with their terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, moratorium, reorganization or
similar laws of general applicability affecting creditors' rights and by general
equitable principles. Seller has not received notice of any pending or
threatened bankruptcy, insolvency or similar proceeding with respect to any
party to such agreements, and no event has occurred which (whether with or
without notice, lapse of time or the happening or occurrence of any other event)
would constitute a default thereunder by Seller, or to the knowledge of Seller,
any other party thereto.
6.16 ABSENCE OF CERTAIN CHANGES AND EVENTS. Except as set forth in
Schedule 6.16, since December 31, 1996, Seller has conducted the Merchant
Business only in the ordinary course, and has not:
(a) incurred, assumed or guaranteed any liability or obligation
(absolute, accrued, contingent or otherwise) with respect to the Merchant
Business, other than in the ordinary course of business consistent with
past practice;
(b) paid, discharged, satisfied or renewed any claim, liability or
obligation with respect to the Merchant Business, other than payment in
the ordinary course of business and consistent with past practice;
(c) permitted any of the Assets Sold to be subjected to any mortgage,
lien, security interest, restriction, charge or other encumbrance of any
kind;
(d) waived any material claims or rights with respect to the Merchant
Business;
(e) sold, transferred or otherwise disposed of any of the Assets Sold,
except in the ordinary course of business consistent with past practice;
(f) made any single capital expenditure or investment with respect to
the Merchant Business, in excess of $10,000;
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(g) made any change in any method, practice or principle of financial
or tax accounting that in any manner affected the Merchant Business or any
financial information relating to or derived from the Merchant Business;
(h) managed working capital components relating to the Merchant
Business, including cash, receivables, other current assets, trade payables
and other current liabilities in a fashion inconsistent with past practice,
including failing to sell inventory and other property in an orderly and
prudent manner or failing to make all budgeted and other normal capital
expenditures, repairs, improvements and dispositions;
(i) paid, loaned, advanced, sold, transferred or leased any Asset Sold
to any employee, except for normal compensation involving salary and
benefits;
(j) entered into any material commitment or transaction, other than in
the ordinary course of business consistent with past practice, affecting
the Merchant Business; or
(k) agreed in writing, or otherwise, to take any action described in
this Section.
6.17 DISCLOSURE. No representations, warranties, assurances or statements
by Seller in this Agreement contains any untrue statement of material fact, or
omits to state any fact necessary, in light of the circumstances under which
such statement was made, in order to make the statements herein not misleading.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser makes the following representations and warranties to Seller as
of the date hereof and as of the Effective Date:
7.1 ORGANIZATION. Purchaser is a corporation duly organized and validly
existing under the laws of the State of Georgia and is authorized to conduct its
business under those laws and all other applicable laws.
7.2 AUTHORITY. Purchaser has the right, power, capacity and authority to
enter into and deliver the Operative Documents, to perform its obligations under
the Operative Documents, and to effect the transactions contemplated by the
Operative Documents. The execution, delivery and performance of the Operative
Documents have been approved by all requisite corporate action on the part of
Purchaser, and when executed and delivered pursuant hereto, the Operative
Documents will constitute valid and binding obligations of Purchaser enforceable
in accordance with their terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization or similar laws of
general applicability affecting creditors' rights and by general equitable
principles.
7.3 GOVERNMENTAL NOTICES. Purchaser has not received notice from any
federal, state or other governmental agency or regulatory body indicating that
such agency or regulatory body would oppose or not grant or issue its consent or
approval, if required, with respect to the transactions contemplated by the
Operative Documents.
7.4 NO VIOLATIONS. The execution and delivery by Purchaser of the
Operative Documents, and its performance thereunder, will not: (i) violate,
conflict with, result in a breach of or constitute (with or without notice or
lapse of time or both) a default under, any material agreement, indenture,
mortgage or lease to which
14
Purchaser is a party or by which it or its properties are bound; (ii) constitute
a material violation by Purchaser of any material law or governmental regulation
applicable to Purchaser; (iii) violate any provision of the Articles of
Incorporation or Bylaws (or similar governing documents) of Purchaser; or (iv)
violate any order, judgment, injunction or decree of any court, arbitrator or
governmental body against or binding upon Purchaser.
7.5 CONSENTS AND APPROVAL.
(a) Except as set forth on Section 8.2, no action of, or filing with,
any governmental or public body is required by Purchaser to authorize, or
is otherwise required in connection with, the execution and delivery by
Purchaser of this Agreement or the other Operative Documents or, if
required, the requisite filing has been accomplished and all necessary
approvals obtained.
(b) No filing, consent or approval is required by virtue of the
execution hereof or any other Operative Document by Purchaser or the
consummation of any of the transactions contemplated herein by Purchaser to
avoid the violation or breach of, or the default under, any law,
regulation, order, decree or award of any court or governmental agency or
any lease, agreement, contract, mortgage, note, license, or any other
instrument to which Purchaser is a party or is subject.
7.6 DISCLOSURE. No representations, warranties, assurances or statements
by Purchaser in this Agreement contains any untrue statement of material fact,
or omits to state any fact necessary, in light of the circumstances under which
such statement was made, in order to make the statements herein not misleading.
ARTICLE VIII
COVENANTS OF THE PARTIES
Seller and Purchaser hereby covenant and agree as follows:
8.1 CREDIT CARD ASSOCIATION FILINGS. Seller and Purchaser shall file with
the Credit Card Associations and the EFT Networks any document or information
that each such Credit Card Association or EFT Network deems to be required or
desirable to be filed in order for the transactions contemplated by this
Agreement to be completed.
8.2 XXXX-XXXXX-XXXXXX NOTIFICATION. Each of Seller and Purchaser shall
keep and protect as confidential all information about the others obtained in
connection with the preparation of the notification required by the Xxxx-Xxxxx-
Xxxxxx Anti-Trust Improvement Act of 1976, as amended ("HSR"). In the event
Seller and Purchaser shall receive a request for additional information or
documentary material from the Justice Department or the FTC (a) Purchaser shall
be primarily responsible for responding to such request, and (b) Seller shall
not respond to such request or furnish any additional information or documentary
material without first notifying Purchaser in writing.
ARTICLE IX
CONDITIONS TO OBLIGATIONS OF SELLER
Each of the obligations of Seller to be performed hereunder shall be
subject to the satisfaction (or waiver by Seller) at or before the Closing of
each of the following conditions:
15
9.1 REQUIRED GOVERNMENTAL APPROVALS. All governmental authorizations,
consents and approvals necessary for the valid consummation of the transactions
contemplated hereby shall have been obtained and shall be in full force and
effect. All applicable governmental pre-acquisition filing, information
furnishing and waiting period requirements (including any such requirements
under the HSR) shall have been met or such compliance shall have been waived by
the governmental authority having authority to grant such waivers.
9.2 OPINION OF COUNSEL TO PURCHASER. Seller shall have received from
counsel to Purchaser an opinion, dated as of the Closing Date, in a form
reasonably satisfactory to Seller, as set forth on Exhibit 9.2 attached hereto.
9.3 THE MARKETING AND SALES ALLIANCE AGREEMENT. Purchaser shall have
executed and delivered to Seller the Marketing Agreement attached hereto as
Exhibit 10.5.
9.4 THE ASSIGNMENT AND ASSUMPTION AGREEMENT. Purchaser shall have
executed and delivered to Seller the Assignment and Assumption Agreement
attached hereto as Exhibit 1.2.
9.5 NON-COMPETITION AGREEMENT. Purchaser shall have executed and
delivered to Seller a non-competition agreement in the form of Exhibit 10.4 (the
"Non-Competition Agreement").
9.6 XXXX OF SALE AND TRANSFER DOCUMENTS. Purchaser shall have executed
and delivered a xxxx of sale and such other Transfer Documents as Seller shall
reasonably request to evidence the transfer to Purchaser of the Assets Sold and
the Assumed Liabilities.
9.7 DOCUMENTS SATISFACTORY IN FORM AND SUBSTANCE. All agreements,
certificates, opinions and other documents delivered by Purchaser to Seller
hereunder shall be in form and substance satisfactory to counsel of Seller, in
the exercise of such counsel's reasonable judgment.
9.8 CREDIT CARD ASSOCIATIONS. All filings required or desirable pursuant
to Section 8.1 shall have been made, and all required or desirable approvals
shall have been received, and neither Seller nor Purchaser shall have received
any material objection from a Credit Card Association either in response to the
filings required under Section 8.1 or otherwise.
ARTICLE X
CONDITIONS TO OBLIGATIONS OF PURCHASER
The obligations of Purchaser to be performed hereunder shall be subject to
the satisfaction (or waiver by Purchaser) at or before the Closing of each of
the following conditions:
10.1 REQUIRED GOVERNMENTAL APPROVALS. All governmental authorizations,
consents and approvals necessary for the valid consummation of the transactions
contemplated hereby shall have been obtained and shall be in full force and
effect. All applicable governmental pre-acquisition filing, information
furnishing and waiting period requirements (including any such requirements
under the HSR) shall have been met or such compliance shall have been waived by
the governmental authority having authority to grant such waivers.
10.2 OTHER NECESSARY CONSENTS. Seller shall have obtained all consents and
approvals identified in Section 6.9. With respect to each such consent or
approval, Purchaser shall have received written evidence, satisfactory to it,
that such consent or approval has been duly and lawfully filed, given, obtained
or taken and is effective, valid and subsisting.
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10.3 OPINION OF COUNSEL TO SELLER AND CRESTAR FINANCIAL CORPORATION.
Purchaser shall have received from counsel to Seller and Crestar Financial
Corporation an opinion, dated as of the Closing Date, in a form reasonably
satisfactory to Purchaser, as set forth on Exhibit 10.3 attached hereto.
10.4 NON-COMPETITION AGREEMENT. Seller and Crestar Financial Corporation
shall have executed and delivered to Purchaser a Non-Competition Agreement in
the form of Exhibit 10.4 (the "Non-Competition Agreement").
10.5 MARKETING AND SALES ALLIANCE AGREEMENT. Seller and Crestar Financial
Corporation shall have executed the Marketing and Sales Alliance Agreement in
the form of Exhibit 10.5 attached hereto (the "Marketing Agreement").
10.6 ASSIGNMENT AND ASSUMPTION AGREEMENT. Seller shall have executed and
delivered to Purchaser the Assignment and Assumption Agreement attached hereto
as Exhibit 1.2.
10.7 XXXX OF SALE AND TRANSFER DOCUMENTS. Seller shall have executed and
delivered a Xxxx of Sale and such other Transfer Documents as Purchaser shall
reasonably request to evidence the transfer to Purchaser of the Assets Sold and
the Assumed Liabilities.
10.8 DOCUMENTS SATISFACTORY IN FORM AND SUBSTANCE. All agreements,
certificates, opinions and other documents delivered by Seller to Purchaser
hereunder shall be in form and substance satisfactory to counsel of Purchaser,
in the exercise of such counsel's reasonable judgment.
10.9 CREDIT CARD ASSOCIATIONS. All filings required or desirable pursuant
to Section 8.1 shall have been made, and all required or desirable approvals
shall have been received, and neither Seller nor Purchaser shall have received
any material objection from a Credit Card Association either in response to the
filings required under Section 8.1 or otherwise.
ARTICLE XI
INDEMNIFICATION
11.1 SELLER'S INDEMNIFICATION. Seller shall indemnify, defend, and hold
harmless the Purchaser, its successors or assigns, and their respective
officers, employees, consultants, agents and representatives (collectively,
"Purchaser Protected Parties") from any liability, diminution in value, loss,
cost, claim or expense, including reasonable attorney's and accountant's fees
and expenses ("Loss") that result from or arise out of (i) the breach of any of
Seller's representations or warranties in this Agreement or in any certificate
delivered in connection herewith; (ii) the breach of any of Seller's covenants
or agreements in this Agreement or any certificate delivered in connection
herewith; (iii) any liability of Seller with respect to the Assets Sold, other
than the Assumed Liabilities; or (iv) the gross negligence or willful misconduct
of Seller in undertaking its obligations under Article III and/or Section 4.6.
In the event that indemnification is sought hereunder by any member of the
Purchaser Protected Parties, Purchaser shall act on behalf thereof and Seller
shall be entitled to rely upon the acts and representations of Purchaser as
representing the acts and representations of such member.
11.2 PURCHASER'S INDEMNIFICATION. Purchaser shall indemnify, defend, and
hold harmless the Seller and its successors or assigns and their respective
officers, employees, consultants, agents and representatives (collectively,
"Seller Protected Parties") from any Loss that results from or arises out of (i)
the breach of any of Purchaser's representations or warranties in this Agreement
or any certificate delivered in connection herewith; (ii) the breach of any of
Purchaser's covenants or agreements in this Agreement or any certificate
delivered in
17
connection herewith; (iii) the Assumed Liabilities; (iv) the compliance by
Seller with Purchaser's instructions to Seller in connection with the provision
by Seller of the services under Article III, or as may otherwise arise in
connection with Seller's performance of its obligations under Section 3.5,
except as may result from or arise out of the gross negligence or willful
misconduct of Seller; (v) the gross negligence or willful misconduct of
Purchaser in undertaking its obligations under Section 5.4; or (vi) the gross
negligence or willful misconduct of Purchaser to the extent Seller incurs a Loss
as a result from or arising out of such gross negligence or willful misconduct
by Purchaser in connection with any of Seller's agreements relating to the
Merchant Business with the third party service providers identified on Schedule
3.6. In the event that indemnification is sought hereunder by any member of the
Seller Protected Party, Seller shall act on behalf of and Purchaser shall be
entitled to rely upon the acts and representations of Seller as representing the
acts and representations of such member.
11.3 INDEMNIFICATION PROCEDURES FOR THIRD PARTY CLAIMS. In any case where
a Person shall seek indemnification under this Agreement (the "Indemnified
Party"), for a third party claim, suit or proceeding (a "Third Party Claim"),
the Indemnified Party shall comply with the following procedures:
(a) The Indemnified Party shall give prompt written notice ("Notice")
of any Third Party Claim to the party from whom such indemnification is
sought (the "Indemnifying Party"), specifying the amount and nature of such
Third Party Claim.
(b) Provided that prompt Notice is given, unless the failure to give
such Notice does not prejudice the interests of the Indemnifying Party, the
Indemnifying Party shall promptly defend, contest, and protect the
Indemnified Party against such Third Party Claim, at its own expense and
using counsel of its own choosing, which shall be reasonably satisfactory
to the Indemnified Party.
(c) The Indemnified Party may, but shall not be obligated to,
participate in the defense of such Third Party Claim at its own expense and
using counsel of its own choosing, but the Indemnifying Party shall be
entitled to control the defense thereof unless the Indemnified Party shall
relieve the Indemnifying Party from all liability for such Third Party
Claim. The Indemnified Party shall cooperate and provide such assistance
as the Indemnifying Party reasonably may request in connection with the
Indemnifying Party's defense and shall be entitled to recover from the
Indemnifying Party the reasonable costs of providing such assistance. The
Indemnifying Party shall inform the Indemnified Party on a regular basis,
and at the Indemnified Party's request, of the status of such Third Party
Claim and the Indemnifying Party's defense thereof.
(d) If the Indemnifying Party shall control the defense of a Third
Party Claim, the Indemnifying Party shall not compromise or settle such
Third Party Claim without the Indemnified Party's prior written consent,
if: (i) such compromise or settlement would impose an injunction or other
equitable relief upon the Indemnified Party; or (ii) such compromise or
settlement does not include the unconditional release of the Indemnified
Party from all liability arising from or relating to such Third Party
Claim.
(e) If the Indemnifying Party fails promptly to defend, contest, or
otherwise protect against such Third Party Claim, the Indemnified Party
may, but shall not be obligated to, defend, contest, or otherwise protect
itself against the same, and make any compromise or settlement thereof in
its sole discretion, and recover from the Indemnifying Party all Losses of
the Indemnified Party arising from or relating to such compromise or
settlement.
11.4 INDEMNITY CLAIMS.
(a) The representations and warranties contained herein, in any other
Operative Document, or in any certificate or other document delivered
pursuant hereto or in connection herewith shall not be
18
extinguished by the Closing but shall survive the Closing, subject to the
limitations set forth in Sections 11.4(b) and 11.5 hereof, and the
covenants and agreements of the Seller contained herein shall survive
without limitation as to time except as may be otherwise specified herein.
(b) All claims for indemnification hereunder shall be asserted no
later than 18 months after the Transition Date; provided, however, with
respect to Third Party Claims, all claims for indemnification hereunder
shall be asserted no later than the earlier of (i) 120 days after the
Indemnified Party becomes aware of a "Potential Claim" (as defined below),
or (ii) 18 months after the Transition Date. For purposes of this Section
11.4(b), a Third Party Claim shall be deemed a "Potential Claim" at such
time as an Officer of an Indemnified Party has written notice of the
specific basis for any such potential or contingent Third Party Claim, and
such Officer reasonably believes that such a claim or demand may become
actual.
11.5 LIMITATIONS.
(a) With respect to any particular Loss for which an Indemnifying
Party indemnifies an Indemnified Party hereunder, the liability of the
Indemnifying Party shall be reduced by the amount of any insurance proceeds
actually received by the Indemnified Party as a result of such Loss;
provided, however, that in no event shall this Section 11.5(a) be construed
to require any Indemnified Party to (ii) seek or maintain insurance of any
kind, or (ii) seek recovery, reimbursement, or any other compensation under
any insurance arrangement with respect to any Loss.
(b) No claim shall be made by a party for indemnification hereunder
unless and until the aggregate amount of all Losses sought by such party to
be indemnified under this Agreement exceeds, in the aggregate, Twenty
Thousand U.S. Dollars (U.S. $20,000), and then for the entire amount of
such claims in excess of such $20,000 amount; provided, however, that in no
event, except with respect to Losses that result from or arise out of
fraud, shall Seller's or Purchaser's liability for Losses payable hereunder
exceed, in the aggregate, Twenty Million U.S. Dollars (U.S. $20,000,000);
provided, however, that nothing contained herein shall be deemed to limit
in any manner the ability of any party to obtain nonmonetary relief for any
breach by another party of its obligations hereunder.
ARTICLE XII
DEFINITIONS AND RULES OF INTERPRETATION
12.1 DEFINITIONS. For purposes of this Agreement, the following
capitalized terms have the following respective meanings:
"AGREEMENT" means this Agreement, including all schedules and
exhibits hereto, and, if amended, modified or supplemented, as the same may
be so amended, modified or supplemented from time to time.
"ASSETS SOLD" has the meaning set forth in Section 1.1.
"ASSIGNMENT AND ASSUMPTION AGREEMENT" has the meaning set forth in
Section 1.2.
"ASSOCIATE BANK AGREEMENT" means an agreement between Seller and an
Associate Bank pursuant to which the Associate Bank is providing services
related to Credit Card and/or Debit Card processing.
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"ASSOCIATE BANK" means a financial institution sponsored by Seller
for which services related to Credit Card and/or Debit Card processing are
provided by or on behalf of Seller. A list of all Associate Banks is
attached hereto as Schedule 6.6(a)(ii).
"ASSUMED LIABILITIES" means the following liabilities or obligations:
(a) the obligations of Seller arising on or after the Effective Date to
perform under the Merchant Agreements and Associate Bank Agreements
assigned to Purchaser pursuant to this Agreement; (b) the obligations of
Seller to pay assessments, interchange fees, transaction fees, fines,
penalties or other fees or charges to the Credit Card Associations or EFT
Networks, provided such obligations relate to transactions which occur both
(i) under the Merchant Agreements or the Associate Bank Agreements; and
(ii) on or after the Effective Date; (c) charge-backs in respect of any
Credit Card transaction processed by Purchaser pursuant to a Merchant
Agreement or an Associate Bank Agreement if such Credit Card transaction is
received by electronic transmission or otherwise under and in compliance
with the rules and regulations of Credit Card Associations on and after the
Effective Date, and other Credit Losses on and after the Effective Date,
but only to the extent that such charge-back or other Credit Loss relates
to or arises out of an original sales transaction occurring on or after the
Effective Date; and (d) any other claims, liabilities or litigation in
respect of the Merchant Agreements and Associate Bank Agreements, the
Equipment, and the Merchant Business conducted in connection with the
foregoing, provided that any such claims, liabilities or litigation relates
to or arises out of events, transactions or actions or omissions of
Purchaser on or after the Effective Date. The Assumed Liabilities assumed
by Purchaser hereunder shall be limited to the liabilities and obligations
specified in the immediately preceding sentence and, without limitation of
the foregoing, shall not in any event include penalties or fees that may be
incurred by Seller in connection with the termination of Seller's
agreement(s) with any third party service providers (except as provided in
Section 5.5), or losses as the result of a charge-back or Credit Loss in
respect of any Merchant Agreement that result from transactions, or events,
or acts or omissions of Seller, or a merchant or an associate bank which
occurred prior to the Effective Date.
"CLAIMS" has the meaning set forth in Section 6.11.
"CLOSING DATE" has the meaning set forth in Section 2.2 hereof.
"CONVERSION PERIOD" means the period beginning as of the Transition
Date and ending on the Conversion Date, during which time Purchaser shall
process all transactions in connection with the Merchant Business from
Purchaser's designated premises, and Seller shall provide clearing services
as provided in Section 3.5 and maintain the agreements referenced in
Section 3.6, and the Merchant Business shall be converted from Seller to
Purchaser, including but not limited to the conversion of Merchants to
Purchaser's network and designated clearing bank and merchant accounting
systems.
"CONVERSION DATE" means August 31, 1997, or such later date as may be
requested by Purchaser and consented to in writing by Seller, which consent
shall not unreasonably be withheld or delayed, but in no event shall the
Conversion Date be later than September 30, 1997.
"CREDIT CARD" means (i) A Visa card or other card bearing the
symbol(s) of VISA, U.S.A., Inc. or VISA International, Inc. (including VISA
Gold cards), or (ii) a MasterCard card or other card bearing the symbol(s)
of MasterCard International Incorporated (including MasterCard Gold cards).
"CREDIT CARD ASSOCIATIONS" means Visa U.S.A., Inc., Visa
International, Inc., MasterCard International Incorporated and any
successor organizations or associations.
20
"CREDIT LOSS" means any loss resulting from the failure by a Merchant
to pay amounts owed by it under a Merchant Agreement.
"DEBIT CARD" means a card with a magnetic stripe bearing the
symbol(s) of one or more EFT Networks which enables the holder to pay for
goods or services by authorizing an electronic debit to the cardholder's
designated deposit account.
"DRAFTS" means documentary evidence of Credit Card sales deposited by
Merchants with Seller.
"EFT NETWORKS" means the electronic funds transfer networks
identified on Schedule 6.8 attached hereto.
"EFFECTIVE DATE" has the meaning set forth in Section 1.1.
"EQUIPMENT" means the point-of-sale terminals, printers and other
equipment, supplies, or point-of-sale assets owned or leased by Seller and
utilized by Merchants or Seller's branches, or held for lease, sale or swap
to Merchants, and certain computer software. The Equipment as of March 31,
1997 is identified in all cases, except for point-of-sale terminals located
at Seller's branches, by manufacturer type and serial number (if
applicable) on Schedule 1.1 attached hereto, which Schedule indicates any
Equipment that is leased to third parties (and the identity of said
parties).
"HSR" has the meaning set forth in Section 8.2.
"INDEMNIFIED PARTY" has the meaning set forth in Section 11.3.
"INDEMNIFYING PARTY" has the meaning set forth in Section 11.3(a).
"INSPECTED PARTY" shall have the meaning set forth in Section 1.5.
"INVENTORY" means the imprinters, sales draft forms, application
forms, decals and all other merchant supplies of Seller.
"LOSS" has the meaning set forth in Section 11.1.
"MARKETING AGREEMENT" means the Marketing and Sales Alliance
Agreement between Seller, Crestar Financial Corporation, and Purchaser
substantially in the form of Exhibit 10.5 attached hereto, and if amended,
modified or supplemented, as the same may be so amended, modified or
supplemented from time to time.
"MERCHANT" means any person or entity (other than Purchaser or
Seller) who has entered into a Merchant Agreement prior to the Effective
Date. A list of all Merchants is attached hereto as Schedule 6.6(a)(i).
"MERCHANT AGREEMENT" means an agreement between Seller and a Merchant
pursuant to which the Merchant undertakes to honor Credit Cards and/or
Debit Cards and Seller agrees to accept Credit Card and/or Debit Card
transaction records, or to otherwise provide transaction processing
services to such Merchants.
"MERCHANT BUSINESS" shall mean acceptance of Credit Card or Debit
Card transaction records in documentary or electronic form from Merchants
in connection with the processing and clearing of such
21
records for settlement and payment to such Merchants under any Merchant
Agreements or Associate Bank Agreements.
"NOTICE" has the meaning set forth in Section 11.3(a).
"OPERATIVE DOCUMENTS" means this Agreement, the Assignment and
Assumption Agreement, the Non-Competition Agreement, and all certificates
executed and delivered in connection herewith.
"PURCHASE PRICE" has the meaning set forth in Section 2.1.
"PURCHASER PROTECTED PARTIES" has the meaning set forth in
Section 11.1.
"RESERVE ACCOUNT" has the meaning set forth in Section 6.6(g).
"REVENUE" has the meaning set forth in Section 3.3.
"SELLER PROTECTED PARTIES" has the meaning set forth in Section 11.2.
"SUBSIDIES" has the meaning set forth in Section 1.1(g) hereof.
"THIRD PARTY CLAIM" has the meaning set forth in Section 11.3.
"TOP 200 MERCHANTS" means the 200 Merchants with the highest dollar
value of Credit Card transactions processed during the 12-month period
ended December 31, 1996, as identified on Schedule 6.7 attached hereto.
"TRANSITION DATE" means June 30, 1997, or any date thereafter if said
Transition Date is extended pursuant to Section 3.7, and signifies the date
upon which all processing services currently provided by Seller at Seller's
premises in connection with the Merchant Business (other than the clearing,
settlement, and other "Member" responsibilities in connection with Section
3.5 and the maintenance of certain agreements pursuant to Section 3.6)
shall be transitioned from Seller's premises to Purchaser's designated
premises.
"TRANSITION PERIOD" means the period from the Effective Date through
and including the Transition Date.
12.2 OTHER DEFINITIONS; RULES OF INTERPRETATION.
(a) All terms defined herein shall have the defined meanings when
used in any Operative Document, certificate or other document made or
delivered pursuant hereto unless otherwise defined therein. Singular terms
shall include the plural, and vice versa, unless the context otherwise
requires.
(b) Exhibits and Schedules referenced in this Agreement are deemed to
be incorporated herein by reference. The term "including" shall mean
"including without limitation."
22
ARTICLE XIII
MISCELLANEOUS
13.1 EXPENSES. Except as otherwise specifically provided in this
Agreement, each party shall pay its own costs and expenses in connection with
this Agreement and the transactions contemplated hereby, including all
attorneys' fees, accounting fees and other expenses.
13.2 NOTICES AND PAYMENTS. All notices, demands and other communications
hereunder shall be in writing and shall be delivered (i) in person, or (ii) by
United States mail, certified or registered, with return receipt requested, or
(iii) by national overnight courier service, as follows:
If to Seller: Crestar Bank
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
with copy to: Xxxxxx & Xxxxxx
(which shall not Xxxxxxx Xxxxxx Building
constitute notice) 000 Xxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxxx Xxxxxx, Esq.
If to Purchaser: NOVA Information Systems, Inc.
Xxx Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
with copy to: NOVA Information Systems, Inc.
(which shall not One Concourse Parkway, Suite 300
constitute notice) Xxxxxxx, Xxxxxxx 00000
Attention: General Counsel
and
Long Xxxxxxxx Xxxxxx LLP
SunTrust Plaza, One Peachtree Center
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
The persons or addresses to which mailings or deliveries shall be made may be
changed from time to time by notice given pursuant to the provisions of this
Section 13.2. Any notice, demand or other communication given pursuant to the
provisions of this Section 13.2 shall be deemed to have been given on the date
actually delivered against proof of receipt therefor.
13.3 THIRD-PARTY BENEFICIARIES. Neither party to this Agreement intends
this Agreement to benefit or create any right or cause of action in or on behalf
of any person other than Seller and Purchaser.
23
13.4 INDEPENDENT CONTRACTORS. Nothing contained in this Agreement or any
other Operative Document shall be construed as creating or constituting a
partnership, joint venture or agency between the parties to this Agreement.
Rather, the parties shall be deemed independent contractors with respect to each
other for all purposes.
13.5 FINDER'S FEES. The parties agree that if either party employed the
services of a broker or finder in connection with the transactions contemplated
hereby, that such party shall have the sole responsibility and liability for the
payment of any fees, costs or expenses of the broker retained by that party.
13.6 SUCCESSORS AND ASSIGNS. All terms and provisions of this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and permitted assigns. This Agreement and the
rights, privileges, duties and obligations of the parties hereto may not be
assigned or delegated by any party without the prior written consent of the
other party; provided, however, that such consent shall not be required (a) for
the assignment by any party of its rights and privileges hereunder to a person
or entity controlling, controlled by or under common control with such party (it
being understood that no such assignment shall relieve the assigning party of
its duties or obligations hereunder), or (b) for the assignment and delegation
by any party of its rights, privileges, duties and obligations hereunder to any
person into or with which the assigning party shall merge or consolidate or to
which the assigning party shall sell all or substantially all of its assets,
provided that the assignee formally agrees in writing to assume all the rights
and obligations of the assigning party created hereby.
13.7 AMENDMENTS AND WAIVERS. This Agreement, any of the instruments
referred to herein and any of the provisions hereof or thereof shall not be
amended, modified or waived in any fashion except by an instrument in writing
signed by the parties hereto. No delay on the part of any party hereto in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver of any other right, power or privilege hereunder,
nor shall any single or partial exercise of any other right, power or privilege
hereunder.
13.8 SEVERABILITY OF PROVISIONS. If any provision of this Agreement, or the
application of any such provision to any person or circumstance, is invalid or
unenforceable, the remainder of this Agreement, or the application of such
provision to persons or circumstances other than those as to which it is invalid
or unenforceable, shall not be affected by such invalidity or unenforceability.
13.9 COUNTERPARTS: DELIVERY. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one instrument. The
parties acknowledge that delivery of executed counterparts of this Agreement may
be effected by a facsimile transmission or other comparable means, with an
original document to be delivered promptly thereafter via overnight courier.
13.10 GOVERNING LAW. This Agreement is made and entered into under the laws
of the Commonwealth of Virginia, and the laws of that Commonwealth applicable to
agreements made and to be performed entirely thereunder (without giving effect
to the principles of conflicts of laws thereof) shall govern the validity and
interpretation hereof and the performance by the parties hereto of their
respective duties and obligations hereunder.
13.11 CAPTIONS. The captions contained in this Agreement are for
convenience of reference only and do not form a part of this Agreement.
13.12 ENTIRE AGREEMENT. The making, execution and delivery of this
Agreement by the parties hereto have been induced by no representations,
statements, warranties or agreements other than those herein expressed.
24
This Agreement and the other written instruments specifically referred to herein
embody the entire understanding of the parties and supersede in their entirety
all prior communication, correspondence, and instruments, including without
limitation, the terms of that certain letter dated March 25, 1997 to Xx. Xxxxxxx
Xxxxxxx, Executive Vice President, Crestar Bank, from Xxxxx X. Xxxxx and there
are no further or other agreements or understandings, written or oral, in effect
between the parties relating to the subject matter hereof.
13.13 PUBLICITY. The timing and content of any and all public statements,
announcements or other publicity concerning the transactions contemplated herein
shall be mutually agreed upon by Seller and Purchaser, which agreement shall not
be unreasonably withheld by either party hereto.
(Remainder of page intentionally left blank.)
25
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Purchase Agreement as of the date first written above.
"SELLER"
CRESTAR BANK
Attest:
By: /s/ Xxx Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
__________________________________ _____________________________
Senior Vice President Executive Vice President
[seal]
"PURCHASER:"
Attest: NOVA INFORMATION SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxx
__________________________________ _____________________________
Vice President and General Counsel Chief Financial Officer
[seal]
INDEX OF SCHEDULES AND EXHIBITS
SCHEDULES DESCRIPTION
--------- -----------
1.1 Equipment
1.1(g) Subsidies
3.2(b) Performance Standards During the Transition Approvals
3.6 Maintained Agreements with Third Party Service Providers
4.5 Schedules to be Updated
6.5(a)(i) Financial Information
6.5(a)(ii) Material Adverse Changes in the Merchant Business
6.5(b) Credit Card Sales Volume and Debit Card Sales Volume
6.6(a)(i) Merchants
6.6(a)(ii) Associate Banks
6.6(a)(iii) Exceptions; Notice of Election to Terminate Merchant
Agreements or Associate Bank Agreements
6.6(b)(i) Exceptions to Possession of Original Executed Copy of Top
200 Merchant
Agreements
6.6(b)(ii) ACH Agreements
6.6(c)(i) Top 200 Merchant Guaranties
6.6(c)(ii) Exceptions to Possession of Original Executed Copy of
Guaranties
6.6(d)(i) Certain Financial and Other Information Relative to the
Associate Banks
6.6(d)(ii) Exceptions to Possession of Original Executed Copy of
Associate Bank Agreements
6.6(e)(i) Disputes
6.6(e)(ii) Material Adverse Effect
6.6(f)(i) Exceptions to Credit Card Association Compliance
6.6(f)(ii) Exceptions to Original Sponsorship Agreements
6.6(g) Reserve Accounts
6.6(h)(i) American Express, Discover, Diner's Club, JCB, Xxxxx
Xxxxxxx
6.7 200 Merchants with Highest Dollar Value of Credit Card
Transactions
6.8 EFT Networks
6.10 Leases
6.11 Litigation
6.14 Vendors and Suppliers
6.15 Exceptions to Agreements in Full Force and Effect
6.16 Exceptions to Absence of Certain Changes and Events
EXHIBITS DESCRIPTION
-------- -----------
1.2 Assignment and Assumption Agreement
9.2 Opinion of Counsel to Purchaser
10.3 Opinion of Counsel to Seller and Crestar Financial
Corporation
10.4 Non-Competition Agreement
10.5 Marketing and Sales Alliance Agreement
