EXHIBIT 10.44
MERCHANT PORTFOLIO PURCHASE AGREEMENT
THIS MERCHANT PORTFOLIO PURCHASE AGREEMENT ("Agreement") is executed
this 25th day of February, 2002, by and between PROCESSING SOURCE INTERNATIONAL,
INC., a California corporation (herein "BUYER") and NORTHWEST SYSTEMS, LLC, an
Oregon Limited Liability Company d\b\a "Merchant Services"(herein "SELLER").
RECITAL
BUYER wishes to purchase and SELLER wishes to sell the
residual compensation stream identified as the merchant base held in a bin with
Chase Merchant Services through First Data Resources System # 8138, Principle #s
0600, 0800, Agent # 52 represented as 5200 (hereinafter referred to as the
"Portfolio"), all on the terms and conditions contained herein.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and promises of
the parties, the parties agree as follows:
ARTICLE 1
PURCHASE AND SALE
1.1 SELLER agrees to sell its interest in the Portfolio to BUYER
and BUYER agrees to purchase the Portfolio from SELLER upon the terms and
subject to the covenants and conditions hereinafter set forth.
ARTICLE 2
PURCHASE PRICE
2.1 The total purchase price for SELLER'S interest in the
Portfolio is the total sum of Five Hundred Thousand Dollars ($500,000.00) (the
"Purchase Price").
ARTICLE 3
TERMS OF PAYMENT
The Purchase Price shall be paid as follows:
o 1st payment on 2/27/02 in the amount of $200,000
o 2nd payment on or before 5/25/02 in the amount of $100,000
o 3rd payment on or before 8/25/02 in the amount of $100,000
o 4th payment on or before 11/25/02 in the amount of $100,000.
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ARTICLE 4
TITLE
4.1 CONDITION OF TITLE. Title to the Portfolio shall be conveyed
to BUYER free and clear of all liens, encumbrances, and restrictions.
ARTICLE 5
OTHER TERMS OF PURCHASE
5.1 The 1st payment represents 40% of the Portfolio. In
consideration for and upon receipt of the 1st payment, BUYER will
retain the first 40% of the compensation due SELLER for each monthly
residual payment normally issued by BUYER to SELLER for the Portfolio.
5.2 The 2nd payment represents 20% of the Portfolio. In
consideration for and upon receipt of the 2nd payment, BUYER will
retain the first 60% of the compensation due SELLER for each monthly
residual payment normally issued by BUYER to SELLER for the Portfolio.
5.3 The 3rd payment represents 20% of the Portfolio. In
consideration for and upon receipt of the 3rd payment, BUYER will
retain the first 80% of the compensation due SELLER for each monthly
residual payment normally issued by BUYER to SELLER for the Portfolio.
5.4 The 4th payment represents 20% of the Portfolio. In
consideration for and upon receipt of the 4th payment, BUYER will
retain the entire compensation due SELLER for each monthly residual
payment normally issued by BUYER to SELLER for the Portfolio. In the
event that any Merchant terminates its Merchant Processing Agreement,
SELLER will at its sole discretion replace such Merchant with another
Merchant..
5.5 Should BUYER fail to pay any of the payments set forth above,
SELLER may, at its option retain the continuing compensation normally
derived from the remaining portion of the Portfolio or offer the
remainder of the Portfolio for sale to a third party including the
percentage of the Portfolio normally retained by BUYER. If SELLER
elects to sell the remainder of the Portfolio to a third party under
such circumstances, SELLER will, upon such sale, pay BUYER an amount
equal to 30% of the monies earned from said sale. Additionally, SELLER
will reimburse BUYER all payments made to
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SELLER by BUYER pursuant to this Agreement (less the percentage not
paid SELLER by BUYER for the compensation due SELLER for each monthly
residual payment normally issued by BUYER to SELLER for the Portfolio
in accordance with the conditions outlined above).
ARTICLE 6
NON-COMPETE PROVISION
6.1 NON-COMPETITION. SELLER hereby agrees not to compete against
BUYER (other than pursuant to the provisions of Paragraph 5.5, above) with
respect to the merchants in the Portfolio. This includes but is not limited to
attempting to convert any merchants in the Portfolio either directly or
indirectly away from BUYER. More particularly, BUYER shall not, directly or
indirectly, solicit, recruit, induce, divert, take away or otherwise encourage,
or attempt to solicit, recruit, induce, divert, take away or otherwise encourage
any Merchant whose business contributes to the revenue stream being purchased
herein by BUYER to terminate, sever or modify in any way his, her or its
relationship with BUYER for any reason whatsoever, including, without
limitation, for the purpose of doing business with SELLER or any other person or
entity other than BUYER.
6.2. UNFAIR COMPETITION. Violation of any of the provisions of
Paragraph 6.1 shall constitute unfair competition and shall be a material breach
of this Agreement .
6.3. SPECIFIC PERFORMANCE. The obligations of SELLER under this
Agreement are unique. If SELLER should default in any
obligations under this Agreement, SELLER acknowledges that it
would be extremely impracticable to measure the resulting
damages; accordingly, the Company, in addition to any other
available rights or remedies, may xxx in equity for specific
performance and for injunctive relief without the necessity of
posting a bond or other security, and SELLER expressly waives
the defense that a remedy in damages will be adequate.
6.4. INDEMNITIES. Seller hereby agrees to indemnify and hold
harmless BUYER, from and against any and all damages, claims,
losses or expenses (including reasonable attorneys' fees and
expenses) actually suffered or paid by BUYRER as a result of
the breach of any representation or warranty made by Seller in
this Agreement.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
7.1 SELLER'S REPRESENTATIONS AND WARRANTIES. SELLER represents and
warrants to BUYER as follows:
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(a) That SELLER has the right, power, legal capacity, and
authority to enter into and perform its obligations
under this agreement, and no approvals or consents of
any persons other than SELLER are necessary in
connection with it. The execution and delivery of
this agreement by SELLER has been duly authorized by
all necessary corporate action on the part of SELLER.
(b) That it is the sole owner of the Portfolio free and
clear of any liens or encumbrances, and that SELLER
has the legal right to transfer title of same to
BUYER.
(c) That the bylaws, Operating Agreement and other
corporate governance of SELLER permit it to take all
of the actions to be taken by SELLER in this
Agreement.
(d) That SELLER is a limited liability company duly
organized, validly existing and in good standing
under the laws of the State of Oregon and has all
necessary power and authority: to conduct its
business in the manner in which its business is
currently being conducted and in the manner in which
its business is proposed to be conducted; and to
perform its obligations under all contracts to which
it is a party.
(e) That SELLER has no knowledge that any Merchant
presently intends to terminate its Merchant
Processing Agreement or of any facts that would cause
such Merchant's processing volume to materially
decrease.
ARTICLE 8
GENERAL PROVISIONS
8.1 NOTICES All notices or other communications made pursuant
hereto shall be in writing and shall be deemed properly delivered, given or
served when (i) personally delivered against receipted copy or (ii) mailed by
certified or registered mail, postage prepaid, return receipt requested in
either case (i) or (ii) to the parties at the following addresses:
BUYER: PROCESSING SOURCE INTERNATIONAL, INC.
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxxx, XX 00000
Attention: Chairman/CEO
WITH COPY TO: Xxxxxxx Xxxxxx
0000 X. Xxxxxxx Xxxxxxxxx
Xxxxxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
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SELLER: NORTHWEST SYSTEMS, LLC
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
All notices so mailed shall be deemed received as of the date shown for
the signature on the return receipt, or if no signature is obtained or no date
is shown, then the notice shall be deemed received seventy-two (72) hours after
deposit in the United States mail. Either party may change its address for the
purposes of this paragraph by giving five (5) calendar days' prior written
notice of the change to the other party in the manner provided in this
subparagraph 8.1.
8.2 BROKER'S COMMISSION. SELLER and BUYER each represent and
warrant to the other that neither party has used a broker, agent, finder or
other person in connection with the transaction contemplated hereby to whom a
brokerage or other commission or fee may be payable. Each party indemnifies and
agrees to defend and hold the other harmless from any claimresulting from any
breach by the indemnifying party of the warranties, representations, and
covenants in this subparagraph 8.2.
8.3 ENTIRE AGREEMENT. This Agreement contains the entire agreement
of the parties regarding the matters covered hereby and supersedes all prior
arrangements and understandings between the parties. No other agreement,
statement or promise made by either party that is not contained herein shall be
binding or valid.
8.4 AMENDMENTS. This Agreement may be amended only by a further
written document signed by each party.
8.5 ATTORNEYS' AND EXPERTS' FEES. Should either party commence any
legal action or arbitration against the other to enforce or interpret this
Agreement, the prevailing party shall be entitled to an award of reasonable
attorneys' and experts' fees in addition to any other costs or damages awarded
by the court.
8.6 FURTHER DOCUMENTS. Each party will, whenever and as often as
it shall be requested by the other party, execute, acknowledge and deliver, or
cause to be executed, acknowledged and delivered, such further instruments and
documents as may be necessary in order to complete the sale, conveyance and
transfer herein provided, and to do any and all other acts and to execute,
acknowledge, and deliver any and all documents as may be required in order to
carry out the intent and purpose of this Agreement. Further, SELLER agrees that
it will, upon request by BUYER, inform any and all third parties that it has no
further interest in the Portfolio or any part thereof to the extent that BUYER
has made the payments called for hereinabove, and will sign any document
requested to that effect.
8.7 COUNTERPARTS. This Agreement may be executed simultaneously
one and the same document or in counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same agreement.
8.8 TIME OF ESSENCE. Except as otherwise specifically provided
in the Agreement, time is of the essence for this Agreement and each and every
provision hereof.
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8.9 SURVIVAL. The terms, conditions, covenants, warranties, and
representations contained herein shall survive the execution of this Agreement.
8.10 EXHIBITS. All exhibits attached hereto and/or referred to
in this Agreement are incorporated herein as though set forth in full.
8.11 APPLICABLE LAW AND VENUE. This Agreement shall be construed
and interpreted under, and governed and enforced, according to the laws of the
State of California. Venue for any action brought under this Agreement shall be
Los Angeles, California.
8.12 INTERPRETATIONS AND DEFINITIONS.
8.12.1 DEFINITIONS. For purposes of this Agreement, the following
term shall have the meaning thereafter set forth: "date of execution of this
Agreement" or "date of execution hereof" shall mean the date set forth in the
preamble paragraph of the first page hereof.
8.12.2 CONSTRUCTION. The parties hereto agree that each party has
participated in the drafting of this Agreement and that any rule of construction
to the effect that ambiguities are to be resolved against the drafting party
shall not apply in the interpretation of this Agreement or any amendments or
exhibits thereto.
8.12.3 INTERPRETATION. In this Agreement the neuter gender includes
the feminine and masculine, and singular number includes the plural, and the
words "person" and "party" includes corporation, partnership, trust or
association wherever the context so requires.
8.12.4 RECITALS AND CAPTION. The recitals and captions of the
paragraphs and subparagraphs of this Agreement are for convenience and reference
only, and the words contained therein shall in no way be held to explain,
modify, amplify, or aid in the interpretation, construction or meaning of the
provisions of this Agreement.
8.13 AUTHORITY. By affixing their signatures below, each signatory
represents, covenants and warrants that he is the duly authorized officer or
member of his respective organization, fully authorized to execute and bind his
principal to the obligations undertaken herein, and agrees to indemnify and hold
the other party hereto harmless from any breach of this covenant.
IN WITNESS WHEREOF, the parties have executed this AGREEMENT effective
as of the day and year first above written.
BUYER:
PROCESSING SOURCE INTERNATIONAL, INC.
By:___________________________________
SELLER:
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NORTHWEST SYSTEMS, LLC
By:____________________________________
Xxxxx X. Xxxxxx, Sole Member and Manager
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