Exhibit 2.10
PURCHASE AGREEMENT
This Purchase Agreement (this "Agreement") is made as of this 14th day of
February, 2002, by and between InTuition Guarantee Services, LLC, a Florida
limited liability company ("InTuition") and NELnet, Inc., a Nevada corporation
("Purchaser") (collectively referred to as the "Parties" and, individually, as a
"Party").
RECITALS
WHEREAS, InTuition owns 49% of GuaranTec, LLP, a Florida limited liability
partnership ("GuaranTec"), constituting all of InTuition's interest in GuaranTec
(the "Transferred Partnership Interest") which is operated in accordance with
that Limited Liability Partnership Agreement dated as of November 1, 1996, as
amended from time to time and most recently by the Fifth Amendment to Limited
Partnership Agreement dated February 22, 1999 (as amended, the "Partnership
Agreement");
WHEREAS, Nelnet Guarantee Services, Inc., owns the remaining 51% of
GuaranTec, and Purchaser wishes to acquire effective control over the operations
of GuaranTec, in conjunction with Nelnet Guarantee Services, Inc.;
WHEREAS, InTuition wishes to sell to Purchaser and Purchaser wishes to buy
the Transferred Partnership Interest under the terms as specified herein.
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants herein contained and for other good and valuable consideration, the
receipt and adequacy of which are hereby expressly acknowledged, the Parties
intending to be legally bound agree as follows:
1. DESCRIPTION OF THE TRANSACTION; TERMS
1.1 Transfers and Settlement Transaction. At the Closing (as defined
in Section 1.2 hereof) and upon the terms and subject to the conditions set
forth herein, all of the following actions shall be taken:
(a) Transfer of Transferred Partnership Interest. InTuition
shall convey, sell, transfer and deliver to Purchaser the Transferred
Partnership Interest.
(b) Payment by Purchaser. Purchaser shall deliver to InTuition
on February 15, 2002, the amount of $4.5 million by wire transfer to the account
as designated by InTuition.
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(c) Officers' Certificates. Upon request of either party,
InTuition and Purchaser shall each deliver to the other a certificate
signed by a duly authorized officer of each respective Party certifying
that the representations and warranties of that Party contained in this
Agreement are true and correct in all material respects and that each of
the obligations of that Party to be performed on or prior to the Closing
has been duly performed in all material respects.
(d) Transaction Documents. InTuition shall also deliver at
Closing (i) upon request of Purchaser, the written resignation of all
directors and officers and members of the Steering Committee (as defined in
the "Partnership Agreement") of GuaranTec who have been designated by
InTuition, (ii) an assignment of the Transferred Partnership Interest in
the form attached hereto as Exhibit A and (iii) such other documents as may
be reasonably requested by Purchaser not less than one (1) day before the
Closing Date to carry out the terms of this Agreement (the "Transaction
Documents").
1.2 Closing; Closing Date. The closing ("Closing") of the purchase of
the Transferred Partnership Interest shall be effective as of January 1, 2002,
although the deliveries set forth above shall not occur until February 15, 2002
("Closing Date"). On February 15, 2002, Purchaser shall wire transfer the
Purchase Price to InTuition or its designee. InTuition shall transfer the other
closing items, all duly endorsed, to InTuition or its designee on February 15,
2002.
2. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to InTuition as follows:
2.1 Organization, Good Standing, Authority, and Enforceability.
Purchaser is a corporation duly formed and organized, validly existing and in
good standing under the laws of the State of Nevada. Purchaser has all requisite
corporate power and authority to enter into this Agreement and the Transaction
Documents, and to consummate the transactions contemplated hereby and thereby.
This Agreement and the Transaction Documents have been duly executed and
delivered by Purchaser and have been effectively authorized by all necessary
corporate action by Purchaser and constitute legal, valid and binding obligation
of Purchaser, enforceable against Purchaser in accordance with their terms.
2.2 Agreement Not in Breach of Other Instruments. The execution and
delivery of this Agreement and the Transaction Documents, the consummation of
the transactions contemplated hereby and thereby and the fulfillment of the
terms hereof and thereof will not violate or result in a breach of any of the
terms or provisions of, or constitute a default (or any event which, with notice
or the passage of time, or both, would constitute a default) under, or conflict
with or result in the termination of, or accelerate the performance required by,
(i) any agreement, indenture or other instrument to which Purchaser is a party
or by which any of them is bound, (ii) any organizational document such as
articles of incorporation, regulations, or bylaws of Purchaser, (iii) any
judgment, decree, order or award of any court, governmental body or arbitrator
by which Purchaser is bound, or (iv) any law, rule or regulation applicable to
Purchaser. No authorization,
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consent, or approval of, or filing with, any governmental entity or other third
party is necessary for the performance by Purchaser or of its obligations under
the Transaction Documents.
2.3 No Legal Bar. Purchaser is not prohibited by any order, writ,
injunction or decree of any body of competent jurisdiction from consummating
the transactions contemplated by this Agreement or the Transaction Documents
and no such action or proceeding is pending against Purchaser which questions
the validity of this Agreement or the Transaction Documents, any of the
transactions contemplated hereby or thereby or any action which has been taken
by any of the Parties in connection herewith or in connection with any of the
transactions contemplated hereby or thereby.
3. REPRESENTATIONS AND WARRANTIES OF INTUITION
InTuition hereby represents and warrants to Purchaser as follows:
3.1 Organization, Good Standing, Authority and Enforceability.
InTuition is a limited liability company duly organized, validly existing, and
in good standing under the laws of the State of Florida. InTuition has all
requisite power and authority to enter into this Agreement and the Transaction
Documents and to consummate the transactions contemplated hereby and thereby.
This Agreement and the Transaction Documents have been duly executed and
delivered by InTuition, have been effectively authorized by all necessary
action and constitute legal, valid and binding obligation of InTuition
enforceable against them in accordance with their terms.
3.2 Agreement Not in Breach of Other Instruments. The execution and
delivery of this Agreement and the Transaction Documents, the consummation of
the transactions contemplated hereby and thereby and the fulfillment of the
terms hereof will not violate or result in a breach of any of the terms or
provisions of, or constitute a default (or any event which, with notice or the
passage of time, or both, would constitute a default) under, or conflict with or
result in the termination of, or accelerate the performance required by, (i) any
agreement, indenture or other instrument to which InTuition is a party or by
which any of them is bound, (ii) any organizational document of InTuition, (iii)
any judgment, decree, order, or award of any court, governmental body, or
arbitrator by which InTuition is bound, or (iv) any law, rule or regulation
applicable to InTuition. No authorization, consent, or approval of, or filing
with, any governmental entity or other third party is necessary for the
performance by InTuition of its obligations under the Transaction Documents.
3.3 No Legal Bar. InTuition is not prohibited by any order, writ,
injunction, or decree of any body of competent jurisdiction from consummating
the transactions contemplated by this Agreement and the Transaction Documents
and no such action or proceeding is pending against InTuition which questions
the validity of this Agreement or the Transaction Documents, any of the
transactions contemplated hereby or thereby or any action which has been taken
by any of the Parties in connection herewith or in connection with any of the
transactions contemplated hereby and thereby.
3.4 Title to the Transferred Partnership Interest. InTuition is the
record and beneficial owner of the Transferred Partnership Interest, free and
clear of all liens, claims, security interests, options, charges, pledges, and
other restrictions or encumbrances of any nature whatsoever.
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Upon consummation of the transactions contemplated under this Agreement and the
Transaction Documents, Purchaser will acquire from InTuition good and valid
title to the Transferred Partnership Interest free and clear of all liens,
claims, security interests, options, charges, pledges, and other restrictions
or encumbrances of any nature whatsoever ("Encumbrance") for which InTuition is
responsible. Following the completion of the transaction InTuition shall have
no ownership interest in GuaranTec.
4. INDEMNIFICATION
4.1 Indemnification by Purchaser. Purchaser agrees to defend,
indemnify, and hold InTuition and its respective officers, directors, trustees,
parents, affiliates, representatives, agents, successors, and assigns harmless
from and against any claim, liability, expense, loss, or other damage
(including reasonable attorneys' fees and expenses), net of any tax benefit
realized by the indemnified parties and net of any amount actually recovered by
the indemnified parties under insurance policies ("Claims") in respect of:
(a) any and all Claims relating to or resulting from any breach
of a representation or warranty or any violation of a covenant made in this
Agreement by Purchaser; and
(b) any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses incident to any item to which
the foregoing indemnity relates.
4.2 Indemnification by InTuition. InTuition agrees to defend,
indemnify, and hold Purchaser and GuaranTec and their respective officers,
directors, agents, affiliates, representatives, successors and assigns,
harmless from and against any Claim in respect of:
(a) any and all Claims relating to or resulting from any breach
of a representation or warranty or any violation of a covenant made in this
Agreement by InTuition.
(b) any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses incident to any item to which
the foregoing indemnity relates.
5. ADDITIONAL COVENANTS AND AGREEMENTS
5.1 Expenses. Each party hereto shall bear and pay all costs and
expenses incurred by it in connection with the transactions contemplated by
this Agreement, including, but not limited to, the fees, costs and expenses of
its own financial consultants, accountants and legal counsel.
5.2 Survival of Representations and Warranties. Except as otherwise
provided herein, the representations and warranties contained in Sections 2 and
3 of this Agreement shall survive the Closing Date until the expiration of the
statute of limitations for bringing the claim.
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5.3 Public Releases. The Parties shall agree with each other as to
the form and substance of any press release relating to this Agreement or the
transactions contemplated hereby, and shall consult with each other as to the
form and substance of other public disclosures relating hereto; provided,
however, that nothing contained herein shall prohibit any party hereto from
making any disclosure which it deems necessary in light of applicable laws or
regulations, after notice to the other party with the opportunity to comment to
the extent that delay of the disclosure is permitted under such laws or
regulations. Notwithstanding the foregoing, following the Closing any Party can
release information regarding the ownership of the Transferred Partnership
Interest.
5.4 Other Partnership Obligations. All other rights and obligations
of the Parties and their affiliates shall continue as set forth in the
Partnership Agreement.
6. MISCELLANEOUS
6.1 Entire Agreement. This Agreement and the Transaction Documents,
including the recitals and the Exhibits hereto and thereto, supersede any and
all other agreements, oral or written, between the Parties hereto and thereto
with respect to the subject matter hereof and thereof, and contain the entire
agreement between such Parties with respect to the transactions contemplated
hereby and thereby.
6.2 Amendments. This Agreement and the Transaction Documents shall
not be modified or amended except by an instrument in writing signed by or on
behalf of both Parties hereto.
6.3 Successors; Assignment. This Agreement and the Transaction
Documents and all of the provisions hereof and thereof shall be binding upon
and inure to the benefit of the Parties hereto and thereto and their respective
successors and permitted transferees and assignees. Neither this Agreement nor
any interest herein may, directly or indirectly, be transferred or assigned by
either Party, in whole or in part, without the written consent of the other
Party.
6.4 Waiver. If either Party expressly waives in writing an unsatisfied
condition, representation, warranty, undertaking, covenant or agreement (or
portion thereof) set forth herein, the waiving Party shall thereafter be barred
from recovering, and thereafter shall not seek to recover, any damages, claims,
losses, liabilities or expenses, including, without limitation, legal and other
expenses, from the other Party in respect of the matter or matters so waived.
Any such waiver shall not constitute a covenant to waive any such matter or
matters in the future.
6.5 Counterparts. This Agreement may be executed in two or more
counterparts and by the Parties on separate counterparts, all of which shall be
considered one and the same agreement, and each of which shall be deemed an
original.
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IN WITNESS WHEREOF, the Parties hereto have caused this Purchase Agreement
to be duly executed as of the date first set forth above.
INTUITION GUARANTEE SERVICES, LLC NELNET, INC.
By: Farmers & Merchants
Investment Inc.,
Sole Member
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxx Xxxxxx
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Title: President Title: CFO
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EXHIBIT A
ASSIGNMENT OF PARTNERSHIP INTEREST
KNOW ALL MEN BY THESE PRESENTS that InTuition Guarantee Services, LLC, a
Florida limited liability company ("Seller"), for good and valuable
consideration (receipt of which is hereby acknowledged) pursuant to the
Purchase Agreement (the "Purchase Agreement") dated February 14, 2002, by and
between Seller and NELnet, Inc. ("Buyer"), do hereby by these presents, sell
convey, assign, transfer, and deliver unto Buyer, its successors and assigns,
the following:
All of the right, title and interest of Seller as of the date hereof, in and to
a 49% interest in GuaranTec, LLP (as such term is defined on page 1 of the
Purchase Agreement) to be sold, conveyed, assigned, transferred, and delivered
to Buyer.
TO HAVE AND TO HOLD, unto Buyer, its successors and assigns, FOREVER.
Seller represents and warrants to Buyer that Seller is the lawful owner of the
interest in GuaranTec, LLP being conveyed hereby and that the interest in
GuaranTec, LLP is free and clear from all liens and encumbrances of the Seller
and Seller will defend Buyer's title thereto against the claims of all third
persons.
Seller covenants that it will from time to time at its expense make, execute,
and deliver such instruments, acts, consents, and assurances as Buyer may
reasonably request to more effectively sell, convey, transfer to, and vest in
Buyer all of the aforesaid partnership interest being sold, conveyed, assigned,
transferred, and delivered hereunder.
This assignment is effective as of January 1, 2002.
IN WITNESS WHEREOF, this Assignment of Partnership Interest has been duly
executed and delivered by the duly authorized officers of Seller.
InTuition Guarantee Services, LLC
By: Farmers & Merchants Investment Inc.,
Sole Member
By: /s/ Xxxxxxx Xxxxxx
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Title: President
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