SETTLEMENT AGREEMENT
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This is a
binding Settlement Agreement made and entered into effective as of the 1st day
of May, 2009 by and among Xxxxxxxxxxx X. Xxxxxx (“Xxxxxx”), National Cash &
Credit, LLC, a Minnesota limited liability company, Western Capital Resources,
Inc., a Minnesota corporation, Wyoming Financial Lenders, Inc., a Wyoming
corporation, WERCS, Inc., a Wyoming corporation, and Xxxx
Xxxxxxxx. The parties to this Agreement will be referred to
individually as a “Party” and collectively as “Parties.”
ADDITIONAL
DEFINITIONS
1. “Affiliate” means,
with respect to any particular person or entity, each person or entity that
controls, is controlled by, or is under common control with, such particular
person or entity.
2. “Agreement” means this
Settlement Agreement.
3. “Claims” means any and
all claims, counterclaims, cross-claims, disputes, demands, actions and causes
of action, petitions, suits, debts, liabilities, defenses, obligations, damages
(whether general, special, punitive, statutory, or other), penalties, costs,
losses, expenses, and reasonable fees (including without limitation, attorneys’,
accountants’, auditors’ and consultants’ fees - whether such fees were incurred
prior to or after the date of the Agreement), whether known or unknown,
liquidated or unliquidated, fixed or contingent, direct or indirect, suspected
or unsuspected, premised on direct recovery, contribution, or indemnity, whether
based on contract, tort, statute, or other legal or equitable theory of
recovery, whether written or oral, among or between the Parties that as of the
date of this Agreement: (1) were raised or could have been raised by any of the
Western Parties against any of the Xxxxxx Parties or in defense thereto; or (2)
were raised or could have been raised by any of the Xxxxxx Parties against any
of the Western Parties or in defense thereto; provided, however, that Excluded
Claims shall not be included
within the definition of “Claims” used herein.
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4. “Exchange Agreement”
means the February 26, 2008 Exchange Agreement by and among Western, NCC and the
members of NCC, along with all exhibits, schedules and addenda
thereto.
5. “Excluded Claims”
means any and all claims, counterclaims, cross-claims, disputes, demands,
actions and causes of action, petitions, suits, debts, liabilities, defenses,
obligations, damages (whether general, special, punitive, statutory, or other),
penalties, costs, losses, expenses, and attorneys’ fees (whether incurred prior
to or after the date of the Agreement), whether known or unknown, liquidated or
unliquidated, fixed or contingent, direct or indirect, suspected or unsuspected,
premised on direct recovery, contribution, or indemnity, whether based on
contract, tort, statute, or other legal or equitable theory of recovery, whether
written or oral, among or between the Parties that relate to or arise in
connection with:
a. WERCS’
obligations under the Indemnification Agreement;
b. Western’s
obligations under Section 4 and Section 5 of the Redemption Agreement;
and
c. A
breach by any Party of any of the provisions of this Agreement.
6. “Xxxxxx Parties” means
Xxxxxx and NCC, and the Affiliates of each of them. For clarity, the
“Affiliates” of Xxxxxx and NCC include WCR Acquisition Co., a Minnesota
corporation to which assets formerly held by STEN Corporation and its affiliates
were transferred effective as of July 31, 2008, but does not include Xxxxx Xxxxxx or
Xxxxx Xxxxxx.
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7. “Merger Agreement”
means the December 13, 2007 Agreement and Plan of Merger and Reorganization by
and among Western, WFL Acquisition Corp. and Wyoming, a copy of which is
attached as Exhibit 2.1 to Western’s Form 8-K filed with the Securities and
Exchange Commission on December 14, 2007, along with all exhibits,
schedules and addenda thereto.
8. “NCC” means National
Cash & Credit, LLC, a Minnesota limited liability company, and any of its
present or former agents, employees, representatives and all other persons who
have acted or purported to act on its behalf.
9. “Xxxxxxxx” means Xxxx
Xxxxxxxx, presently the Chief Executive Officer of Western and a shareholder of
Western.
10. “Redemption Agreement”
means the December 31, 2008 Redemption Agreement by and among Xxxxxx, Western,
and NCC, along with all exhibits, schedules and addenda thereto.
11. “WERCS” means WERCS,
Inc., a Wyoming corporation, and any of its present or former agents, employees,
representatives and all other persons who have acted or purported to act on its
behalf.
12. “Western” means
Western Capital Resources, Inc., a Minnesota corporation, f/k/a Uron Inc., and
any of its present or former agents, employees, representatives and all other
persons who have acted or purported to act on its behalf.
13. “Western Parties”
means Western, Wyoming, WERCS, and the Affiliates of each of
them. For clarity, the “Affiliates” of the Western Parties include
the directors and officers of Western.
14. “Wyoming” means
Wyoming Financial Lenders, Inc., a Nebraska corporation, and any of its present
or former agents, employees, representatives and all other persons who have
acted or purported to act on its behalf.
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RECITALS
WHEREAS,
Western has made certain allegations against the Xxxxxx Parties;
WHEREAS,
the Xxxxxx has made certain allegations against the Western
Parties;
WHEREAS,
the applicable Parties have either denied the allegations made against them,
denied that valid Claims exist based on those allegations, or both;
and
WHEREAS,
the Parties desire to avoid the uncertainties, risks and expenses that would
accompany any litigation and further investigation and to compromise, settle,
and release, once and forever, the Claims by and among the Parties as set forth
herein.
AGREEMENT
NOW,
THEREFORE, in consideration of the covenants, mutual releases and other terms
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which the Parties hereby acknowledge, the Parties
hereby agree as follows:
1. Incorporation of Definitions
and Recitals. The above definitions and recitals are
incorporated into this Agreement by reference.
2. Denial of
Liability. This Agreement is entered into only for purposes of
settlement and compromise of the matters covered by this Agreement in order to
avoid the uncertainties, risks and expenses that would accompany any litigation
among the Parties. Neither this Agreement, nor anything contained
herein, nor any act or thing done in connection herewith, is intended to be, or
shall be construed or deemed to be, an admission by any of the Parties of any
liability, fault or wrongdoing.
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3. Transfer of Uncollectible
Debt by Wyoming. As consideration for the compromise and
settlement set forth herein, and subject to all of the terms and conditions
contained herein, Wyoming hereby sells, transfers and assigns to NCC, those
certain assets classified as uncollectible debt identified on Exhibit A that were
held by WCR Acquisition Co. as of December 31, 2008, prior to the transfers to
Xxxxxx pursuant to the terms of the Redemption Agreement (the “Bad Debt
Assets”). Wyoming represents and warrants to NCC that the Bad Debt
Assets are all of the presently uncollected debt held by it that were owned by
WCR Acquisition Co. prior to effecting the transactions contemplated by the
Redemption Agreement.
4. Intentionally
Omitted.
5. Redemption of Western
Shares. As consideration for the compromise and settlement set
forth herein, and subject to all of the terms and conditions contained herein
(specifically including but not limited to the escrow arrangement described in
Section 29 below), Western hereby redeems 550,000 shares of common stock of
Western presently held in the name of Xxxxxx (representing 100% of the ownership
interest of Xxxxxx in Western) (such transaction, the “Redemption” and such
shares, the “Redeemed Shares”), and Xxxxxx hereby sells and assigns to Western
all of Xxxxxx’x rights, title to and interest in the Redeemed Shares free and
clear of any and all liens, pledges, security interests, transfer restrictions
or encumbrances of any kind. In furtherance of the Redemption, Xxxxxx
is executing and delivering to the Escrow Agent (as defined in Section 29
below), concurrently with this Agreement, a medallion guaranteed stock power
with respect to the Redeemed Shares, in the form attached hereto as Exhibit B, and his
stock certificate representing the Redeemed Shares.
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6. Covenant Regarding
Indemnification Rights. The Parties acknowledge and agree that
Xxxxxx may be entitled to certain indemnification rights under (i) applicable
law, (ii) insurance policies held by Western, (iii) Western’s articles of
incorporation and bylaws, and (iv) the Indemnification
Agreement. Western hereby agrees to provide to Xxxxxx, as soon as
reasonably possible but in no event later than five (5) business days from the
date of this Agreement, copies of all insurance policies under which Xxxxxx may
have coverage for any actions or omissions taken by Xxxxxx while he was either
an officer or director of Western or otherwise covered under Western’s insurance
policies, including without limitation all directors and officers insurance
policies. The Western Parties agree that they will not take, and will
not permit any of their Affiliates to take, any action that interferes with,
impairs, or alters (in an adverse manner), or is intended to interfere with,
impair, or alter (in an adverse manner), any of Xxxxxx’x bona fide rights to
claim or receive indemnification under Western’s articles of incorporation,
bylaws or otherwise.
7. Affirmation Regarding
Indemnification Agreement and Redemption Agreement. The
Parties hereby affirm that the terms of the Indemnification Agreement are, and
shall remain, in full force and effect on the terms set forth therein and the
parties to the Indemnification Agreement agree to abide by their obligations
under the Indemnification Agreement. The Parties hereby affirm that
the terms of Section 4 and Section 5 of the Redemption Agreement are, and shall
remain, in full force and effect and the parties to the Redemption Agreement
hereby agree to abide by their obligations under Section 4 and Section 5 of the
Redemption Agreement.
8. Release By the Xxxxxx
Parties. For and in consideration of the performance by the
Western Parties of their respective obligations under this Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Xxxxxx and NCC hereby do unconditionally and irrevocably,
fully, finally, and forever waive, release, acquit and forever discharge the
Western Parties and Xxxxxxxx from any and all Claims, and covenant and agree
that none of the Xxxxxx Parties will institute or, unless legally compelled,
participate in any Claims (including Claims brought by third parties) against
the Western Parties and/or Xxxxxxxx.
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9. Release By the Western
Parties. For and in consideration of the performance by the
Xxxxxx Parties of their respective obligations under this Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Western, Wyoming, WERCS and Xxxxxxxx hereby do
unconditionally and irrevocably, fully, finally, and forever waive, release,
acquit and forever discharge the Xxxxxx Parties from any and all Claims, and
covenant and agree that none of the Western Parties will institute or, unless
legally compelled, participate in any Claims (including Claims brought by third
parties) against the Xxxxxx Parties.
10. Non-Disparagement. Except
as may be required by applicable law, regulation or court order (including
administrative subpoenas), each of the Parties agrees that they will not make,
or cause or attempt to cause any other person or entity to make, any statements,
either written or oral, or convey any information about the other Parties (or
their owners, employees, or Affiliates) to any third party which is disparaging
or which in any way reflects negatively upon the character, personality,
integrity or performance of such Party (or its owners, employees, or
Affiliates), or which are directly or indirectly damaging to the reputation of
such Party (or its owners, employees, or Affiliates); provided, however, that
notwithstanding anything to the contrary contained herein, (a) Western shall be
entitled to include and provide accurate disclosures in any public filings,
including filings made with the SEC, and (b) Western shall be entitled to
respond in a factual manner to specific requests for information from any
governmental authority.
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11. No Waiver of Attorney-Client
Privilege. The Parties stipulate that no Party has waived the
attorney-client privilege.
12. Acknowledgement of
Claims. The Parties acknowledge that their Claims may be
different from or greater than the Claims currently known to them. It
is the Parties’ intention to release and waive all such Claims, whether
currently known or unknown to them to the extent provided herein.
13. Merger and
Integration. The Parties agree and acknowledge that this
Agreement, together with all exhibits hereto, constitutes the entire agreement
of the Parties with respect to the subject matter contained
herein. There are no other agreements, representations, warranties,
or other understandings between or among the Parties with regard to the subject
matter hereof which are not set forth in this Agreement or exhibits
hereto. To the extent other agreements, representations, warranties,
or other understandings between the Parties with regard to the subject matter
hereof exist, those agreements are hereby repudiated and shall have no further
force or effect. This Agreement is made and entered into without any
reliance on any statement, promise, inducement, or consideration not recited in
this Agreement.
14. No Mistake of Fact; No
Representations. The Parties agree and acknowledge that this
Agreement shall not be subject to any claim of mistake of fact. The
terms of this Agreement are contractual and not a mere recital, and merge all
prior discussions, agreements, and transactions of all kinds pertaining to the
matters discussed in this Agreement. Other than as specifically set
forth herein, there are no representations or warranties that the Parties have
relied upon in entering into this Agreement.
15. Agreement Jointly
Drafted. The Parties agree that this Agreement shall not be
construed against any Party to the Agreement on the grounds that such Party
drafted this Agreement, but shall be construed as if all Parties jointly
prepared this Agreement, and any uncertainty or ambiguity shall not on that
ground be interpreted against any one Party.
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16. Advice of Counsel
Obtained. Each of the Parties acknowledges and represents that
he or it has had the opportunity to consult with legal, financial, and other
professional advisors as he or it deems appropriate in connection with his or
its consideration and execution of this Agreement. Each undersigned
Party further represents and declares that in executing this Agreement, he or it
has relied solely upon his or its own judgment, belief and knowledge, and the
advice and recommendation of his or its own professional advisors, concerning
the nature, extent and duration of its rights, obligations and claims; that he
or it has reviewed his or its records, evaluated his or its position and
conducted due diligence with regard to all rights, claims, or causes of action
whatsoever with respect to any and all other Parties; and that he or it has not
been influenced to any extent whatsoever in executing this Agreement by any
representations or statements made by the other party or his or its
representatives, except those expressly contained or referred to
herein.
17. Choice of
Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Minnesota without giving effect to
principles of conflicts of law thereof.
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18. Dispute
Resolution. To the greatest extent possible, the Parties will
endeavor to resolve any disputes relating to this Agreement through amicable
negotiations. Failing an amicable settlement, any controversy, claim
or dispute arising under or relating to this Agreement, including the existence,
validity, interpretation, performance, termination or breach of this Agreement,
will finally be settled by binding arbitration before a single arbitrator (the
“Arbitration Tribunal”) which will be jointly appointed by the involved
Parties. The Arbitration Tribunal will self-administer the
arbitration proceedings utilizing the Commercial Rules of the American
Arbitration Association; provided, however, the American Arbitration Association
shall not be involved in administration of the arbitration. The
arbitrator must be a retired judge of a state or federal court of the United
States or a licensed lawyer with at least ten years of corporate or commercial
law experience and have at least an AV rating by Martindale
Xxxxxxx. If the involved Parties cannot agree on an arbitrator, any
party may request the American Arbitration Association or a court of competent
jurisdiction to appoint an arbitrator, which appointment will be
final.
The arbitration will be held in Omaha,
Nebraska. Each party will have discovery rights as provided by the
Federal Rules of Civil Procedure within the limits imposed by the arbitrator;
provided, however, that all such discovery will be commenced and concluded
within 60 days of the selection of the arbitrator. It is the intent
of the Parties that any arbitration will be concluded as quickly as reasonably
practicable. Once commenced, the hearing on the disputed matters will
be held four days a week until concluded, with each hearing date to begin at
9:00 a.m. and to conclude at 5:00 p.m. The arbitrator will use all
reasonable efforts to issue the final written report containing award or awards
within a period of five business days after closure of the
proceedings. Failure of the arbitrator to meet the time limits of
this Section will not be a basis for challenging the award. The
Arbitration Tribunal will not have the authority to award punitive damages to
either party. Each party will bear its own expenses, but the involved
Parties will share equally the expenses of the Arbitration
Tribunal. The Arbitration Tribunal shall award attorneys’ fees and
other related costs payable by the losing party to the successful party as it
deems equitable. This Agreement will be enforceable, and any
arbitration award will be final and non-appealable, and judgment thereon may be
entered in any court of competent jurisdiction.
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Notwithstanding the foregoing, the
Parties hereby agree that State and Federal Courts located in the State of
Minnesota shall have exclusive jurisdiction to enforce arbitration awards and to
provide equitable relief for the breach of covenants made in this
Agreement.
19. Severability. If
any of the provisions, terms, clauses, or waivers or releases of claims or
rights contained in this Agreement are declared illegal, unenforceable, or
ineffective in a legal or other forum or proceeding, the Parties agree to
negotiate in good faith substitute provisions, terms, clauses, or waivers or
releases that would have, to the maximum extent possible, identical effect and
that would be enforceable.
20. Writing
Required. This Agreement may not be altered or amended except
in writing signed by the Parties.
21. No
Waiver. The failure of any Party at any time to require
performance of any provisions hereof shall in no manner affect the right to
enforce the same. No waiver by any Party of any condition, or the
breach of any term, provision, warranty, representation, agreement or covenant
contained in this Agreement, whether by conduct or otherwise, in any one or more
instances shall be deemed or construed as a further or continuing waiver of any
such condition or breach or a waiver of any other condition or of the breach of
any other term, provision, warranty, representation, agreement or covenant
herein contained.
22. Execution. This
Agreement may be executed by each Party under a separate copy, and in such case
one counterpart of this Agreement shall consist of enough of such copies to
reflect the signatures of all of the Parties. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an original,
and it shall not be necessary in making proof of this Agreement or the terms of
this Agreement to produce or account for more than one of such
counterparts.
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23. Authority To Execute
Agreement. Each person executing this Agreement represents,
warrants and covenants that he/she has the full right and authority to enter
into this Agreement on behalf of the Party on whose behalf such execution is
made, and has the full right and authority to fully bind said Party to the terms
and obligations of this Agreement; and that the Party has not heretofore
assigned, encumbered or in any other manner transferred to any person or entity
all or any portion of the claims released by this Agreement.
24. Additional
Documents. Each of the Parties further agrees to execute and
deliver any further documents which may be reasonably required to effectuate
and/or carry out the terms of this Agreement.
25. Binding
Effect. The Agreement shall be binding upon and shall inure to
the benefit of the Parties and their respective legal representatives, heirs,
successors and assigns. Other than as explicitly set forth in this
Agreement, nothing in this Agreement is intended to, or does, create any rights
in third parties.
26. Enforcement. In
the event a dispute arises concerning either Party’s performance of its
obligations under this Agreement, the prevailing Party in any action or
proceeding to enforce this Agreement shall be awarded reasonable attorneys’
fees, costs, and expenses incurred in such action or proceeding.
27. Notices. Except
as otherwise provided herein, all notices, communications, demands, or
deliveries required by this Agreement shall be given or made in writing, shall
specify the section of this Agreement pursuant to which it is given, shall be
given by hand delivery or recognized overnight courier, and shall be addressed
to the Parties as set forth below. Such notices shall be deemed to
have been given on the date delivered if delivered by hand delivery or two days
after being deposited with an overnight courier with delivery charge
prepaid. The addresses and requirements for notice and copies are as
follows:
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Notice to
the Xxxxxx Parties:
0000 Xxxx
Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx,
Xxxxxxx 00000
Attention:
Xxxxxxxxxxx X. Xxxxxx
with a
copy to:
Xxxxxx
and Xxxxxx, P.A.
2200 IDS
Center
00 Xxxxx
Xxxxxx Xxxxxx
Xxxxxxxxxxx,
XX 00000
Attention:
Xxxxxx X. Xxxxx
Notice to
the Western Parties:
00000 X
Xxxxxx
Xxxxx, XX
00000
Attention:
Xxxx Xxxxxxxx
with a
copy to:
Maslon,
Edelman, Xxxxxx & Brand, LLP
3300
Xxxxx Fargo Center
00 Xxxxx
Xxxxxxx Xxxxxx
Xxxxxxxxxxx,
XX 00000-0000
Attention:
Xxxx X. Xxxxxxxxxx
The above
addresses may be changed at any time by giving five (5) days’ prior written
notice.
28. Confidentiality. Each
of the Parties hereto agrees that it will not disclose, disseminate or otherwise
publish in any manner to any third party, whether individual, corporation or
other entity, public or private, the content of the negotiations between Western
and Xxxxxx prior to entering into this Agreement or the content of any
informational requests made by, or the subject matter of communications with,
each other in anticipation of entering into this Agreement, specifically
including all communications occurring on and after March 12, 2009 through the
date hereof.
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29. Escrow of Redeemed
Shares. The certificate and medallion guaranteed stock power
with respect to the Redeemed Shares, contemplated under and delivered pursuant
to Section 5 above, will be delivered to Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP
as “Escrow Agent” pursuant to the terms and conditions of customary escrow
agreement, under which Xxxxxx and Western agree to hold harmless and completely
indemnify the Escrow Agent for any and all costs, expenses and claims relating
to the escrow arrangement contemplated hereunder (other than with respect to
acts of the Escrow Agent taken in bad faith). The escrow agreement
will provide that the escrow of the Redeemed Shares will
either: (a) expire upon either (i) the payment of all amounts
owed by Western and Wyoming to Banco Popular, N.A. or (ii) the termination
(including by revocation) of the Guaranty (as defined in the Redemption
Agreement), resulting in either case in the delivery to Western by the Escrow
Agent of the escrowed materials relating to the Redeemed Shares and Western’s
right to fully effectuate the Redemption; or (b) earlier terminate upon (i)
Xxxxxx’x performance of the Guaranty through the payment of money to Banco
Popular, N.A. or its designees or assigns, or (ii) the material breach by WERCS
of its obligations under the Indemnification Agreement, resulting in either case
in the delivery to Xxxxxx by the Escrow Agent of the escrowed materials relating
to the Redeemed Shares and the cancellation of the Redemption.
[SIGNATURES
ON FOLLOWING PAGES]
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IN
WITNESS WHEREOF, the Parties, by and through their duly authorized
representatives, have hereunder set their hands and entered into this Agreement
on the day and year first written above.
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Dated:
April 28, 2009
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/s/ Xxxxxxxxxxx Xxxxxx
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XXXXXXXXXXX
X. XXXXXX
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STATE OF
___________)
)
ss
COUNTY OF
___________)
The
foregoing instrument was acknowledged before me this ____ day of April, 2009, by
Xxxxxxxxxxx X. Xxxxxx.
Subscribed
and sworn to before me
this ___
day of April, 2009.
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___________________________
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Notary
Public
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Dated:
April 28, 2009
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NATIONAL CASH & CREDIT, LLC | ||
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BY:
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/s/ Xxxxxxxxxxx Xxxxxx
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ITS:
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Member-Manager
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STATE OF
___________)
)
ss
COUNTY OF
___________)
The
foregoing instrument was acknowledged before me this ___ day of April, 2009, by
Xxxxxxxxxxx X. Xxxxxx, the President of National Cash & Credit, LLC, on
behalf of the company.
Subscribed
and sworn to before me
this ___
day of April, 2009.
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Notary
Public
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Dated:
May 1, 2009
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WESTERN CAPITAL RESOURCES, INC. | ||
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BY:
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/s/ Xxxx Xxxxxxxx
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ITS:
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Chief Executive
Officer
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STATE OF
______________)
)
ss
COUNTY OF
____________)
The
foregoing instrument was acknowledged before me this _____ day of __________,
2009, by ___________________, the _________________ of Western Capital
Resources, Inc., on behalf of the corporation.
Subscribed
and sworn to before me
this
_________ day of _______, 2009.
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Notary
Public
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Dated:
May 1, 2009
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WERCS, INC. | ||
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BY:
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/s/ Xxxxxx Xxxxxxx
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ITS:
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Chief Operating
Officer
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STATE OF
______________)
)
ss
COUNTY OF
____________)
The
foregoing instrument was acknowledged before me this _____ day of __________,
2009, by ___________________, the _________________ of WERCS, Inc., on behalf of
the corporation.
Subscribed
and sworn to before me
this
_________ day of _______, 2009.
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Notary
Public
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Dated:
May 1, 2009
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WYOMING FINANCIAL LENDERS, INC. | ||
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BY:
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/s/ Xxxx Xxxxxxxx
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ITS:
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Chief Executive
Officer
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STATE OF
______________)
)
ss
COUNTY OF
____________)
The
foregoing instrument was acknowledged before me this _____ day of __________,
2009, by ___________________, the _________________ of Wyoming Financial
Lenders, Inc., on behalf of the company.
Subscribed
and sworn to before me
this
_________ day of _______, 2009.
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Notary
Public
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Dated:
May 1, 2009
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/s/ Xxxx Xxxxxxxx
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XXXX
XXXXXXXX
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STATE OF
______________)
)
ss
COUNTY OF
____________)
The
foregoing instrument was acknowledged before me this _____ day of __________,
2009, by Xxxx Xxxxxxxx.
Subscribed
and sworn to before me
this
_________ day of _______, 2009.
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Notary
Public
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