TRANSITION SERVICES AGREEMENT
EXHIBIT
10.1
THIS
AGREEMENT
is made
and entered into as of this 31st day of January, 2006, among Game Financial
Corporation, a Minnesota corporation (“Game
Financial”),
Chex
Services, Inc., a Minnesota corporation (“Chex”),
and
FastFunds Financial Corporation, a Nevada corporation (“FastFunds”,
and
with Chex, sometimes referred to collectively as the “Seller
Parties”
and
individually as a “Seller
Party”;
Game
Financial and the Seller Parties each hereinafter sometimes referred to as
a
“Party”).
BACKGROUND:
Pursuant
to that certain Asset Purchase Agreement, dated as of December 22, 2005, by
and
among the Seller Parties (the “Purchase
Agreement”),
Chex
has agreed to sell to Game Financial, and Game Financial has agreed to purchase
from Chex, selected assets of Chex used in Chex’s business. In connection with
the consummation of the transactions contemplated by the Purchase Agreement,
the
parties desire to provide for the provision by the Seller Parties of certain
services to ensure a smooth transition of the Business from the Seller Parties
to Game Financial.
AGREEMENT:
For
and
in consideration of the mutual promises, covenants and agreements contained
in
this Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Defined
Terms.
Unless
otherwise defined in this Agreement, all capitalized terms used in this
Agreement shall have the respective meanings assigned to them in the Purchase
Agreement.
2. Services.
During
the term of this Agreement, the Seller Parties shall provide to Game Financial
the services set forth on Exhibit
A
attached
hereto (collectively with the Seller Facilities and Equipment, the “Seller
Services”).
3. Use
of Facilities and Equipment.
During
the term of this Agreement, the Seller Parties shall provide to Game Financial
the use of the facilities and equipment set forth on Exhibit
B
attached
hereto (the “Seller
Facilities and Equipment”).
4. Transition
Service Fees; Payment.
In
consideration of the Seller Parties’ performance of the Seller Services, Game
Financial shall pay to the Seller Parties the fees set forth on Exhibit
C
attached
hereto. All fees to be paid pursuant to this Section 3 shall be collectively
referred to herein as “Transition
Service Fees”.
Game
Financial shall not have any liability for, nor be obligated to pay, any income
taxes of the Seller Parties.
5. Warranties.
(a)
Each
party represents and warrants to the other parties hereto that the execution,
delivery and performance of this Agreement by such party has been duly
authorized and approved by all requisite corporate action on the part of such
party and that this Agreement has been duly and validly executed and delivered
by such party and constitutes the valid and legally binding obligation of such
party, subject to general equity principles, enforceable in accordance with
its
terms, except as the same may be limited by bankruptcy, insolvency or similar
laws affecting the rights of creditors generally.
(b) The
Seller Parties represent
and warrant to Game Financial that the Seller Services will be performed in
accordance with applicable Law and contracts, in a good and workmanlike manner
and with at least the same degree of care they would use in performing similar
services for themselves or Affiliates. EXCEPT
AS
EXPRESSLY PROVIDED IN THIS SECTION, NO PARTY MAKES ANY REPRESENTATIONS OR
WARRANTIES WITH RESPECT TO THE SERVICES TO BE PERFORMED BY IT UNDER THIS
AGREEMENT OF ANY KIND, NATURE OR DESCRIPTION, EXPRESS OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE, AND EACH PARTY HEREBY DISCLAIMS THE SAME.
6. Confidential
Information.
(a) Each
party agrees that it will not disclose to any Person or use (except to perform
its obligations under this Agreement) any Confidential Information
of any
other party obtained by such party in the course of performing under this
Agreement.
(b) For
purposes of this Agreement, the term “Confidential
Information”
means
all technical, business and other information that relates to the business
of a
party and/or its Affiliates, including, without
limitation, technical or non-technical data, compilations, price and cost
information, technical information, financial information, customer lists and
business plans. “Confidential Information” shall not include information which
(i) was already known to the party obtaining such information at the time it
was
received from another party; (ii) was already available to the general public
at
the time of such receipt; (iii) subsequently becomes known to the general public
through no fault or omission by any party to this Agreement; or (iv) is required
to be disclosed by law, or by any Authority or for which disclosure to Authority
is appropriate in the conduct of business.
(c) The
parties acknowledge that disclosure of any aspect of the Confidential
Information of a party hereto shall immediately give rise to continuing
irreparable injury to such party inadequately compensable in damages at law,
and, without prejudice to any other remedy available to such party, shall
entitle such party to injunctive or other equitable relief. Promptly after
expiration or termination of this Agreement, each Party shall return to the
other Party all Confidential Information of the other party (including all
copies thereof) in its possession or control.
7. Term;
Termination.
(a) Each
Seller Service has a separate duration, which is set forth on Exhibits
A and B
respectively. The duration of use of any Seller Service may be extended by
mutual written agreement of the parties providing and receiving such service.
In
addition, Game Financial may terminate this Agreement with respect to all or
a
portion of the Seller Services in its sole discretion upon 30 days’ notice to
the Seller Parties.
(b) Notwithstanding
the foregoing, each Party shall have the right to terminate this Agreement
immediately upon the occurrence of any one or more of the following events:
(i)
breach by the Other Party of any material term or provision of this Agreement
and failure to cure within 30 days after written notice thereof by the
non-breaching Party; (ii) the Other Party becomes insolvent or makes an
assignment for the benefit of its creditors; (iii) any proceeding is instituted
by or against the other Party under any bankruptcy or similar laws for the
relief of debtors; or (iv) the appointment of any trustee or receiver for any
of
the Other Party’s assets. For purposes of this Section
9(b),
the
term “Other
Party”
shall
mean either member of the other Party.
(c) The
right
of termination provided in paragraph (b) above is not exclusive and is in
addition to any other rights and remedies available to the parties in law or
in
equity
in the
event of a breach of this Agreement. Upon termination of this Agreement for
any
cause or reason whatsoever, the Seller Parties shall be entitled to receive
Transition Service Fees for services rendered hereunder through the date of
termination, to the extent such services conform to the warranty set forth
in
Section
5(b).
No
party shall have any further rights or obligations under this Agreement, except
as expressly set forth herein.
The
provisions of Sections
3, 4, 5, 6 and 8
of this
Agreement and this Section
7(c)
shall
survive the expiration or termination of this Agreement for any cause or reason
whatsoever, and, notwithstanding the expiration or termination of this
Agreement, the parties shall each remain liable to the other for any
indebtedness or other liability theretofore arising under this
Agreement.
8. Limitation
of Liability.
NO
PARTY
SHALL BE LIABLE FOR ANY PUNITIVE DAMAGES SUFFERED BY ANY OTHER PARTY OR ANY
OTHER PERSON IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OR
NON-PERFORMANCE OF ITS OBLIGATIONS HEREUNDER,
REGARDLESS OF WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF
SUCH DAMAGES. The limitations of liability set forth in this Section shall
not
apply to failure of any Party to make payments due under this Agreement or
to
any liability arising on account of a breach of Sections
5 or 6.
9. Miscellaneous.
(a) Independent
Contractor.
The
parties acknowledge that the relationship of each party to the other under
this
Agreement is that of an independent contractor, and that nothing contained
in
this Agreement shall be construed to place the Seller Parties and Game Financial
in the relationship of principal and agent, master and servant, partners or
joint venturers. Neither the Seller Parties nor Game Financial shall have,
expressly or by implication, or represent itself as having, any authority to
make contracts or enter into any agreements in the name of the Other Party,
or
to obligate or bind the Other Party in any manner whatsoever.
(b) Governing
Law.
The
validity and effect of this Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Florida, without regard
to
its conflicts of laws principles.
(c) Headings.
The
headings as to contents of particular sections and paragraphs are inserted
only
for convenience and are in no way to be construed as part of this
Agreement.
(d) Entire
Agreement; Amendments.
This
Agreement, including all Exhibits attached
hereto
and incorporated by this reference, supersedes all prior discussions,
negotiations and agreements among the parties with respect to the subject matter
hereof, and this Agreement constitutes the sole and entire agreement among
the
parties with respect to the matters covered hereby. This
Agreement shall not be modified or amended except by another agreement in
writing executed by the Parties.
(e) Severability.
All
rights and restrictions contained in this Agreement may be exercised and shall
be applicable and binding only to the extent that they do not violate any
applicable laws and are intended to be limited to the extent necessary so that
they will not render this Agreement illegal, invalid or unenforceable. If any
provision or portion of any provision of this Agreement shall be held to be
illegal, invalid or unenforceable by a court of competent jurisdiction, the
Parties shall cooperate in revising such provision or portion so as to comply
with applicable law while effectuating as nearly as possible the original intent
of the Parties, and it is the intention of the Parties that the remaining
provisions or portions thereof shall remain
in
full force and effect.
(f) Notices.
All
notices and demands required or contemplated hereunder by one party to another
shall be in writing and shall be deemed to have been duly made and given upon
date of delivery if delivered in person or by an overnight delivery or postal
service, upon receipt if delivered by facsimile the receipt of which is
appropriately confirmed by the sender, or upon the expiration of five days
after
the date of posting if mailed by certified mail, postage prepaid, to the
addresses or facsimile numbers of the parties set forth below their signatures
on the signature page of this Agreement. Any party may change its address or
facsimile number for purposes of this Agreement by notice in writing to the
other parties as provided herein.
(g) Waiver.
No
failure or delay on the part of any party hereto to exercise any right or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right or remedy by any party preclude any other or further
exercise thereof or the exercise of any other right or remedy. No express waiver
or assent by any party hereto to any breach of or default in any term or
condition of this Agreement shall constitute a waiver of or an assent to any
succeeding breach of or default in the same or any other term or condition
hereof.
(h) Assignment;
Successors.
This
Agreement may not be assigned or transferred by either Party, in whole or in
part, without the prior written consent of the Other Party, provided that Game
Financial may assign its rights (but not its obligations) to Affiliates without
such consent. Any attempted assignment in violation of the foregoing provision
shall be null and void and of no force or effect whatsoever. If the Seller
Parties desires to use subcontractors to perform any obligations under this
Agreement, they must first obtain Game Financial’s written consent and agree to
remain liable for the performance of such obligations. This Agreement shall
be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(i) Counterparts.
This
Agreement may be executed in any number of counterparts,
each of
which shall be deemed an original and all of which together shall constitute
one
and the same instrument.
(j) Interpretation.
The
parties are equally responsible for the preparation of this Agreement, and
the
terms hereof shall not be more strictly construed against one party than the
other.
(k) Force
Majeure.
No
party shall be liable for any default or delay in the performance of any of
its
obligations under this Agreement (other than failure to make payments due
hereunder) if such default or delay is caused, directly or indirectly, by forces
beyond such party’s reasonable control, including, without limitation, fire,
flood, acts of God, labor disputes, accidents, interruptions of transportation
or communications facilities or delays in transportation or communication,
supply shortages or the failure of any third party to perform any commitment
relative to the production or delivery of any equipment or material, or the
provision of any service, required for a party to perform its obligations under
this Agreement.
IN
WITNESS WHEREOF,
the
parties have caused this Agreement to be executed by their duly authorized
representatives on the day and year first above written.
GAME
FINANCIAL CORPORATION
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By: /s/
Xxxx Xxxxxxx
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Name: Xxxx
X. Xxxxxxx
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Title: President
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Address
for Notices:
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Game
Financial Corporation
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Attention:
General Manager
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00000
Xxxxxxxxx Xxxxxxxxx
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Xx.
Xxxxxxxxxx, Xxxxxxx 00000-0000
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Facsimile:
(000) 000-0000
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with
a copy to (which shall not constitute notice):
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Game
Financial Corporation
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Attention:
Law Department
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00000
Xxxxxxxxx Xxxxxxxxx
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Xx.
Xxxxxxxxxx, Xxxxxxx 00000-0000
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Facsimile:
(000) 000-0000
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CHEX
SERVICES, INC.
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By: /s/
Xxxx Xxxxx
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Name: Xxxx
Xxxxx
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Title: CFO
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Address
for Notices:
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Xxxxx
Xxxx
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Chairman
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Fast
Funds Financial Corporation
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00000
Xxxxxxx Xxxx., Xxxxx 000
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Xxxxxxxxxx,
XX 00000
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Fax:
(000) 000-0000
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with
a copy to (which shall not constitute notice):
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FASTFUNDS
FINANCIAL CORPORATION
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By: /s/
Xxxxxxx Xxxxxxx
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Name:
Xxxxxxx
Xxxxxxx
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Title:
CEO
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Address
for Notices:
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Xxxxx
Xxxx
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Chairman
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Fast
Funds Financial Corporation
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00000
Xxxxxxx Xxxx., Xxxxx 000
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Xxxxxxxxxx,
XX 00000
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Fax:
(000) 000-0000
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with
a copy to (which shall not constitute notice):
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Equitex,
Inc. hereby guarantees the obligations of FastFunds Financial Corporation and
Chex Services, Inc. hereunder:
EQUITEX,
INC.
By: /s/
Xxxxx Xxxx
Name:
Xxxxx
Xxxx
Title:
President
and CEO