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EXHIBIT 10.22
LIMITED PARTNERSHIP INTEREST PURCHASE AGREEMENT
THIS LIMITED PARTNERSHIP INTEREST PURCHASE AGREEMENT (this
"AGREEMENT") is made as of the 30th day of June, 1998 by and among Cargill
Leasing Corporation, a Delaware corporation ("Cargill") and Third Coast SPC-I,
L.L.C., a Delaware limited liability company ("SPC", and together with Cargill,
"SELLERS"), Third Coast GP-I, L.L.C., an Illinois limited liability company
("GENERAL PARTNER") and DVI Financial Services Inc., a Delaware corporation
("BUYER").
RECITALS
X. Xxxxxxx and SPC own all of the limited partnership interests (the
"INTERESTS") in Third Coast Venture Lease Partners I, L.P. (the "PARTNERSHIP").
B. Buyer desires to purchase, and Sellers desire to sell the Interests,
subject to the terms and conditions of this Agreement.
NOW, THEREFORE, for and in consideration of the foregoing recitals and
the mutual covenants, agreements, representations and warranties contained in
this Agreement, the parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Certain Definitions. The following terms used in this Agreement
have the indicated meanings:
"ADVERSE CLAIMS" means all pledges, liens, security interests,
charges, mortgages, claims and other encumbrances and third party interests and
material defects of title of any nature whatsoever.
"AFFILIATE" means with respect to any person or entity, any other
person or entity controlling, controlled by or under common control with such
person or entity and any officer or director of any such entity.
"CLOSING DATE" means June 30, 1998 or such other date as the parties
may agree.
"CODE" means the Internal Revenue Code of 1986, as amended.
"CONTRACTS" means all contracts, agreements, commitments and
arrangements, oral or written entered into by the Partnership.
"PERMITTED ENCUMBRANCES" means those Adverse Claims listed on
Schedule 3.7 hereto.
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1.2 Construction.
(a) Unless the context of this Agreement clearly requires otherwise,
the plural includes the singular, the singular includes the plural, the part
includes the whole, "including" is not limiting, and "or" has the inclusive
meaning of the phrase "and/or." The words "hereof," "herein," "hereby,"
"hereunder," and other similar terms in this Agreement refer to this Agreement
as a whole and not exclusively to any particular provision of this Agreement.
(b) Neither this Agreement nor any uncertainty or ambiguity herein
may be construed or resolved against any party hereto, whether under any rule of
construction or otherwise. On the contrary, this Agreement has been reviewed by
each of the parties and their respective counsel and is entitled to be construed
and interpreted according to the ordinary meaning of the words used so as to
accomplish the purposes and intentions of all parties hereto fairly.
ARTICLE 2
PURCHASE AND SALE OF INTERESTS;
PURCHASE PRICE AND ADJUSTMENTS
2.1 Sale and Transfer of Interests. Subject to and in accordance with the
terms and conditions of this Agreement, on the Closing Date, Cargill shall
convey, transfer, deliver and assign to Buyer, and Buyer shall accept from
Cargill, all of Cargill's Interests.
2.2 Purchase Price. The aggregate purchase price to be paid by Buyer for the
Interests and General Partner's consent to the sale thereof is Seven Million Six
Hundred Six Thousand Four Hundred Ninety-Four Dollars ($7,606,494.00) (the
"PURCHASE PRICE"). Buyer shall pay the Purchase Price to Cargill and the
Partnership by wire transfer on the Closing Date as follows:
(a) in an amount equal to 99% of the Purchase Price, paid by Buyer to
Cargill; and
(b) in an amount equal to 1% of the Purchase Price, paid by Buyer to
the Partnership for distribution to the General Partner.
2.3 Excise and Property Taxes. Buyer shall pay any and all sales, use,
excise, transfer, recordation, documentary and conveyance taxes or fees, except
income tax of Sellers, payable or assessable in connection with or as a result
of the transfer of the Interests under the terms of this Agreement and the
transactions contemplated hereby. Buyer shall not be responsible for any
business, occupation, withholding, franchise, income, possessory interest or
similar tax or assessment or any other tax or fee of any kind relating to any
period on or prior to the Closing Date with respect to Sellers, the Interests or
the Partnership, nor for any escape or supplemental assessment or increase in
any such tax, assessment or fee relating to such period, all of which are the
responsibility of Sellers or the Partnership, as applicable.
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2.4 Partnership Expenses. Other than for GAAP and income tax purposes, income
and expenses associated with the Interests through May 31, 1998 is for the
account of Cargill and after May 31, 1998 for the account of Buyer. All advance
payments to, or monies of, third parties on deposit with the Partnership
including advance payments and deposits, will be retained by the Partnership.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF GENERAL PARTNER
As a material inducement to Buyer to enter into this Agreement,
General Partner represents and warrants the following for the benefit of Buyer
as of the date hereof:
3.1 Organization and Qualification. The Partnership is a limited partnership
validly existing and in good standing under the laws of the state of Delaware;
and is qualified and licensed to do business and is in good standing in any
state in which the conduct of its business or its ownership of property requires
that it be so qualified or licensed, and has the power and authority (corporate
and otherwise) to execute and carry out the terms of any contracts to which it
is a party, to own its assets and to carry on its business as currently
conducted.
3.2 Capitalization. The Partnership's authorized capitalization consists
solely of general partnership interests all of which are held by General Partner
and limited partnership interests, all the economic benefits of which are held
by Cargill and a nominal interest being held by SPC (such issued and outstanding
limited partnership interests have been previously defined as the "INTERESTS").
All of the Interests have been duly authorized and validly issued, are fully
paid and nonassessable, were not issued in violation of any agreement or other
understanding, and were issued in compliance with the certificate of limited
partnership and the Partnership Agreement of the Partnership and all applicable
federal and state securities laws and regulations. The Partnership has no other
equity securities or other evidence of ownership of the Partnership outstanding
other than the Interests possessed by Sellers and the general partnership
interest held by General Partner. There are no outstanding subscriptions,
options, warrants, convertible securities, calls, commitments, rights or other
contracts to purchase or otherwise acquire, issue, sell or otherwise
dispose of any securities of the Partnership.
3.3 Authority. General Partner has the right, power, legal capacity and
authority to enter into and perform its obligations under this Agreement and the
documents, instruments and certificates to be executed and delivered by it
pursuant to this Agreement. The execution, delivery and performance of this
Agreement by General Partner and all documents, instruments and certificates
made or delivered by it pursuant to this Agreement, and the transactions
contemplated thereby, have been duly authorized by all necessary action on the
part of General Partner.
3.4 Enforceability. The terms and provisions of this Agreement and all
documents, instruments and certificates made or delivered from time to time by
General Partner hereunder
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and thereunder constitute valid and legally binding obligations of General
Partner, enforceable as against such General Partner in accordance with the
terms hereof and thereof.
3.5 Approvals. The execution, delivery and performance of this Agreement by
General Partner, do not and will not require any registration with, consent or
approval of, notice to, or any action by any person or governmental authority.
3.6 Compliance with Other Instruments.
(a) The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereunder (i) are not and will not result in a
breach or violation of any agreement or instrument by which the Partnership or
any of its assets are bound; (ii) will not result in the creation of a lien or
Adverse Claim on any assets of the Partnership, and (iii) will not result in a
breach or violation of any term or provision of the charter documents of General
Partner or any contract, agreement, franchise, license, lease, indenture,
mortgage, loan agreement, note, order, permit or judgment as to which General
Partner is a party, in each case the effect of which would materially impair,
restrict or condition the ability of General Partner to perform its obligations
under this Agreement.
(b) The Partnership has complied with in all material respects all
provisions of, and is not in breach or default under any material franchise,
license, lease, indenture, mortgage, loan agreement, note, contract, agreement,
commitment, arrangement, order, permit, judgment, instrument or other
authorization, right, restriction or obligation to which it is a party or by
which it or any of its Assets may be bound or affected.
3.7 Title and Encumbrances. The Partnership has title to its assets, free and
clear of Adverse Claims of any nature, whether accrued, absolute, contingent or
otherwise, other than Permitted Encumbrances.
3.8 Taxes. All material assessments and taxes, whether real, personal or
otherwise, due or payable by or imposed, levied or assessed against the
Partnership, or its property have been paid in full before delinquency or before
the expiration of any extension period; and the Partnership has made due and
timely payment or deposit of all federal, state, and local taxes, assessments,
or contributions required of it by law, except only for items that the
Partnership is currently contesting diligently and in good faith and that have
been fully disclosed in writing to Buyer.
3.9 No Interest in Other Entities. Except as set forth on Exhibit 3.9, the
Partnership does not have any investment in or owns any securities of any
corporation, association, partnership, joint venture or other organization,
public or private, except for certificates of deposit, commercial paper, money
market funds and similar money equivalents.
3.10 Certificate of Formation, Partnership Agreement, Minute Books and
Interest Books. Copies of the certificate of limited partnership and of the
Partnership Agreement of the Partnership have been delivered to Buyer, and they
are true, correct and complete copies thereof.
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The Partnership has no minute book. There are no minutes of meetings or consents
in lieu of meeting of the General Partner and the limited partners of the
Partnership. If any interests are certificated, no duplicate certificate has
been issued at any time heretofore; no transfer has been made without surrender
of the proper certificate duly endorsed; and all certificates so surrendered
have been duly canceled and are attached to the proper stubs with all necessary
assignments (or similar documentation) attached thereto. Any stamp taxes on all
issues and transfers of interests have been paid.
3.11 Business. The Partnership has all franchises and authorizations legally
required to conduct its business, all of which are in full force and effect and
are not in known conflict with the rights of others.
3.12 Employees. The Partnership has no and has never had any employees.
3.13 Litigation.
(a) There is no claim or controversy, or legal, administrative or
other proceeding or governmental investigation, hearing, complaint, appeal, show
cause or special relief proceeding pending or, to the knowledge of General
Partner after due investigation, threatened against General Partner or affecting
any of the Interests or the Partnership and its current and future operations,
or which would impair the ability or capacity of General Partner to perform its
obligations under this Agreement. Neither the Interests nor the Partnership are
subject to any order, writ, injunction, judgment or decree of any federal, state
or local court, department, agency or instrumentality, nor has the Partnership
received, any written inquiry from any federal, state or local governmental
agency concerning the operation of the Partnership which remains unresolved on
the date of this Agreement.
(b) There are no proceedings, including investigations or
inspections, pending against the Partnership or, to the knowledge of General
Partner after due investigation, threatened against the Partnership nor are
there any pending negotiations or demands involving General Partner or the
Partnership, by any federal, state or local governmental agency, or any other
person or entity to currently or hereafter terminate, suspend, modify, restrict
or materially and adversely change any of the terms, provisions or conditions of
the rights of General Partner or the Partnership, or which would result in any
material obligation with regard to the Interests, the Partnership or Buyer.
3.14 Compliance with Laws. The Partnership is in compliance in all material
respects with all applicable laws, rules or regulations of the United States of
America or of any state, county, municipality or other political subdivision or
any agency of any of the foregoing having jurisdiction over the Partnership.
3.15 Equipment. The Partnership is the sole owner of, and has good and
marketable title to the equipment listed on Exhibit 3.16, free and clear of all
Adverse Claims other than Permitted encumbrances. Exhibit 3.16 is a true and
complete list of all equipment and other property which the Partnership owns. To
the knowledge of General Partner the equipment
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owned, operated or leased by the Partnership is in good condition and repair
(except for such ordinary wear and tear), free of any structural or engineering
defect, is suitable for the conduct of the business of the Partnership as
presently conducted and as presently proposed to be conducted, do not require
any maintenance or repairs by the Partnership and all such equipment conforms in
all material respects with all applicable laws and other requirements currently
relating thereto.
3.16 Contracts. Exhibit 3.17 is a true and complete list of all
material Contracts as of May 31, 1998 ("MATERIAL CONTRACTS") to which the
Partnership is a party and with respect to the Material Contracts all (i)
customer names, lease numbers, quantities of equipment, terms of the contracts,
rentals payable by the customer in connection therewith, purchase option amounts
and customer rights, if applicable, and billing cycles and plans, and (ii) in
the case of finance leases or installment sales, the interest rate factors, the
remaining minimum lease payments including residual value, the current gross
finance receivable amount and lease installment amount, and such other details
regarding such transactions as shall have been or be reasonably requested by
Buyer. The Partnership has not collected in advance more than an amount equal to
one month's payment under any Contract, assuming such Contract has been fully
funded by the Partnership. There is no material default under any Material
Contract by the Partnership and to the knowledge of General Partner by any other
party. Each Material Contract was originated by the Partnership in the ordinary
course of its business in accordance with its regular credit approval process
and does not contravene any laws, rules or regulations applicable thereto. No
Material Contract has been originated in, or be subject to the laws of, any
jurisdiction whose laws would make the terms hereof or any transaction
contemplated hereby unlawful. At the time each Material Contract was entered
into, the Partnership took, and since has taken, all necessary action to create,
perfect and maintain its security interest in each piece of equipment subject to
each such Material Contract and in other property intended to collateralize the
obligations of any obligor to it under each such Material Contract.
3.17 Real Properties. The Partnership does not own or lease nor has it
at any time owned or leased any real property.
3.18 Financial Condition. All financial statements relating to the
Partnership or its assets that have been delivered to Buyer fairly present in
all material respects the financial condition and results of operation of the
Partnership as of the date thereof and have been prepared in accordance with
GAAP, except for interim statements. The Partnership has no material obligations
or liabilities of any kind not disclosed in that financial information other
than the Contracts and, since the date of the financial statements, incurred in
the ordinary course of business, and there has been no material adverse change
in the financial condition of the Partnership since the date of the most recent
financial statements submitted to Buyer.
3.19 Books and Records. The books of account and other financial and
company records of the Partnership are in all material respects accurate and
complete (subject to normal year-end audit adjustments, which in the aggregate
are not material), are maintained in all material respects in accordance with
GAAP and customary industry practices and all laws applicable to the
Partnership.
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3.20 Representations. These representations and warranties contained in
this Agreement are exclusive and Buyer has relied no others, except as otherwise
set forth herein.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF CARGILL
As a material inducement to Buyer to enter into this Agreement,
Cargill represents and warrants the following for the benefit of Buyer as of the
date hereof:
4.1 Organization and Qualification. To its actual knowledge without any
investigation, inquiry or review of its records or of the General Partner, the
Partnership is a limited partnership validly existing and in good standing under
the laws of the state of Delaware; and is qualified and licensed to do business
and is in good standing in any state in which the conduct of its business or its
ownership of property requires that it be so qualified or licensed, and has the
power and authority (corporate and otherwise) to execute and carry out the terms
of any contracts to which it is a party, to own its assets and to carry on its
business as currently conducted.
4.2 Capitalization. To its actual knowledge without any investigation,
inquiry or review of its records or of the General Partner, (i) the Partnership
has no other equity securities or other evidence of ownership of the Partnership
outstanding other than the Interests possessed by Sellers and the general
partnership interest held by General Partner; (ii) there are, and have been, no
preemptive rights applicable to the issuance of the Interests; (iii) there are
no outstanding subscriptions, options, warrants, convertible securities, calls,
commitments, rights or other contracts to purchase or otherwise acquire, issue,
sell or otherwise dispose of any securities of the Partnership.
4.3 Interest Ownership. Cargill is the lawful owner of record and
beneficially of the issued and outstanding Interests as indicated in Section 3.2
(the "CARGILL INTERESTS"), free and clear of all Adverse Claims, including any
agreements, proxies, subscriptions, options, warrants, calls, commitments or
rights of any character granting to any person any interest in or right to
acquire at any time, or upon the happening of any stated event, any of the
Cargill Interests.
4.4 Authority. Cargill has the right, power, legal capacity and
authority to enter into and perform its obligations under this Agreement and the
documents, instruments and certificates to be executed and delivered by it
pursuant to this Agreement. The execution, delivery and performance of this
Agreement by Cargill and all documents, instruments and certificates made or
delivered by it pursuant to this Agreement, and the transactions contemplated
thereby, have been duly authorized by all necessary action on the part of such
Cargill.
4.5 Enforceability. The terms and provisions of this Agreement and all
documents, instruments and certificates made or delivered from time to time by
Cargill hereunder and thereunder constitute valid and legally binding
obligations of Cargill, enforceable as against it in accordance with the terms
hereof and thereof.
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4.6 Approvals. The execution, delivery and performance of this
Agreement by Cargill do not and will not require any registration with, consent
or approval of, notice to, or any action by any person or governmental
authority.
4.7 Compliance with Other Instruments.
(a) The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereunder (i) to its actual knowledge without
any investigation, inquiry or review of its records or of the General Partner,
are not and will not result in a breach or violation of any agreement or
instrument by which the Partnership or any of its assets are bound; (ii) to its
actual knowledge without any investigation, inquiry or review of its records or
of the General Partner, will not result in the creation of a lien or Adverse
Claim on any assets of the Partnership, and (iii) will not result in a breach or
violation of any term or provision of the charter documents of Cargill or any
contract, agreement, franchise, license, lease, indenture, mortgage, loan
agreement, note, order, permit or judgment as to which Cargill is a party, in
each case the effect of which would materially impair, restrict or condition the
ability of Cargill to perform its obligations under this Agreement.
(b) To its actual knowledge without any investigation, inquiry or
review of its records or of the General Partner, the Partnership has complied
within in all material respects all provisions of, and is not in breach or
default under any material franchise, license, lease, indenture, mortgage, loan
agreement, note, contract, agreement, commitment, arrangement, order, permit,
judgment, instrument or other authorization, right, restriction or obligation to
which it is a party or by which it or any of its Assets may be bound or
affected.
4.8 Title and Encumbrances. To its actual knowledge without any
investigation, inquiry or review of its records or of the General Partner, the
Partnership has title to its assets, free and clear of Adverse Claims of any
nature, whether accrued, absolute, contingent or otherwise, other than Permitted
Encumbrances.
4.9 Taxes. To its actual knowledge without any investigation, inquiry
or review of its records or of the General Partner, all material assessments and
taxes, whether real, personal or otherwise, due or payable by or imposed, levied
or assessed against the Partnership, or its property have been paid in full
before delinquency or before the expiration of any extension period; and the
Partnership has made due and timely payment or deposit of all federal, state,
and local taxes, assessments, or contributions required of it by law, except
only for items that the Partnership is currently contesting diligently and in
good faith and that have been fully disclosed in writing to Buyer.
4.10 No Interest in Other Entities. To its actual knowledge without any
investigation, inquiry or review of its records or of the General Partner,
except as set forth on Exhibit 3.09, the Partnership does not have any
investment in or owns any securities of any corporation, association,
partnership, joint venture or other organization, public or private, except for
certificates of deposit, commercial paper, money market funds and similar money
equivalents.
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4.11 Business. To its actual knowledge without any investigation,
inquiry or review of its records or of the General Partner, the Partnership has
all franchises and authorizations, legally required to conduct its business, all
of which are all in full force and effect and are not in known conflict with the
rights of others.
4.12 Employees. To its actual knowledge without any investigation,
inquiry or review of its records or of the General Partner, the Partnership has
no and has never had any employees.
4.13 Litigation.
(a) There is no claim or controversy, or legal, administrative or
other proceeding or governmental investigation, hearing, complaint, appeal, show
cause or special relief proceeding pending or, to the best of Cargill's
knowledge after due investigation, threatened against Cargill or affecting any
of the Cargill Interests, or which would impair the ability or capacity of
Cargill to perform its obligations under this Agreement. The Cargill Interests
are not subject to any order, writ, injunction, judgment or decree of any
federal, state or local court, department, agency or instrumentality.
(b) To its actual knowledge without any investigation, inquiry or
review of its records or of the General Partner, there is no claim or
controversy, or legal, administrative or other proceeding or governmental
investigation, hearing, complaint, appeal, show cause or special relief
proceeding pending or threatened against the Partnership and its current and
future operations. To its actual knowledge without any investigation, inquiry or
review of its records or of the General Partner, the Partnership is not subject
to any order, writ, injunction, judgment or decree of any federal, state or
local court, department, agency or instrumentality nor has the Partnership
received any written inquiry from any federal, state or local government agency
concerning the operation of the Partnership which remains unresolved on the date
of this Agreement.
(c) There are no proceedings, including investigations or
inspections, pending against Cargill or, to the knowledge of Cargill after due
investigation, threatened against Cargill nor are there any pending negotiations
or demands involving Cargill by any federal, state or local governmental agency,
or any other person or entity to currently or hereafter terminate, suspend,
modify, restrict or materially and adversely change any of the terms, provisions
or conditions of the rights of Cargill or which would result in any material
obligation with regard to the Cargill Interests.
(d) To its actual knowledge without any investigation, inquiry or
review of its records or of the General Partner, there are no proceedings,
including investigations or inspections, pending against the Partnership or
threatened against the Partnership nor are there any pending negotiations or
demands involving the Partnership by any federal, state or local governmental
agency, or any other person or entity to currently or hereafter terminate,
suspend, modify, restrict or materially and adversely change any of the terms,
provisions or conditions of the rights of the
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Partnership or which would result in any material obligation with regard to the
Partnership or Buyer.
4.14 Compliance with Laws. To its actual knowledge without any
investigation, inquiry or review of its records or of the General Partner, the
Partnership is in compliance in all material respects with all applicable laws,
rules or regulations of the United States of America or of any state, county,
municipality or other political subdivision or any agency of any of the
foregoing having jurisdiction over the Partnership.
4.15 Real Properties. To its actual knowledge without any
investigation, inquiry or review of its records or of the General Partner, the
Partnership does not own or lease nor has it at any time owned or leased any
real property.
4.16 Commissions. Cargill has not entered into any agreement,
commitment or obligation with regard to any brokerage commission or finder's fee
arising out of the execution, delivery or performance of this Agreement or the
transactions contemplated hereby.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF SPC
As a material inducement to Buyer to enter into this Agreement, SPC
represents and warrants the following for the benefit of Buyer as of the date
hereof:
5.1 Interest Ownership. SPC is the lawful owner of record and
beneficially of the issued and outstanding Interests as indicated in Section 3.2
(the "SPC INTERESTS"), free and clear of all Adverse Claims, including any
agreements, proxies, subscriptions, options, warrants, calls, commitments or
rights of any character granting to any person any interest in or right to
acquire at any time, or upon the happening of any stated event, any of the SPC
Interests.
5.2 Authority. SPC has the right, power, legal capacity and authority
to enter into and perform its obligations under this Agreement and the
documents, instruments and certificates to be executed and delivered by it
pursuant to this Agreement. The execution, delivery and performance of this
Agreement by SPC and all documents, instruments and certificates made or
delivered by it pursuant to this Agreement, and the transactions contemplated
thereby, have been duly authorized by all necessary action on the part of such
SPC.
5.3 Enforceability. The terms and provisions of this Agreement and all
documents, instruments and certificates made or delivered from time to time by
each SPC hereunder and thereunder constitute valid and legally binding
obligations of SPC, enforceable as against it in accordance with the terms
hereof and thereof.
5.4 Approvals. The execution, delivery and performance of this
Agreement by SPC do not and will not require any registration with, consent or
approval of, notice to, or any action by any person or governmental authority.
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5.5 Compliance with Other Instruments. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereunder
will not result in a breach or violation of any term or provision of the charter
documents SPC or any contract, agreement, franchise, license, lease, indenture,
mortgage, loan agreement, note, order, permit or judgment as to which SPC is a
party, the effect of which would materially impair, restrict or condition the
ability of SPC to perform its obligations under this Agreement.
5.6 Litigation.
(a) There is no claim or controversy, or legal, administrative or
other proceeding or governmental investigation, hearing, complaint, appeal, show
cause or special relief proceeding pending or, to the best of SPC's knowledge
after due investigation, threatened against SPC or affecting any of the SPC
Interests nor which would impair the ability or capacity of SPC to perform its
obligations under this Agreement. The SPC Interests are subject to any order,
writ, injunction, judgment or decree of any federal, state or local court,
department, agency or instrumentality.
(b) There are no proceedings, including investigations or
inspections, pending against SPC or, to the best knowledge of SPC after due
investigation, threatened against SPC nor are there any pending negotiations or
demands involving SPC, by any federal, state or local governmental agency, or
any other person or entity to currently or hereafter terminate, suspend, modify,
restrict or materially and adversely change any of the terms, provisions or
conditions of the rights of SPC, or which would result in any material
obligation with regard to the SPC Interests.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF BUYER
As a material inducement to Sellers to enter into this Agreement, Buyer
represents and warrants to Sellers the following for the benefit of Sellers as
of the date hereof:
6.1 Organization and Qualification. Buyer is duly organized, validly
existing and in good standing under the laws of the State of Delaware. Buyer has
all necessary power and authority to own and utilize its properties and assets
and to engage in the business or businesses in which it is presently engaged as
and in the places where such property and assets are now owned or utilized or
such businesses are now conducted.
6.2 Authority. Buyer has the right, power, legal capacity and authority
to enter into and perform its obligations under this Agreement and the
documents, instruments and certificates to be executed and delivered by Buyer
pursuant to this Agreement. The execution, delivery and performance of this
Agreement by Buyer and all documents, instruments and certificates made or
delivered by Buyer pursuant to this Agreement, and the transactions contemplated
hereby, have been duly authorized by all necessary organizational action on the
part of Buyer.
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6.3 Enforceability. The terms and provisions of this Agreement and all
documents, instruments and certificates made or delivered from time to time by
Buyer hereunder and thereunder constitute valid and legally binding obligations
of Buyer enforceable as against Buyer in accordance with the terms hereof and
each thereof.
6.4 Approvals. The execution, delivery and performance of this
Agreement by Buyer do not and will not require any registration with, consent or
approval of, notice to, or any action by any person or governmental authority.
6.5 Compliance with Other Instruments.
(a) The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereunder are not and will not result in a
breach or violation of any term or provision of Buyer's articles of
incorporation or bylaws, or any material contract, agreement, franchise,
license, lease, indenture, mortgage, loan agreement, note, order, permit or
judgment as to which Buyer is a party.
(b) Buyer has complied with all material provisions of, and is not in
material breach or default the effect of which would impair the ability of Buyer
to perform its obligations under this Agreement with respect to, its articles of
incorporation or bylaws, any franchise, license, lease, indenture, mortgage,
loan agreement, note, contract, agreement, commitment, arrangement, order,
permit, judgment, instrument or other authorization, right, restriction or
obligation to which Buyer is a party or by which Buyer or any of its assets may
be bound or affected.
6.6 Commissions. Buyer has not entered into any agreement, commitment
or obligation with regard to any brokerage commission or finder's fee arising
out of the execution, delivery or performance of this Agreement or the
transactions contemplated thereby.
ARTICLE 7
GENERAL PARTNER COVENANTS
7.1 Use of Cargill Name. Within ten (10) days from the Closing Date,
General Partner shall, and shall cause the Partnership and any other Affiliates
of General Partner to, cease using and remove the name "Cargill" from any and
all documents and media (electronic, print or otherwise) used by the
Partnership, the General Partner and any Affiliates (including without
limitation brochures, sales material, Internet web sites and advertisements),
and thereafter shall have no right to use the name "Cargill" in any manner in
any advertising, printed material, electronic medium or other medium.
7.2 Matters Relating to SPC. Within thirty (30) days from the Closing
Date, General Partner shall cause its affiliates to take such actions as is
necessary to wind down the affairs of
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SPC and liquidate its assets according to its constituent documents. Cargill, as
member, agrees to provide reasonable cooperation in such effort.
7.3 Tax Matters. General Partner agrees to prepare and deliver to
Cargill all tax returns and records and take such other actions as required by
the Partnership Agreement for all tax periods up to and including the Closing
Date.
7.4 Permitted Encumbrances. Promptly after the Closing Date, General
Partner shall cause the Partnership to obtain, and file if necessary, any and
all documents necessary to remove those Permitted Encumbrances designated as
subject to this Section 7.4.
ARTICLE 8
CONDITIONS PRECEDENT TO BUYER'S PERFORMANCE
8.1 Conditions Precedent; Waiver. Buyer may waive any or all conditions
precedent contained in this Agreement in whole or in part, provided that no such
waiver of a condition shall constitute a waiver by Buyer of any of its other
rights or remedies under this Agreement or otherwise at law or in equity if
Sellers should be in default of any of their covenants, agreements,
representations or warranties under this Agreement.
ARTICLE 9
CONDITIONS PRECEDENT TO SELLERS' PERFORMANCE
9.1 Conditions Precedent; Waiver. The obligations of Sellers to
consummate the transactions contemplated under this Agreement are subject to the
satisfaction, on or before the Closing Date, of all the conditions set forth in
this Article 7. Sellers may waive any or all of such conditions in whole or in
part, provided that no such waiver of a condition shall constitute a waiver by
Sellers of any of their other rights or remedies under this Agreement or
otherwise at law or in equity if Buyer should be in default of any of the
covenants, agreements, representations or warranties made by Buyer under this
Agreement.
9.2 Partnership Distributions. The Partnership must have distributed to
Cargill a cash distribution in the aggregate amount of $2,174,387.92
(representing: (a) $456,978.58 as a special limited partner distribution, (b)
$1,658,009.34 as reimbursement for certain progress payments, and (c) $59,400 as
reimbursement for management fees).
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ARTICLE 10
THE CLOSING
10.1 Time and Place. The closing of the transactions contemplated by
this Agreement will take place on the Closing Date at the offices of Buyer, or
such other location as the parties hereto may mutually agree. At the closing,
certificates, documents and other consideration required by this Agreement may
be executed and exchanged.
10.2 Seller's Obligations at Closing. On the Closing Date, Sellers
shall deliver or cause to be delivered to Buyer the following:
(a) executed Assignment of Limited Partnership Interests in the form
set forth as Exhibit 10.2(a) hereto;
(b) an opinion of counsel to each of General Partner and Cargill
dated as of the Closing Date in form and substance satisfactory to Buyer and its
counsel; and
(c) such other documents, instruments and certificates as Buyer or
its counsel may reasonably request to effect the transfers contemplated by this
Agreement.
10.3 Buyer's Obligations at Closing. On the Closing Date, Buyer shall
deliver or cause to be delivered to Sellers and General Partner the following:
(a) such documents, instruments and certificates as Seller or its
counsel may reasonably request to consummate the transactions contemplated by
this Agreement;
(b) wire transfer of immediately available funds to such account as
each Seller directs in writing in the amount equal to the Purchase Price.
ARTICLE 11
POST-CLOSING OBLIGATIONS
11.1 Mutual Indemnity.
(a) Each of the Sellers, General Partner and Buyer, each for
themselves and their successors and assigns (referred to in this Section 9.1
individually as an "INDEMNITOR" and collectively as "INDEMNITORS"), shall
defend, indemnify and hold harmless the others, their Affiliates, and their
respective officers, directors and employees, and the successors and assigns of
each (referred to in this Section 9.1 individually as an "INDEMNITEE" and
collectively as "INDEMNITEES") from and against any and all liabilities and
obligations asserted or other claims, actions, judgments, assessments, taxes
(including without limitation federal, state and local income taxes and property
taxes), charges, fines, penalties, debts, damages, costs or expenses of any kind
(including legal fees and costs) suffered, incurred or accrued by any of the
Indemnitees (individually, an "OBLIGATION") by reason of or arising from the
following:
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(1) the breach of any representation or warranty as of the date
made by the Indemnitor under this Agreement;
(2) breach or default by the Indemnitor in the observance or
performance of any of the Indemnitor's other obligations under this Agreement;
(3) only as to a Seller as Indemnitor and Buyer as Indemnitee, the
ownership of its Interests, as applicable on or prior to May 31, 1998, including
the occurrence of any event after May 31, 1998 attributable to the acts or
omissions of such Seller or their predecessors in interest on or prior to May
31, 1998 and including any liability for federal, state or local income and
property (real and personal) taxes, including penalties and interest, with
respect to its Interests during the period through May 31, 1998 (not including
taxes resulting from the sale of the Interests from Seller to Buyer); or
(4) only as to Buyer as Indemnitor and Sellers as Indemnitee, the
ownership of the Interests after the Closing Date.
(b) Every expense of any attempt to settle or defend a claim of an
Obligation, including expenses for proceedings, negotiations, investigations,
settlements or suits, shall be borne solely by the Indemnitors.
(c) Indemnitees shall inform Indemnitors of all Obligations in a
timely fashion. Indemnitors may assume the defense of any Obligation at its own
expense with counsel of its claims, subject to the reasonable consent of
Indemnitees as to such counsel.
ARTICLE 12
MISCELLANEOUS
12.1 Further Assurances. From time to time following the Closing Date,
each party and its Affiliates shall, if requested by another party, make,
execute and deliver to the requesting party any such additional instruments,
documents and agreements as may be necessary or appropriate to consummate the
transactions herein contemplated.
12.2 Survival. All covenants, agreements, representations and
warranties made by General Partner, Sellers and Buyer under this Agreement, any
Exhibit or in any document, instrument or certificate contemplated hereby are
deemed and construed to be continuing covenants, agreements, representations and
warranties which survive the Closing Date for a period of three years from the
Closing Date; provided, however, that (i) the representations and warranties of
Cargill set forth in Sections 4.1, 4.2, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13(b),
4.13(d), 4.14 and 4.15 survive for a period of one year following the Closing
Date and (ii) the covenants contained in Section 12.16 survive for a period of
two years from the Closing Date.
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12.3 Notice. Except as otherwise provided in this Agreement, any
notice, approval, consent, waiver or other communication required or permitted
to be given or to be served upon any person in connection with this Agreement
must be in writing given or served by a party or its counsel. Such notice may be
personally served, sent by facsimile or overnight messenger, or sent prepaid by
registered or certified mail with return receipt requested and are deemed given,
(i) if personally served when delivered to the person to whom such notice is
addressed, (ii) if given by facsimile, when sent, or (iii) if given by mail,
five (5) business days following deposit in the United States mail. Any notice
given by facsimile must be confirmed in writing within forty-eight (48) hours
after sent. Such notices must be addressed to the party to whom such notice is
to be given at the party's address set forth below or as such party otherwise
directs.
To Cargill:
Cargill Leasing Corporation
c/x Xxxxxxx Financial Services Corporation
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Facsimile: 612.984.3900
Attention: Investment Group Manager
With a copy to:
Xxxxxxx, Xxxxxxxxxxxx
c/x Xxxxxxx Financial Services Corporation
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Facsimile: 612.984.3898
Attention: Law Department
To SPC and General Partner:
Third Coast Capital
000 X. Xxxxxxxx Xxxxxx, #000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: 312.337.2567
Attention: Mr. Miroslav Anic
Xx. Xxxxxxxx Xxxxxxxxx
With a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: 312.861.2200
Attention: Xxxxxx X. Xxxx, Esq.
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To Buyer:
DVI Financial Services, Inc.
0000 XxxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: 714.474.5899
Attention: Xx. Xxxxxxx X. Xxxxx
With a copy to:
Xxxxxx, White & Xxxxxx
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: 415.433.5530
Attention: Xxxxxxx X. Xxxx, Esq.
12.4 Waiver. No waiver by a party of any default or breach by another
party of any covenant, condition, representation or warranty contained in this
Agreement, any Exhibit or any document, instrument or certificate contemplated
hereby may be deemed to be a waiver of any subsequent default or breach by such
party of the same or any other covenant, condition, representation or warranty.
No act, delay, omission or course of dealing on the part of a party in
exercising any right, power or remedy under this Agreement or at law or in
equity operates as a waiver thereof or otherwise prejudice any of such party's
rights, powers and remedies. All remedies, whether at law or in equity, shall be
cumulative and the election of any one or more do not constitute a waiver of the
right to pursue other available remedies.
12.5 Successors and Assigns. Buyer may assign its rights under this
Agreement in whole or in part to any Affiliate of Buyer, but may not delegate or
be relieved of any of its obligations under this Agreement. The obligations of
Buyer and the rights and obligations of Seller hereunder are assignable only
with the written consent of the other party, which may not be unreasonably
withheld. Subject to the foregoing, this Agreement inures to the benefit of, and
be binding upon, the parties hereto and their respective successors and assigns.
12.6 Applicable Law. This Agreement is governed in all respects by the
laws of the State of California applicable to agreements negotiated, executed
and performed there.
12.7 Waiver of Trial by Jury. Buyer, General Partner and Sellers hereby
waive the right to trial by jury of any matters arising out of this Agreement or
any of the other loan documents or the relationship between Buyer, General
Partner and Sellers.
12.8 Submission to Jurisdiction. (a) Buyer, Sellers and General Partner
hereby irrevocably submit to the nonexclusive jurisdiction of any California or
Federal court sitting in Orange County, California, over any action or
proceeding arising out of or relating to this Agreement. Service of copies of
summons and complaints and any other process which may be
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served on Sellers in any action or proceeding arising hereunder may be made by
mailing or delivering a copy of such process by registered or certified mail,
postage prepaid, to borrower at its address set forth in this Agreement.
(b) Nothing in this paragraph 12.8 affects the right to serve legal
process in any other manner permitted by law or affect the right to bring any
action or proceeding in the courts of other jurisdictions to the extent
otherwise permitted by law.
(c) To the extent that Sellers has or hereafter may acquire (i) any
immunity from jurisdiction of any court of California or any Federal court
sitting in Orange County, California or from any legal process out of any such
court (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, or (ii) any objection to the laying of the venue or of an
inconvenient forum of any suit, action or proceeding, if brought in California
or Federal court sitting in Orange County, California under process served in
accordance with subparagraph (a) above, Sellers hereby irrevocably waive such
immunity or objection in respect of any suit, action or proceeding arising out
of or relating to this Agreement.
12.9 Attorneys' Fees. If any proceeding is brought between any of the
parties arising out of or relating to this Agreement or its breach, the
successful or prevailing party in any judgment or award is entitled to the full
amount of its reasonable expenses, including all court costs and attorneys' fees
paid or incurred in good faith, in addition to such other relief as such party
shall be entitled.
12.10 Severability. If any provision of this Agreement or the
application thereof to any party or circumstance is, to any extent, invalid or
unenforceable, the remaining provisions of this Agreement, or the application of
such provision to the parties or circumstances other than those to which it is
held invalid or unenforceable, shall not be affected thereby.
12.11 Sections and Captions. The captions or headings of articles,
sections, paragraphs and exhibits of this Agreement are provided for convenience
only, and are not of any force or effect in construing any provision of this
Agreement.
12.12 Amendment. Neither this Agreement nor any provision hereof may be
waived, modified, amended, discharged, or terminated except by an instrument in
writing signed by the party against which the enforcement of such writing is
sought, and then only to the extent set forth in such writing.
12.13 Entire Agreement. This Agreement, including the Exhibits hereto
which are incorporated in this Agreement by reference, constitute the entire
understanding between the parties with respect to the matters set forth herein
and or therein and supersede all prior or contemporaneous understandings or
agreements between the parties with respect to the subject matter hereof,
whether oral or written.
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12.14 Expenses. Except as otherwise provided in this Agreement, each
party shall bear its own costs and expenses in connection with the negotiation
and performance of the terms, conditions and provisions of this Agreement,
including without limitation, attorneys' fees, brokerage fees, commissions or
finders' fees.
12.15 Publicity. No public announcement or disclosure, whether oral or
written, concerning the execution and delivery of this Agreement or with respect
to the transactions contemplated by this Agreement may be made by either party
without the prior written consent of the other, except as may be required by any
governmental authority having jurisdiction over Seller or Buyer, provided that
the amount of cash transferred to Seller may not be disclosed if not required by
such governmental authority. Each party shall furnish to the other for review
and approval copies of any announcement or release which it proposes to make
public in advance of the delivery thereof to any third party.
12.16 Confidentiality. Buyer, General Partner and Sellers shall keep
confidential all information contained in the financial statements or other
information and materials delivered to them by other party under this Agreement,
provided that the provisions of this Section 12.16 do not apply with respect to
such information as is or was (i) disclosed by Buyer, General Partner or Sellers
to their employees, representatives and agents in connection with the
transactions contemplated by this Agreement provided that Buyer, General Partner
and Sellers shall advise all such employees, representatives and agents of the
confidential nature of the information and the requirement of this Section
12.16, (ii) known to the party to which such information was provided before the
date of this Agreement, (iii) independently developed by the party to which such
information was provided, (iv) publicly known or available other than through
disclosure by the party to which such information was provided, (v) rightfully
received by the party to which such information was provided from a third person
or (vi) required to be disclosed to any lender or governmental authority.
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IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to execute this Agreement as of the date first written.
THIRD COAST SPC-I, L.L.C.,
an Illinois limited liability company
By: ___________________________________
CARGILL LEASING CORPORATION, a Delaware
corporation
By: ___________________________________
DVI FINANCIAL SERVICES, INC.,
a Delaware corporation
By: ___________________________________
THIRD COAST GP-I, L.L.C., an Illinois
limited liability company
By: ___________________________________
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EXHIBIT 3.7
Permitted Encumbrances
1. The Contracts listed on 3.16 other than the Credit Agreement described
below.
2. The Credit Agreement by and among the Partnership, General Partner,
Third Coast GP-I, L.L.C. and Silicon Valley Bank and any related
Contracts entered into in connection with the Credit Agreement, which
must be removed as an Adverse Claim pursuant to Section 7.4.
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EXHIBIT 3.9
Interests in Other Entities
Xxxx Geospace
[PENCIL ART] Warrant
Captura
[PENCIL ART] Warrant Series B
Ecrix
[PENCIL ART] Warrant Series B
Harmonic Systems, Inc.
[PENCIL ART] Preferred Stock Purchase Warrant
Q-Club, Inc.
[PENCIL ART] Stock Purchase Warrant
Redcape Software, Inc.
[PENCIL ART] Warrant
Sandbox Entertainment
[PENCIL ART] Warrant for 12,500 shares
[PENCIL ART] Warrant for 25,000 shares
[PENCIL ART] Warrant for 62,500 shares
Tava Technologies
[PENCIL ART] Warrant
Teldata, Inc.
[PENCIL ART] Series C Warrant (2)
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EXHIBIT 3.15
Equipment
EXHIBIT 3.16
Contracts
1. Lease Documentation
Xxxx Geospace
Loan and Security Agreement
Warrant
Funding Agreement
Intercreditor Agreement
Schedule No. 1
UCC filings
Captura
Master Lease Agreement 000-00000-000
Addendum No. 01
Warrant Purchase Agreement
Warrant Series B
Schedule No. 01
UCC filings
Ecrix
Master Lease Agreement 000-00000-000
Xxxxxxxx Xx. 00
Xxxxxxx Xxxxxxxx Agreement
Warrant Series B
Amendment No. 1 to Stockholder's Agreement
Schedule Xx. 00
Xxxxxxxx Xx. 00
Xxxxxxxx Xx. 00
Schedule No. 04
UCC filings
Harmonic Systems, Inc.
Master Lease Agreement 000-00000-000
Addendum Xx. 00
Xxxxxxxx Xx. 00
Warrant Purchase Agreement
Preferred Stock Purchase Warrant
Amendment No 1 to Stock Purchase Agreement
Amendment No 2 to the Co-Shareholders First Offer Agreement
Waiver Agreement (3)
Statement of Designation
Schedule Xx. 00
00
Xxxxxxxx Xx. 00
Xxxxxxxx No. 03
UCC filings
Jamba Juice Company
Master Lease Agreement 101-10001-001
Addendum Xx. 00
Xxxxxxxx Xx. 00
Schedule No. 01
Schedule No. 02
Schedule No. 03
Schedule No. 04
Xxxx of Sale to Schedule Xx. 0
Xxxxxxxx Xx. 00
Xxxxxxxx Xx. 00
Schedule No. 07
Schedule No. 08
UCC filings
Prolinx
Master Lease Agreement 000-00000-000
Addendum No. 01
Q-Club, Inc.
Master Lease Agreement 000-00000-000
Xxxxxxxx Xx. 00
Xxxxxxx Xxxxxxxx Agreement
Registration Agreement
Stock Purchase Warrant
Schedule No. 01-11
UCC filings
Redcape Software, Inc.
Master Lease Agreement 000-00000-000
Xxxxxxxx Xx. 00
Xxxxxxx Xxxxxxxx Agreement (2)
Warrant
Schedule No. 01
Schedule No. 02
UCC filings
Sandbox Entertainment
Master Lease Agreement 000-00000-000
Addendum Xx. 00
Xxxxxxxx Xx. 00
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Addendum No. 03
Warrant Purchase Agreement for 12,500 shares
Warrant for 12,500 shares
Warrant Purchase Agreement for 25,000 shares
Warrant Purchase Agreement for 62,500 shares
Warrant for 25,000 shares
Warrant for 62,500 shares
Schedule Xx. 00
Xxxxxxxx Xx. 00
Xxxxxxxx Xx. 00
Landlord's Waiver
UCC filings
Tava Technologies
Master Lease Agreement 000-00000-000
Addendum No. 01
Warrant Purchase Agreement
Warrant
Schedule No. 01
UCC filings
Teldata, Inc.
Master Lease Agreement 000-00000-000
Addendum Xx. 00
Xxxxxxxx Xx. 00
Warrant Purchase Agreement (2)
Series C Warrant (2)
Schedule Xx. 00
Xxxxxxxx Xx. 00
Xxxxxxxx Xx. 00
Xxxx of Sale dated 12/15/97
Xxxx of Sale dated 01/26/98
UCC filings
2. Silicon Valley Bank Credit
Agreement dated December 18, 1996 Loan Modification Agreement dated December 18,
1997 Loan Modification Agreement dated March 18, 1998
3. Partnership Agreement
Agreement of Limited Partnership of Third Coast Venture Lease Partners I, L.P.
