PURCHASE AGREEMENT
THIS AGREEMENT is made as of this ______ day of May, 1997, by and
between WEST SUBURBAN BANK, an Illinois banking corporation ("Purchaser") with
its principal place of business at 000 Xxxxx Xxxxxxxx-Xxxxxx, Xxxxxxx, Xxxxxxxx,
00000, and MICROGRAPHIC TECHNOLOGY CORPORATION, a Delaware corporation
("Seller"), with its principal place of business at 000 Xxxxx Xxxxxx, Xxxxxxxx
Xxxx, Xxxxxxxxxx, 00000.
W I T N E S S E T H:
WHEREAS, Seller owns the PPF Agreement and the Machines (as defined
herein); and
WHEREAS, Seller desires to sell the PPF Agreement and the Machines to
Purchaser and Purchaser desires to purchase the PPF Agreement and the Machines
from Seller in accordance with the terms and conditions hereof.
NOW, THEREFORE, for and in consideration of the premises, the sum of
Ten ($10.00) Dollars in hand paid, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Defined Terms. Whenever used herein, the following terms, when
capitalized, shall have the following respective meanings unless the
context shall clearly indicate otherwise:
a. "Agreement" shall mean this Purchase Agreement.
b. "Closing Date" shall mean May ___, 1997.
c. "Delivery and Acceptance Certificates" shall mean the instruments
executed and delivered by M&I certifying that the Machines have been
delivered to and accepted by M&I in satisfactory condition.
d. "Impositions" shall mean any property, sales, use, or other taxes or
similar charges or levies related to the Machines, the PPF Agreement,
or any payments to be made thereunder.
e. "Interest Equivalent" shall mean an amount equivalent to interest on
the Unrecovered Purchase Price at a rate equivalent to the Prime Rate
plus (1%) percent per annum, adjusted daily.
f. "Machines" shall mean the twelve (12) microfiche production machines,
together with all processing, stacking, duplicating, collating,
printing, and other equipment and software related thereto as more
fully described in Schedule 2 to the PPF Agreement.
g. "M&I" shall mean Xxxxxxxx & Xxxxxx Corporation, whose address is 0000
Xxxx Xxxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx, 00000.
h. "PPF Agreement" shall mean the Price Per Fiche Agreement dated July 24,
1996 by and between Seller and M&I, including all addenda, exhibits,
schedules, and attachments thereto, and all amendments and
modifications thereof, which provides for Seller's placement of twelve
(12) Machines with M&I for use by M&I through the Termination Date, a
copy of which is attached hereto and incorporated herein by reference.
i. "PPF Documents" shall mean the PPF Agreement and all Delivery and
Acceptance Certificates, applications, credit reports, insurance
policies, purchase orders and invoices, bills of sale, UCC financing
statements, and all other written matter or materials prepared or
obtained in connection with the PPF Agreement.
j. "Prime Rate" shall mean that rate so announced and/or published by Xxxx
Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx, as its prime rate and in effect
daily. Such Prime Rate is not necessarily the most favorable rate
charged on loans by West Suburban Bank to its most creditworthy
customers. In the event West Suburban Bank discontinues the use of its
Prime Rate, then in such event the term "Prime Rate" shall mean that
rate published from time to time in The Wall Street Journal, Midwest
Edition, as the prime rate of interest, and in the event more than one
such rate is so published in The Wall Street Journal, Midwest Edition,
on any applicable date, the highest such rate shall be applicable.
k. "Purchase Price" shall mean $3,150,000.00.
l. "Rent" shall mean all monies due or to become due under the PPF
Agreement.
m. "Termination Date" shall man May 20, 2002.
n. "Unrecovered Purchase Price" shall mean the Purchase Price as reduced
from time to time by the amount by which payments remitted to Purchaser
by M&I with respect to the PPF Agreement exceed the Interest Equivalent
and any Impositions.
2. Purchase and Sale of PPF Agreement and Machines
a. Transfer of PPF Agreement. Effective as of the Closing Date, Seller
hereby sells to Purchaser and Purchaser hereby purchases from Seller,
the PPF Agreement (including the Machines and all Rent accruing after
the Closing Date), together with all of Seller's rights, title,
interest, and remedies under the PPF Documents.
b. Payment of Purchase Price.
(i) On the Closing Date, Purchaser shall pay the sum of
$2,650,000.00 to Seller.
(ii) The balance of the Purchase Price (to wit, the sum of
$500,000.00) shall be paid by Purchaser to Seller at such time
as M&I has accepted all twelve (12) of the Machines and has
provided written acknowledgment, in form acceptable to
Purchaser, that all nine (9) of the conditions enumerated in
the "Acceptance Criteria" section of Amendment No. 1 to the
PPF Agreement have been satisfied with respect to all twelve
(12) of the Machines.
(iii) The Purchase Price shall be paid to Seller (or to such third
parties as Seller may direct) by wire transfer in accordance
with the provisions of wire transfer instructions to be
provided by Seller.
c. No Assumption of Liability. Purchaser does not accept or assume any of
Seller's liability or obligations under the PPF Agreement. Seller
expressly reserves and promises to perform all actions necessary to
complete the installation of the Machines in order to induce M&I to
accept
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the Machines in accordance with the acceptance criteria and other
provisions of the PPF Agreement and to otherwise perform all
obligations to M&I under the PPF Agreement. Seller agrees to indemnify,
defend, and hold Purchaser harmless from and against any liability to
M&I with respect to the PPF Agreement.
d. Conditions Precedent. The obligations of Seller to sell the PPF
Agreement and of Purchaser to purchase the PPF Agreement are subject to
the satisfaction of the following:
(i) Delivery of the PPF Documents and such other documents as may
reasonably be requested by Purchaser.
(ii) The representations and warranties of the respective parties
herein and in any certificate or document delivered pursuant
to or in connection herewith shall be true and correct on and
as of the Closing date as if made on and as of that date.
(iii) The respective parties shall have performed or caused to be
performed all obligations and agreements and complied or
caused to be complied with all covenants contained herein to
be performed or complied with by it at or prior to the Closing
Date.
e. Nondisturbance. Purchaser agrees that so long as Seller and M&I are not
in default of their respective obligations under the PPF Agreement,
Purchaser will not consent to the removal of the Machines from the
premises of M&I as described in the PPF Agreement without Seller's
consent.
3. Representations and Warranties of Seller
Seller hereby represents and warrants to and agrees with Purchaser as
follows:
a. Concerning the PPF Agreement. The PPF Agreement: (i) has been duly and
validly executed and delivered by Seller and M&I; (ii) is in full force
and effect; and (iii) constitutes the valid and binding obligation of
M&I enforceable in accordance with its terms (subject, however, to laws
of general application affecting creditors' rights). No payment
default, and to Seller's knowledge, no other default or condition
which, with or without the passage of time, the giving of notice, or
both, would constitute a default under the PPF Agreement by either
Seller or, to the best of Seller's knowledge, M&I. Seller has not
previously assigned any interest in the PPF Agreement to any other
party. M&I has not prepaid any portion of its obligations under the PPF
Agreement. There is only one original of the PPF Agreement signed by
the parties, which is marked "Original." No security interest in the
PPF Agreement may be created through the transfer and possession of any
signed counterpart other than the one marked "Original." The PPF
Agreement and the advertising, solicitation, application procedures,
servicing, collection, and administration of the PPF Agreement, fully
comply with or are exempt from the provisions of the Federal
Truth-In-Lending Act, Regulation Z, the Equal Credit Opportunity Act,
Regulation B, the Federal Trade Commission Act, the Fair Debt
Collection Practices Act, all applicable statutes and regulations
pertaining to interest and other charges, and all other applicable
federal and state laws and regulations and substitutes and replacements
thereof.
b. Concerning the Machines. Nine (9) of the Machines are located at the
premises of M&I as specified in the PPF Agreement and are currently
used for production. The remaining three (3)
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Machines are in the process of being delivered or being made fully
operational. Nothing has come to Seller's attention which would lead
Seller to believe that the sale, use, or operation of the Machines
violates or infringes the patent, trademark, trade name or other rights
of any party. To the best of Seller's knowledge, the Machines are
and/or will be in good working order, condition and appearance.
c. Title. Seller owns, and by this Agreement transfers to Purchaser, good
and marketable title to, the Machines and all of the rights of Seller
under the PPF Agreement, free and clear of any and all liens, claims,
encumbrances or other charges, except, as to the Machines, the rights
of M&I. No financing statement covering the PPF Agreement or any of the
Machines is on file in any public office or is presently in the
possession of any third party (excepting solely precautionary UCC
filings in favor of Seller which are assignable to Purchaser).
d. Acquisition Taxes. All sales, use, property or other taxes, licenses,
tolls, inspection fees or other fees, bonds, permits or certificates
which were (or may be) required to be paid or obtained, as the case may
be, in connection with the leasing of the Machines to M&I pursuant to
the PPF Agreement have been (or when due will promptly be) paid in full
(or adequate provision for such payment has or shall have been made) or
obtained, as the case may be.
e. Documents Furnished. The entire agreement with M&I with respect to the
leasing of the Machines is embodied solely in the PPF Agreement and the
PPF Documents and no oral agreements exist with M&I not contained in
the PPF Agreement and the other PPF Documents.
f. Organization and Existence. Seller is and at all times hereafter shall
be a corporation duly and validly organized and existing in good
standing under the laws of the State of Delaware and is duly qualified
and/or licensed to own its properties and carry on its business in each
jurisdiction where the failure to be so qualified would violate
applicable laws, regulations, rules, or ordinances.
g. Power and Authority. Seller has the power and authority to execute and
deliver or accept, as the case may be, this Agreement and all other
agreements, instruments and documents executed and delivered and/or
accepted, as the case may be, in connection herewith or therewith and
to pay and perform, when due, its obligations hereunder.
h. Authorization. The execution and delivery of this Agreement by Seller,
and the payment and performance by Seller, when due, of its obligations
hereunder, have been duly authorized by all necessary action of Seller
and do not violate or conflict with, or with or without the giving of
notice, the passage of time or both, constitute a default under, any
provision of Seller's articles of incorporation, by-laws, or
resolutions, any law, any order, writ, injunction, decree, rule or
regulation of any court, administrative agency or any other
governmental authority or any agreement or other document or instrument
to which Seller is a party or by which Seller is, or may be, bound.
i. Enforceability. This Agreement constitutes the valid and binding
obligations of Seller enforceable against it in accordance with its
terms, subject, however, to laws of general application affecting
creditors' rights and to limitations imposed upon the availability of
specific enforcement, injunctive relief or equitable remedies.
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j. Miscellaneous Representations and Warranties Concerning Seller.
(i) Seller now has and shall have at all times hereafter capital
sufficient to carry on its business and transactions and all
businesses and transactions in which it is about to engage;
(ii) There are no actions or proceedings which are pending or
threatened against Seller which might result in any material
and adverse change in its financial condition or materially
affect its assets;
(iii) Seller possesses adequate assets, licenses, patents,
copyrights, trademarks and tradenames to continue to conduct
its business as previously conducted by it;
(iv) Seller is and at all times hereafter shall remain in good
standing with respect to all governmental permits,
certificates, consents and franchises necessary to continue to
conduct its business and to own or lease and operate its
properties as now owned or leased by it;
(v) None of said permits, certificates, consents or franchises
contain any term, provision, condition or limitation more
burdensome than such as are generally applicable to persons
engaged in the same or similar business as Seller;
(vi) Seller is not a party to any contract or agreement or subject
to any charge, restriction, judgment, decree or order
materially and adversely affecting its business, property,
assets, operations or condition, financial or otherwise;
(vii) Seller is not in violation of any applicable statute,
regulation or ordinance of the United States of America, of
any state, city, town municipality, county or of any other
jurisdiction, or of any agency thereof, in any respect
materially and adversely affecting its business, property,
assets, operations or condition, financial or otherwise;
(viii) Seller is not in default with respect to any indenture, loan
agreement, mortgage, deed or other similar agreement relating
to the borrowing of monies to which it is a party or by which
it is bound;
(ix) All information furnished to Purchaser concerning the PPF
Agreement and financial affairs of Seller, and all other
written information heretofore or hereafter furnished by
Seller to Purchaser, is and will be true and correct; and
(x) Seller has filed all federal, state and local tax returns and
other reports it is required to file and has paid or made
adequate provision for payment of all such taxes, assessments
and other governmental charges.
4. Representations and Warranties of Purchaser
Purchaser represents and warrants to, and agrees with, Seller as
follows:
a. Organization and Existence. Purchaser is an Illinois banking
corporation duly and validly
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organized and existing in good standing under the laws of the State of
Illinois and is duly qualified to own its properties and carry on its
business in each jurisdiction where the failure to be so qualified
would violate applicable laws, regulations, rules, or ordinances.
b. Power and Authority. Purchaser has the power and authority to execute
and deliver or accept, as the case may be, this Agreement and to pay
and perform, when due, its obligations hereunder.
c. Authorization. The execution and delivery or acceptance, as the case
may be, of this Agreement by Purchaser, and the payment and performance
by Purchaser, when due, of its obligations hereunder, have been duly
authorized by all necessary action of Purchaser and do not violate or
conflict with, or with or without the giving of notice, the passage of
time or both, constitute a default under, any provision of Purchaser's
articles of incorporation, by-laws, or resolutions, any law, any order,
writ, injunction, decree, rule or regulation of any court,
administrative agency or any other governmental authority or any
agreement or other document or instrument to which Purchaser is a party
or by which Purchaser is, or may be, bound.
d. Enforceability. This Agreement constitutes the valid and binding
obligations of Purchaser enforceable against it in accordance with its
terms, subject, however, to laws of general application affecting
creditors' rights and to limitations imposed upon the availability of
specific enforcement, injunctive relief or equitable remedies.
5. Collections and Application of Payments.
a. Seller hereby assigns to Purchaser all monies hereafter payable by M&I
under the PPF Agreement (including all price per fiche usage payments,
all interest, and all Impositions due in connection therewith).
b. Seller agrees to monitor all activity of the Machines under the PPF
Agreement, calculate amounts due from M&I thereunder, and send timely
invoices to M&I for amounts due thereunder. All payments shall be made
by M&I directly to Purchaser.
c. Monies collected by Purchaser under the PPF Agreement shall be applied
by Purchaser as follows:
(i) First, Purchaser shall retain for its own account an
amount equal to Interest Equivalent which has accrued
during the corresponding period.
(ii) Second, Purchaser shall retain for its own account
the following minimum amounts to be applied toward
Unrecovered Purchase Price:
June, 1997 - Sept. 1997..........$63,095.00 per month
Oct., 1997 - May, 1999...........$76,253.00 per month
June, 1999 - May, 2000...........$57,190.00 per month
June, 2000 - May, 2001...........$38,127.00 per month
June, 2001 - May, 2002...........$19,063.00 per month
All remittances are due on or before the 20th day of each respective
month. In the event of a shortage in any month, Purchaser shall have
the right to make up such shortage by recovering
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any overages in any subsequent months. Further, if Purchaser reasonably
believes that a shortage may occur in a future month or months,
Purchaser may accumulate excess receipts as a reserve against
anticipated shortages.
(iii) The balance, if any, shall be remitted by Purchaser to Seller.
d. Seller shall be responsible for the payment of all Impositions.
e. After Purchaser has recovered the full amount of Purchase Price and has
collected all Interest Equivalent to which Purchaser is entitled
hereunder, Purchaser shall remit all subsequent amounts collected with
respect to the PPF Agreement to Seller.
6. Return of Machines/Remarketing
In the event any of the Machines are returned prior to their allowed
return date, as defined in the PPF Agreement, Seller exercise its best
efforts to remarket the Machine for the best price and other terms it
can reasonably obtain. Remarketing may be by sale, lease, or contract
use under a price per fiche or other agreement with M&I or another
buyer or user. Seller shall promptly advise Purchaser of any offers it
receives. Any remarketing agreement shall be subject to the prior
written consent of Purchaser. If the Machine is sold, leased, or
otherwise delivered to a party other than M&I, Seller shall be
responsible for dismantling, repairing, refurbishing, storing, and/or
transporting the Machine at Seller's expense. Seller shall attempt to
re-market the Machines as soon as possible, however, Seller shall have
no obligation to Purchaser with respect to the Machines returned early
so long as Purchaser is receiving an Early Return Buyout Payment, as
defined on schedule 1 of the PPF Agreement. Upon the termination of the
Early Return Buyout Payment, or for Machines returned in compliance
with the System Return Allowance, Seller shall re-market the Machines
within 180 days of said date. In the event the Machine is not
remarketed by Seller in a manner satisfactory to Purchaser within one
hundred eighty (180) days after the date of early return, Seller shall
pay Purchaser an amount equivalent to the fair market value of the
Machine whereupon title to the Machine shall be reconveyed by Purchaser
to Seller by appropriate xxxx of sale or other instrument of conveyance
and Seller shall be entitled to remarket the Machine without further
obligation to Purchaser. Any payments made by Seller to Purchaser
pursuant to this paragraph shall be in addition to those required under
Section 5 above and shall be applied towards Unrecovered Purchase
Price.
7. Seller's Repurchase Obligations Upon Seller's Failure to Fulfill
Acceptance Criteria. Notwithstanding any provision to the contrary set
forth herein, Seller shall be obligated to repurchase the PPF Agreement
and the Machines from Purchaser upon the occurrence of any of the
following events ("Repurchase Events"):
a. Seller's failure to provide Purchaser with M&I's written
acknowledgment, on or before June 15, 1997, stating that at least nine
(9) of the Machines meet the requirements of paragraphs 1, 2, 3, 4, and
5 of the "Acceptance Criteria" section of Amendment No. 1 to the PPF
Agreement.
b. Seller's failure to provide Purchaser with M&I's written
acknowledgment, on or before August 1, 1997, stating that the remaining
three (3) Machines meet the requirements of paragraphs 1, 2, 3, 4, and
5 of the "Acceptance Criteria" section of Amendment No. 1 to the PPF
Agreement.
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c. Seller's failure to provide Purchaser with M&I's written
acknowledgment, on or before September 15, 1997, stating that all
twelve (12) of the Machines have been accepted by M&I and meet all
requirements of all paragraphs of the "Acceptance Criteria" section of
Amendment No.
1 to the PPF Agreement.
Upon the occurrence of a Repurchase Event, without notice or demand,
Seller shall immediately pay Purchaser the entire Unrecovered Purchase
Price and all accrued and unpaid Interest Equivalent, whereupon the PPF
Agreement and the Machines shall be reconveyed by Purchaser to Seller
by appropriate xxxx of sale or other instrument of conveyance.
8. Residual Value of Machines
After Purchaser has recovered the entire Purchase Price and the full
amount of Interest Equivalent to which Purchaser is entitled hereunder,
all proceeds subsequently derived from the Machines (whether by lease,
contract usage, sale, or otherwise) shall be the property of Seller. If
any such proceeds come into Purchaser's possession, Purchaser agrees to
remit such proceeds to Seller. Purchaser agrees to execute and deliver
to Seller such bills of sale, assignments, leases, contracts, or other
instruments which may be reasonably requested by Seller in connection
with Seller's remarketing of the Machines.
9. Additional Agreements of Seller
a. Seller hereby covenants, represents and warrants that Seller:
i. Shall perform all of its obligations and responsibilities
under the PPF Agreement;
ii. Shall, upon request of Purchaser, execute such bills of sale,
assignments, financing statements and other documents (and pay
the cost of filing or recording the same in all public offices
deemed necessary by Purchaser) and do such other acts and
things, all as Purchaser may from time to time request to
establish and maintain its sole ownership interest in the PPF
Agreement and the Machines and to consummate the transactions
contemplated in or by this Agreement;
iii. Shall keep at its principal place of business, its records
concerning the PPF Agreement and the Machines, which records
will be of such character as will enable Purchaser or its
agents to determine at any time the status thereof, and Seller
will not, unless Purchaser shall otherwise consent in writing,
duplicate any such records at any other address;
iv. Shall, upon the request of Purchaser, deliver to Purchaser
copies of the PPF Documents and any and all other documents
evidencing any interest in the PPF Agreement and the
Machines;
v. Shall, at its own cost and expense, file all sales tax returns
and remit to the appropriate taxing authorities all sales and
use taxes and other Impositions on that portion of each
payment due Seller which relates to services and supplies
provided under the PPF Agreement;
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vi. Shall furnish Purchaser such additional information concerning
Seller and the PPF Agreement and the Machines as Purchaser may
from time to time request;
vii. Shall permit Purchaser and its agents, from time to time, but
not less than once a month, to inspect the PPF Documents, and
to inspect, audit and make copies of and extracts from all
records and all other papers in the possession of Seller and
will, upon request of Purchaser, deliver to Purchaser all of
such records and papers which pertain to the PPF Agreement and
the Machines;
viii. Shall comply with all operational procedures established from
time to time by Purchaser with respect to the transactions
covered by this Agreement;
ix. Shall, upon request of Purchaser, stamp on the file jackets
pertaining to the PPF Agreement a notation, in form
satisfactory to Purchaser, of the ownership interest of
Purchaser;
x. Shall, at its sole cost and expense, keep and maintain an
errors and omissions insurance policy in favor of Purchaser.
Such policy of insurance shall be in form, with insurer and in
such amount as may be satisfactory to Purchaser. Seller shall
deliver to Purchaser the original (or certified) copy of said
policy of insurance, or a certificate of insurance, and
evidence of payment of all premiums for such policy. Such
policy of insurance shall contain an endorsement, in a form
and substance acceptable to Purchaser, showing loss payable to
Purchaser, and shall provide that the insurance company will
give Purchaser at least thirty (30) days written notice before
any such policy or policies of insurance shall be altered or
canceled and that no act or default of Seller or any other
person or entity shall affect the right of Purchaser to
recover under such policy or policies of insurance. Borrower
hereby directs the insurer under such policy of insurance to
pay all proceeds payable thereunder directly to Purchaser and
hereby irrevocably appoints Purchaser as Seller's agent and
attorney-in-fact to make, settle and adjust claims under such
policy of insurance and endorse the name of Seller on any
check, draft, instrument or other item of payment for the
proceeds of such policy of insurance;
xi. Shall promptly notify Purchaser in writing of any change in
location of its principal place of business or any change in
location of the PPF Documents;
b. All of the representations and warranties of Seller contained herein
will be and remain true and correct during the term of this Agreement;
c. Seller shall furnish to Purchaser:
i. as soon as practicable and in any event within 20 days after
the end of each month, current month-end unaudited profit and
loss statement and balance sheet of Seller, in reasonable
detail and in form acceptable to Purchaser, certified by the
chief financial or accounting officer of Seller to be true and
correct, to the best of such officer's knowledge and belief,
based upon a reasonable review of the affairs of Seller
conducted by such officer, subject to normal recurring
year-end audit adjustments, and to have been prepared in
accordance with generally accepted accounting principles
consistently applied;
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ii. as soon as practicable and in any event within 90 days of the
close of each calendar year (or fiscal year if Seller reports
on the basis of a fiscal year), annual financial statements
(including balance sheet, income statement, and statement of
changes in financial position of Seller), prepared in
accordance with generally accepted accounting principles
consistently applied, and audited by independent certified
public accountants acceptable to Purchaser, such audit report
to include an unqualified opinion of such accountants;
iii. as soon as practicable and in any event within 30 days after
the due date for filing (including any extensions), complete
copies of annual federal and state income tax returns filed by
Seller; and
iv. such other or further financial information as may be
requested by Purchaser.
d. In the event Seller defaults on any of its obligations and
responsibilities under the PPF Agreement (including without limitation
failure to invoice or provide supplies or maintenance), Purchaser may
(but shall not be required to) perform such obligations and
responsibilities in any manner Purchaser deems appropriate, whereupon
Purchaser may deduct the cost of such performance from any remittances
due Seller hereunder and Seller shall be liable to Purchaser for any
deficiency.
10. Indemnity
Seller agrees to indemnify Purchaser, and to protect, defend and hold
it harmless from and against any and all loss, cost, damage, injury or
expense, including without limitation, reasonable attorney's fees and
other legal expenses, which Purchaser may incur for or by reason of:
(i) the untruthfulness of any of the warranties and representations of
Seller contained herein; or (ii) a breach by Seller of any of the
warranties, covenants and agreements of Seller contained herein. For
purposes hereof, "Purchaser" shall include Purchaser and its employees,
officers, directors, representatives, agents, and attorneys.
11. Miscellaneous
a. Brokerage Fees. Seller represents and warrants to Purchaser that Seller
has not engaged any third party broker to which fees are payable in
connection with the transactions referred to herein. Purchaser
represents and warrants to Seller that Purchaser has not engaged any
third party broker to which fees are payable in connection with the
transactions referred to herein.
b. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns except that Seller shall not have the right to assign any of it
servicing obligations under this Agreement without the prior written
consent of Purchaser.
c. Purchaser's Attorney's Fees. Seller agrees to reimburse Purchaser for
all reasonable attorney's fees and costs incurred by Purchaser with
respect to the preparation and negotiation of this Agreement and the
transactions contemplated thereby.
d. No Waiver. No delay or failure by either party to insist upon the
strict performance of any term hereof or to exercise any right, power
or remedy provided for herein, shall constitute a waiver
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of any such term, or such right, power or remedy. The exercise of any
right, power or remedy conferred by this Agreement or by law or equity
shall not preclude any other or further exercise thereof or the
exercise of any other right, power or remedy.
e. Amendment. This Agreement shall not be amended, modified or terminated
orally but may only be amended, modified or terminated pursuant to
written agreement between Seller and Purchaser.
f. Notices. Any notice, demand, request or other communication desired to
be given or required pursuant to the terms hereof shall be in writing
and shall be delivered by personal service or sent by registered or
certified mail, return receipt requested, postage prepaid, addressed to
the addresses first set forth herein or to such other address as the
parties hereto may designate in writing from time to time. Any such
notice, demand, request, or other communication shall be deemed given
on the date of personal service or on the date of deposit into the U.S.
Mail.
g. Headings. The various headings used in this Agreement as headings for
paragraphs or otherwise are for convenience only and shall not be used
in interpreting the text of the paragraphs in which they appear and
shall not limit or otherwise affect the meanings thereof.
h. Severability. If any provision in this Agreement is held by a court of
law to be in violation of any applicable local, state or federal
ordinance, statute, law, administration or judicial decision, or public
policy, and if such court should declare such provision of this
Agreement to be illegal, invalid, unlawful, void, voidable, or
unenforceable as written, then such provision shall be given full force
and effect to the fullest possible extent that is legal, valid and
enforceable. The remainder of this Agreement shall be construed as if
such illegal, invalid, unlawful, void, voidable or unenforceable
provision was not contained therein.
i. Names. Regardless of their form, all words shall be deemed singular or
plural and to have such gender as required by the text.
j. Governing Law/Venue. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Illinois. All actions,
suits and proceedings in any manner or way arising out of or in respect
to this Agreement, any documents executed concurrently herewith, shall
be litigated in courts within the County of DuPage, or having
jurisdiction with respect to said county. Seller and Purchaser each
hereby waives a right to a jury trial in any litigation brought with
respect to this Agreement or the transactions contemplated herein.
k. No Party Deemed Drafter. Seller acknowledges and agrees that Seller has
been afforded the opportunity to review and approve this Agreement and
to have this Agreement reviewed and approved by counsel of Seller's
choice, that this Agreement constitutes an arms-length transaction
between the parties, and that neither Seller nor Purchaser shall be
deemed the drafter of this Agreement for purposes of construing the
terms hereof.
l. Further Assurances. Purchaser and Seller agree to execute and deliver
promptly to the other all such further instruments and documents as may
reasonably be requested by the other in order to carry out fully the
intent, and to accomplish the purposes, of the transactions referred to
herein.
m. Not an Extension of Credit or Joint Venture. This Agreement constitutes
a sale of 100% ownership interest in the PPF Agreement and the Machines
and shall in no way be construed as
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an extension of credit by Purchaser to Seller or a partnership or joint
venture by and between Seller and Purchaser.
n. Time of Essence. Time is of the essence hereof.
IN WITNESS WHEREOF, this Purchase Agreement is executed and effective
as of the date first set forth above.
SELLER: PURCHASER:
MICROGRAPHIC TECHNOLOGY CORPORATION, WEST SUBURBAN BANK
a Delaware Corporation
By: _____________________________ By: _________________________
Its: _____________________________ Its: _________________________
Attest: _____________________________
Its: _____________________________
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................................................................................
STATE OF ILLINOIS )
) SS.
COUNTY OF ______ )
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that __________________________, personally known
to me to be President of MICROGRAPHIC TECHNOLOGY CORPORATION, a Delaware
Corporation, and ______________________, personally known to me to be the Vice
President of said Corporation, and personally known to me to be the same persons
whose names are subscribed to the foregoing instrument, appeared before me this
day in person and severally acknowledged that as such President and Vice
President they signed and delivered the said instrument as President and Vice
President of said Corporation, pursuant to authority, given by the Board of
Directors of said Corporation as their free and voluntary act, and as the free
and voluntary act and deed of said Corporation, for the uses and purposes
therein set forth. GIVEN under my hand and official seal this _______ day of
_____________, 1997.
---------------------------------------------
Notary Public
STATE OF ILLINOIS )
) SS.
COUNTY OF ______ )
I, the undersigned, a Notary Public in and for the County and State
aforesaid, DO HEREBY CERTIFY that ________________________________,
_____________________ of WEST SUBURBAN BANK, an Illinois Banking Corporation,
personally known to me to be the same person whose name is subscribed to the
foregoing instrument as such ____________________, appeared before me this day
in person and acknowledged that he/she signed and delivered the said instrument
as his/her own free and voluntary act and as the free and voluntary act of said
Corporation; for the uses and purposes therein set forth. GIVEN under my hand
and official seal this ________ day of ______________, 1997.
---------------------------------------------
Notary Public
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GUARANTY OF SOFTNET SYSTEMS, INC.
In consideration of and as an inducement to the execution of that
certain Purchase Agreement of even date herewith (the "Agreement") by and
between WEST SUBURBAN BANK ("Purchaser") and MICROGRAPHIC TECHNOLOGY CORPORATION
("Seller"), the undersigned hereby unconditionally guarantees the payment and
performance of all of Seller's obligations to Purchaser under the provisions of
the Agreement.
The undersigned waives: (1) acceptance and notice of acceptance by the
Purchaser of the foregoing undertakings; (2) notice of demand for payment or
non-performance of any obligations hereby guaranteed; (3) protest and notice of
default to any party with respect to the indebtedness or non-performance of any
obligations hereby guaranteed; (4) any right it may have to require that an
action be brought against Seller or any other person as a condition of
liability; (5) any and all claims and defenses which might otherwise operate as
a discharge of the liability of the undersigned under principles of suretyship
or otherwise; (6) all rights of subrogation, contribution and other recovery of
the obligations guaranteed hereby from the Seller; and (7) any and all other
notices and legal or equitable defenses to which he may be entitled.
Dated: _____________________
SOFTNET SYSTEMS, INC.
By: ______________________________
Its: ______________________________
...............................................................................
STATE OF ILLINOIS )
) SS.
COUNTY OF ______ )
I, the undersigned, a Notary Public in and for the County and State
aforesaid, DO HEREBY CERTIFY that ________________________________,
_____________________ of SOFTNET SYSTEMS, INC., a(n) ____________ Corporation,
personally known to me to be the same person whose name is subscribed to the
foregoing instrument as such ____________________, appeared before me this day
in person and acknowledged that he/she signed and delivered the said instrument
as his/her own free and voluntary act and as the free and voluntary act of said
Corporation; for the uses and purposes therein set forth. GIVEN under my hand
and official seal this ________ day of ______________, 1997.
--------------------------------------------
Notary Public
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