Ex. - 10.5
XXXX OF SALE AND ASSIGNMENT
THIS XXXX OF SALE AND ASSIGNMENT ("Xxxx of Sale") is effective as of the
3rd day of September, 1999, by and between Residential Mortgage Credit
Reporting, Inc., a Missouri corporation ("Seller"), and Factual Data Corp., a
Colorado corporation ("Buyer").
RECITALS
A. Buyer and Seller, among others, entered into an Asset Purchase
Agreement of even date herewith, which is incorporated herein by reference
("Agreement"), whereby Seller agreed to sell, transfer, convey, assign and
deliver to Buyer all of Seller's right, title and interest under, in and to all
of its assets, properties, goodwill and businesses, as the going concern known
as Residential Mortgage Credit Reporting, Inc., both tangible and intangible,
wherever situated, excluding only the Excluded Assets.
B. The Shareholders and Board of Directors of Seller have authorized the
Agreement and the transfer of the Assets to Buyer pursuant thereto. In order
that Buyer shall be in possession of an instrument vesting title in it to the
"Assets" (as defined in Section 2), Seller desires to execute and deliver this
Xxxx of Sale.
AGREEMENT:
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions; Construction. Capitalized terms not expressly defined in
this Xxxx of Sale shall have the meaning ascribed to them in the Agreement, and
all references to Exhibits and Schedules herein shall be deemed to be those that
are part of the Agreement. Unless otherwise expressly provided, the word
"including" does not limit the preceding words or terms.
2. Transfer of Assets. Seller hereby sells, transfers, conveys, assigns
and delivers unto Buyer, its successors and assigns, all of Seller's right,
title and interest under, in and to the assets ("Assets") both tangible and
intangible, wherever situated, including the following:
2.1 Computer Equipment. Seller's computer equipment as
identified on Exhibit 2.1.
2.2 Furniture, Fixtures and Leasehold Improvements. Seller's
furniture, fixtures and leasehold improvements described on Exhibit 2.1.
2.3 Software, Other Licenses and Intellectual Property. All of
Seller's software, other licenses and intellectual property material to the
operation of the Seller as described on Exhibit 2.1.
2.4 Executory Contracts. Seller's executory contracts and
agreements described on Exhibits 3.16 and 3.20.
2.5 Inventories. Seller's inventory forms and supplies.
2.6 Goodwill and Other Intangible Assets. The going concern value
and goodwill of Seller as it currently does business. All of Seller's right,
title and interest in and to all names, trademarks, service marks, trade names
and logos used in connection with the Assets; Seller's telephone numbers; all
operating data and the books and records of Seller which pertain to any of the
Assets or to sales to customers and from suppliers pertaining to the Assets; and
any other books, records or accounts which may be reasonably needed by or
reasonably helpful to Buyer in connection with the Assets; provided, that Seller
may retain all tax records and shall deliver copies thereof to Buyer, as
requested by Buyer.
2.7 Customer Agreements and Customer Lists. The Seller's customer
agreements and customer lists identified on Exhibit 3.19.
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2.8 Data and Records. Any and all books and records of Seller
relating to or required for the ownership and maintenance of the Assets and the
operations of the business.
2.9 Other Property. All other property and assets owned by Seller
with reference to the Assets and used or held in connection with the Assets,
whether or not similar to the items specifically set forth above.
2.10 Accounts Receivable. All billed accounts receivable of the
Seller.
TO HAVE AND TO HOLD the Assets, unto Buyer, its successors and assigns,
and for its and their own use, forever.
3. Attorney-in-Fact. Seller hereby constitutes and appoints Buyer, its
successors and assigns the true and lawful attorney-in-fact of Seller, with full
power of substitution, to demand and receive from time to time any and all
Assets hereby conveyed, transferred, assigned and delivered or intended so to
be; to give receipts, releases and acquittances for or in respect of the same or
any of Buyer or other item for which Buyer is entitled to payment; to institute
and prosecute in the name of Seller or otherwise, but at the expense of and for
the benefit of Buyer, and all proceedings which Buyer may deem property in order
to collect, assert or enforce any claim, right or title of any kind in or to the
Assets; to defend and compromise any and all actions, suits or proceedings in
respect of any of the Assets; to do, execute and deliver, or cause to be done,
executed and delivered, all acts and documents which may be appropriate, in the
discretion of Buyer to collect all credits and benefits which constitute part of
the Assets; and to file all instruments and documents and do all acts and things
in relation to any of the foregoing as the Buyer may deem advisable. Seller
hereby declares that the foregoing powers are coupled with an interest and shall
be irrevocable by it in any manner and for any reason.
4. Further Assurances. Seller hereby covenants and agrees that it will
from time to time, at the request of Buyer and without further consideration:
(a) take such additional actions and duly execute and deliver to
Buyer, its successors or assigns, such additional instruments and
documents, as may be reasonably required in order to better assign,
transfer, vest title or reduce to possession any of the Assets in or to
Buyer, its successors and assigns; and
(b) warrant and defend the title and sale of the Assets hereby
transferred unto Buyer against all and every person or entity whatsoever.
5. Excluded Assets. The Xxxx of Sale and Assignment does not convey to
Buyer any right, title or interest in the following Excluded Assets: cash on
hand, cash investments or notes receivable as of the Effective Date of the
Purchase Agreement.
IN WITNESS WHEREOF, the parties have executed this Xxxx of Sale as of the
date first written above.
SELLER: RESIDENTIAL MORTGAGE CREDIT
REPORTING, INC.
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, Chairman
BUYER: FACTUAL DATA CORP.
By: /s/ X. X. Xxxxxx
X. X. Xxxxxx, President
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STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me this 3rd day of
September, 1999, by Xxxxx X. Xxxxxx, Chairman of Residential Mortgage Credit
Reporting, Inc., a Missouri corporation.
My commission expires:
------------------------------------
Notary Public
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this 3rd day of
September, 1999, by X.X. Xxxxxx, President of Factual Data Corp., a Colorado
corporation.
My commission expires:
------------------------------------
Notary Public
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