MERCHANT ASSET PURCHASE AGREEMENT
EXHIBIT
10.15
EXECUTION
COPY
THIS
MERCHANT ASSET PURCHASE AGREEMENT
(this
"Agreement") is made and entered into as of this 29th
day of
December, 2005 by and between TIB
BANK,
a bank
chartered under the laws of the State of Florida (the "Bank"), and NOVA
INFORMATION SYSTEMS, INC.,
a
Georgia corporation ("NOVA").
BACKGROUND
AND PURPOSE:
A. The
Bank
is a party to certain Merchant Agreements with various Merchants, who consist
principally of merchants and other providers of goods and services, according
to
which agreements the Bank has agreed to provide certain services in connection
with the Bank's Merchant Bankcard Business.
B. The
Bank
wishes to sell and transfer to NOVA all of its rights under the Merchant
Agreements, and the Bank wishes to sell and transfer to NOVA certain other
assets utilized in connection with the Merchant Bankcard Business, and NOVA
is
willing to accept such rights and assets and to assume certain obligations
in
connection with the Merchant Bankcard Business. The parties hereto are willing
and able, additionally, to undertake and perform certain other obligations
pursuant to and in connection with this Agreement, subject to the terms and
conditions hereof.
THE
AGREEMENT
NOW,
THEREFORE,
in
consideration of the premises, the mutual agreements contained in this Agreement
and other good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, the Bank and NOVA hereby agree, on the terms and
conditions herein set forth, as follows:
The
capitalized terms used herein shall have the meaning ascribed to such terms
in
Section 12.1 hereof unless otherwise defined herein.
ARTICLE
I
ASSETS
SOLD; ASSUMPTION OF LIABILITIES
1.1 Sale
and Purchase.
On the
terms and subject to the conditions set forth in this Agreement, and effective
as of 11:59 p.m. on December 31, 2005 (the "Effective Date"), the Bank hereby
sells, transfers and assigns to NOVA and NOVA hereby purchases and accepts
from
the Bank, all right, title and interest of the Bank in all of the Bank's assets
and interests, both tangible and intangible, accrued or contingent, used,
useful, or arising in the conduct of in the Merchant Bankcard Business, directly
or indirectly, in existence on the date hereof and on and after the Effective
Date (other than the Excluded Assets), including the following properties and
assets (collectively, the "Assets Sold"):
(a) all
rights and interests of the Bank in and to the Merchants (under the Merchant
Agreements and otherwise) arising on or after the Effective Date, and all
pertinent books, records and documents relating to such Merchant Agreements
(as
further specified in Section 1.5 hereof);
(b) the
Equipment (and any rentals and leases related thereto) and related revenues
accruing on and after the Effective Date;
(c) the
Inventory;
(d) all
rights and interests of the Bank with respect to any reserve accounts
established and maintained with the Bank by Merchants in connection with the
Merchant Bankcard Business;
(e) all
rights and interests under any guarantees executed in connection with the
Merchant Agreements;
(f) all
rights and interests of the Bank with respect to any other third party contract
related to the Bank's Merchant Bankcard Business and listed on Schedule
1.1 (b) (the
"Other Assumed Contracts");
(g) all
claims and causes of action of the Bank, whether known or unknown, relating
to
the Merchant Bankcard Business; and
(h) the
goodwill, intangible assets and value of the Merchant Bankcard Business as
a
going concern, to the extent any such value exists.
1.2 Transfer
and Assumption of Assets Sold and Assumed Liabilities. Effective
upon the Effective Date, NOVA shall, by the execution and delivery of the Xxxx
of Sale and Assignment and Assumption Agreement, acquire title to the Assets
Sold and assume and agree to pay and discharge when due the Assumed Liabilities.
In addition to the Xxxx of Sale and Assignment and Assumption Agreement, the
sale, conveyance, transfer, assignment and delivery of the Assets Sold by the
Bank to NOVA shall be effected by such deeds, bills of sale, endorsements,
assignments, transfers and other instruments of transfer and conveyance in
such
form, including warranties of title (collectively, "Transfer Documents"), as
NOVA may reasonably request, including such Transfer Documents as NOVA may
reasonably request at and after the Transition Date.
1.3 Liabilities.
It is
understood and agreed that, except to the extent that any of the following
constitute Assumed Liabilities, NOVA shall not assume or become liable for
the
payment of any debts, liabilities, losses, Credit Losses, chargebacks, accounts
payable, bank indebtedness, mortgages, or other obligations of the Bank or
any
Merchant, whether the same are known or unknown, now existing or hereafter
arising, of whatever nature or character, whether absolute or contingent,
liquidated or disputed. Specifically, the Assumed Liabilities shall not in
any
event include any penalties or fees that may be incurred by the Bank in
connection with the termination of the Bank's agreement(s) with any third party
service providers, including without limitation (i) that certain Operating
Agreement between the Bank and Card Management Corporation dated July 1, 1992,
as amended, (ii) that certain Processing Services Agreement between the Bank
and
Vital Processing Services, L.L.C., dated December 1, 1999, as amended (iii)
that
certain Payment Gateway Reseller Agreement between the Bank and Xxxxxxxxx.xxx
Corp, dated May 31, 2002 and (iv) that certain Referral Agreement between the
Bank and Global Payments Direct, Inc., dated August 12, 2005 (collectively,
the
"Third Party Processing Agreements").
1.4 Consent
and Assignment.
(a) The
Bank,
in cooperation with NOVA, from and after the date hereof and during the
Transition Period, shall use its best efforts to obtain, in such manner and
to
such extent as NOVA may reasonably specify, (i) the agreement of the Merchants
to the continuation of business with NOVA under the Merchant Agreements, all
as
contemplated by this Agreement, (ii) the consent of the Merchants to NOVA's
conversion of such Merchants to such clearing bank and merchant accounting
system as NOVA may specify, and (iii) the consent of the Merchants to NOVA's
conversion of such Merchants to NOVA's network, all on such terms as are
satisfactory to NOVA.
(b) Without
limiting the generality of the foregoing, promptly following the Closing, the
Bank shall cause to be delivered to each of the Merchants a notice, in a form
specified by NOVA, of the assignment by the Bank, effective as of the Effective
Date, of all rights in and to said Merchant Agreements to NOVA. In NOVA's
discretion, such notice may inform each Merchant of NOVA's intention to convert
the Merchant to NOVA's network, as well as to a clearing bank and merchant
accounting system designated by NOVA.
1.5 Books
and Records.
(a) As
soon
after the Closing Date as is practicable, and in no event later than the
conclusion of the Transition Period, the Bank shall cause to be delivered to
NOVA the originals or, in the event the Bank is entitled to keep the originals
pursuant to this Section 1.5, copies of all books, records and documents of
the
Bank relating to the Assets Sold; provided, however, that in no event shall
such
books, records and documents include corporate books or records involving
operations other than the Merchant Bankcard Business, and further provided
that
the Bank may retain the originals or copies of such documents other than the
Merchant Agreements as may be reasonably necessary to the Bank's business.
In
addition, the Bank shall, at its expense, provide or cause to be provided to
NOVA all information related to the Merchant Bankcard Business that is in
intangible (i.e., computer-readable) form, including information necessary
or
desirable for the transfer of clearing bank responsibilities contemplated by
Section 3.5(b) (for example, a Merchant Master File Dump in ASCII format).
In
each case, however, the books and records relating to the Assets Sold for the
period prior to the Closing Date, wherever located, that are held by a party
hereto or under the control of a party hereto (the "Inspected Party") shall
be
open for inspection by the other party, and such other party's authorized agents
and representatives and regulators may, at such other party's own expense,
make
such copies of any excerpts from such books, records and documents as it shall
reasonably deem necessary; provided, however, that any such inspection: (i)
shall be conducted during normal business hours from time to time reasonably
established by the Inspected Party; (ii) shall, if the Inspected Party so
requests, be conducted in the presence of an officer or designated
representative of the Inspected Party; and (iii) shall be conducted in
accordance with reasonable security programs and procedures from time to time
established by the Inspected Party, including such confidentiality agreements
as
the Inspected Party may reasonably request.
(b) All
books
and records relating to the Assets Sold shall be maintained by NOVA, or the
Bank, as the case may be, for a period of three (3) years after the Closing
Date, unless the parties shall, applicable law permitting, agree upon a shorter
period; provided,
however,
that in
the event that, as of the end of such period, any taxable year of NOVA or the
Bank is still under examination or open for examination by any taxing authority
and that party has given notice of that fact to the other party, such books
and
records shall be maintained (or, alternatively, delivered by the Inspected
Party
to the other party) until the date, determined reasonably and in good faith,
specified for maintenance of such records in such notice. Prior to the
destruction of any books and records relating to the Assets Sold, the party
in
possession of such books and records shall offer them to the other party hereto.
Pursuant to the above, the Bank specifically agrees to make available to NOVA,
and promptly deliver to NOVA at NOVA's request, any historical records of
Merchant sales and monthly statements.
ARTICLE
II
CONSIDERATION
FOR ASSETS SOLD; CLOSING
2.1 Purchase
Price.
(a) As
consideration for the Assets Sold, NOVA shall pay an aggregate purchase price
of
Seven Million and No/l00 Dollars ($7,000,000.00) (the "Purchase Price"), payable
at the Closing by wire transfer of immediately available funds to an account
designated in writing by the Bank or by cashier's check payable to the order
of
the Bank.
(b) In
addition to the Purchase Price, if, and only if, the Closing occurs on or prior
to December 31, 2005, NOVA shall pay to the Bank a one-time additional bonus
payment of Two Hundred Fifty Thousand and No/l00 Dollars ($250,000.00) (the
"Signing Bonus"), which shall be paid to the Bank in the same manner as the
Purchase Price; provided, however, that in the event that (a) the Bank has
complied with all of its obligations under this Agreement and the Operative
Documents, as applicable and (b) the Closing is unable to occur on or prior
to
December 31, 2005 due to an act or omission of NOVA, the Bank shall be entitled
to receive the Signing Bonus at the Closing.
2.2
Closing.
Subject
to the satisfaction or waiver of the conditions set forth herein, the
consummation of the purchase and sale of the Assets Sold and the assumption
of
the Assumed Liabilities (the "Closing") shall take place on December 30, 2005
at
10:00 a.m. (Atlanta, Georgia time) or on such other date at such other time
as
the parties shall agree in writing (the "Closing Date"), to be effective as
of
the Effective Date, and shall take place through the execution and exchange,
via
facsimile transmission, of this Agreement and the other documents and agreements
herein contemplated. The parties acknowledge and agree that upon mutual exchange
and receipt of signature pages via facsimile, and upon receipt by the Bank
of
the purchase price herein contemplated, this Agreement and the other documents
and instruments delivered in connection herewith shall be deemed effective
as of
the Effective Date, and the transactions hereby contemplated shall be deemed
consummated, notwithstanding any party's failure or refusal to deliver original
(i.e. non-facsimile) signature pages.
ARTICLE
III
TRANSITION
PERIOD
3.1
Orderly
Transition.
The
Bank covenants and agrees to use all reasonable efforts, as reasonably
instructed by NOVA, to effect an orderly transition of the Merchant Bankcard
Business during the Transition Period in respect of the Assets Sold and the
Assumed Liabilities, including fulfilling its obligations under Section 1.4
hereof. In order to further such purpose, the Bank agrees that during the
Transition Period it shall execute such documents as are reasonably deemed
necessary or convenient by NOVA, including documents as may be appropriate
to
cause the BIN and ICA numbers used by the Bank in connection with the Merchant
Bankcard Business to be transferred to such "Principal Member" of the Credit
Card Associations as may be designated by NOVA, to evidence the agreements
referred to in, and transactions contemplated by, this Agreement, consistent
with the rules and regulations of the Credit Card Associations and NOVA's
practices and procedures.
3.2 Card
Management Corporation Rebate.
The
Bank and NOVA hereby acknowledge that pursuant to the terms of that certain
Operating Agreement between the Bank and Card Management Corporation dated
July
1, 1992, as amended, the Bank is entitled to receive a cash rebate from First
Data Resources calculated based on transaction processing volume of the Bank
for
the period from February 1, 2005 to January 31, 2006 (the "CMC Credit"), which
is payable to the Bank on or before April 30, 2006. Within 5 business days
of
receipt of the CMC Credit, the Bank shall pay to NOVA an amount equal to
one-twelfth (1/12) of the total CMC Credit and provide written evidence to
NOVA
of the total amount of the CMC Credit.
3.3 Services
During the Transition Period.
(a) During
the Transition Period, the Bank shall perform on behalf of and for the account
of NOVA at the same location(s) presently used to conduct the Merchant Bankcard
Business all of the services performed by the Bank in connection with the
Merchant Bankcard Business prior to the Closing Date. The Bank shall perform
such services substantially in the same manner and with no less than the same
degree of care as performed in connection with the Merchant Bankcard Business
prior to the Closing Date, and shall otherwise perform such services in
accordance with such performance standards, including underwriting guidelines,
as are specified by NOVA. In performing such services, the Bank shall follow
the
reasonable instructions of NOVA. Further, NOVA shall reimburse the Bank for
the
reasonable out-of-pocket expenses set forth on Schedule
3.3(a) hereto
that are actually incurred by the Bank in providing services in connection
with
Merchant Bankcard Business during the Transition Period (the "Transition
Expenses"). For purposes of clarity, Schedule
3.3(a) sets
forth the type and estimated amount of each anticipated Transition Expense,
and
NOVA shall not be liable for (i) any expense not enumerated in Schedule
3.3(a) or
(ii)
any increase in Transition Expense arising out of or relating to this Agreement,
the Operative Documents or the transactions contemplated hereby or
thereby.
(b) Without
limiting the generality of the foregoing, during the Transition Period, the
Bank
shall continue to provide credit to Merchants on the same business day deposits
are made by Merchants for Draft deposits (provided such deposits are made prior
to 2:00 p.m. closing; Draft deposits made after 2:00 p.m. closing shall be
considered to be made on the following business day) and on the day of receipt
of ACH notice for Credit Card and Debit Card transactions processed
electronically. The Bank shall not be entitled to reimbursement for cost of
funds for providing such credit.
(c) During
the Transition Period, and in performing services hereunder, the Bank shall
comply in all respects with the rules and regulations of the Credit Card
Associations and the EFT Networks, and shall not take, or fail to take, any
actions with respect to the Merchant Bankcard Business which would constitute
a
violation of such rules and regulations.
(d) During
the Transition Period, NOVA shall designate a service coordinator (the "Service
Coordinator") as the person at NOVA primarily responsible for ensuring an
orderly transition of the Merchant Bankcard Business. The name and contact
information of the initial Service Coordinator is set forth on Schedule
3.3(d).
NOVA
shall have the right, in its sole discretion to remove and promptly replace
the
Service Coordinator at any time during the Transition Period and shall provide
the Bank with written notice of such change.
3.4 Revenue
During the Transition Period.
In
performing services during the Transition Period on behalf of and for the
account of NOVA:
(a) the
Bank
shall, beginning on the Effective Date and continuing throughout the Transition
Period, on behalf of and for the account of NOVA, collect revenue generated
by
the Merchant Bankcard Business, less interchange fees (collectively, "Revenue")
and which shall include Revenue for (i) all original sales transactions
generated pursuant to the Assets Sold and occurring on or after the Effective
Date, and (ii) all the other revenue generated by the Assets Sold and occurring
on or after the Effective Date. In connection with the Transition Period, the
Bank and NOVA shall cooperate to coordinate the accounting and reconciliation
of
the Bank's monthly revenue accruals with the corresponding adjustments to occur
in the month immediately following the month in which such Revenue accrues
(the
"Accrual Adjustment"). Within 10 business days of the Accrual Adjustment, the
Bank shall pay to NOVA the Revenue finally determined by such Accrual Adjustment
(the "Revenue Payment"). At the time of each Revenue Payment, the Bank shall
also furnish to NOVA a certificate of an authorized financial officer certifying
the amount due to NOVA and showing the calculation thereof in such reasonable
detail as NOVA may request; and
(b) within
forty-five (45) days of completion of the Transition Period, the Bank shall
pay
to NOVA any remaining unpaid Revenue that was accrued during the Transition
Period.
3.5 Employees.
During
the Transition Period, the Bank shall use all reasonable efforts to ensure
that
the employees utilized in the Merchant Bankcard Business on and prior to the
date hereof by the Bank will continue in the employ of the Bank, performing
the
duties relating to the Merchant Bankcard Business theretofore performed by
it,
as reasonably instructed by NOVA during the Transition Period. Further, the
Bank
shall use all reasonable efforts to provide adequate and appropriate skilled
staffing in connection with the operation of the Merchant Bankcard Business
during the Transition Period.
3.6 Clearing
Bank Arrangement.
(a) During
the Transition Period, and in order to permit an orderly transition of the
processing of Credit Card and Debit Card transactions, the Bank shall continue
to act as a clearing bank for NOVA with respect to Credit Card and Debit Card
transactions processed under the Merchant Agreements, all in accordance with
the
rules and regulations of the Credit Card Associations and the EFT
Networks.
(b) At
the
request of NOVA, the Bank shall execute appropriate documents to evidence the
transfer of the clearing bank responsibilities under the Merchant Agreements
to
the Person designated by NOVA to effect such transfer. In addition, the Bank
shall render such other necessary assistance as NOVA may reasonably
request.
3.7 Extension
of Transition Period.
If
requested by NOVA in writing at least thirty (30) days prior to the Transition
Date, and notwithstanding any contrary provision contained herein, the Bank
shall continue to provide those services described in this Article III as are
requested by NOVA beyond the Transition Date on the same terms and conditions
set forth herein. The Bank's obligation to provide such services shall continue
until terminated by thirty (30) days prior written notice from NOVA but in
no
event shall the Transition Period be extended beyond the date that is six (6)
months after the Closing Date unless agreed upon by all parties to this
Agreement; provided,
however,
that
in
no event shall the Transition Period extend beyond June 30, 2006, unless the
parties mutually agree otherwise.
ARTICLE
IV
CERTAIN
COVENANTS AND AGREEMENTS OF THE BANK
4.1 Transfer
Taxes.
All
sales or transfer taxes, including stock transfer taxes, document recording
fees, real property transfer taxes, and excise taxes, arising out of or in
connection with the consummation of the transactions contemplated hereby, if
any, shall be paid by the Bank.
4.2 Confidentiality
of Information.
On and
after the date hereof, the Bank and its officers, employees, agents and
representatives shall treat all information, books and records, originals or
copies of books or records which are retained or obtained by it pursuant to
Section 1.5, and all information learned or obtained about NOVA's business
or
relating to the Merchant Bankcard Business, written or oral, as confidential
and
will not disclose such information to third parties except as required by law,
as needed in connection with a lawsuit, claim, litigation or other proceeding
or
in connection with tax or regulatory matters and except to the extent that
such
information is already in the public domain, or subsequently enters the public
domain, other than as a result of the breach of the Bank's obligations under
this Section 4.2. The Bank and its officers, employees, agents and
representatives shall not use the information described in this Section 4.2
in
any manner that might reasonably be anticipated to adversely affect the Merchant
Bankcard Business or NOVA's relations with Merchants or with other Persons.
The
covenants contained in this Section 4.2 shall survive for the duration of the
Marketing Agreement and for a period of three (3) years after the termination
or
expiration thereof.
4.3 Notice
of Breach or Potential Breach.
The
Bank shall promptly notify NOVA of any change, circumstance or event which
may
prevent the Bank from complying with any of its obligations
hereunder.
4.4 Further
Assurances.
On and
after the Closing Date, the Bank shall (i) give such further assurances to
NOVA
and execute, acknowledge and deliver all such acknowledgments and other
instruments and take such further action as NOVA may reasonably request to
effectuate the transactions contemplated by this Agreement, including the
transfer of the Assets Sold and assumption of the Assumed Liabilities, and
(ii)
use all reasonable efforts to assist NOVA in the orderly transition referred
to
in Article III.
4.5 Collections.
The
Bank shall use all reasonable efforts after the Transition Date to assist NOVA,
at NOVA's request, in processing amounts in respect of any chargeback or other
Credit Loss received or identified in connection with the Merchant Bankcard
Business and relating to or arising out of any original sales transaction
occurring on or after the Effective Date. NOVA shall be responsible for all
costs and expenses relating to such collection efforts, including costs and
expenses of collection letters, litigation, arbitration proceedings and similar
actions.
4.6 Post-Transition
Cash Advance Processing.
The
Bank, throughout the Post Transition Period, shall use NOVA and a principal
member designated by NOVA as the exclusive processor of cash advance
transactions made by the Bank.
ARTICLE
V
CERTAIN
COVENANTS AND AGREEMENTS OF NOVA
5.1 Confidentiality
of Information.
On and
after the date hereof, NOVA and its officers, employees, agents and
representatives shall treat all information learned, or obtained prior to the
date of this Agreement or during the Transition Period about the Bank's
businesses, other than the Merchant Bankcard Business, as confidential and
will
not disclose such information to third parties except as required by law, as
needed in connection with a lawsuit, claim, litigation or other proceeding
or in
connection with tax or regulatory matters and except to the extent that such
information is already in the public domain, or subsequently enters the public
domain, other than as a result of the breach of NOVA's obligations under this
Section 5.1. NOVA and its officers, employees, agents, and representatives
shall
not use the information described in this Section 5.1 in any manner that might
reasonably be anticipated to materially adversely affect the Bank's financial
condition, business or agreements or arrangements with any other Person.
Notwithstanding the foregoing, the Bank acknowledges and agrees that the
restrictions contained in this Section 5.1 shall not apply to any disclosures
of
such confidential information by NOVA in connection with, or as may result
from
(a) the provision by NOVA of Merchant Bankcard Services under this Agreement
or
the other Operative Documents, or otherwise in connection with NOVA's
performance of its obligations hereunder or thereunder, (b) such disclosure
as
may be required by applicable law or regulation or Payment Network Regulations,
(c) such disclosure as is contained in or required to prepare any financial
statements (including the notes thereto), (d) appropriate or necessary
disclosure to banking authorities or regulators, including as may result from
NOVA's status as an affiliate of U.S. Bancorp or another bank, or (e) disclosure
to U.S. Bancorp's Corporate and Compliance Units. Notwithstanding any provision
of this Agreement, NOVA shall not divulge, directly or indirectly or through
U.S. Bancorp or any of its affiliates, successors or assigns, any confidential
information of the Bank, including information related to the Merchant Business,
to U.S. Bank, N.A. which, in any manner, can be used for the purpose of
soliciting customers of the Bank for any services other than the Merchant
Bankcard Services. The covenants contained in this Section 5.1 shall survive
for
the duration of the Marketing Agreement and for a period of three (3) years
after the termination or expiration thereof.
5.2 Notice
of Breach or Potential Breach.
NOVA
shall promptly notify the Bank of any change, circumstance or event which may
prevent NOVA from complying with any of its obligations hereunder.
5.3 Further
Assurances.
On and
after the Closing Date, NOVA shall (i) give such further assurances to the
Bank
and execute, acknowledge and deliver all such acknowledgments and other
instruments and take such further action as the Bank may reasonably request
to
effectuate the transactions contemplated by this Agreement, including the
transfer of the Assets Sold and assumption of the Assumed Liabilities and (ii)
use all reasonable efforts to assist the Bank in the orderly transition referred
to in Article III.
ARTICLE
VI
REPRESENTATIONS
AND WARRANTIES OF THE BANK AND PARENT
The
Bank
hereby makes the following representations and warranties to NOVA as of the
date
hereof and as of the Effective Date:
6.1 Organization;
Ownership. The
Bank
is a state-chartered bank organized under the laws of the State of Florida
and
is authorized to conduct its business as presently conducted (including the
Merchant Bankcard Business) under those laws and all other applicable
laws.
6.2 Authority.
The
Bank has the right, power, capacity and authority to enter into and deliver
the
Operative Documents, to perform its obligations under the Operative Documents,
and to effect the transactions contemplated by the Operative Documents, and
no
Person other than the Bank (other than the Merchants party to Merchant
Agreements) has any interest in the Merchant Bankcard Business or the Merchant
Agreements. The execution, delivery and performance of the Operative Documents
have been approved by all requisite corporate action on the part of the Bank,
and when executed and delivered pursuant hereto, the Operative Documents will
constitute valid and binding obligations of the Bank enforceable in accordance
with their terms.
6.3 Government
Notices.
The
Bank has not received notice from any federal, state or other governmental
agency or regulatory body indicating that such agency or regulatory body would
oppose or not grant or issue its consent or approval, if required, with respect
to the transactions contemplated by the Operative Documents.
6.4 No
Violations.
(a) The
execution and delivery by the Bank of the Operative Documents, and its
performance thereunder, will not (i) violate, conflict with, result in a breach
of or constitute (with or without notice or lapse of time or both) a default
under any agreement, indenture, mortgage or lease to which the Bank is a party
or by which the Bank or its properties, or the Merchant Bankcard Business,
are
bound; (ii) constitute a violation by the Bank of any law or government
regulation applicable to the Bank or the Merchant Bankcard Business; (iii)
violate any provision of the charter, articles of incorporation or bylaws (or
similar governing documents) of the Bank; or (iv) violate any order, judgment,
injunction or decree of any court, arbitrator or governmental body against
or
binding upon the Bank or the Merchant Bankcard Business.
(b) With
respect to the Merchant Bankcard Business, the Bank is not, has not been and
will not be (by virtue of any past or present action, omission to act, contract
to which the Bank is a party or any occurrence or state of facts whatsoever)
in
violation of any applicable local, state or federal law, ordinance, regulation,
order, injunction or decree, or any other requirement of any governmental body,
agency or authority or court binding on it, or relating to its properties or
businesses (including any antitrust laws and regulations).
(c) The
Bank
has properly compared the Merchants against the required government lists
(including, but not limited to, the Office of Foreign Assets Control SDN List
and USA Patriot Act §314(a)) and has taken appropriate actions with regard to
all Merchants that appear on any of the government lists. The latest comparison
of the Merchants against the Office of Foreign Assets Control SDN List occurred
not more than fourteen (14) days prior to the date of this
Agreement.
6.5 Assets
Sold.
The
Bank is the sole owner of all rights, title and interest in and to the Assets
Sold, free and clear of all title defects or objections, assignments, liens,
encumbrances of any nature whatsoever, restrictions, security interests, rights
of third parties, or other liabilities, and has good and valid title to the
Assets Sold. The Equipment being sold hereunder is in good operating condition,
ordinary wear and tear excepted, and has been reasonably maintained and
repaired. The Equipment as of September 30, 2005 is of the quantity and type
represented on Schedule
6.5(a),
which
identifies the Equipment by manufacturer type and serial number (if applicable),
indicates any Equipment that is leased to third parties (and the identity of
said parties) and which Schedule is true, correct and complete. The Inventory
as
of September 30, 2005 is set forth on Schedule
6.5(b),
consists of items of a quality and quantity usable and saleable in the ordinary
course of the Merchant Bankcard Business, and such Schedule is true, correct
and
complete. Since December 31, 2004, no items of Equipment or Inventory have
been
sold or disposed of except through sales or transactions in the ordinary course
of business, consistent with past practices. The Assets Sold include all rights,
properties and other assets necessary to permit NOVA to conduct the Merchant
Bankcard Business in substantially the same manner as the Bank's Merchant
Bankcard Business has heretofore been conducted, without any need for
replacement, refurbishment or extraordinary repair.
6.6 Financial
Information Concerning the Merchant Bankcard Business.
(a) The
financial and other information concerning the Merchant Bankcard Business
attached hereto as Schedule
6.6(a)
(collectively, the "Financial Information") is true, correct, and complete
and
fairly presents the financial condition of the Merchant Bankcard Business in
respect of the Assets Sold as of and for the periods indicated thereon. The
Financial Information does not contain any untrue statement, nor omit any
material fact necessary in order to make the statements made and information
presented in the Financial Information, not misleading. This representation
and
warranty may not be limited or satisfied by inconsistent information provided
after the date hereof. Since December 31, 2004, there has been no adverse change
in the Merchant Bankcard Business.
(b) The
information relative to Merchants' annualized (i) Credit Card sales volume
and
(ii) Debit Card sales volume set forth on Schedule
6.6(b) is
true,
correct and complete in all material respects as of the date hereof and for
the
periods indicated, and such information does not contain any untrue statement
nor omit any material fact necessary in order to make the statements made and
information presented therein, not misleading. This representation and warranty
may not be limited or satisfied by inconsistent information provided after
the
date hereof.
6.7 Agreements
Relating to the Merchant Bankcard Business.
(a) Schedule
6.7(a)(i) lists
all
of the Merchants. The Bank is not in default (and would not be in default upon
notice, lapse of time or both) under any provision of any Merchant Agreement.
The Bank has not received any notice of fraud by, or bankruptcy or contemplated
bankruptcy of, any Merchant or any other party or guarantor to any of the
Merchant Agreements, and has not received any notice of default or adverse
comment from any regulatory authority in respect of any Merchant. Except as
set
forth on Schedule
6.7(a)(iii),
the Bank
has neither given nor received notice of election to terminate any of the
Merchant Agreements, and all Merchants currently process Credit Card
transactions. Except as set forth on Schedule
6.7(a)(iv),
each
Merchant is a party to a Merchant Agreement with the Bank. No Merchant (x)
is a
high-risk inbound teleservices merchant, (y) is involved in adult-oriented
business, or (z) otherwise engages in a business activity that would result
in
additional fees or charges being imposed by any Credit Card Association,
including but not limited to fees relating to Internet payment service
providers.
(b) Except
as
set forth on Schedule
6.7(b ),
the Bank
has in its possession, and shall deliver to NOVA in accordance with Section
1.5
hereof, an original executed copy of each Merchant Agreement. All agreements
between the Bank and the Merchants are in the form of one of the Standard
Merchant Agreements, attached hereto as Exhibit
6.7(b)(i),
and are
freely assignable by the Bank without the consent of the applicable Merchant
or
any other party.
(c) The
Bank
has obtained guarantees from principals or third parties of all the Merchants
listed on Schedule
6.7(c),
and the
Bank has in its possession, and shall deliver to NOVA in accordance with Section
1.5 hereof, an original executed copy of all such guarantees. All such
guarantees are in the form of the Guarantee attached hereto as Exhibit
6.7(c)
(the
"Standard Guarantee"), and are freely assignable by the Bank without the consent
of the applicable Merchant or any other party.
(d) The
Bank
has no agreements, written or oral, with any agent bank, other association,
institution, independent sales organization, or any other third party which
provides for anyone or more of the following: (i) the deposit of Credit Card
or
Debit Card transaction records; (ii) the settlement of Credit Card or Debit
Card
transactions; (iii) the processing of Credit Card or Debit Card transactions;
or
(iv) the referral of merchants to the Bank.
(e) Except
for disputes that have arisen in the ordinary course of business and that (i)
are not material or otherwise significant in nature or amount, and (ii) have
not
been referred to legal counsel, whether internal or external, the Bank is not
engaged in any dispute with any Merchant or otherwise relating to the Merchant
Bankcard Business. The Bank has not received any notice, written or oral, that
the consummation of the transactions contemplated hereunder will have any
adverse effect on the business relationship of the Bank with any
Merchant.
(f) The
Bank
is a member in good standing of the Credit Card Associations. The Bank and
the
Merchant Bankcard Business are in full compliance in all respects with all
applicable rules and regulations and certification requirements of the Credit
Card Associations. The Bank has provided NOVA true, correct and complete copies
of all agreements between the Bank and any Credit Card Association.
(g) Schedule
6.7( g)
sets
forth a true, correct and complete list of all rights and interests of the
Bank
with respect to any reserve or hold accounts established and maintained by
Merchants and maintained with the Bank in connection with the Merchant
Agreements (collectively, the "Reserve Accounts"), and the Merchant Bankcard
Business, and indicates the amount contained in each such Reserve Account as
of
the date thereof and further indicates the terms and conditions relative to
each
of such Reserve Accounts. The Reserve Accounts are freely assignable by the
Bank
without the consent of the applicable Merchant or any other party
thereto.
(h) Schedule
6.7(h)
sets
forth the Credit Cards, other than MasterCard and VISA, for which the Bank
has
contracted to provide authorization and data capture services, and Schedule
6.7(h)
also
identifies the Merchants to whom such non-MasterCard and VISA services are
provided. All such agreements are attached hereto as Exhibit
6.7(h).
6.8 Merchants'
Credit.
Schedule
6.8,
sets
forth the twenty (20) Merchants with the highest dollar value of Credit Card
transactions processed during the twelve (12) month period ending October 31,
2005. All of the Merchants listed on Schedule
6.8 are
parties to a Merchant Agreement with the Bank, copies of which have been
delivered to NOVA.
6.9 EFT
Networks.
The
Bank is a member in good standing of the EFT Networks identified on Schedule
6.9
attached
hereto. The Bank and the Merchant Bankcard Business are in full compliance
in
all respects with all applicable rules and regulations of such EFT
Networks.
6.10 Draft
Transactions.
The
Bank does not accept Drafts from Merchants and no Merchant Agreement permits
Draft deposits, including with respect with cash advance transactions. There
are
no Merchants who make Draft deposits.
6.11 Consents
and Approvals.
(a) Except
as
set forth on Schedule
6.11,
no
action of, or filing with, any governmental or public body is required by the
Bank to authorize, or is otherwise required in connection with, the execution
and delivery by the Bank of this Agreement or the other Operative Documents
or,
if required, the requisite filing has been accomplished and all necessary
approvals obtained.
(b) Except
as
set forth on Schedule
6.11,
no
filing, consent or approval is required by virtue of the execution hereof or
any
other Operative Document by the Bank or the consummation of any of the
transactions contemplated herein by the Bank to avoid the violation or breach
of, or the default under, or the creation of a lien on any of the Assets Sold
pursuant to the terms of, any law, regulation, order, decree or award of any
court or governmental agency or any lease, agreement, contract, mortgage, note,
license, or any other instrument to which the Bank is a party or to which the
Bank or any of the Assets Sold is subject.
6.12 Leases.
Schedule
6.12 contains
a true, correct and complete list of all (i) leases (including any capital
leases) and lease-purchase arrangements pursuant to which the Bank leases real
or personal property related to the Merchant Bankcard Business from others,
and
(ii) lease, rental and lease-purchase arrangements pursuant to which the Bank
leases property to any Merchant or other party in connection with the Merchant
Bankcard Business. Schedule
6.12
specifies which of such leases, if any, are capital leases. The Bank has made
available to NOVA a true, correct and complete copy of each of the items listed
on Schedule
6.12.
6.13 Intellectual
Property.
(a) With
respect to the Merchant Bankcard Business, the Bank has made available to NOVA
true, correct and complete copies of each trademark and service xxxx
registration or application therefor.
(b) The
Bank
has not heretofore infringed upon, and is not now infringing upon, and the
continuation of the Merchant Bankcard Business as presently conducted will
not
infringe upon, any patent, service xxxx, trade name, trademark, copyright,
trade
secret, or other intellectual property, confidential information or proprietary
information belonging to any other Person and the Bank has not agreed to
indemnify any Person for or against any infringement.
(c) To
the
Knowledge of the Bank no Person is infringing upon any of the Bank's patents,
service marks, trademarks, copyrights, trade secrets, or other intellectual
property that is or are related to the Merchant Bankcard Business.
6.14 Litigation
and Claims.
Schedule
6.14 (i)
sets
forth all litigation, claims, suits, actions, investigations, proceedings or
arbitrations, grievances or other procedures (including product liability and
workers' compensation suits, actions or proceedings, and investigations
conducted by any Credit Card Association) that are pending, or to the Knowledge
of the Bank, threatened, in or before any court, commission, arbitration
tribunal, or judicial, governmental or administrative department, body, agency,
administrator or official, Card Association, or any other entity or forum for
the resolution of grievances, against the Bank and relating in any way to the
Merchant Bankcard Business (collectively "Claims"), and (ii) indicates which
of
such Claims are being defended by an insurance carrier, and which of such Claims
being so defended are being defended under a reservation of rights. The Bank
has
made available to NOVA true, correct and complete copies of all pleadings,
briefs and other documents filed in each pending litigation, claim, suit,
action, investigation, proceeding, arbitration, grievance or other procedure
listed in Schedule
6.14,
and the
judgments, orders, writs, injunctions, decrees, civil investigative demands,
plea agreements, stipulations and awards listed in Schedule
6.14.
6.15 Merchant
Bankcard Business Employees.
Schedule
6.15 sets
forth the names and current compensation (broken down by category, e.g. salary,
bonus, commission), together with the date and amount of the last increase
in
compensation for each such person, and the title and functional positions of
all
employees of the Bank who work either full or part-time in connection with
the
Merchant Bankcard Business ("Merchant Bankcard Business Employees"). Except
as
set forth on Schedule
6.15,
no
Merchant Bankcard Business Employee is a party to any employment agreement,
arrangement or understanding with the Bank. The federal employer identification
number of the Bank is set forth in Schedule
6.15.
6.16 Labor;
Collective Bargaining.
There
are no labor contracts, collective bargaining agreements, letters of
understanding or other arrangements, formal or informal, with any union or
labor
organization covering any of the Merchant Bankcard Business Employees and none
of said employees are represented by any union or labor
organization.
6.17 Required
Licenses and Permits.
No
licenses, permits or other authorizations of governmental authorities are
necessary for the conduct of the Merchant Bankcard Business by the
Bank.
6.18 Agreements,
Contracts and Commitments.
Except
as set forth and specifically identified in Sections (or the corresponding
Schedules) 6.7, 6.12, 6.15, 6.16 and 6.20:
(a) The
Bank
does not have any agreement, contract, commitment or relationship, whether
written or oral, related to the Merchant Bankcard Business, by which NOVA could
be bound;
(b) The
Bank
does not have any outstanding contract related to the Merchant Bankcard
Business, written or oral, with any officer, employee, agent, consultant,
advisor, salesman, manufacturer's representative, distributor, dealer,
subcontractor, or broker that is not cancelable by the Bank, on notice of not
longer than thirty (30) days and without liability, penalty or premium of any
kind, except liabilities which arise as a matter of law upon termination of
employment, or any agreement or arrangement related to the Merchant Bankcard
Business providing for the payment of any bonus or commission based on sales
or
earnings;
(c) The
Bank
is not subject to any contract or agreement related to the Merchant Bankcard
Business containing covenants limiting the freedom of the Bank to compete in
any
line of business in any geographic area;
(d) With
respect to the Merchant Bankcard Business, there is no contract, agreement
or
other arrangement entitling any Person to any profits, revenues or cash flows
of
the Bank or requiring any payments or other distributions based on such profits,
revenues or cash flows.
6.19 Agreements
in Full Force and Effect.
Except
as expressly set forth on Schedule
6.19,
all
contracts and agreements referred to, or required to be referred to, herein
or
in any Schedule delivered hereunder are valid and binding, and are in full
force
and effect and are enforceable in accordance with their terms. The Bank has
not
received notice of any pending or threatened bankruptcy, insolvency or similar
proceeding with respect to any party to such agreements, and no event has
occurred which (whether with or without notice, lapse of time or the happening
or occurrence of any other event) would constitute a default thereunder by
the
Bank, or to the Knowledge of the Bank, any other party thereto.
6.20 Vendors
and Suppliers.
Schedule
6.20
sets
forth a true, correct and complete list of each supplier to the Bank of goods
and services directly related to the Merchant Bankcard Business that charged,
billed or invoiced the Bank in excess of $10,000 during the twelve (12) month
period ended September 30, 2005. The Bank has provided to NOVA true, correct
and
complete copies of all agreements and contracts between the Bank and any of
the
Persons listed on Schedule 6.20.
6.21 Absence
of Certain Changes and Events.
Except
as set forth on Schedule
6.21, since
December 31, 2004, the Bank has conducted the Merchant Bankcard Business only
in
the ordinary course, and has not:
(a) suffered
any damage or destruction adversely affecting the Merchant Bankcard
Business;
(b) suffered
any adverse change in the working capital, assets, liabilities, financial
condition, or business prospects relating to the Merchant Bankcard Business,
or
relationships with any suppliers listed on Schedule
6.20;
(c) except
for customary increases based on term of service or regular promotion of
non-officer employees, increased (or announced any increase in) the compensation
payable or to become payable to any Merchant Bankcard Business Employee, or
increased (or announced any increase in) any bonus, insurance, pension or other
employee benefit plan, payment or arrangement for Merchant Bankcard Business
Employees, or entered into or amended any employment, consulting, severance
or
similar agreement with any Merchant Bankcard Business Employee;
(d) incurred,
assumed or guaranteed any liability or obligation (absolute, accrued, contingent
or otherwise) with respect to the Merchant Bankcard Business, other than a
non-material amount in the ordinary course of business consistent with past
practice;
(e) paid,
discharged, satisfied or renewed any claim, liability or obligation with respect
to the Merchant Bankcard Business, other than payment of a non-material amount
in the ordinary course of business consistent with past practice;
(f) permitted
any of the Assets Sold to be subjected to any mortgage, lien, security interest,
restriction, charge or other encumbrance of any kind;
(g) waived
any material claims or rights with respect to the Merchant Bankcard
Business;
(h) sold,
transferred or otherwise disposed of any of the assets used in the Merchant
Bankcard Business, except non-material assets in the ordinary course of business
consistent with past practice;
(i) made
any
single capital expenditure or investment with respect to the Merchant Bankcard
Business in excess of $10,000;
(j) made
any
change in any method, practice or principle of financial or tax accounting
that
in any manner affected the Merchant Bankcard Business or any financial
information relating to or derived from the Merchant Bankcard
Business;
(k) managed
working capital components relating to the Merchant Bankcard Business, including
cash, receivables, other current assets, trade payables and other current
liabilities in a fashion inconsistent with past practice, including failing
to
sell inventory and other property in an orderly and prudent manner or failing
to
make all budgeted and other normal capital expenditures, repairs, improvements
and dispositions;
(l) paid,
loaned, advanced, sold, transferred or leased any Asset Sold to any employee,
except for normal compensation involving salary and benefits;
(m) entered
into any commitment or transaction, other than a non-material commitment or
transaction entered into in the ordinary course of business consistent with
past
practice, affecting the Merchant Bankcard Business; or
(n) agreed
in
writing, or otherwise, to take any action described in this Section
6.20.
6.22 Finder's
Fees.
The
Bank has not made any commitment or done any act that would create any liability
to any Person other than themselves for any brokerage, finder's or similar
fee
or commission in connection with this Agreement or the transactions contemplated
hereby.
6.23 Disclosure.
No
representations, warranties, assurances or statements by the Bank in this
Agreement, and no statement contained in any document (including the Financial
Information and the Schedules and Exhibits), certificates or other writings
furnished by the Bank (or caused to be furnished by the Bank) to NOVA or any
of
its representatives pursuant to the provisions hereof, contains any untrue
statement of material fact, or omits or will omit to state any fact necessary,
in light of the circumstances under which such statement was made, in order
to
make the statements herein or therein not misleading.
ARTICLE
VII
REPRESENTATIONS
AND WARRANTIES OF NOVA
NOVA
makes the following representations and warranties to the Bank as of the date
hereof and as of the Effective Date:
7.1 Organization.
NOVA is
a corporation duly organized and validly existing under the laws of the State
of
Georgia and is authorized to conduct its business under those laws
7.2 Authority.
NOVA
has the right, power, capacity and authority to enter into and deliver the
Operative Documents, to perform its obligations under the Operative Documents,
and to effect the transactions contemplated by the Operative Documents. The
execution, delivery and performance of the Operative Documents have been
approved by all requisite corporate action on the part of NOVA, and, when
executed and delivered pursuant hereto, the Operative Documents will constitute
valid and binding obligations of NOVA enforceable in accordance with their
terms.
7.3 Governmental
Notices.
NOVA
has not received notice from any federal, state or other governmental agency
or
regulatory body indicating that such agency or regulatory body would oppose
or
not grant or issue its consent or approval, if required, with respect to the
transactions contemplated by the Operative Documents.
7.4 No
Violations.
The
execution and delivery by NOVA of the Operative Documents and its performance
thereunder will not: (i) violate, conflict with, result in a breach of or
constitute (with or without notice or lapse of time or both) a default under,
any material agreement, indenture, mortgage or lease to which NOVA is a party
or
by which it or its properties are bound; (ii) constitute a violation by NOVA
of
any material law or governmental regulation applicable to NOVA; (iii) violate
any provision of the Articles of Incorporation or Bylaws of NOVA; or (iv)
violate any order, judgment, injunction or decree of any court, arbitrator
or
governmental body against or binding upon NOVA.
7.5 Consents
and Approvals.
(a) No
action
of, or filing with, any governmental or public body is required by NOVA to
authorize, or is otherwise required in connection with, the execution and
delivery by NOVA of this Agreement or the other Operative Documents or, if
required, the requisite filing has been accomplished and all necessary approvals
obtained.
(b) No
filing, consent or approval is required by virtue of the execution hereof or
any
other Operative Document by NOVA or the consummation of any of the transactions
contemplated herein by NOVA to avoid the violation or breach of any law,
regulation, order, decree or award of any court or governmental agency, or
any
lease, agreement, contract, mortgage, note, license, or any other instrument
to
which NOVA is a party or is subject, or, if required, the requisite filing
has
been accomplished and all necessary approvals obtained.
7.6 Finder's
Fees.
NOVA
has not made any commitment or done any act that would create any liability
to
any Person other than itself for any brokerage, finder's or similar fee or
commission in connection with this Agreement or the transactions contemplated
hereby.
ARTICLE
VIII
COVENANTS
OF THE PARTIES
The
parties hereto hereby covenant and agree as follows:
8.1 Credit
Card Association/EFT Network Filings.
NOVA
and the Bank shall cooperate with each other to file with the Credit Card
Associations and the EFT Networks any document or information that each such
Credit Card Association or EFT Network deems to be required or desirable to
be
filed in order for the acquisition contemplated by this Agreement to be
completed.
8.2 Employee
Benefit Plans.
NOVA
shall not adopt, assume or otherwise become responsible for, either primarily
or
as a successor employer, any assets or liabilities of any employee benefit
plans, arrangements, commitments or policies currently provided by the Bank
or
by any member of the Bank's controlled group of corporations; and if and to
the
extent that NOVA is deemed by law or otherwise to be liable as a successor
employer for such purposes, the Bank shall indemnify NOVA for the full and
complete costs, fees and other liabilities which result. In particular, NOVA
shall not assume liability for any group health continuation coverage or
coverage rights under Internal Revenue Code Section 4980B and ERISA Section
606
which exist as of the Closing Date or the Effective Date or which may arise
as a
result of the Bank's termination of any group health plan or plans, and if
and
to the extent that NOVA is deemed by law or otherwise to be liable as a
successor employer for such group health continuation coverage purposes, the
Bank shall indemnify NOVA for the full and complete costs, fees and other
liabilities which result.
ARTICLE
IX
CONDITIONS
TO OBLIGATIONS OF THE BANK AND PARENT
Each
of
the obligations of the Bank to be performed hereunder shall be subject to the
satisfaction (or waiver by the Bank) at or before the Closing of each of the
following conditions:
9.1 Required
Governmental Approvals.
All
governmental authorizations, consents and approvals necessary for the valid
consummation of the transactions contemplated hereby shall have been obtained
and shall be in full force and effect. All applicable governmental
pre-acquisition filing, information furnishing and waiting period requirements
shall have been met or such compliance shall have been waived by the
governmental authority having authority to grant such waivers.
9.2 The
Marketing Agreement.
NOVA
shall have executed and delivered to the Bank the Marketing Agreement attached
hereto as Exhibit
10.5.
9.3 Xxxx
of Sale and Assignment and Assumption Agreement.
NOVA
shall have executed and delivered to the Bank the Xxxx of Sale and Assignment
and Assumption Agreement.
9.4 Credit
Card Associations/EFT Networks.
All
filings required pursuant to Section 8.1 shall have been made, and all approvals
required pursuant to Section 8.1 shall have been received, and neither the
Bank
nor NOVA shall have received any objection of any kind from a Credit Card
Association either in response to the filings required under Section 8.1 or
otherwise.
9.5 Documents
Satisfactory in Form and Substance.
All
agreements, certificates, opinions and other documents delivered by NOVA to
the
Bank hereunder shall be in form and substance satisfactory to counsel of the
Bank, in the exercise of such counsel's reasonable judgment.
9.6 Documents
Satisfactory in Form and Substance.
All
agreements, certificates, opinions and other documents delivered by NOVA to
the
Bank hereunder shall be in form and substance satisfactory to counsel of the
Bank, in the exercise of such counsel's reasonable judgment.
ARTICLE
X
CONDITIONS
TO OBLIGATIONS OF NOVA
The
obligations of NOVA to be performed hereunder shall be subject to the
satisfaction (or waiver by NOVA) at or before the Closing of each of the
following conditions:
10.1 Required
Governmental Approvals.
All
governmental authorizations, consents and approvals necessary for the valid
consummation of the transactions contemplated hereby shall have been obtained
and shall be in full force and effect. All applicable governmental
pre-acquisition filing, information furnishing and waiting period requirements
shall have been met or such compliance shall have been waived by the
governmental authority having authority to grant such waivers.
10.2 Other
Necessary Consents.
The Bank
shall have obtained all consents and approvals (and estoppel certificates)
listed on Schedule
6.11.
With
respect to each such consent or approval, NOVA shall have received written
evidence, satisfactory to it, that such consent or approval has been duly and
lawfully filed, given, obtained or taken and is effective, valid and
subsisting.
10.3 Corporate
Resolutions.
The
Bank shall have delivered to NOVA certified resolutions of the Bank authorizing
this Agreement and all other agreements and transactions contemplated
hereby.
10.4 Non-Competition
Agreement.
The
Bank and the parent company of the Bank, TIB Financial Corp. ("Parent"), shall
have executed and delivered to NOVA the Non-Competition Agreement.
10.5 Marketing
Agreement.
The
Bank and Parent shall have executed the Marketing Agreement.
10.6 Xxxx
of Sale and Assignment and Assumption Agreement.
The
Bank shall have executed and delivered to NOVA the Xxxx of Sale and Assignment
and Assumption Agreement.
10.7 Credit
Card Associations/EFT Networks.
All
filings required pursuant to Section 8.1 shall have been made, and all approvals
required pursuant to Section 8.1 shall have been received, and neither the
Bank
nor NOVA shall have received any objection of any kind from a Credit Card
Association either in response to the filings required under Section 8.1 or
otherwise.
10.8 Certified
Charter and Good Standing Certificates.
The
Bank shall deliver to NOVA a certified copy of the Charter of the Bank together
with a Good Standing Certificate, or Certificate of similar import, from the
Florida Secretary of State or similar authority for the Bank.
10.9 Documents
Satisfactory in Form and Substance.
All
agreements, certificates, opinions and other documents delivered by the Bank
and
Parent to NOVA hereunder shall be in form and substance satisfactory to counsel
of NOVA, in the exercise of such counsel's reasonable judgment.
ARTICLE
XI
INDEMNIFICATION
11.1 Indemnification
by the Bank.
The
Bank shall indemnify and hold harmless NOVA, its affiliates, their respective
successors and assigns, and their respective directors, officers, employees
and
agents (each a "NOVA Protected Party") from any liability, loss, damage,
diminution in value, cost, claim, suit, action or expense, including reasonable
attorneys' and accountants' fees and expenses (collectively, "NOVA Loss"),
incurred by a NOVA Protected Party that results from or arises out of (i) any
breach or inaccuracy of any representation or warranty of the Bank set forth
in
the Operative Documents, whether such breach or inaccuracy exists or is made
as
of the Closing Date or the Effective Date; (ii) the breach by the Bank of any
of
their covenants or agreements contained in the Operative Documents; (iii) any
liability or obligation, contingent or otherwise, of the Bank, or otherwise
arising from or relating to the Bank's Merchant Bankcard Business, exclusive
of
the Assumed Liabilities; and (iv) violations of law, governmental rules or
regulations, Credit Card Association rules or regulations, EFT Network rules
and
regulations, or wrongdoing or negligence by the Bank in performing obligations
in connection with this Agreement.
11.2 Indemnification
by NOVA.
NOVA
shall indemnify and hold harmless the Bank, its affiliates and their respective
directors, officers, employees and agents (each a "Bank Protected Party") from
any liability, loss, damage, diminution in value, cost, claim, suit, action
or
expense, including reasonable attorneys' and accountants' fees and expenses
(collectively, "Bank Loss"), incurred by a Bank Protected Party that results
from or arises out of (i) any breach or inaccuracy of any representation or
warranty of NOVA set forth in the Operative Documents, whether such breach
or
inaccuracy exists or is made as of the Closing Date or the Effective Date;
(ii)
the breach by NOVA of any of its covenants or agreements contained in the
Operative Documents; (iii) any Assumed Liability; or (iv) violations of law
or
governmental rules or regulations or wrongdoing or negligence by NOVA in
performing obligations in connection with this Agreement.
11.3 Loss
or Asserted Liability.
Promptly after (a) becoming aware of circumstances that have resulted in a
NOVA
Loss or a Bank Loss or potential NOVA Loss or Bank Loss, whichever is applicable
("Loss" or "Losses"), for which any party hereto (the "Indemnitee") intends
to
seek indemnification under Section 11.1 or Section 11.2, or (b) receipt by
the
Indemnitee of written notice of any demand, claim or circumstances which, with
or without the lapse of time, the giving of notice or both, would give rise
to a
claim or the commencement (or threatened commencement) of any action, proceeding
or investigation (an "Asserted Liability") that may result in a Loss, the
Indemnitee shall give written notice thereof (the "Claims Notice") to the other
party obligated to provide indemnification pursuant to Section 11.1 or 11.2
(the
"Indemnifying Party"). The Claims Notice shall describe the Loss or the Asserted
Liability in reasonable detail and shall indicate the amount (estimated, if
necessary) of the Loss that has been or may be suffered by the Indemnitee.
The
Claims Notice may be amended on one or more occasions with respect to the amount
of the Asserted Liability or the Loss at any time prior to final resolution
of
the obligation relating to the Asserted Liability or the Loss. Failure of the
Indemnitee to give promptly the notice required by this Section 11.3 shall
not
relieve the Indemnifying Party of its obligations to indemnify under this
Article XI.
11.4 Opportunity
to Contest.
The
Indemnifying Party may elect to compromise or contest, at its own expense and
by
its own counsel, any Asserted Liability. If the Indemnifying Party elects to
compromise or contest such Asserted Liability, it shall within thirty (30)
days
(or sooner, if the nature of the Asserted Liability so requires) of the date
of
the Indemnifying Party's receipt of the Claims Notice notify the Indemnitee
or
Indemnitees of its intent to do so by giving written notice thereof to the
Indemnitee (the "Contest Notice"), and the Indemnitee shall cooperate, at the
expense of the Indemnifying Party, in the compromise or contest of such Asserted
Liability. If the Indemnifying Party elects not to compromise or contest the
Asserted Liability, fails to notify the Indemnitee of its election as herein
provided or contests its obligation to indemnify under this Agreement, the
Indemnitee, upon further notice to the Indemnifying Party, shall have the right
to pay, compromise or contest such Asserted Liability on behalf of and for
the
account and risk of the Indemnifying Party, subject to the right of the
Indemnifying Party to assume the compromise or contest of such Asserted
Liability at any time before final settlement or determination thereof. Anything
in this Article XI to the contrary notwithstanding, (i) the Indemnitee shall
have the right, at its own cost and expense and for its own account, to
compromise or contest any Asserted Liability, and (ii) the Indemnifying Party
shall not, without the Indemnitees' written consent, settle or compromise any
Asserted Liability or consent to entry of any judgment which does not include
an
unconditional release of the Indemnitee from all liability in respect of such
Asserted Liability. In any event, the Indemnitee and the Indemnifying Party
may
participate, at their own expense, in the contest of such Asserted Liability.
If
the Indemnifying Party chooses to contest any Asserted Liability, the Indemnitee
shall make available to the Indemnifying Party any books, records or other
documents within its control that are necessary or appropriate for, shall make
its officers and employees available, on a basis reasonably consistent with
their other duties, in connection with, and shall otherwise cooperate with,
such
defense.
11.5 Indemnity
Claims.
(a) The
representations and warranties contained herein, in any other Operative
Document, or in any certificate or other document delivered pursuant hereto
or
in connection herewith shall not be extinguished by the Closing but shall
survive the Closing, subject to the limitations set forth in Section 11.5(b)
hereof with respect to the time periods within which claims for indemnity must
be asserted, and the covenants and agreements of the Bank and NOVA contained
herein shall survive without limitation as to time except as may be otherwise
specified herein. No investigation or other examination of the Bank or the
Merchant Bankcard Business by NOVA, or its designees or representatives, shall
affect the term of survival of any representation or warranty contained herein,
in any other Operative Document, or in any certificate or other document
delivered pursuant hereto or in connection herewith, or the term of the right
of
the NOVA Protected Parties or the Bank Protected Parties to seek indemnification
asset forth in Section 11.5(b).
(b) All
claims for indemnification hereunder shall be asserted no later than two (2)
years after the Closing Date, except as follows:
(i) claims
with respect to Losses arising out of or related in any way to the matters
described in Sections l1.l(ii) (but only to the extent such Losses arise out
of
Section 4.2 of this Agreement or the Marketing Agreement or the Non-Competition
Agreement), 1I.l(iii) and l1.l(iv), and 11.2(ii) (but only to the extent such
Losses arise of the Marketing Agreement or the Non-Competition Agreement),
l1.2(iii) and l1.2(iv) may be made without limitation, except as limited by
law;
and
(ii) claims
with respect to Losses arising out of or related in any way to claims made
by
third parties (including federal, state or local authorities or private parties)
against any of the NOVA Protected Parties or the Bank Protected Parties with
respect to any of the matters described in Section 11.1 hereof may be asserted
until the expiration of the applicable statute of limitations with respect
thereto.
(c) Nothing
herein shall be deemed to prevent any party hereto from making a claim for
a
Loss hereunder for potential or contingent claims or demands provided the notice
of Loss sets forth the specific basis for any such potential or contingent
claim
or demand to the extent then feasible and the Indemnitee has reasonable grounds
to believe that such a claim or demand may become actual. Upon notice to the
Bank, which notice shall set forth in reasonable detail the basis therefor,
NOVA, acting in good faith, shall be entitled to set-off any amount or right
it
may be entitled to hereunder against any amount, right or obligation owed to
the
Bank under this Agreement or any other Operative Document, so long as NOVA
has
given notice to the Bank of such claim as required by this Agreement and either
(i) such claim has been finally resolved in NOVA's favor, or (ii) in the event
that the Bank disputes such claim, such claim is in the process of resolution
as
provided by this Agreement
(d)
Any
claim or claims for any Loss or Losses under this Article XII shall only be
made
once the aggregate of all Losses incurred or claimed by such Indemnitee
(together with all concurrent or prior claims hereunder) exceeds ten thousand
dollars ($10,000) (the "Threshold Amount"), at which time the Indemnifying
Party
shall be obligated to indemnify the Indemnitee for the entire amount, including
the Threshold Amount.
ARTICLE
XII
DEFINITIONS
AND RULES OF INTERPRETATION
12.1 Definitions.
For
purposes of this Agreement, the capitalized terms have the following respective
meanings:
"Agreement"
means
this Agreement, including all schedules and exhibits hereto, and, if amended,
modified or supplemented, as the same may be so amended, modified or
supplemented from time to time.
"Assumed
Liabilities" means
the
following liabilities or obligations:
(a) the
obligations of the Bank arising on or after the Effective Date to perform under
the Merchant Agreements assigned to NOVA pursuant to this
Agreement;
(b) the
obligations of the Bank to pay assessments, interchange fees, transaction fees,
fines, penalties or other fees or charges to the Credit Card Associations and
the EFT Networks, provided that such obligations relate to transactions which
occur under the Merchant Agreements on or after the Effective Date;
(c) chargebacks
in respect of any Credit Card transaction processed by NOVA pursuant to a
Merchant Agreement if such Credit Card transaction is received by electronic
transmission or otherwise under and in compliance with the rules and regulations
of Credit Card Associations on and after the Effective Date and other Credit
Losses on and after the Effective Date, but only to the extent that such
chargeback or other Credit Loss relates to or arises out of an original sales
transaction occurring on or after the Effective Date;
(d) any
liability arising on or after the Effective Date under any Other Assumed
Contract (other than any liability arising out of or relating to a breach of
the
Bank that occurred prior to the Effective Date), but only to the extent that
such liability (i) relates to or arises out of events, transactions, or
omissions of NOVA on or after the Effective Date, (ii) is not required to be
performed prior to the Effective Date, and (iii) is disclosed in or discernible
from the face of such Other Assumed Contract; and
(e) any
other
claims, liabilities or litigation in respect of the Merchant Agreements, the
Equipment, the Inventory, and the business conducted in connection with the
foregoing, provided that any such claim, liability or litigation (i) relates
to
or arises out of events, transactions, or omissions of NOVA on or after the
Effective Date, and (ii) does not relate to or arose out of events, transactions
or omissions of the Bank prior to the Effective Date.
Without
limiting the foregoing, the Assumed Liabilities shall be limited to the
liabilities and obligations specified in the preceding portion of this
definition, and shall not in any event include (x) any penalties, costs or
fees
that may be incurred by the Bank in connection with the termination or
expiration of the Bank's or any affiliate's agreement(s) with any third party
service providers, or (y) any losses as the result of a chargeback or Credit
Loss in respect of any Merchant Agreement that result from transactions, events,
acts or omissions of the Bank or a merchant which occurred prior to the
Effective Date. In addition, the Assumed Liabilities shall not in any event
include any penalties or fees that may be incurred by the Bank in connection
with the termination of the Third Party Processing Agreement. Further, the
Assumed Liabilities, as the same relate to the Merchant Agreements,
respectively, shall be further limited to those disclosed in and discernible
from the face of the Standard Merchant Agreements.
“Xxxx
of Sale and Assignment and Assumption Agreement” means
the
written instrument to be entered into at the Closing between the Bank and NOVA
in the form attached hereto as Exhibit
1.2.
“Credit
Card” means
(i)
a VISA card or other card bearing the symbol(s) of VISA U.S.A., Inc. or VISA
International, Inc., (ii) a MasterCard card or other card bearing the symbol(s)
of MasterCard International Incorporated, or (iii) a card bearing the symbol(s)
of another Credit Card Association.
“Credit
Card Associations” means
VISA U.S.A., Inc., VISA International, Inc., MasterCard International
Incorporated, American Express, Discover Network, JCB, Diners Club International
Ltd. and any other similar organizations or associations, and any successor
organizations or associations to any of the foregoing.
“Credit
Loss” means
any
loss, including but not limited to a chargeback, resulting from or attributable
to the failure by a Merchant to pay amounts owed by it under a Merchant
Agreement.
“Debit
Card” means
a
card with a magnetic stripe bearing the symbol(s) of one or more EFT Networks
or
Credit Card Associations which enables the holder to pay for goods or services
by authorizing an electronic debit to the cardholder's designated deposit
account.
“Drafts” means
documentary evidence of Credit Card sales deposited by Merchants with the
Bank.
“EFT
Network” means
electronic funds transfer networks such as Star Systems, PULSE EFT Association,
NYCE, and any other similar organizations or associations, and any successor
organizations or associations to any of the foregoing.
“Equipment”
means
the
point-of-sale terminals, printers and other equipment, supplies, or
point-of-sale assets utilized by Merchants, or held for lease, sale or swap
to
Merchants, and owned or leased by the Bank, and computer equipment and software,
office equipment and furniture, and all other equipment used or useful in the
Merchant Bankcard Business.
“Excluded
Assets” means
the
assets specified on Schedule
1.1(a)
attached
hereto and shall also include, whether or not listed on Schedule
l.1(a),
all
rights and obligations of the Bank under any third party contract (other than
Merchant Agreements) to which the Bank is a party that is not specifically
identified on Schedule
1.1(b).
“Inventory” means
the
imprinters, sales draft forms, application forms, decals and all other merchant
supplies of the Bank.
“Knowledge” means,
with respect to any party to this Agreement, the actual knowledge after due
and
reasonable inquiry of such party's executive or senior operational officers
and
directors.
“Marketing
Agreement” means
the
Marketing and Sales Alliance Agreement among Parent, the Bank and NOVA in the
form of Exhibit
10.5 attached
hereto, and if amended, modified or supplemented, as the same may be so amended,
modified or supplemented from time to time.
“Merchant” means
any
Person (other than NOVA or the Bank) (a) that has entered into a Merchant
Agreement prior to the Effective Date, or (b) that is identified on Schedule
6.7(a)(iv).
“Merchant
Agreement” means
an
agreement between the Bank and a Merchant pursuant to which the Merchant
undertakes to honor Credit Cards and/or Debit Cards and the Bank agrees to
accept Credit Card and/or Debit Card transaction records; provided, however,
that
in
no event shall "Merchant Agreement" include any merchant agreement included
on
Schedule
1.1(a) as
an
"Excluded Asset."
“Merchant
Bankcard Business” means
the
providing of point-of-sale-based Credit Card, Debit Card and other card-based
transaction processing services and electronic payment and settlement services
(including the sale or lease of products and services related thereto) relating
to the Assets Sold and the Assumed Liabilities to Merchants and other similar
customers, but shall specifically exclude any such activity relating to the
Excluded Assets.
“Merchant
Bankcard Services”
means
FTD processing services and other related products and services, as provided
by
(or similar to the services provided by) NOVA and its subsidiaries and
affiliates from time to time.
“Non-Competition
Agreement” means
the
Non-Competition Agreement among Parent, the Bank and NOVA in the form of
Exhibit
l0.4
attached hereto, and if amended, modified or supplemented, as the same may
be so
amended, modified or supplemented from time to time.
“Operative
Documents” means
this Agreement, the Marketing Agreement, the Assignment and Assumption
Agreement, the Non-Competition Agreement, and all other documents, agreements,
certificates or instruments executed and delivered in connection herewith and
therewith.
“Person” means
any
of a natural person, corporation, partnership, firm, association, limited
liability company, trust, estate or other entity of any kind.
“Standard
Merchant Agreements” means
the
forms of Merchant Agreements attached hereto as Exhibit
6. 7(b )(i).
“Transition
Date”
means
the date that is four (4) months after the Closing Date, or any date thereafter
if said Transition Date is extended pursuant to Section 3.6.
“Transition
Period”
means
the period from the Effective Date through and including the Transition
Date.
12.2 Other
Definitions; Rules of Interpretation.
(a) All
terms
defined herein shall have the defined meanings when used in any Operative
Document, certificate or other document made or delivered pursuant hereto unless
otherwise defined therein. Singular terms shall include the plural, and vice
versa, unless the context otherwise requires.
(b) Exhibits
and Schedules referenced in this Agreement are deemed to be incorporated herein
by reference. The term “including” shall mean “including without
limitation.”
ARTICLE
XIII
MISCELLANEOUS
13.1 Expenses.
Except
as otherwise specifically provided in this Agreement, each party shall pay
its
own costs and expenses in connection with this Agreement and the transactions
contemplated hereby, including all attorneys’ fees, accounting fees and other
expenses.
13.2 Notices
and Payments.
All
notices, demands and other communications hereunder shall be in writing and
shall be delivered (i) in person, (ii) by United States mail, certified or
registered, with return receipt requested, or (iii) by national overnight
courier (e.g.,
FedEx)
as
follows:
|
If
to the Bank:
|
TIB
Bank
00000
Xxxxxxxx Xxxxxxx
Xxx
Xxxxx, Xxxxxxx 00000
Attention:
Xxxxxx
X. Xxxxxxx,
Executive
Vice President and COO
|
|
|
with
a copy to:
(which
shall not constitute notice)
|
Xxxx
X. Xxxxxx & Associates
0000
Xxxxxxx Xxxx
Xxxxxx,
Xxxxxxx 00000
|
|
|
If
to NOVA:
|
NOVA
Information Systems, Inc.
Xxx
Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx 00000
Attention: Xxxxx
X. Xxxxxx, Esq.
General
Counsel
|
|
|
with
a copy to: (which shall not constitute notice)
|
NOVA
Information Systems, Inc.
Xxx
Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx 00000
Attention: Xxxxxx
X. X’Xxxx
Senior
Vice President
|
|
|
with
a copy to: (which shall not constitute notice)
|
XxXxxxx
Long & Xxxxxxxx LLP
Sun
Trust Plaza, Suite 5300
000
Xxxxxxxxx Xxxxxx, X.X
Xxxxxxx,
Xxxxxxx 00000
|
Attention:
Xxxxxxx X. Balloon, Esq.
The
persons or addresses to which mailings or deliveries shall be made may be
changed from time to time by notice given pursuant to the provisions of this
Section 13.2. Any notice, demand or other communication given pursuant to the
provisions of this Section 13.2 shall be deemed to have been given on the date
actually delivered.
13.3 Third-Party
Beneficiaries.
No
party to this Agreement intends this Agreement to benefit or create any right
or
cause of action in or on behalf of any Person other than the Bank and
NOVA.
13.4 Independent
Contractors.
Nothing
contained in this Agreement or any other Operative Document shall be construed
as creating or constituting a partnership, joint venture or agency among the
parties to this Agreement. Rather, the parties shall be deemed independent
contractors with respect to each other for all purposes.
13.5 Successors
and Assigns.
All
terms and provisions of this Agreement shall be binding upon and shall inure
to
the benefit of the parties hereto and their respective successors and permitted
assigns. This Agreement and the rights, privileges, duties and obligations
of
the parties hereto may not be assigned or delegated by any party without the
prior written consent of the other party; provided, however,
that
such
consent shall not be required (a) for the assignment by any party of its rights
and privileges hereunder to a Person controlling, controlled by or under common
control with such party (it being understood that no such assignment shall
relieve the assigning party of its duties or obligations hereunder), or (b)
for
the assignment and delegation by any party of its rights, privileges, duties
and
obligations hereunder to any Person into or with which the assigning party
shall
merge or consolidate or to which the assigning party shall sell all or
substantially all of its assets, provided that upon the request of the
non-assigning party the assignee shall formally agree in writing to assume
all
the rights and obligations of the assigning party created hereby.
13.6 Amendments
and Waivers.
This
Agreement, any of the instruments referred to herein and any of the provisions
hereof or thereof shall not be amended, modified or waived in any fashion except
by an instrument in writing signed by the parties hereto. The waiver by a party
of any breach of this Agreement by another party shall not operate or be
construed as the waiver of the same or another breach on a subsequent occasion,
nor shall any delay in exercising any right, power or privilege hereunder
constitute a waiver thereof.
13.7 Severability
of Provisions.
If any
provision of this Agreement, or the application of any such provision to any
Person or circumstance, is invalid or unenforceable, the remainder of this
Agreement, or the application of such provision to Persons or circumstances
other than those as to which it is invalid or unenforceable, shall not be
affected by such invalidity or unenforceability
13.8 Counterparts;
Delivery.
This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one instrument. The parties acknowledge that delivery
of executed counterparts of this Agreement may be effected by a facsimile
transmission or other comparable means, with an original document to be
delivered promptly thereafter via overnight courier.
13.9 Governing
Law.
This
Agreement is made and entered into under the laws of the State of Georgia,
and
the laws of that State (without giving effect to the principles of conflicts
of
laws thereof) shall govern the validity and interpretation hereof and the
performance by the parties hereto of their respective duties and obligations
hereunder.
13.10 Section
Headings.
The
headings of Sections contained in this Agreement are for convenience of
reference only and do not form a part of this Agreement.
13.11 Entire
Agreement.
The
making, execution and delivery of this Agreement by the parties hereto have
been
induced by no representations, statements, warranties or agreements other than
those herein expressed. This Agreement and the other written instruments
specifically referred to herein embody the entire understanding of the parties
and supersede in their entirety all prior communication, correspondence, and
instruments among the parties with respect to the subject matter hereof,
including the Letter of Intent, dated November 22, 2005, and there are no
further or other agreements or understandings, written or oral, in effect
between the parties relating to the subject matter hereof.
13.12 Publicity.
The
timing and content of any and all public statements, announcements or other
publicity concerning the transactions contemplated herein shall be mutually
agreed upon by the Bank and NOVA, which agreement shall not be unreasonably
withheld or delayed.
13.13 Survival.
Each
party, acknowledging that the other is entitled to rely on its representations,
warranties, covenants and agreements in this Agreement in order to preserve
the
benefit of the bargain otherwise represented by this Agreement, agrees that
neither the survival of such representations, warranties, covenants and
agreements, nor their enforceability nor any remedies for breaches of them
will
be affected by any knowledge of a party regardless of when or how such party
acquired such knowledge, specifically including disclosures of facts and/or
circumstances after the date of this Agreement.
(Signatures
begin on following page)
IN
WITNESS WHEREOF,
the
parties hereto have duly executed and delivered this Merchant Asset Purchase
Agreement as of the date first written above.
|
“Bank”:
|
|||
|
TIB
BANK
|
|||
|
By:
|
|
||
|
Name:
|
|
||
|
Title:
|
|
||
|
“NOVA”:
|
|||
|
NOVA
INFORMATION SYSTEM, INC
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
INDEX
OF SCHEDULES AND EXHIBITS
|
Schedules
|
Description
|
|
1.1(a)
|
Excluded
Assets
|
|
1.1(b)
|
Other
Assumed Contracts
|
|
3.3(a)
|
Transition
Expenses
|
|
3.3(d)
|
Service
Coordinator
|
|
6.5(a)
|
Equipment
|
|
6.5(b)
|
Inventory
|
|
6.6(a)
|
Financial
Information
|
|
6.6(b)
|
Annualized
Credit Card Sales Volume and Debit Card Sales Volume
|
|
6.7(a)(i)
|
Merchants
|
|
6.7(a)(iii)
|
Notice
of Election to Terminate Merchant Agreements and Exceptions to Credit
Card
Processing Activity
|
|
6.7(a)(iv)
|
Merchants
Not Party to Merchant Agreement
|
|
6.7(b)
|
Exceptions
to Possession of Original Executed Copy of Merchant
Agreements
|
|
6.7(c)
|
Merchant
Guarantees
|
|
6.7(g)
|
Reserve
Accounts
|
|
6.7(h)
|
Non-VISA
and MasterCard Services
|
|
6.8
|
Top
20 Merchants
|
|
6.9
|
EFT
Networks
|
|
6.11
|
Consents
and Approvals
|
|
6.12
|
Leases
|
|
6.14
|
Litigation
|
|
6.15
|
Merchant
Bankcard Business Employees
|
|
6.19
|
Exceptions
to Agreements in Full Force and Effect
|
|
6.20
|
Vendors
and Suppliers
|
|
6.21
|
Exceptions
to Absence of Certain Changes and Events
|
|
Exhibits
|
Description
|
|
1.2
|
Xxxx
of Sale and Assignment and Assumption Agreement
|
|
6.
7(b )(i)
|
Standard
Merchant Agreement
|
|
6.7(c)
|
Standard
Merchant Guarantee
|
|
6.7(h)
|
American
Express, Discover, Diner's Club and JCB Agreements
|
|
10.4
|
Non-Competition
Agreement
|
|
10.5
|
Marketing
Agreement
|
