EXHIBIT 2
PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT (this "Agreement") is made and entered
into on April 1, 2002 (the "Effective Date"), by and between Partners Capital
Group, a California corporation ("Seller"), and CTI Gateway, L.L.C., an Arizona
limited liability company ("Buyer").
Introduction. Seller is engaged in the business of leasing computer and
data processing equipment to other parties (the "Business"). Seller desires to
sell to Buyer, and Buyer desires to purchase from Seller, certain specified
assets and properties of Seller used in the Business. Seller and Buyer also
desire to take, or cause to be taken, certain actions relating to the
Acquisition (as defined herein). On the terms set forth in this Agreement, for
certain good and valuable considerations, the receipt and adequacy of which are
hereby acknowledged by the parties hereto, and relying on the representations,
warranties, covenants, and agreements of each other contained herein, the
parties hereto hereby agree as follows:
1. Sale and Purchase of Assets. On the Effective Date, and on the terms
and subject to the conditions contained in this Agreement, Seller hereby sells,
conveys, transfers, assigns, and delivers the Assets (as defined herein) to
Buyer, and Buyer hereby purchases, receives, and accepts the Assets from Seller
(the "Acquisition").
2. Assets. As used in this Agreement, the term "Assets" means all the
following assets and properties of Seller that are used in or relate to the
Business other than the Excluded Assets:
(a) computer and data processing equipment leased by Seller to
other parties in the operation of the Business (the "Equipment"), including,
without limitation, the Equipment described in the Leases listed in Schedule
2(b) hereto;
(b) interests in and rights under the agreements and contracts for
Seller's purchases of the Equipment (the "Purchase Contracts"), the agreements
and contracts for the financing of Seller's purchases of the Equipment (the
"Financing Arrangements"), the leases of Equipment by Seller to its customers
(the "Leases"), and the other agreements, contracts, arrangements, commitments,
and undertakings relating to the operation of the Business (collectively, the
"Contracts"), including, without limitation, the Contracts listed in Schedule
2(b) attached hereto, to the extent that they are assignable to Buyer and
subject to obtaining any necessary consents to such assignment;
(c) trade accounts receivable arising from the operation of the
Business on and after the Effective Date;
(d) authorizations, approvals, licenses, and permits relating to
the operation of the Business, to the extent that they are assignable to Buyer
and subject to obtaining any necessary consents to such assignment;
(e) books and records relating to Equipment purchases, purchase
financing, and leases and other aspects of the operation of the Business (the
"Books and Records");
(f) trademarks, trade names, logos, and slogans utilizing the name
"Partners Capital Group"; and
(g) goodwill of the Business.
3. Excluded Assets. Seller does not intend to sell and is not hereby
selling the Excluded Assets to Buyer, and Buyer does not intend to purchase and
is not hereby purchasing the Excluded Assets (as defined herein) from Seller. As
used in this Agreement, the term "Excluded Assets" means all the assets and
properties of Seller that are not expressly described in the definition of the
term "Assets" in Section 2 hereof, including, without limitation, all:
(a) cash, cash equivalents, securities, and other investments;
(b) prepaid taxes, insurance premiums, workmen's compensation
premiums, and other prepaid expenses and rights arising therefrom;
(c) tax credits, refunds, rebates, abatements, net operating
losses, and other tax assets and rights arising therefrom;
(d) real property owned by Seller, and interests in and rights
under leases of real property leased by Seller, and fixed assets, fixtures, and
leasehold improvements located thereon or appurtenant thereto;
(e) furniture, fixtures, equipment (other than the Equipment),
machinery, and other tangible personal property, whether owned or leased by
Seller;
(f) trade accounts receivable arising from the operation of the
Business before the Effective Date, inter-company accounts receivable, notes
receivable, negotiable instruments, and chattel paper;
(g) insurance policies, premiums, premium refunds, claims, and
proceeds and rights arising therefrom;
(h) books and records relating to Seller's corporate entity,
securities, accounting, finances, and taxes;
(i) all other assets and properties that are not used in or do not
relate to the operation of the Business; and
(j) Seller's interests in and rights under this Agreement and any
and all other documents and instruments relating to the Transactions (as defined
herein).
4. Assignment of Assets. On the Effective Date, Seller shall convey,
transfer, and assign to Buyer full legal and beneficial title to the Assets
(subject to the recordation of any assignment documents reasonably necessary to
perfect legal title), free and clear of all assessments, charges, claims, liens,
mortgages, pledges, security interests, and other encumbrances (collectively,
"Liens") other than the Permitted Liens (as defined herein), pursuant to the
Xxxx of Sale, General Assignment, and Conveyance in the form attached hereto as
Exhibit 4 and such other conveyancing instruments as are reasonably satisfactory
in form and substance to Seller and Buyer. The Assets are being conveyed,
transferred, and assigned on an "as is, where is" basis. The title to,
possession of, and risk of loss of or damage to the
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Assets shall pass from Seller to Buyer on the Effective Date, subject to Buyer's
payment in full of the consideration for the Assets in accordance with Section 5
hereof.
5. Consideration for Assets. In full consideration for the Assets, Buyer
shall (a) pay to Seller cash in the amount of fifteen thousand dollars ($15,000)
on or before June 30, 2002, and fifteen thousand dollars ($15,000) on or before
September 30, 2002, and (b) assume the Assumed Liabilities (as defined herein)
from Seller on the Effective Date in accordance with Section 6 hereof. Such
payments shall be made in the form of cashier's checks sent by Buyer to Seller
at its address set forth herein or wire transfers of immediately available funds
sent by Buyer to such bank account as Seller may designate in writing to Buyer.
6. Assumption of Assumed Liabilities. On the Effective Date, Buyer hereby
absolutely and unconditionally assumes from Seller and agrees to be solely
responsible for and to perform in a timely manner all liabilities and
obligations of any nature, whether known or unknown, foreseen or unforeseen,
fixed or contingent, accrued or unaccrued, asserted or unasserted, or otherwise,
arising on or after the Effective Date directly or indirectly from or in
connection with the Purchase Contracts, the Financing Arrangements, the Leases,
and the other Contracts that are assigned by Seller to Buyer hereunder and the
operation of the Business (collectively, the "Assumed Liabilities"). Buyer does
not intend to assume and is not hereby assuming any liability or obligation of
Seller that is not expressly described in the definition of the term "Assumed
Liabilities" in this Section 6.
7. Approvals and Consents. Seller and Buyer each have taken and, if
necessary or appropriate, shall continue to take after the Effective Date, at
its own expense, any and all actions (including, without limitation, using
commercially reasonable efforts (which shall not require the payment of any
money) to obtain any and all approvals, authorizations, consents, and other
actions by the other parties to the Contracts) necessary or appropriate for it
to consummate the Acquisition.
8. Related Actions. In connection with and as an integral part of the
Acquisition, Seller and Buyer shall take, or shall cause to be taken, the
following actions (collectively, the "Related Actions") on the Effective Date:
(a) Termination Agreement. Seller shall cause SCB Computer
Technology, Inc., a Tennessee corporation and the sole shareholder of Seller
("SCB"), to execute and deliver, and Buyer shall execute and deliver, the
Termination Agreement in the form attached hereto as Exhibit 8(a), pursuant to
which (1) SCB and Buyer agree to terminate the Outsourcing Services Agreement
dated August 22, 2000 (effective as of September 1, 2000), between such parties
(the "Outsourcing Services Agreement") on the Effective Date, and (2) SCB agrees
to pay sixty thousand dollars ($60,000) in cash to Buyer on or before April 15,
2002, in full consideration for the termination of the Outsourcing Services
Agreement.
(b) Lease Residual Agreement. Seller and Buyer shall execute and
deliver the Lease Residual Agreement in the form attached hereto as Exhibit
8(b), pursuant to which Buyer assigns to Seller an interest in, and agrees to
pay to Seller, a portion of all amounts received on account of or in connection
with certain actions relating to the Leases, all future leasing arrangements
involving the Equipment, and the Equipment.
(c) First Amendment to Master Equipment Lease Agreement. Seller
shall cause Partners Resources Inc., an Arizona corporation and affiliate of
Seller ("PRI"), and Buyer shall
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cause Emerald Capital, L.L.C., an Arizona limited liability company and
affiliate of Buyer ("Emerald"), to execute and deliver the First Amendment to
Master Equipment Lease Agreement in the form attached hereto as Exhibit 8(c),
pursuant to which PRI and Emerald agree to amend the purchase option provision
of the Master Lease Agreement dated April 30, 1998, between such parties.
9. Effective Date; Closing. The Acquisition and the Related Actions
(collectively, the "Transactions") shall be consummated by the parties hereto on
the Effective Date. The consummation of the Transactions (the "Closing") shall
be effected by the exchange among the parties hereto, via overnight courier, of
executed originals of this Agreement and all other related documents and
instruments. To effect the Closing, each party hereto shall execute and deliver
this Agreement and all other documents and instruments required to be executed
and delivered by such party hereunder and shall take all other actions necessary
or appropriate to consummate the Transactions as contemplated in this Agreement.
No Transaction shall be, or be deemed to be, consummated unless and until all
the Transactions have been consummated.
10. Transaction Documents.
(a) Seller. To effect the Transactions, Seller shall take the
following actions:
(1) execute and deliver this Agreement, the Xxxx of Sale,
General Assignment, and Conveyance described in Section 4 hereof, and the Lease
Residual Agreement described in Section 8(b) hereof (collectively, the "Seller's
Documents");
(2) cause SCB to execute and deliver the Termination
Agreement described in Section 8(a) hereof and to deliver the payment to Buyer
described therein;
(3) cause PRI to execute and deliver the First Amendment to
Master Equipment Lease Agreement described in Section 8(c) hereof; and
(4) execute any and all other documents and instruments and
take any and all other actions required for Seller to perform its obligations
under this Agreement and to consummate the Transactions.
(b) Buyer. To effect the Transactions, Buyer shall take the
following actions:
(1) execute and deliver this Agreement, the Termination
Agreement described in Section 8(a) hereof, and the Lease Residual Agreement
described in Section 8(b) hereof (collectively, the "Buyer's Documents");
(2) cause Emerald to execute and deliver the First Amendment
to Master Equipment Lease Agreement described in Section 8(c) hereof; and
(3) execute any and all other documents and instruments and
take any and all other actions required for Buyer to perform its obligations
under this Agreement and to consummate the Transactions.
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11. Representations and Warranties of Seller. Seller represents and
warrants to Buyer as follows:
(a) Existence; Foreign Qualification. Seller is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
California. Seller is duly qualified to transact business as a foreign
corporation and is in good standing under the laws of the State of Arizona.
(b) Authority; Authorization. Seller has full corporate authority
and power to transact the business in which it is engaged, to execute and
deliver the Seller's Documents, to perform its obligations thereunder, and to
consummate the Transactions. Seller has taken all corporate action necessary to
authorize the execution and delivery of the Seller's Documents, the performance
of its obligations thereunder, and the consummation of the Transactions.
(c) Enforceability. The Seller's Documents have been executed and
delivered by a duly authorized officer of Seller, constitute the legal, valid,
and binding obligations of Seller, and are enforceable against Seller in
accordance with their respective terms.
(d) Title to Assets. Seller will convey, transfer, and assign to
Buyer full legal and beneficial title to the Assets, free and clear of all Liens
other than (1) security interests and other liens held by the lenders providing
the Financing Arrangements, (2) leasehold interests of the lessees under the
Leases, (3) statutory liens for taxes not yet due, (4) liens of carriers and
warehousemen incurred in the ordinary course of business for sums not yet due,
(5) liens incurred or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other types of
social security, and (6) landlord liens with respect to any Assets located at
Seller's leased premises (collectively, the "Permitted Liens").
(e) Purchase Contracts. Seller has delivered true, correct, and
complete copies of all the Purchase Contracts to Buyer.
(f) Financing Arrangements. Each Financing Arrangement is in full
force and effect, constitutes the legal, valid, and binding obligation of the
parties thereto, and is enforceable against such parties in accordance with its
terms. There is no breach or violation of, or default or event of default under,
any Financing Arrangement. No event or circumstance known to Seller has occurred
or exists that, with or without the giving of notice, the passage of time, or
otherwise, would constitute a breach or violation of, or default or event of
default under, any Financing Arrangement. Seller has delivered true, correct,
and complete copies of all the Financing Arrangements to Buyer.
(g) Leases. Each Lease is in full force and effect, constitutes
the legal, valid, and binding obligation of the parties thereto, and is
enforceable against such parties in accordance with its terms. There is no
breach or violation of, or default or event of default under, any Lease. No
event or circumstance known to Seller has occurred or exists that, with or
without the giving of notice, the passage of time, or otherwise, would
constitute a breach or violation of, or default or event of default under, any
Lease. Seller has delivered true, correct, and complete copies of all the Leases
to Buyer.
(h) Approvals and Consents. Except for any required approvals and
consents by the other parties to the Contracts, no approval, authorization,
consent, or other action by any
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governmental authority, administrative agency, court, or other person is
required for Seller's execution and delivery of the Seller's Documents,
performance of its obligations thereunder, and consummation of the Transactions.
(i) No Impediments. Seller's execution and delivery of the
Seller's Documents, performance of its obligations thereunder, and consummation
of the Transactions will not cause a breach or violation of, or default or event
of default under, with or without the giving or notice, the passage of time, or
otherwise, (1) the charter or bylaws of Seller; (2) any security issued by
Seller; (3) any agreement, contract, arrangement, commitment, or undertaking
that Seller is a party to or by which it is bound (including, without
limitation, the Financing Arrangements, the Leases, and the other Contracts),
except if and to the extent that such Contracts require the approval or consent
by the other parties thereto and such approval or consent has not been obtained;
(4) any applicable law, rule, or regulation of any governmental authority; or
(5) any applicable decree, order, injunction, or other decision of any court,
arbitrator, or governmental authority.
(j) Taxes. Seller has timely paid any and all federal, state,
county, and municipal income, profits, franchise, sales, use, excise, ad
valorem, employment, property, and other taxes and interest and penalties
thereon required to be paid by Seller for all periods ended on or before the
Effective Date and has timely and properly filed all returns for such taxes
required to be filed by Seller for all such periods. Seller has not received any
assessment or notice of deficiency with respect to any such tax or tax return.
(k) No Prior or Preferential Right. Except for Seller's options to
purchase the Equipment upon the expiration of the Leases as provided therein, no
party other than Buyer has any prior or preferential right, right of first
refusal, or other similar right to purchase, lease, or otherwise acquire or use
the Assets.
(l) No Legal Restraint. No claim, demand, investigation, action,
suit, or other legal proceeding seeking to restrain, enjoin, or otherwise
prevent, or seeking material damages on account of, the consummation of the
Transactions has been asserted or commenced against Seller; and no decree,
order, injunction, or other decision of any court, arbitrator, governmental
authority, or administrative agency restraining, enjoining, or otherwise
preventing the consummation of the Transactions by Seller is in effect.
(m) No Brokerage Fee. No brokerage, finder's, or similar fee,
commission, or other payment is or will become payable by Buyer in connection
with the Transactions pursuant to any agreement, contract, arrangement,
commitment, or undertaking entered into by Seller or any of its affiliates.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER SELLER NOR
ANY OF ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR
REPRESENTATIVES HAS MADE, AND SELLER SHALL NOT BE BOUND BY, ANY EXPRESS OR
IMPLIED REPRESENTATION, WARRANTY, GUARANTEE, PROMISE, STATEMENT, INDUCEMENT, OR
INFORMATION OF ANY KIND OR NATURE WITH RESPECT TO SELLER, THE ASSETS, THE
BUSINESS, OR ANY OTHER MATTER, INCLUDING, WITHOUT LIMITATION, THE PROBABLE
SUCCESS, PROFITABILITY, OR OTHER PROSPECTS OF THE OWNERSHIP OR USE OF THE ASSETS
OR THE CONDUCT OF THE BUSINESS AFTER THE EFFECTIVE DATE. SELLER HEREBY EXPRESSLY
DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION,
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ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH
RESPECT TO THE ASSETS. THE ASSETS ARE BEING CONVEYED, TRANSFERRED, AND ASSIGNED
ON AN "AS IS, WHERE IS" BASIS.
12. Representations and Warranties of Buyer. Buyer represents and
warrants to Seller as follows:
(a) Existence. Buyer is a limited liability company duly
organized, validly existing, and in good standing under the laws of the State of
Arizona.
(b) Authority; Authorization. Buyer has full authority and power
as a limited liability company to transact the business in which it is engaged,
to execute and deliver the Buyer's Documents, to perform its obligations
thereunder, and to consummate the Transactions. Buyer has taken all actions
necessary to authorize the execution and delivery of the Buyer's Documents, the
performance of its obligations thereunder, and the consummation of the
Transactions.
(c) Enforceability. The Buyer's Documents have been executed and
delivered by a duly authorized officer or member of Buyer, constitute the legal,
valid, and binding obligations of Buyer, and are enforceable against Buyer in
accordance with their respective terms.
(d) Approvals and Consents. No approval, authorization, consent,
or other action by any contract party, governmental authority, administrative
agency, court, or other person or entity is required for Buyer's execution and
delivery of the Buyer's Documents, performance of its obligations thereunder,
and consummation of the Transactions.
(e) No Impediments. Buyer's execution and delivery of the Buyer's
Documents, performance of its obligations thereunder, and consummation of the
Transactions will not cause a breach or violation of, or default or event of
default under, with or without the giving or notice, the passage of time, or
otherwise, (1) the articles of organization and any and all other constituent
documents of Buyer; (2) any security issued by Buyer; (3) any agreement,
contract, arrangement, commitment, or undertaking that Buyer is a party to or by
which it is bound and which breach, violation, default, or event of default
would result in the imposition of any liability or obligation on Seller after
the Effective Date; (4) any applicable law, rule, or regulation of any
governmental authority; or (5) any applicable decree, order, injunction, or
other decision of any court, arbitrator, or governmental authority.
(f) No Legal Restraint. No claim, demand, investigation, action,
suit, or other legal proceeding seeking to restrain, enjoin, or otherwise
prevent, or seeking material damages on account of, the consummation of the
Transactions has been asserted or commenced against Buyer; and no decree, order,
injunction, or other decision of any court, arbitrator, governmental authority,
or administrative agency restraining, enjoining, or otherwise preventing the
consummation of the Transactions by Buyer is in effect.
(g) No Brokerage Fee. No brokerage, finder's, or similar fee,
commission, or other payment is or will become payable by Seller in connection
with the Transactions pursuant to any agreement, contract, arrangement,
commitment, or undertaking entered into by Buyer or any of its affiliates.
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EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER BUYER NOR ANY
OF ITS MEMBERS, OFFICERS, EMPLOYEES, AGENTS, OR REPRESENTATIVES HAS MADE, AND
BUYER SHALL NOT BE BOUND BY, ANY EXPRESS OR IMPLIED REPRESENTATION, WARRANTY,
GUARANTEE, PROMISE, STATEMENT, INDUCEMENT, OR INFORMATION OF ANY KIND OR NATURE
WITH RESPECT TO BUYER OR ANY OTHER MATTER.
13. Survival of Representations and Warranties. The representations and
warranties made by Seller and Buyer in this Agreement shall survive for a period
of one year after the Effective Date; provided, however, that the
representations and warranties made by Seller in Sections 11(a)-(d) hereof and
by Buyer in Sections 12(a)-(c) hereof shall survive for the maximum period
permitted by applicable law. The liability of Seller and Buyer under their
respective representations and warranties shall expire at the end of the
applicable survival periods; provided, however, that the liability of a party
for a breach or inaccuracy of any representation or warranty shall not expire at
the end of the applicable survival period if the other party notifies such party
of such breach or inaccuracy before the end of such survival period.
14. Further Assurances. At any time after the Effective Date, and upon
the reasonable request of either party hereto, the other party, at its own
expense, shall execute and deliver or cause to be executed and delivered any and
all other documents and instruments, and shall take or cause to be taken any and
all other actions, that are necessary or appropriate to consummate the
Transactions as contemplated in this Agreement.
15. Transfer Taxes. Seller shall be responsible for and pay any and all
federal, state, county, and municipal sales, excise, transfer, use, and other
taxes assessed or imposed with respect to the Acquisition.
16. Unassigned Contracts. If, on the Effective Date, Seller has not
obtained any approval, authorization, consent, or other action required for
Seller to assign its interest in and rights under any Contract (an "Unassigned
Contract"), Seller shall (a) pending any subsequent assignment, retain its
interest in and rights under the Unassigned Contract until its expiration date,
if any; (b) provide to Buyer all the benefits of its interest in and rights
under the Unassigned Contract, provided that Buyer performs all of Seller's
obligations thereunder in a complete and timely manner as an Assumed Liability;
and (c) continue to use commercially reasonable efforts to obtain any previously
unobtained approval, authorization, consent, or other action necessary for
Seller to assign its interest in and rights under the Unassigned Contract to
Buyer as soon as practicable after the Effective Date.
17. Leases. With respect to each Lease, from and after the Effective Date
until the expiration or earlier termination thereof, Buyer shall not take any
action that has the intent or effect of interfering with the quiet and peaceful
possession of the Equipment by the lessee under the Lease or with the lessee's
right to have full and uninterrupted use and enjoyment of the Equipment for its
intended purpose pursuant to the Lease, provided that the lessee is not in
default of any provision of the Lease.
18. Access to Books and Records. For a period of five years after the
Effective Date, Buyer shall preserve all the Books and Records and, upon request
by Seller, shall provide Seller and its representatives with access to the Books
and Records during normal business hours for the purpose of examining and
photocopying them. Seller shall be responsible for and
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pay all reasonable direct costs and expenses incurred by Buyer in providing
access to the Books and Records.
19. Information and Assistance. Seller and Buyer acknowledge and agree
that after the Effective Date, either party may desire or need financial and
other information relating to the Assets or the Business and other forms of
assistance for the purpose of complying with applicable laws, rules, and
regulations. At any time after the Effective Date, and upon request by Seller or
Buyer, the other party shall provide such information and assistance, to the
extent reasonable, to the requesting party and its representatives. The
requesting party shall be responsible for and pay all reasonable direct costs
and expenses incurred by the assisting party in providing such information and
assistance.
20. Miscellaneous Provisions.
(a) Limitation of Liability. No party to this Agreement shall be
liable to the other party for any indirect or consequential damages (including,
without limitation, lost profits) or any special, punitive, or exemplary damages
on account of any breach or inaccuracy of any representation or warranty made by
the party in this Agreement or any breach of or failure to perform any agreement
or covenant of the party set forth in this Agreement.
(b) Fees and Expenses. The parties hereto shall be responsible for
and pay their respective legal, accounting, and other fees and expenses incurred
or assumed in connection with their negotiation, execution, and delivery of this
Agreement and all other documents and instruments contemplated herein, their
performance of their obligations hereunder and thereunder, and the consummation
of the Transactions.
(c) Public Announcements. No party hereto shall issue or make any
press release, public announcement, confirmation, or other disclosure of
information relating to this Agreement or any of the Transactions, except (1)
upon the prior consultation with and approval of Seller and Buyer, (2) to such
party's directors, officers, employees, agents, attorneys, and accountants, (3)
to the Equipment vendors, lenders, and lessees and the other parties with whom
Seller ordinarily has contact in the operation of the Business for the purpose
of notifying them of the change in ownership of the Assets, or (4) as may be
required to comply with applicable laws, rules, and regulations.
(d) Entire Agreement. This Agreement, including the attachments
hereto, constitutes the entire understanding among the parties hereto and a
complete and exclusive statement of the terms and conditions of their agreement
relating to the subject matter hereof and supersedes any and all prior
negotiations, understandings, agreements, and arrangements, whether written or
oral, and whether express or implied, between them with respect to the subject
matter hereof, all of which prior negotiations, understandings, agreements, and
arrangements are hereby rendered null, void, and of no further force or effect.
(e) No Third-Party Beneficiaries. No person who is not a party to
this Agreement or a successor, permitted assignee, or legal representative of a
party hereto shall have any interest in or right under this Agreement as a
third-party beneficiary or otherwise.
(f) Notices and Other Communications. All notices and other
communications provided for in this Agreement shall be made in writing, shall be
addressed to the receiving party as set forth below, and shall be delivered
either (1) in person, in which case such notice or
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other communication shall be deemed delivered upon its actual receipt, (2) by
FedEx, UPS or any other nationally recognized express delivery service, in which
case such notice or other communication shall be deemed delivered upon its
actual receipt, or (3) by the United States mail, return receipt requested, in
which case such notice or other communication shall be deemed delivered three
days after the same is deposited in a postal box under the exclusive control of
the United States Postal Service. For the purposes hereof, the addresses of the
parties are as follows:
Seller: Partners Capital Group
c/o SCB Computer Technology, Inc.
0000 Xxxxxx Xxxx-Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Attention: President
Buyer: CTI Gateway, L.L.C.
0000 X. Xxx Xx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: President
Any party may change its address for the purposes hereof by notifying the other
party of such change in the manner provided for herein.
(g) Amendment. This Agreement may be altered, amended, modified,
or changed (other than any waiver which shall be effective only if made in
accordance with Section 20(h) hereof) only by a written agreement executed by
the parties hereto.
(h) Waiver. No provision of this Agreement may be waived by any
party hereto unless such waiver is set forth in writing and is executed by the
waiving party. The waiver of any breach of any provision of this Agreement shall
not be deemed to constitute a waiver of any other breach of the same or any
other provision of this Agreement.
(i) Modification and Severability. If a court of competent
jurisdiction declares that any provision of this Agreement is illegal, invalid,
or unenforceable, such provision shall be modified automatically to the extent
necessary to make such provision fully legal, valid, or enforceable. If the
court does not modify any such provision as contemplated herein, but instead
declares it to be wholly illegal, invalid, or unenforceable, such provision
shall be severed from this Agreement, this Agreement and the rights and
obligations of the parties hereto shall be construed as if this Agreement did
not contain such severed provision, and this Agreement otherwise shall remain in
full force and effect.
(j) Enforceability. This Agreement shall inure to the benefit of,
and shall be enforceable by and against, the parties hereto and their respective
successors, permitted assignees, and legal representatives.
(k) Assignment. No party hereto shall convey, transfer, assign, or
otherwise dispose of all or any portion of its interest in, or its rights and
obligations under, this Agreement without the prior written consent of the other
party hereto, which consent shall not be unreasonably withheld or delayed. Any
conveyance, transfer, assignment, or other disposition made or attempted in
violation of this Section 20(k) shall be void and of no force or effect.
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(l) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED
UNDER, AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ARIZONA WITHOUT
REGARD TO THE CONFLICT-OF-LAWS PROVISIONS OR PRINCIPLES THEREOF.
(m) Multiple Counterparts. This Agreement may be executed by the
parties hereto in multiple counterparts, each of which shall be deemed an
original for all purposes, and all of which together shall constitute one and
the same Agreement.
IN WITNESS WHEREOF, this Agreement is executed and delivered by the
parties hereto on the Effective Date.
PARTNERS CAPITAL GROUP
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxx
Executive Vice President
CTI GATEWAY, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
Sole Member and Manager
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