ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "agreement") is made and entered into
as of the ____ day of May ,2004, ( the "Effective Date"), by and between UNITED
PROCESSING CORPORATION LTD., ("Seller") and NORTHERN MERCHANT SERVICES, INC.
("NORTHERN"). For purposes or this Agreement, the capitalized terms used herein
shall have the meaning ascribed to such terms in Section 10.0 hereof unless
otherwise defined herein.
BACKGROUND AND PURPOSE:
A. Seller is an independent agent in the business of soliciting merchants
and other customers on behalf of third-party providers of card-based
transaction processing services for the purpose of encouraging such
merchants and other customers to conclude merchant agreements with
such providers (Seller's business is referred to herein as the
"Merchant Solicitation Business").
B. Seller is a party to an Agreement dated April 30, 1996 with EFS
NATIONAL BANK, (the "EFS Existing Agreement") and is a party to an
Agreement dated April 2, 1998 with NATIONAL PAYMENT SYSTEMS, INC., a
New York Corporation, d/b/a CARD PAYMENT SYSTEMS ("CPS") (the "CPS
Existing Agreement"). (The EFS Existing Agreement and the CPS Existing
Agreement may be hereinafter referred to as the "Existing
Agreements".) EFS NATIONAL BANK AND CARD PAYMENT SYSTEMS are now owned
by CONCORD EFS ("CONCORD"). Pursuant to the Existing Agreements Seller
refers certain merchants to CONCORD, who consist principally of retail
and other providers of goods and services, who, as a result of such
referrals, may enter into Merchant Agreements to receive broad payment
services, including but not limited to, certain credit card and debit
card transaction processing services from CONCORD in connection with
Merchant Business. Pursuant to the Existing Agreements, Seller is
entitled to receive certain residual payments from CONCORD as governed
by the Agreement (the Residuals Rights").
C. Seller wishes to sell and transfer to NORTHERN all of its rights which
relate to certain merchants, under the Existing Agreements and
otherwise, including but not limited to the Residuals Rights, and
NORTHERN is willing to purchase and accept such rights and assets.
Seller and NORTHERN 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 mutual agreements contained in this
Agreement and other good and valuable consideration, the receipt and sufficiency
of which hereby are acknowledged, Seller and NORTHERN hereby agree, on the terms
and conditions herein set forth, as follows:
ARTICLE I
ASSETS SOLD
1.1 Sale and Purchase. On the terms and subject to the conditions set forth in
this Agreement, and effective as of the Effective Date, Seller hereby
sells, transfers and assigns to NORTHERN, and NORTHERN hereby purchases and
accepts from Seller, all rights and interests of Seller which relate to
certain merchants (the "Merchants," each of which is specifically
identified on Schedule 1.1), under the Existing Agreements or otherwise and
including but not limited to the Residuals Rights, arising on or after the
Effective Date (collectively, the "Asset Sold"). Seller acknowledges and
agrees that, after the consummation of the transactions contemplated
herein, (i) it will have no right, title and interest in and to the
Merchants, and (ii) the Residuals Rights will be of no further force or
effect and neither NORTHERN nor any of its affiliates will be obligated
with respect to Residuals Rights, nor shall Seller have any past, present
or future residual rights claim with respect to the Residual Rights. 1.2 No
Assumption of Liabilities. Seller acknowledges and agrees that NORTHERN
shall not assume or become liable for the payment of any debts,
liabilities, losses, accounts payable, mortgages, or other obligations of
Seller, or any Merchant, whether the same are known or unknown,
now-existing or hereafter arising, of whatever nature or character, whether
absolute or contingent, liquidation or disputed. 1.3 Xxxx of Sale. The
sale, conveyance, transfer, assignment and delivery of the Assets Sold by
Seller to NORTHERN shall be evidenced and effected by the execution of a
Xxxx of Sale in the form of Exhibit 1.3 attached hereto (the "Xxxx of
Sale").
ARTICLE II
CONSIDERATION FOR ASSETS SOLD; CLOSING
2.1 Purchase Price. As consideration for the Assets Sold, NORTHERN shall pay an
aggregate purchase price of $312,000 in cash or certified check and 21,000
Shares of Pipeline Data Common Stock (the "Purchase Price") at the Closing
by wire transfer or check payable to Seller (in accordance with written
instructions provided by Seller).
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 (the
"Closing") shall take place on April 30,_ 2004 at 12.00 (Eastern 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 Seller of
the Purchase Price hereby contemplated, this Agreement and the other
documents and instruments delivered in connection herewith shall be deemed
effective, and the transactions hereby contemplated shall be deemed
consummated, notwithstanding and party's failure or refusal to deliver
original (i.e. non-facsimile) signature pages.
ARTICLE III
CERTAIN COVENANTS AND AGREEMENT OF SELLER
3.1 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, shall be paid by Seller.
3.2 Confidentiality of Information. On and after the date hereof, Seller and
his agents and representatives shall treat all information learned or
obtained about NORTHERN's business or relating to the Merchant 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 Seller's obligation under this Section 3.2. Seller
and his agents and representatives shall not use the information described
in this Section 3.2 in any manner that might reasonably be anticipated to
adversely affect the Merchant Business of NORTHERN's relations with
Merchants or with other persons or entities. 3.3 Notice of Breach or
Potential Breach. Seller shall promptly notify NORTHERN of any change,
circumstance or event which may prevent Seller from complying with any of
their respective obligations hereunder. 3.4 Further Assurances. On and
after the Closing Date, Seller shall give such further assurances to
NORTHERN and execute, acknowledge and deliver all such acknowledgments and
other instruments and take further action as NORTHERN may reasonably
request to effectuate the transactions contemplated by this Agreement,
including the transfer of the Assets Sold. Seller further assures NORTHERN
to (i) notify NORTHERN with any material changes in a merchant's financial
condition or the type of business in which it engages, (ii) notify NORTHERN
of any contact to it by a merchant and during such contact, Seller shall
act in a professional manner and refer all further dealings to NORTHERN and
(iii) at the request of NORTHERN for information or assistance about a
merchant, including but not limited to its original documentation, to
respond to NORTHERN with such information in a prompt manner. 3.5
Claw-back. Seller covenants that the base monthly average residual cash
stream for the months of Jan., Feb. March equals $14,122 Seller further
covenants that should the residual cash stream from the Assets Sold suffer
more than 20% annual attrition over a period of 20 months, then Seller
shall deliver to NORTHERN the difference in either cash or additional
accounts that generate income equal to the difference. 0.00 shall be held
in escrow to guarantee the performance of provision and in the event of
default pursuant to that certain Escrow Agreement attached hereto as
Exhibit 7.6.
ARTICLE IV
REPRESENTATIONS AND WARRENTIES OF SELLER
Seller hereby makes the following representations and warranties to
NORTHERN as of the date hereof and as of the Effective Date:
4.1 Organization: Ownership. Seller is a Corporation and is authorized to
conduct the business as presently conducted (including the Merchant
Solicitation Business) under the laws of the State of
Connecticut and all other applicable laws.
4.2 Authority. Seller has the right, power, capacity and authority to enter
into and deliver the Operative Documents, to perform the 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 Seller, and when executed and delivered pursuant hereto, the
Operative Documents will constitute valid and binding obligations of Seller
enforceable in accordance with their terms.
4.3 Government Notices. Seller has not received notice from any federal, state
or other governmental agency or regulatory body indication that such
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.
4.4 No Violations.
(a) The execution and delivery by Seller of the Operative Documents, and
his 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 Seller is party or by which Seller or his
properties are bound; (ii) constitute a violation by Seller of any law
or government regulation applicable to Seller or the Merchant
Solicitation Business; or (iii)violate any order, judgment, injunction
or decree of any court, arbitrator of governmental body against or
binding upon Seller.
(b) With respect to the Merchant Solicitation Business, Seller has not
been and will not be (by virtue of any past or present action,
omission to act, contract to which they are 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 requirements of any governmental body, agency or
authority or court binding on them, or relating to their property or
business (including any antitrust laws and regulations).
4.5 Assets Sold. Seller is the 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 have
good and valid title to the Assets Sold. Other than with respect to the
Residuals, Rights, Seller has no right, title or interest in the Merchants
or the Merchant Agreements. Other then as identified on Schedule 5.5, no
person, other than NORTHERN or the Merchants, owns or holds any right,
title or interest in the Merchant Agreements.
4.6 Consents and Approvals. No action of, or filing with, any governmental or
public body is required by Seller to authorize, or is otherwise required in
connection with, the execution and delivery by Seller of the Operative
Documents or, if required, the requisite filing has been accomplished and
all necessary approvals obtained.
(a) No filing, consent or approval is required by virtue of the execution
hereof or any other Operative Document by Seller or the consummation
of any of the transactions contemplated herein by Seller to avoid the
violation of 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 Seller is a party or to which they or any of
the Assets Sold is subject.
(b) Seller shall furnish a good standing certificate from the Secretary of
State of its State of organization.
4.7 Litigation and Claims. Schedule 4.7: (i) sets forth all litigation, claims,
sits, actions, investigations, indictments or information, proceedings or
arbitrations, grievances or other procedures (including grand jury
investigations, actions or proceedings, and 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
Seller, threatened, in or before any court, commission, arbitration
tribunal, or judicial, governmental or administrative department, body,
agency, administrator or official, grand jury, Card Association, or nay
other entity or forum for the resolution of grievances, against Seller and
relating in any way to the Merchant Solicitation 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. Seller has made available to
NORTHERN true, correct and complete copies of all pleadings, brief and
other documents filed in each pending litigation, claim, suit, action,
investigation, indictment or information, proceeding, arbitration,
grievance or other procedure listed in Schedule 5.7, and the judgments,
orders, writs, injunctions, decrees, indictments and information, grand
jury subpoenas and civil investigative demands, plea agreements,
stipulations and awards listed in Schedule 4.7.
4.8 Agreements, Contracts and Commitments.
(a) Seller has no agreement, contract, commitment or relationship, whether
written or oral, related to the Merchant Solicitation Business, by
which NORTHERN could be bound; and
(b) With respect to the Merchant Solicitation Business, there is no
contract, agreement or other arrangement entitling any person or other
entity to any profits, revenues or cash flows of Seller or requiring
any payments of other distributions based on such profits, revenues or
cash flows.
(c) Other than with respect to the Residuals Rights, which rights are
being sold to NORTHERN pursuant to this Agreement, neither Seller nor
any of his affiliates has any basis for any claims arising under the
Existing Agreement against NORTHERN or any of NORTHERN's affiliates
for payment, breach of contract or otherwise.
4.9 Absence of Certain Changes and Events. Since negotiations between the
parties commenced, Seller has conducted the Merchant Solicitation Business
only in the ordinary course, and has not:
(a) suffered any damage or destruction adversely affecting the Merchant
Solicitation Business;
(b) permitted any of the Assets Sold to be subjected to any mortgage,
lien, security interest, restriction, charge or other encumbrance of
any kind;
(c) waived any material claims or rights with respect to the Merchant
Solicitation Business;
(d) sold, transferred or otherwise disposed of any of the assets relating
to the Merchant Solicitation Business, except in the ordinary course
of business consistent with past practice;
(e) made any change in any method, practice or principle of financial or
tax accounting that in any manner affected the Merchant Solicitation
Business or any financial information relating to or derived from the
Merchant Solicitation Business;
(f) paid, loaned, advanced, sold, transferred or leased any Asset Sold to
any employee, except for normal compensation involving salary and
benefits; or
(g) agreed in writing, or otherwise, to take any action described in this
Section.
4.10 Disclosure. No representations, warranties, assurances or statements by
Seller in its Agreement, and no statement contained in any document
(including the Financial Information and the Schedules), certificates or
other writings furnished by Seller (or caused to be furnished by Seller) to
NORTHERN 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.
4.11 Misrepresentation. Seller represents and warrants that it has made no
misrepresentation or omission on any application submitted on behalf of a
merchant.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF NORTHERN
NORTHERN makes the following representations and warranties to Seller as of
the date hereof and as of the Effective Date:
5.1 Organization. NORTHERN is a corporation duly organized and validly existing
under the laws of the State of New York and is authorized to conduct its
business under those laws.
5.2 Authority. NORTHERN 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 NORTHERN, and, when executed and delivered pursuant hereto,
they will constitute valid and binding obligations of NORTHERN enforceable
in accordance with their terms.
5.3 Governmental Notices. NORTHERN 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 of issue its consent or
approval, if required, with respect to the transactions contemplated by the
Operative Documents.
5.4 No Violations. The execution and delivery by NORTHERN of the Operative
Documents, and his 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 NORTHERN is party or by which NORTHERN or his
properties are bound; (ii) constitute a violation by NORTHERN of any law or
government regulation applicable to NORTHERN or the Merchant Solicitation
Business; or (iii)violate any order, judgment, injunction or decree of any
court, arbitrator of governmental body against or binding upon NORTHERN.
5.5 Consents and Approvals.
(a) No action of, or filing with, any governmental or public body is
required by NORTHERN to authorize, or is otherwise required in
connection with, the execution and delivery by NORTHERN 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 NORTHERN or the consummation
of any of the transactions contemplated herein by NORTHERN to avoid
the violation or breach of under 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
NORTHERN is a party or is subject.
ARTICLE VI
CONDITIONS TO OBLIGATIONS OF SELLER
Each of the obligations of Seller to be performed hereunder shall be
subject to the satisfaction (or waiver by Seller) at or before the Closing of
each of the following conditions:
6.1 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 net or such compliance shall have been waived by the
governmental authority having authority to grant such waivers.
6.2 Documents Satisfactory in Form and Substance. All agreements,
certificates, and other documents delivered by NORTHERN to Seller
hereunder shall be in form and substance satisfactory to counsel of
Seller, in the exercise of such counsel's reasonable judgment.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF NORTHERN
The obligations of NORTHERN to be performed hereunder shall be subject to
the satisfaction (or waiver by NORTHERN) at or before the Closing of each of the
following conditions:
7.1 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.
7.2 Non-Solicitation Agreement. Seller shall have executed and delivered to
NORTHERN a Non-Solicitation Agreement substantially in the form of Exhibit
7.2 attached hereto (the "Non-Solicitation Agreement").
7.3 Xxxx of Sale. Seller shall have executed and delivered to NORTHERN the Xxxx
of Sale.
7.4 Corporate Resolutions. Seller shall have delivered to NORTHERN certified
resolutions of Seller authorizing this Agreement and all other agreements
and transactions referenced herein.
7.5 Documents Satisfactory in Form and Substance. All agreements, certificates,
and other documents delivered by Seller to NORTHERN hereunder shall be in
form and substance satisfactory to counsel of NORTHERN, in the exercise of
such counsel's reasonable judgment.
7.6 Escrow Agreement. Seller shall furnish the Escrow Agreement as discussed in
Section 3.5 hereof.
7.7 Certificate of Good Standing. Seller shall furnish a good standing
certificate from the Secretary of State of its State of organization.
Exhibit 7.6.
ARTICLE VIII
INDEMNIFICATION
Seller shall indemnify NORTHERN, its affiliates, their respective
successors and assigns, and their respective officers, directors, employees,
consultants and agents (each an "Indemnified Person") and hold each Indemnified
Person harmless from any liability, loss, diminution in value, cost, claim, or
expense, including reasonable attorneys' and accountants' fees and expenses,
incurred by such Indemnified Person that result from or arise out of (i) any
breach or inaccuracy of any representation or warranty of Seller set forth in
the Operative Documents; (ii) the breach by Seller of any of the covenants or
agreements contained in the Operative Documents; (iii) any liability or
obligation, contingent or otherwise, of Seller; and (iv) violations of law or
governmental rules or regulations or wrongdoing or negligence by Seller in
performing obligations in connections with this Agreement.
ARTICLE IX
DEFINITIONS AND RULES OF INTERPRETATION
9.1 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.
"Closing Date" has the meaning set forth in Section 2.2 hereof
"Credit Card Associations" means VISA U.S.A., Inc., Visa
International, Inc. MasterCard International Incorporated,
American Express, Discover, JCB, Diners Club and any successor
organizations or associations or other credit card associations
not mentioned herein.
"Merchant" means those certain merchants that have entered into a
Merchant Agreement with NORTHERN as a result of a referral by
Seller of such merchant to NORTHERN, and which are identified on
Schedule 1.1 attached hereto.
"Merchant Agreement" means an agreement between NORTHERN and a
servicing party, which may or may not be a bank, pursuant to
which the servicing party undertakes to honor financial
transaction devices.
"Merchant Business" shall mean any services pertaining to
negotiation of payment, including but not limited to acceptance
of credit card or debit card transaction records in documentary
or electronic form from merchants in connection with the
processing and clearing of such records for settlement and
payment to such merchant as well as ACH transfers, check
guarantees, check authorizations, e-commerce payments and
services and point of sales systems on both a hardware or
software basis.
"Operative Documents" means this Agreement, the Non-Solicitation
Agreement, and all such other documents, agreements, certificates
or instruments executed and delivered in connection herewith.
9.2 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 X
MISCELLANEOUS
10.1 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.
10.2 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 Seller: United Processing Corporation
000 Xxxxx 000
Xxxxxx, XX 00000
If to NORTHERN: NORTHERN MERCHANT SERVICES, INC,
00 Xxxx Xxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxxx Grueisen
With copies to: Xxxxxx Xxxxxxx, Esq.
(which shall not 000 Xxxxxx Xxxx Xxxx
xxxxxxxxxx xxxxxx) Xxxxxx, XX 00000
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 10.2. Any notice, demand or other communication given pursuant
of this Section 10.2 shall be deemed to have been given n the earlier of
the date actually delivered or five (5) days following the date deposited
in the United States mail, properly addressed, postage prepaid, as the case
may be.
10.3 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 Seller and NORTHERN.
10.4 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.
10.5 Finder's Fees.
(a) Seller. Seller represents and warrants that he has not made any
commitment or done any act that would create any liability to any
person other than himself for any brokerage, finder's or similar fee
or commission in connection with this Agreement or the transactions
contemplated hereby.
10.6 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 or entity controlling, controlled by or under common control with
such part (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 it with which the assigning
party shall merge or consolidate formally agrees in writing to assume all
the rights and obligations of the assigning party created hereby.
10.7 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 nay delay
in exercising any right, power or privilege hereunder constitute a waiver
thereof.
10.8 Severability of Provisions. In 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.
10.9 Counterparts; Delivery. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute on instrument.
The parties acknowledge that delivery of executed counterparts 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.
10.10Governing Law. This Agreement is made and entered into under the laws of
the State of New York, and the laws of that State (without giving effects
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.
10.11Section Headings. The headings of Sections contained in this Agreement are
for convenience of reference only and do not form a part of this Agreement.
10.12Entire 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 NORTHERN and
Seller with respect to the subject matter hereof, and there are no further
or other agreements or understanding, written or oral, in effect between
the parties relating to the subject matter hereof.
10.13 Publicity. Seller agrees that the timing and content of any and all
public statements, announcements or other publicity concerning the
transactions contemplated herein shall be mutually agreed upon in
good faith by the Parties.
(SIGNATURES APPEAR ON NEXT PAGE)
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Asset Purchase Agreement as of the date first written above.
"SELLER"
UNITED PROCESSING CORPORATION LTD.
Attest:
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: President
"NORTHERN"
NORTHERN MERCHANT SERVICES, INC.
Attest:
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: President
