EXHIBIT 10.5
ASSET ACQUISITION AND EXCHANGE COOPERATION AGREEMENT
This ASSET ACQUISITION AND EXCHANGE COOPERATION AGREEMENT
("Agreement") is made and entered into as of this 4th day of November, 1999 by
and among ASA International, Ltd., a Delaware corporation, (the "Exchanger"),
SQL Acquisition LLC, a Delaware limited liability company ("SQL"), Fidelity
National 1031 Exchange Services, Inc., a California corporation ("Qualified
Intermediary"), and Pacific American Property Exchange Corporation, a California
corporation and the sole member and manager of SQL ("Pacific").
RECITALS
A. Exchanger presently owns and uses in its business certain assets,
one or more of which may be identified under this Agreement as a Relinquished
Property;
B. Exchanger anticipates transferring the Relinquished Property to a
third party buyer (the "Transferee") pursuant to a purchase and sale agreement
to be entered into between Exchanger and the Transferee (the "Relinquished
Property Transfer Agreement"). Exchanger desires to reserve the ability to
dispose of the Relinquished Property through Qualified Intermediary by effecting
a like-kind exchange (the "Exchange") within the meaning of Section 1031 of the
Internal Revenue Code of 1986, as amended (the "Code");
C. Qualified Intermediary and SQL are willing to assist Exchanger in
completing the Exchange, if Exchanger, in its sole discretion, determines to
effect the same. To that end, SQL is contemporaneously herewith accepting an
assignment of certain of Exchanger's rights under a Replacement Property
Acquisition Agreement pursuant to which SQL will acquire from the Seller (as
defined herein) certain assets, including computer software and intellectual
property, as described in more detail in Exhibit "A" attached hereto (the
"Replacement Property");
D. SQL desires to license the Replacement Property to Exchanger (for
this purpose, "Licensee"), pursuant to a License approved as to form by SQL and
Licensee;
E. SQL will cooperate with financing arranged by Exchanger with the
Prime Lender (if any) and Subordinated Lender (if any) pursuant to the one or
more Acquisition Loans (as defined herein) for the purpose of acquiring the
Replacement Property.
F. If Exchanger elects to effect the Exchange, it may, in its sole
discretion and by written notice to the Qualified Intermediary and SQL,
designate the Replacement Property as "replacement property" (within the meaning
of Treas. Reg. ss 1.1031(k)-1(a)) in connection with the Exchange. In such
event, SQL will cooperate with Exchanger and Qualified Intermediary in order to
complete the Exchange under the terms and conditions provided herein;
G. If Exchanger elects to effect the Exchange, Exchanger shall direct
Qualified Intermediary to: (1) accept an assignment from Exchanger of certain of
Exchanger's rights under the Relinquished Property Transfer Agreement in order
to receive the net purchase price for the Relinquished Property (the "Transfer
Price"); (2) obtain the right to acquire the Replacement Property from SQL; and
(3) pay the Purchase Price (as determined herein) for the Replacement Property
and then transfer, or cause the transfer of, title to and ownership of the
Replacement Property to Exchanger in order to complete the Exchange; and
H. If Exchanger does not elect to effect the Exchange, SQL may dispose
of the Replacement Property pursuant to the terms hereof, or, alternatively, may
retain ownership of the Replacement Property and continue to enforce the terms
of the License, subject to the terms and conditions provided herein.
NOW, THEREFORE, in consideration of the mutual premises set forth
herein, the parties hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms
shall have the meanings provided below:
"Acquisition Cost" shall have the meaning provided in Section 3.2.4.2.
"Acquisition Loan" shall mean the Prime Loan and/or Subordinated Loan,
if any, providing financing for SQL's acquisition of the Replacement Property.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Contract Period" shall mean a period of twelve (12) calendar months
commencing when SQL acquires the Replacement Property.
"Excess Amount" shall have the meaning provided in Section 3.2.3.
"Exchange" shall mean the like kind exchange contemplated by this
Agreement.
"Exchanger" shall mean ASA International, Ltd., a Delaware
corporation, whose address is 00 Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 and whose
facsimile telephone number is 000-000-0000.
"Exchanger Representative" shall mean Xxxxxx X. Xxxxxxxx, whose
address is 00 Xxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000 and whose facsimile telephone
number is 000-000-0000, and any other individual from time to time designated in
writing by Exchanger.
"Excluded Costs" shall have the meaning provided in Section 3.2.4.3.
"Fair Market Value" shall have the meaning provided in Section
3.2.4.1.
"Forum State" shall mean the Commonwealth of Massachusetts.
"Indemnified Parties" shall mean (i) Qualified Intermediary, (ii)
Pacific (iii) SQL, and (iv) their respective officers, agents, shareholders,
managers, employees and assigns.
"Lender[s]" shall mean the Prime Lender and Subordinated Lender.
"License" shall mean the license of the Replacement Property by SQL to
Licensee which will be entered into concurrently with SQL's acquisition of the
Replacement Property, the form of which has been approved by SQL, Licensee and
Exchanger.
"Licensee" shall mean ASA International, Ltd., a Delaware corporation.
"Loan Documents" shall collectively refer to (as applicable) the Prime
Loan Promissory Note, Prime Loan Security Agreement, Subordinated Loan
Promissory Note and Subordinated Security Agreement.
"Option Notice" shall have the meaning provided in Section 6.
"Pacific" shall mean Pacific American Property Exchange Corporation, a
California corporation, whose notice address is: 0000 X. Xxxxxxxxx Xxxx, Xxxxx
000, Xxxxxxx, Xxxxxxx 00000, Attention: E. Xxxx Xxxxx, Vice President.
"Prime Lender" shall mean Eastern Bank.
"Prime Loan" shall mean a loan, if any, from Prime Lender.
"Prime Loan Security Agreement" shall mean the security agreement
between Prime Lender and SQL.
"Prime Loan Promissory Note" shall mean the promissory note signed by
SQL, as borrower, for funds borrowed from Prime Lender.
"Purchase Price" shall have the meaning provided in Section 3.2.2.
"Qualified Intermediary" shall mean Fidelity National 1031 Exchange
Services, Inc., a California corporation, whose notice address is: 0000 X.
Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, Attention: E. Xxxx Xxxxx,
Vice President.
"Qualified Intermediary Assignment" shall mean a form of assignment
described in Treas. Reg. ss. 1.1031(k)-1(g)(4)(iv).
"QI Credit Amount" shall mean the aggregate net proceeds received by
the Qualified Intermediary from the sale of any Relinquished Property.
"Relinquished Property" shall mean the real property or properties
identified by Exchanger to be exchanged for the Replacement Property.
"Relinquished Property Transfer Agreement" shall mean the agreement
under which Exchanger intends to effect a disposition of the Relinquished
Property.
"Regulations" shall mean the Treasury Regulations promulgated to
interpret the Code, as they may be amended from time to time.
"Replacement Property" shall have the meaning set forth in paragraph C
of the Recitals.
"Replacement Property Transfer Assignment" shall mean the assignment
and xxxx of sale executed and delivered by SQL to convey or assign all of its
rights and interests in the Replacement Property to the Exchanger or its
Permitted Assignees.
"Replacement Property Acquisition Agreement" shall mean the written
agreement between Exchanger and Seller dated November 4, 1999, as amended to
date and the related conveyancing instruments, providing for and effecting the
acquisition of the Replacement Property by Exchanger.
"SQL" shall mean SQL Acquisition LLC, a Delaware limited liability
company, whose notice address is: 0000 X. Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000, Attention: E. Xxxx Xxxxx.
"Seller" shall mean Design Data Systems Corporation, a Florida
corporation.
"Subordinated Lender" shall mean the Exchanger who provides funds for
SQL to acquire the Replacement Property as provided herein and whose security is
subordinate to that of Prime Lender.
"Subordinated Loan" shall mean the loan, if any, from Subordinated
Lender.
"Subordinated Loan Promissory Note" shall mean the promissory note
signed by SQL, as borrower, for funds borrowed from Subordinated Lender.
"Subordinated Loan Security Agreement" shall mean security agreement
between Subordinated Lender and SQL.
"Termination Events" shall have the meaning provided in Section 4.2.
"Termination Notice" shall have the meaning provided in Section 4.1.
"Termination Sale Notice" shall have the meaning provided in Section
10.1.
"Termination Sale Proceeds" shall have the meaning provided in Section
10.3.
"Transfer Price" shall have the meaning set forth in paragraph G of
the Recitals.
"Transferee" shall mean the person or persons who acquires the
Relinquished Property from Qualified Intermediary.
"Unrelated Liens" shall have the meaning provided in Section 3.3.3.
"Written Authorization" shall mean any written request, demand,
authorization, direction, notice, consent or waiver required or contemplated to
be delivered under this Agreement to SQL or to Qualified Intermediary, which
shall be signed by Exchanger Representative.
2. ACQUISITION OF THE REPLACEMENT PROPERTY.
2.1 ASSIGNMENT OF REPLACEMENT PROPERTY ACQUISITION AGREEMENT.
2.1.1 Upon execution of this Agreement and subject to the
execution by Seller of such documentation as SQL may reasonably require,
Exchanger hereby assigns and SQL accepts the assignment of Exchanger's right and
obligation to acquire the Replacement Property from the Seller pursuant to the
terms of the Replacement Property Acquisition Agreement.
2.1.2 Subject to the terms of the Replacement Property
Acquisition Agreement and this Agreement, SQL shall acquire the Replacement
Property from Seller.
2.1.3 The assignment provided in Section 2.1.1 shall be null
and void in the event SQL does not acquire title to the Replacement Property by
means of the closing procedures provided in the Replacement Property Acquisition
Agreement.
2.2 FINANCING.
2.2.1 In order to finance the acquisition of the Replacement
Property, SQL shall, if necessary, borrow funds from the Prime Lender and, if
necessary, the Subordinated Lender. SQL shall comply with all the terms and
conditions of the Loan Documents and enter into such other agreements and
assignments as may be required thereby.
2.2.2 SQL shall have no obligation to advance any funds
towards the acquisition of the Replacement Property in excess of (i) funds
supplied by Prime Lender or Subordinated Lender or (ii) funds supplied by the
Qualified Intermediary derived from sale of the Relinquished Property.
2.2.3 The terms and conditions of the Prime Loan shall be
negotiated and arranged by Exchanger, at no cost to SQL. The documentation for
the Prime Loan shall be subject to the review and reasonable approval of SQL.
The Loan Documents shall each contain an express waiver by Lender in a form
acceptable to Qualified Intermediary of any right to collect under any legal
theory or claim from any Indemnified Party (other than SQL) any amounts due
under the Loan Documents.
2.3 LICENSE.
2.3.1 Simultaneously with the acquisition of the Replacement
Property, SQL and Licensee shall enter into the License.
2.3.2 The terms and conditions of the License shall be
arranged by Exchanger at no cost to SQL. The License documentation shall be
subject to the review and reasonable approval of SQL. The License documentation
shall contain an express waiver by Licensee of any right to assert or pursue any
claim under any legal theory against any Indemnified Party (other than SQL)
under the License and an indemnification of each Indemnified Party by Licensee
of any claim asserted by Seller or any other third party against SQL under the
License. The form of such waiver and indemnification shall be approved by SQL
and Qualified Intermediary.
2.4 LICENSE ASSIGNMENT. At the written direction of
Exchanger, if Exchanger elects to dispose of the Relinquished Property as part
of an Exchange, SQL shall execute and deliver the Replacement Property Transfer
Assignment to Exchanger.
3. EXCHANGE COOPERATION.
3.1 TRANSFER OF RELINQUISHED PROPERTY; QUALIFIED INTERMEDIARY
ASSIGNMENT.
3.1.1 If Exchanger elects to dispose of the Relinquished
Property as part of the Exchange, then Exchanger shall direct the Qualified
Intermediary to deliver to SQL in exchange for the Replacement Property an
amount equal to the lesser of (i) the net QI Credit Amount or (ii) the Purchase
Price.
3.1.2 Prior to the delivery of such amount to SQL, Exchanger
shall assign to the Qualified Intermediary its rights under this Agreement to
acquire the Replacement Property pursuant to a form of assignment described in
Regulations ss 1.1031(k)-1(g)(4)(iv). The assignment shall provide for SQL to
deliver all of the title to and ownership of the Replacement Property held by
SQL directly to Exchanger without the need for the Qualified Intermediary to
take title thereto. SQL agrees to consent to the Qualified Intermediary
Assignment.
3.2 TRANSFER OF REPLACEMENT PROPERTY BY SQL; PURCHASE PRICE.
3.2.1 Upon receipt of the consideration provided for in
Section 3.1.2 hereof from the Qualified Intermediary, and consistent with the
Qualified Intermediary Assignment, SQL shall deliver to the Qualified
Intermediary or, upon the direction of the Qualified Intermediary, to Exchanger
the Replacement Property Transfer Assignment.
3.2.2 The Purchase Price for the Replacement Property shall
equal its "Fair Market Value," as hereinafter defined.
3.2.3 If, in connection with the Exchange, the Purchase
Price exceeds the aggregate amount of the QI Credit Amount received by SQL from
the Qualified Intermediary (such excess hereinafter referred to as the "Excess
Amount"), Exchanger shall pay to SQL the Excess Amount, in immediately available
funds, upon delivery of the Replacement Property Transfer Assignment.
3.2.4 For purposes of this Agreement, the following
definitions shall apply:
3.2.4.1 "Fair Market Value" of the Replacement Property
shall mean the fair market value determined by a nationally recognized appraiser
as may be agreed to by Exchanger and SQL (the "Appraiser"); provided, however,
that if the Replacement Property is purchased from SQL within twelve (12) months
after the date on which SQL acquired the Replacement Property, then the "Fair
Market Value" shall be deemed to equal its "Acquisition Cost" as hereinafter
defined.
3.2.4.2 "Acquisition Cost" shall mean the sum of (i) the
purchase price paid by SQL to the Seller to acquire the Replacement Property;
(ii) all sales, transfer or similar taxes, and all charges and closing costs
paid by SQL in connection with its purchase of the Replacement Property; (iii)
all interest, charges and other fees (including pre-payment fees in connection
with mandatory pre-payments) under the Loan Documents which are not paid
pursuant to the License or otherwise reimbursed to SQL by Exchanger, and (iv)
any and all unreimbursed costs, liabilities and expenses (including any state or
local transfer, excise taxes, use tax or other tax) of any kind incurred by SQL
in connection with the acquisition, ownership, or operation of the Replacement
Property, the disposition of the Replacement Property, as contemplated herein,
or the completion of the Exchange, except for "Excluded Costs" as defined below.
3.2.4.3 "Excluded Costs" shall mean the sum of ONLY: (i)
professional fees and administrative costs and fees (including overhead costs)
incurred by SQL in connection with the transactions contemplated hereunder or
its organization or operation (but not including any such fees that SQL is
entitled to be indemnified for under any other provision of this Agreement);
(ii) all principal and any penalties paid or accrued under the Loan Documents
(other than penalties attributable to any default by Licensee under the
License), (iii) any claims or losses incurred by SQL as to which Exchanger is
expressly excused from reimbursing SQL under a separate provision hereof and
(iv) any and all income taxes and similar taxes based upon or measured by SQL's
income. The foregoing notwithstanding, any professional fees and costs incurred
by SQL in connection with, or as a result of, a default under or breach of this
Agreement by Exchanger or a default under or breach of the License by Licensee
shall not be considered "Excluded Costs" hereunder.
3.2.5 If Fair Market Value hereunder is to be determined by
an appraisal, Exchanger shall be solely responsible for timely retaining the
Appraiser and paying all of the Appraiser's fees and expenses. If Fair Market
Value hereunder is to be determined by reference to Acquisition Costs, SQL shall
provide Exchanger with an accounting thereof at least five (5) days prior to the
closing date for the transfer of the Replacement Property.
3.2.6 Exchanger shall have no right to receive, control,
pledge, borrow, assign or otherwise obtain the benefits of any portion of any
Exchange funds held by Qualified Intermediary except to have such Exchange funds
applied to acquire the Replacement Property in accordance with this Agreement.
3.3 ADDITIONAL DELIVERY; LIENS.
3.3.1 At such time as SQL delivers the Replacement Property
Assignment to Exchanger pursuant to Section 3.2.1 hereof, SQL shall also deliver
to Exchanger (i) any insurance proceeds pertaining to the Replacement Property
which SQL may have received, except to the extent such proceeds have been
reinvested or otherwise applied as required under the Loan Documents, and (ii)
assignments of any insurance proceeds pertaining to the Replacement Property
which SQL may be entitled to receive but has not received.
3.3.2 The Replacement Property delivered by SQL pursuant to
Section 3.2.1 hereof shall be subject to such liens, encumbrances or
restrictions as may exist at the date the Exchange is completed, including the
liens and encumbrances created under the Security Agreement and any lien or
encumbrance arising because of any default by Licensee under the License or any
breach by Exchanger of this Agreement; provided, however, that the Replacement
Property shall be free and clear of any Unrelated Liens. In addition, SQL shall
assign to Exchanger all representations, warranties and covenants from the
Seller pertaining to the Replacement Property which have been obtained by SQL
and all of its rights and obligations under the License. "Unrelated Liens" shall
mean any liens, encumbrances or restrictions created or suffered to exist by SQL
with respect to the Replacement Property except for any lien (i) any lien
specifically authorized or contemplated in this Agreement, the Promissory Note
or Security Agreement or (ii) which arises as a result of Licensee's default
under or breach of the License or Exchanger's default under this Agreement.
3.3.3 Without limiting the generality of the foregoing, the
term "Unrelated Liens" shall include any liens, encumbrances or restrictions (i)
created by SQL for money borrowed (other than the Acquisition Loan); (ii)
created by SQL or suffered by SQL in connection with its activities in any
respect not pertaining to the Replacement Property or this Agreement; or (iii)
created by SQL in violation or breach of this Agreement, the Promissory Note,
Security Agreement, or the License. Unrelated Liens do not include any lien or
encumbrance arising from acts or omissions of Seller or the Licensee or any lien
or encumbrance in existence at the time SQL acquired its interest in the
Replacement Property.
3.4 REPRESENTATIONS AND WARRANTIES; TITLE. Except as expressly
provided herein, SQL shall not be obligated to make any representations and
warranties to Exchanger in connection with the transfer of the Replacement
Property pursuant to Section 3.2 hereof. Without limiting the generality of the
foregoing and except as prohibited by law, Exchanger shall be required to accept
the Replacement Property pursuant to Section 3.2 hereof regardless of (i)
defects in title or encumbrances, other than Unrelated Liens; (ii) any
unfavorable tax rulings; or (iii) any other matter or condition affecting or
relating to the Replacement Property or the right or power of Exchanger to take
or maintain possession of and operate the Replacement Property, except for
Unrelated Liens.
3.5 TERMINATION OF EXCHANGE COOPERATION REQUIREMENT. Unless this
Agreement is earlier terminated by the parties hereto, the obligation of SQL and
Qualified Intermediary to cooperate in the completion of the Exchange pursuant
to this Section 3 shall terminate upon the first to occur of: (i) the date on
which Exchanger, through the Qualified Intermediary, completes the acquisition
of the Replacement Property as Replacement Property in the Exchange and pays to
SQL any Excess Amount under Section 3.2 hereof or (ii) the date on which SQL
transmits a valid Exchange Termination Notice pursuant to Section 4.1 hereof.
The foregoing notwithstanding, if any further action on SQL's part is necessary
or desirable to carry out the purposes of this Agreement after Exchanger
acquires the Replacement Property, SQL will take all such further actions
(including the execution and delivery of further instruments or documents) as
Exchanger may reasonably request, at the sole cost and expense of Exchanger
(other than SQL's internal administrative costs, including overhead, which costs
shall be borne by SQL).
3.6 TAX CONSEQUENCES. Neither party hereto shall assume
responsibility for the income tax consequences to the other party arising out of
the Exchange contemplated by this Agreement. Exchanger acknowledges that it has
consulted with its own advisors with respect to the tax and other legal aspects
of the Exchange and has not relied upon SQL or its advisors for any tax or legal
advice. Notwithstanding the foregoing, Exchanger shall not be excused from
indemnifying the Indemnified Parties as separately required herein for certain
transfer taxes and other non-income taxes.
3.7 EXCHANGER REPRESENTATIVE; WRITTEN AUTHORIZATION. Whenever
Exchanger has under this Agreement any right to make any election or give any
direction to SQL or Qualified Intermediary, SQL and Qualified Intermediary are
hereby authorized and directed to accept any Written Authorization delivered to
SQL or Qualified Intermediary from Exchanger Representative to the extent such
Written Authorization is consistent with the terms of this Agreement. SQL and
Qualified Intermediary may assume, without liability for error, that any fact or
statement set forth in any Written Authorization is correct. The identity of any
person or the date any instrument or writing required or contemplated to be
given under this Agreement to SQL or to Qualified Intermediary may be proved to
SQL and Qualified Intermediary in any reasonable manner either of them deems
sufficient.
4. EXCHANGER'S FAILURE TO CONSUMMATE EXCHANGE.
4.1 TERMINATION NOTICE. If SQL continues to hold any interest in
the Replacement Property after the occurrence of either of the below-described
"Termination Events," then SQL and Qualified Intermediary may, in their sole
discretion, by written notice to Exchanger sent by either of SQL or Qualified
Intermediary at any time within thirty (30) days after the occurrence of the
Termination Event (the "Termination Notice"), terminate their respective
obligations to complete the Exchange contemplated herein and may also, in their
sole discretion, invoke the remedies and indemnity provisions set forth in
Section 10 hereof.
4.2 TERMINATION EVENTS. For purposes hereof, the following events
shall be considered "Termination Events" hereunder:
4.2.1 if SQL holds an interest in the Replacement Property
as of a date which is ten (10) days prior to the stated maturity date of any
Prime Loan (or the equivalent date under any and all refinancings, renewals,
extensions or modifications thereof); or
4.2.2 if Exchanger or any successor or assign shall be
dissolved or liquidated, shall make an assignment for the benefit of creditors,
shall file a petition in bankruptcy, shall be adjudicated insolvent or bankrupt,
shall petition or apply to any tribunal for any receiver or trustee, shall
commence any proceeding relating to itself under any bankruptcy, reorganization,
readjustment of debt, dissolution or liquidation law or statute of any
jurisdiction, shall have commenced against it any such proceeding which remains
undismissed for a period of ninety (90) days, shall indicate its consent to,
approval of or acquiescence in any such proceeding or shall suffer the
appointment of any receiver of or trustee for it or for substantially all of its
property which shall continue undischarged for a period of ninety (90) days; or
4.2.3 if Licensee shall default under terms of the License
and such default shall remain uncured for more than thirty (30) days after
notice from SQL to Licensee; or
4.2.4 or if the Contract Period has ended.
5. SQL FAILURE TO COMPLETE EXCHANGE. If (i) SQL or any successor
thereof, shall be dissolved or liquidated, shall make an assignment for the
benefit of creditors, shall file a petition in bankruptcy, shall be adjudicated
insolvent or bankrupt, shall petition or apply to any tribunal for any receiver
or trustee, shall commence any proceeding relating to itself under any
bankruptcy, reorganization, readjustment of debt, dissolution or liquidation law
or statute of any jurisdiction, shall have commenced against it any such
proceeding which remains undismissed for a period of ninety (90) days, shall
indicate its consent to, approval of or acquiescence in any such proceeding or
shall suffer the appointment of any receiver of or trustee for it or any
substantial part of its property which shall continue undischarged for a period
of ninety (90) days, or (ii) SQL shall fail to consummate its obligations as
provided in Section 3 hereof with respect to the transfer of the Replacement
Property to Exchanger, then in each such event, Exchanger shall be entitled, in
its sole discretion, by written notice to SQL, to the remedies provided in
Section 11 hereof.
6. EXCHANGER'S PURCHASE OPTION. At any time prior to the occurrence of
a Termination Event, Exchanger shall have the right, upon delivery of written
notice to SQL (the "Option Notice"), to purchase the Replacement Property from
SQL for cash in an amount equal to the "Fair Market Value" as determined under
Section 3.2 hereof as of the date of the Option Notice.
In the event Exchanger exercises its option hereunder, the Option
Notice shall set forth a date no later than ten (10) business days after the
date of such notice for a closing at which SQL shall transfer and assign all
right, title and interest in and to the Replacement Property held by SQL to
Exchanger. Exchanger shall have the obligation to accept at such closing the
Replacement Property held by SQL, as provided in Section 3.4 hereof.
7. REPRESENTATIONS AND WARRANTIES OF SQL. SQL hereby represents and
warrants to Exchanger as follows:
7.1 DUE ORGANIZATION; AUTHORITY; ENFORCEABILITY. SQL is a
Delaware limited liability company, duly organized, and validly existing under
the laws of the state of its formation, with the power and authority to make,
execute, deliver and perform its obligations under this Agreement and all of the
transactions contemplated under this Agreement and has taken all necessary
action to authorize the execution, delivery and performance of this Agreement.
This Agreement constitutes a valid and binding obligation of SQL, enforceable
against SQL in accordance with its terms, subject, as to enforcement to
bankruptcy, insolvency, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to general
equitable principles.
7.2 CONFLICT WITH EXISTING LAWS OR CONTRACT. The execution and
delivery of this Agreement, and all related documents, and the performance of
its obligations hereunder and thereunder by SQL (i) does not conflict with or
result in a breach of or constitute a default under any of the terms, conditions
or provisions of the articles of incorporation or bylaws (or, as applicable, the
certificate of formation or operating agreement) of SQL or of any agreement or
instrument to which SQL is a party or by which SQL is bound or any order or
decree applicable to SQL, or (ii) will not result in the creation or imposition
of any lien (except for the lien contemplated the Loan Documents) any of SQL's
assets or property, which would materially and adversely affect the ability of
SQL to execute and deliver this Agreement and perform its obligations hereunder;
and SQL has obtained all consents, approvals, authorizations or orders of any
court or governmental agency or body, if any, required for the execution and
delivery by SQL of this Agreement.
7.3 LEGAL ACTION AGAINST SQL. There are no judgments, orders, or
decrees of any kind against SQL unpaid or unsatisfied of record nor any legal
action, suit or other legal or administrative proceeding pending or to SQL's
knowledge threatened against SQL, before any court or administrative agency
which has, or is likely to have, any material or adverse effect on the business
or assets or the condition, financial or otherwise, of SQL or which prevents the
ability of SQL to perform hereunder.
7.4 BANKRUPTCY OR DEBT OF SQL; FINANCIAL CONDITION. SQL has not
filed any petition seeking or acquiescing in any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under any
law relating to bankruptcy or insolvency, nor has any such petition been filed
against SQL. No general assignment of SQL's property has been made for the
benefit of creditors, and no receiver, master, liquidator or trustee has been
appointed for SQL or any of its property. SQL is not insolvent and the
consummation of the transactions contemplated by this Agreement shall not render
SQL insolvent. SQL will have as of the time of execution of this Agreement
sufficient financial resources to meet its obligations hereunder.
7.5 STATUS OF SQL. SQL is not the agent or partner of Exchanger.
7.6 SQL OWNERSHIP. SQL is a single member limited liability
company, the sole member and manager of which is Pacific.
8. REPRESENTATIONS AND WARRANTIES OF EXCHANGER. Exchanger hereby
represents and warrants to SQL and Qualified Intermediary as follows:
8.1 DUE ORGANIZATION; AUTHORITY; ENFORCEABILITY. Exchanger is an
entity of the form specified in the preamble to this Agreement and is duly
organized, validly existing and in good standing under the laws of the state of
its formation, with the power and authority to make, execute, deliver and
perform its respective obligations under this Agreement and all of the
transactions contemplated under this Agreement and has taken all necessary
corporate action to authorize the execution, delivery and performance of this
Agreement. This Agreement constitutes a valid and binding obligation of
Exchanger, enforceable against Exchanger in accordance with its terms, subject,
as to enforcement to bankruptcy, insolvency, reorganization, moratorium and
other laws of general applicability relating to or affecting creditors' rights
and to general equitable principles.
8.2 CONFLICT WITH EXISTING LAWS OR CONTRACT. The execution and
delivery of this Agreement, and all related documents and the performance of its
obligations hereunder and thereunder by Exchanger (i) does not conflict with or
result in a breach of or constitute a default under any of the terms, conditions
or provisions of certificate of incorporation or bylaws of Exchanger or of any
agreement or instrument to which Exchanger is a party or by which Exchanger is
bound or any order or decree applicable to Exchanger, or (ii) will not result in
the creation or imposition of any lien on any of the assets or property of
Exchanger which would materially and adversely affect the ability of Exchanger
to execute and deliver this Agreement and perform its obligations hereunder; and
Exchanger has obtained all consents, approvals, authorizations or orders of any
court or governmental agency or body, if any, required for the execution and
delivery by Exchanger of this Agreement.
8.3 LEGAL ACTION AGAINST EXCHANGER. There are no judgments,
orders or decrees of any kind against Exchanger unpaid or unsatisfied of record
nor any legal action, suit or other legal or administrative proceeding pending
or, to Exchanger's knowledge, threatened against Exchanger before any court or
administrative agency which has, or is likely to have, any material or adverse
effect on the business or assets or the condition, financial or otherwise, of
Exchanger which prevents the ability of Exchanger to perform hereunder.
8.4 BANKRUPTCY OR DEBT OF EXCHANGER; FINANCIAL CONDITION.
Exchanger has not filed any petition seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any law relating to bankruptcy or insolvency, nor has
any such petition been filed against Exchanger. No general assignment of
Exchanger's property has been made for the benefit of creditors, and no
receiver, master, liquidator or trustee has been appointed for Exchanger or any
of its property. Exchanger is not insolvent and the consummation of the
transactions contemplated by this Agreement shall not render Exchanger
insolvent. Exchanger will have as of the time of execution of this Agreement
sufficient financial resources to meet its obligations hereunder.
9. SURVIVAL. Subject to the provisions of Section 14.2 hereof, each
and every representation and warranty made by SQL or Exchanger shall survive the
execution and delivery of this Agreement for a period of two years after the
date this Agreement terminates pursuant to Section 3.5 hereof.
10. REMEDIES OF SQL.
10.1 TERMINATION SALE. If at any time within thirty (30) days
after receipt by Exchanger of a Termination Notice pursuant to Section 4.1
hereof, SQL sends to Exchanger a written notice (the "Termination Sale Notice")
stating that SQL proposes to dispose of the Replacement Property, then SQL shall
undertake to sell the Replacement Property in conformity with the termination
sale procedures set forth in this Section. Upon such sale, if the Termination
Sale Proceeds (defined hereinafter) are less than the Acquisition Costs (as
defined in Section 3.2 hereof), then Exchanger shall pay to SQL within ten (10)
days after the sale or deemed sale, in immediately available funds, an amount
equal to such deficiency as liquidated termination damages hereunder. If the
Termination Sale Proceeds exceed the Acquisition Costs, SQL shall retain any
such excess.
10.2 TERMINATION SALE PROCEDURE. The termination sale procedures
for the Replacement Property as follows:
10.2.1 SQL shall provide written notice to at least three
investment bankers or business brokers in the software industry that the
Replacement Property is available for sale and engage the services of at least
one such investment banker or broker to sell the Replacement Property in a
manner customary for such sales;
10.2.2 SQL shall make the Replacement Property reasonably
available for inspection by prospective purchasers, subject to the rights of the
licensee under the License;
10.2.3 SQL shall accept the highest all cash offer received
for the Replacement Property, provided that a bona fide offer is received (i)
within one hundred and eighty (180) days after the date of the engagement of an
investment banker or a broker as provided in subsection 10.2.1, and that any
offer accepted is consummated by the successful offeror within one hundred and
eighty (180) days after the date of acceptance; and
10.2.4 If SQL shall not have received a bona fide offer for
the Replacement Property as contemplated in subsection 10.2.3 or any such offer
received is not consummated within one hundred and eighty (180) days after
acceptance, SQL shall be entitled to cause the Replacement Property to be sold
at an auction sale for the highest all cash bid received.
10.3 TERMINATION SALE PROCEEDS. The term "Termination Sale
-Proceeds" shall mean the net cash proceeds actually received by SQL at the
completion of the sale of the Replacement Property in accordance with the above
procedures, after deduction of the sum of (i) all fees, taxes, charges and other
costs incurred by SQL in connection with such sale but not deducted from the
proceeds received by it at closing and (ii) all amounts required to be paid to
remove any liens, encumbrances or restrictions (other than Unrelated Liens)
required to be removed under the terms of any sale of the Replacement Property.
In the event no offers or bids are received for the Replacement Property, or if
for any reason the Replacement Property cannot be sold despite the good faith
effort of SQL to do so, the Termination Sale Proceeds shall be deemed zero and
the charges and costs incurred by SQL in trying to sell the Replacement Property
shall be added to the deficiency referred to in this Section 10.
10.4 SQL'S RIGHT TO RETAIN PROPERTY. Notwithstanding anything
herein to the contrary, SQL shall not be obligated to sell the Replacement
Property after sending a Termination Notice and may elect to retain such
property, free and clear of all obligations under this Agreement.
11. REMEDIES OF EXCHANGER. If SQL shall fail to consummate its
obligations as provided in Section 5 hereof and such failure shall continue,
then Exchanger, upon delivery of written notice to SQL, may terminate its
obligation to complete the Exchange and sell the Replacement Property without
regard to this Agreement and (1) have recourse to a suit in equity for specific
performance of the obligation of SQL to transfer the Replacement Property to it,
in exchange for the Qualified Intermediary Credit Amount and the payment, if
any, required under Section 3.2 hereof, free and clear of all Unrelated Liens,
and/or (2) recover any damages against SQL as provided under law. The parties
agree that the Replacement Property is unique.
12. FEES PAYABLE TO SQL QUALIFIED INTERMEDIARY. SQL and Qualified
Intermediary shall be entitled to receive from Exchanger certain fees for their
respective services in connection with the Exchange as set forth in that certain
fee letter of even date transmitted by Exchanger to Qualified Intermediary.
13. RELEASES, ACKNOWLEDGMENTS AND INDEMNITIES.
13.1 QUALIFICATION OF EXCHANGE UNDER I.R.C. SECTION 1031.
EXCHANGER HEREBY ACKNOWLEDGES THAT QUALIFIED INTERMEDIARY, PACIFIC, AND SQL ARE
NOT ACTING AS EXCHANGER'S TAX ADVISOR OR LEGAL COUNSEL AND THAT NO INDEMNIFIED
PARTY WARRANTS OR REPRESENTS THAT THE TRANSACTION UNDER THIS AGREEMENT WILL
QUALIFY FOR NONRECOGNITION OF GAIN OR LOSS UNDER SECTION 1031 OF THE INTERNAL
REVENUE CODE. EXCHANGER ACKNOWLEDGES THAT EXCHANGER OBTAINED SEPARATE,
INDEPENDENT ADVICE FROM AN ATTORNEY OR TAX ADVISOR CONCERNING THE REQUIREMENTS
FOR A LIKE-KIND EXCHANGE UNDER SECTION 1031. EXCHANGER FURTHER ACKNOWLEDGES AND
AGREES THAT EXCHANGER HAS NOT RELIED UPON ANY CONVERSATIONS WITH, OR ADVICE OF,
ANY AGENT OR EMPLOYEE OF ANY INDEMNIFIED PARTY REGARDING THE TAX CONSEQUENCES OF
THE EXCHANGE.
13.2 LIMITATION ON DAMAGES. IF QUALIFIED INTERMEDIARY OR SQL
BREACHES ANY OF THEIR RESPECTIVE DUTIES TO EXCHANGER UNDER THIS AGREEMENT OR ANY
ACT OF QUALIFIED INTERMEDIARY OR SQL CONSTITUTES GROSS NEGLIGENCE OR WILFUL
MISCONDUCT, EXCHANGER AGREES FOR ITSELF AND ITS ASSIGNS THAT UNDER NO
CIRCUMSTANCES SHALL QUALIFIED INTERMEDIARY OR SQL BE LIABLE FOR PUNITIVE,
EXEMPLARY, CONTRACT OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOST PROFITS INCURRED
BY EXCHANGER OR FOR ANY INCOME TAXES, INTEREST OR PENALTIES INCURRED BY
EXCHANGER. THE SOLE AND EXCLUSIVE DAMAGES FOR WHICH QUALIFIED INTERMEDIARY OR
SQL SHALL BE HELD LIABLE UNDER THIS AGREEMENT SHALL BE EQUAL TO DOUBLE THE SUM
OF (I) THE FEES AND EXPENSE REIMBURSEMENTS PAID BY EXCHANGER TO QUALIFIED
INTERMEDIARY UNDER THIS AGREEMENT PLUS (II) THE INTEREST EARNINGS RETAINED (IF
ANY) BY QUALIFIED INTERMEDIARY OR SQL ON ANY EXCHANGE ACCOUNT FUNDS ARISING
UNDER THIS AGREEMENT. EXCHANGER AGREES TO PROMPTLY NOTIFY QUALIFIED INTERMEDIARY
OR SQL OF ANY COMPLAINT OR CLAIM EXCHANGER INTENDS TO ASSERT AGAINST QUALIFIED
INTERMEDIARY OR SQL, AND EXCHANGER AGREES TO NOT ASSERT ANY CLAIM AGAINST
QUALIFIED INTERMEDIARY OR SQL AFTER THE PASSAGE OF ONE YEAR AFTER THE
TERMINATION OF THIS AGREEMENT. EXCHANGER AGREES THAT THE FOREGOING LIMITATION ON
THE TYPE AND AMOUNT OF DAMAGES RECOVERABLE FROM QUALIFIED INTERMEDIARY AND SQL
AND THE LIMITATION OF THE TIME WITHIN WHICH ANY CLAIM OR DISPUTE MAY BE ASSERTED
AGAINST QUALIFIED INTERMEDIARY AND SQL IS FAIR AND REASONABLE IN LIGHT OF THE
SCOPE OF THE RESPONSIBILITY OF QUALIFIED INTERMEDIARY UNDER THIS AGREEMENT AND
THE LIMITED AMOUNT OF THE FEES EARNED BY QUALIFIED INTERMEDIARY AND SQL.
EXCHANGER ACKNOWLEDGES THAT QUALIFIED INTERMEDIARY AND SQL CONSIDERS THIS
PROVISION MATERIAL AND WOULD NOT HAVE BEEN WILLING TO ENTER INTO THIS AGREEMENT
IN THE ABSENCE OF SUCH LIMITATIONS. EXCHANGER ACKNOWLEDGES THAT THE LIMITATIONS
CONTAINED HEREIN HAVE BEEN NEGOTIATED, AT ARMS LENGTH, BETWEEN THE QUALIFIED
INTERMEDIARY AND SQL AND THE EXCHANGER.
IF EXCHANGER ASSERTS ANY CLAIM AGAINST QUALIFIED INTERMEDIARY AND
SQL AND IF THE CLAIM CANNOT BE SETTLED THROUGH NEGOTIATIONS, EXCHANGER AND
QUALIFIED INTERMEDIARY AND SQL AGREE FIRST TO TRY IN GOOD FAITH TO SETTLE THE
CLAIM OR CONTROVERSY BY MEDIATION ADMINISTERED BY THE AMERICAN ARBITRATION
ASSOCIATION UNDER ITS COMMERCIAL MEDIATION RULES BEFORE RESORTING TO LITIGATION.
ANY MEDIATION SESSIONS SHALL BE HELD IN THE CITY IN WHICH THE REGIONAL OFFICE OF
QUALIFIED INTERMEDIARY IS LOCATED WHERE THIS AGREEMENT IS BEING ADMINISTERED.
13.3 ADDITIONAL INDEMNIFICATION OF INDEMNIFIED PARTIES.
13.3.1 Exchanger shall defend, indemnify and hold harmless
each Indemnified Party from and against any claim, including, without
limitation, costs and expenses of defending or settling disputed
claims at litigation or on appeal, and attorney's fees incurred by any
Indemnified Party, that arise from or in connection with any
representation, warranty, covenant, obligation or liability of
Exchanger relating to the Relinquished Property or the Replacement
Property, or their acquisition or conveyance in accordance with the
Replacement Property Acquisition Agreement or Relinquished Property
Transfer Agreement, or any claim arising from entering into a License
at the request of Exchanger, or any claim arising from Qualified
Intermediary's entering into a purchase agreement for property as
requested by Exchanger, any claim or allegation by any buyer, seller,
or any lender, licensee, lien holder or other third party connected
with the Relinquished Property or the Replacement Property.
13.4 Notwithstanding any conflicting term or provision of this
Agreement, Exchanger's indemnification and related covenants and obligations in
this Agreement will:
13.4.1 Survive and continue in effect after the closing, or
delivery of any conveyance document or any termination of this
Agreement (whether from completion of the exchange arrangements
provided for in this Agreement, or otherwise),
13.4.2 Not apply to any claim directly caused by the willful
misconduct, gross negligence, or breach of its duties or
responsibilities under this Agreement by Qualified Intermediary or
SQL.
13.5 EXCHANGER'S RESPONSIBILITIES. Without prejudice to any other
limitation on the duties, responsibilities or obligations under this Agreement
of Qualified Intermediary and SQL, Exchanger and not Qualified Intermediary or
SQL is responsible for:
13.5.1 The sufficiency, accuracy or validity of any document
or instrument arising from or relating to the transaction contemplated
by this Agreement;
13.5.2 The manner of signing of any document or instrument,
except to the extent signed by Qualified Intermediary or SQL;
13.5.3 The identity, authority or rights of any person or
entity signing any document or instrument, other than Qualified
Intermediary and SQL;
13.5.4 Any act or omission of Qualified Intermediary or SQL
unless the act of omission constitutes willful misconduct, gross
negligence, or breach of its duties or responsibilities under this
Agreement by SQL or Qualified Intermediary;
13.5.5 Risk of loss or damage to any Relinquished Property,
the Replacement Property and all other property received by Qualified
Intermediary or under this Agreement, by casualty, act of God, or
otherwise; or
13.5.6 The federal or state income tax aspects of the
transactions contemplated by this Agreement.
13.6 REIMBURSEMENTS. If Qualified Intermediary or SQL makes any
advances or incurs any expenses (other than those overhead expenses incurred in
acting as a Qualified Intermediary or SQL) under this Agreement or incurs any
out-of-pocket expense because it is a party to any litigation in connection with
this Agreement, or if Qualified Intermediary or SQL is compelled to pay money on
account of this Agreement, whether for breach of contract, injury to person or
property, fines or penalties under any law, or otherwise, except in the case of
the willful misconduct, gross negligence, or breach of the duties or
responsibilities under this Agreement by Qualified Intermediary or SQL,
Exchanger shall, on demand, pay to Qualified Intermediary or to SQL, with
interest at a rate not to exceed the then current prime rate, the amount of all
those expenses, advances or payments made by Qualified Intermediary or SQL, plus
all out-of-pocket expenses and reasonable outside attorney's fees incurred by
Qualified Intermediary or SQL.
13.7 NO UNLAWFUL ACTIONS. Qualified Intermediary and SQL shall
not be required to sign any agreement or participate in any transaction that, in
the reasonable opinion of Qualified Intermediary, would require Qualified
Intermediary or SQL to engage in any unlawful or fraudulent action or would be
unduly burdensome to Qualified Intermediary or SQL.
13.8 SURVIVAL OF WARRANTIES. All representations, warranties,
indemnities and limitations on the liability of Qualified Intermediary and/or
SQL set forth in or otherwise made pursuant to this Agreement will survive and
remain in effect after the closing and the delivery of conveyancing documents,
and will not be merged, and will survive the termination of this Agreement.
13.9 ATTORNEY'S FEES. If any legal action or proceeding is
commenced by any party in order to enforce this Agreement or any provision of
this Agreement or in connection with any alleged dispute, breach, default or
misrepresentation in connection with any provision in this Agreement, the
prevailing party will be entitled to recover reasonable attorneys' fees and
costs incurred in connection with that action or proceeding, including costs of
pursuing or defending any legal action, discovery or negotiation and preparation
of any settlement arrangements, in addition to any other relief as may be
granted.
13.10 NOTICES. Any request, notice or other communication to be
given under this Agreement must be in writing and delivered personally or by
messenger, private mail, courier service, facsimile or sent by registered,
certified mail, return receipt requested, or postage prepaid, as follows:
To Exchanger: ASA International, Ltd.
00 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
with a copy to: Stroock & Stroock & Xxxxx LLP
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Esquire
To Qualified Intermediary,
Pacific or SQL: 0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: E. Xxxx Xxxxx
Facsimile: (000) 000-0000
All notices will be considered effective (i) upon receipt, if delivered
personally or by messenger or private mail courier, (ii) on the business day of
successful transmission by facsimile, (iii) otherwise on the third business day
after deposit in the US mail, postage prepaid or (iv) the next business day
after deposit with a nationally recognized overnight courier service. Any party
may change its address or facsimile number by a communication in accordance
herewith.
14. MISCELLANEOUS.
14.1 WAIVER. No failure or delay on the part of any party in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy hereunder. The remedies provided hereunder are
cumulative.
14.2 AMENDMENTS. No amendment, modification, termination or
waiver of this Agreement or any provision hereof nor any consent to any
departure herefrom shall be effective unless the same is in writing and signed
by the party to be bound thereby and then any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
14.3 GOVERNING LAW. This agreement and all rights and obligations
of the parties hereunder shall be governed by and be construed and enforced in
accordance with the laws of the Forum State. Each party hereby consents to the
jurisdiction of the courts of the Forum State.
14.4 ASSIGNMENT. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective successors and assigns.
Neither party shall have the right to assign any of its rights or interests
herein without the prior written consent of the other party, and under no
circumstances shall SQL, Qualified Intermediary or Pacific assign or attempt to
assign their respective interests hereunder to a person that would be a
"disqualified person" within the meaning of Treasury Regulation '1.1031(k)-l(k).
No person not a party hereto is intended to be benefitted hereby.
14.5 SEVERABILITY. Any provision hereof which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without affecting the
validity or enforceability of the remainder of this Agreement or the
enforceability of such provision in any other jurisdiction.
14.6 CAPTIONS. Captions and headings used herein are included for
convenience of reference only and shall not constitute a part hereof.
14.7 ENTIRE AGREEMENT. This Agreement constitutes the entire
Agreement between the parties and supersedes any contemporaneous or previous
written or oral agreements, representations or undertakings concerning the
matters and arrangements provided for in this Agreement. No supplement,
modification or amendment to this Agreement will be binding unless signed by all
parties to this Agreement. A waiver of any provisions of this Agreement will not
be considered a waiver of any other provision, whether or not similar, nor will
any waiver on one occasion constitute a continuing or permanent waiver.
14.8 INCONSISTENT ACTION BY SQL. SQL agrees that it will not take
any actions with respect to the Replacement Property or the Relinquished
Property which are not consistent with the provisions of this Agreement, the
Loan Documents and the License. SQL further agrees that at no time during the
term of this Agreement shall it make an assignment for the benefit of creditors,
file a petition in bankruptcy, petition or apply to any tribunal for any
receiver or trustee or commence any proceeding relating to itself under any
bankruptcy, reorganization, dissolution or liquidation law or statute of any
jurisdiction or otherwise indicate its consent to, approval of or acquiescence
of any such proceeding.
14.9 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which shall
constitute but one and the same instrument.
14.10 CONSTRUCTION; RECITALS. In all cases, the language in all
parts of this Agreement shall be construed simply, according to its fair
meaning, and not strictly for or against any parts. The Recitals are hereby
incorporated into this Agreement.
IN WITNESS WHEREOF, Exchanger, Qualified Intermediary, Pacific
and SQL each have caused this Agreement to be duly executed pursuant to proper
authorization as of the day and year first above written.
ASA INTERNATIONAL, LTD., a Delaware corporation
By: /S/ XXXXXX X. XXXXXXXX
-----------------------
Printed Name: XXXXXX X. XXXXXXXX
------------------
Its: CHIEF EXECUTIVE OFFICER
-----------------------
SQL Acquisition LLC, a Delaware limited liability company
By: Pacific American Property Exchange Corporation, a California
corporation, Manager and Member
By: /S/ E. XXXX XXXXX
--------------------
E. Xxxx Xxxxx, Vice President
Fidelity National 1031 Exchange Services, Inc., a California corporation
By: /S/ E. XXXX XXXXX
-----------------
E. Xxxx Xxxxx, Vice President
Pacific American Property Exchange Corporation, a California corporation
By: /S/ E. XXXX XXXXX
------------------
E. Xxxx Xxxxx, Vice President
LIST OF EXHIBITS
A - Replacement Property Description
EXHIBIT "A"
REPLACEMENT PROPERTY DESCRIPTION
