EXHIBIT 10.8
NOTE PURCHASE AGREEMENT
THIS NOTE PURCHASE AGREEMENT (the "Agreement") is made this 1st day of
September, 1999, by and between NuVen Advisors Limited Partnership, a Nevada
limited partnership ("Purchaser"), and Phileo Management Company, Inc., a Nevada
corporation ("Seller").
WHEREAS, Seller owns certain promissory notes in the aggregate principal
amount of Nine Hundred Fifty Thousand Dollars ($950,000), copies of which are
attached hereto as Exhibit A-1 through A-20 (the "Notes"); and
WHEREAS, Purchaser wishes to purchase the Notes; and
IN CONSIDERATION of the mutual promises contained herein, the benefits to
be derived by each party hereunder and other good and valuable consideration,
the receipt and sufficiency of which are hereby expressly acknowledged,
Purchaser and Seller agree as follows:
1. Purchase and Sale
On the basis of the representations and warranties herein contained,
subject to the terms and conditions set forth herein, Seller agrees to sell,
assign and transfer the Notes for Nine Hundred Fifty Thousand Dollars
($950,000), hereinafter referred to as the "Consideration".
2. Closing
The purchase and sale contemplated by this Agreement may be effected by
Purchaser in one or more transactions, with the minimum purchase transaction
being not less than Three Hundred Thirty Thousand Dollars ($330,000), with
purchase of all of the Notes (the "Closing") to occur no later than October 30,
1999 (the "Transfer Date"). At the Closing, Purchaser shall deliver the
Consideration to Seller. Notwithstanding the date of Closing, the Effective Date
shall be September 1, 1999.
2.1 Representations and Warranties of Seller
Seller hereby represents and warrants to Purchaser that:
A. Organization. Seller is a corporation validly existing and in good
standing under the laws of the State of Nevada, with the power and
authority to carry on its business as now being conducted. The
execution and delivery of this Agreement and the consummation of the
transaction contemplated in this Agreement have been, or will be prior
to Closing, duly authorized by all requisite corporate action on the
part of Seller. This Agreement has been duly executed and delivered by
Seller and constitutes a binding, and enforceable obligation of
Seller;
B. Third Party Consent No authorization, consent, or approval of, or
registration or filing with, any governmental authority or any other
person is required to be obtained or made by Seller in connection with
the execution, delivery, or performance of this Agreement, or if
required, Seller has or will obtain same prior to Closing;
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C. Litigation. Seller is not a defendant or a plaintiff against whom a
counterclaim has been made or reduced to judgement, in any litigation
or proceedings before any local, state or U.S. government, or any
department, board, body or agency thereof, which could result in a
claim against the Notes;
D. Status of Notes. To the best of Seller's knowledge, the Notes are
validly issued by the makers thereof and there is no claim by the
makers thereof which would serve to restrict the sale, assignment, and
transfer of the Notes as contemplated herein. Further, Seller has not
created any option, security interest or encumbrance involving the
Notes that would give rise to any claims by third parties or otherwise
conflict with or preclude the exchange as contemplated herein; and
E. Authority. This Agreement has been duly executed by Seller, and the
execution and performance of this Agreement will not violate, or
result in a breach of, or constitute a default in any agreement,
instrument, judgement, order or decree to which Seller is a party or
to which Seller is subject.
2.2 Representations and Warranties of Purchaser
Purchaser hereby represents and warrants to Seller that:
A. Organization. Purchaser is a limited partnership validly existing and
in good standing under the laws of the State of Nevada, with the power
and authority to carry on its business as now being conducted. The
execution and delivery of this Agreement and the consummation of the
transaction contemplated in this Agreement have been, or will be prior
to Closing, duly authorized by all requisite action on the part of
Purchaser. This Agreement has been duly executed and delivered by
Purchaser and constitutes a binding, and enforceable obligation of
Purchaser;
B. Third Party Consent No authorization, consent, or approval of, or
registration or filing with, any governmental authority or any other
person is required to be obtained or made by Purchaser in connection
with the execution, delivery, or performance of this Agreement, or if
required, Purchaser has or will obtain same prior to Closing;
C. Authority. This Agreement has been duly executed by Purchaser, and the
execution and performance of this Agreement will not violate, or
result in a breach of, or constitute a default in any agreement,
instrument, judgement, order or decree to which Purchaser is a party
or to which Purchaser is subject.
3. Conditions Precedent to Obligations of Purchaser and Seller
All obligations of Purchaser under this Agreement are subject to the
fulfillment, prior to or as of the Closing Date, of each of the following
conditions:
A. Transfer and Delivery of the Notes. Seller shall have taken all action
necessary to deliver the Notes to Purchaser free and clear of any and
all encumbrances or claims of any kind.
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B. Acceptance of Documents. All instruments and documents delivered to
Purchaser by Seller pursuant to the provisions of this Agreement shall
be satisfactory to Purchaser and its legal counsel.
4. Private Transaction
A. Private Offering. Seller and Purchaser mutuall acknowledge and agree
that the purchase and sale of the Notes contemplated herein
constitutes a private, arms-length transaction between the parties
without the use or reliance upon a distribution or securities
underwriter.
B. Purchase for Own Account. Neither Seller nor Purchaser are
underwriters of, or dealers in, securities, and neither party is
acting as such or participating, pursuant to a contractual agreement,
in the distribution, purchase or redistribution of the Notes.
C. Access to Information. Seller and Purchaser an their advisors have
been afforded the opportunity to discuss the transaction with legal
and accounting professionals and to examine and evaluate the financial
impact of the purchase and exchange contemplated herein.
5. Termination
This Agreement may be terminated at anytime prior to the date of Closing by
either party if (a) there shall be any actual or threatened action or proceeding
by or before any court or any other governmental body which shall seek to
restrain, prohibit, or invalidate the transaction contemplated by this
Agreement, and which, in the judgment of such party giving notice to terminate
and based upon the advice of legal counsel, makes it inadvisable to proceed with
the transaction contemplated by this Agreement, or (b) if the transaction
contemplated herein has not closed by October 30, 1999 for reasons outside the
control of the parties.
6. Miscellaneous
A. Authority. The Purchaser and general partner of Seller executing this
Agreement are duly authorized to do so and each party has taken all
action required by law or otherwise to properly and legally execute
this Agreement.
B. Notices. Any notice under this Agreement shall be deemed to have been
sufficiently given if sent by registered or certified mail, postage
prepaid, addressed as follows:
To Seller: Phileo Management Company Inc.
000-000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX, Xxxxxx X0X0X0
Telephone: (000)000-0000
Facsimile: (000)000-0000
To Purchaser: NuVen Advisors Limited Partnership
0000 Xx. Xxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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With a copy to: Xxxxxx & Weed
0000 XxxXxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to any other address which may hereafter be designated by either
party by notice given in such manner. All notices shall be deemed to
have been given as of the date of receipt.
C. Entire Agreement. This Agreement sets forth the entire understanding
between the parties hereto and no other prior written or oral
statement or agreement shall be recognized or enforced.
D. Severability. If a court of competent jurisdiction determines that any
clause or provision of this Agreement is invalid, illegal or
unenforceable, the other clauses and provisions of the Agreement shall
remain in full force and effect and the clauses and provision which
are determined to be void, illegal or unenforceable shall be limited
so that they shall remain in effect to the extent permissible by law.
E. Assignment. None of the parties hereto may assign this Agreement
without the express written consent of the other parties and any
approved assignment shall be binding on and inure to the benefit of
such successor or, in the event of death or incapacity, on assignor=s
heirs, executors, administrators and successors.
F. Applicable Law. This Agreement has been negotiated and is being
contracted for in the State of Nevada and shall be governed by the
applicable laws of the State of Nevada, notwithstanding any
conflict-of-law provision to the contrary.
G. Attorney's Fees. If any legal action or other preceding
(non-exclusively including arbitration) is brought for the enforcement
of or to declare any right or obligation under this Agreement or as a
result of a breach, default or misrepresentation in connection with
any of the provisions of this Agreement, or otherwise because of a
dispute among the parties hereto, the prevailing party will be
entitled to recover actual attorney's fees (including for appeals and
collection) and other expenses incurred in such action or proceeding,
in addition to any other relief to which such party may be entitled.
H. No Third Party Beneficiary. Nothing in this Agreement, expressed or
implied, is intended to confer upon any person, other than the parties
hereto and their successors, any rights or remedies under or by reason
of this Agreement, unless this Agreement specifically states such
intent.
I. Counterparts. It is understood and agreed that this Agreement may be
executed in any number of identical counterparts, each of which may be
deemed an original for all purposes.
J. Further Assurances. At any time, and from time to time after the
Closing, each party hereto will execute such additional instruments
and take such action as may be reasonably requested by the other party
to confirm or perfect title to the Notes to be transferred hereunder,
or otherwise to carry out the intent and purposes of this Agreement.
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K. Brokers or Finders Fee; Expenses. Seller an Purchaser each warrant
that they have not incurred any liability, contingent or otherwise,
for brokers' or finders' fees or commissions relating to this
Agreement for which the other party shall have responsibility. Except
as otherwise provided herein, all fees, costs and expenses incurred by
either party relating to this Agreement shall be paid by the party
incurring same.
L. Amendment or Waiver. Every right and remedy provided herein shall be
cumulative with every other right and remedy, whether conferred
herein, at law, or in equity, and may be enforced concurrently
herewith, and no waiver by any party of the performance of any
obligation by the other shall be construed as a waiver of the same or
any other default then, theretofore, or thereafter occurring or
existing. At any time prior to Closing, this Agreement may be amended
by a writing signed by all parties hereto.
M. Headings. The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
N. Facsimile. A facsimile, telecopy or other reproduction of this
instrument may be executed by one or more parties hereto and such
executed copy may be delivered by facsimile or similar instantaneous
electronic transmission device pursuant to which the signature of or
on behalf of such party can be seen, and such execution and delivery
shall be considered valid, binding and effective for all purposes. At
the request of any party hereto, all parties agree to execute an
original of this instrument as well as any facsimile, telecopy or
other reproduction hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
"Purchaser" "Seller"
NuVen Advisors Limited Partnership Phileo Management Company Inc.
By: /s/ Xxxx X. Xxxx By: /s/ Xxxxx Xx
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Name: Xxxx X. Xxxx Name: Xxxxx Xx
Title: President Title: President
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