Purchase Agreement - Landmark Financial Services Inc. and Factual Data Corp.
PURCHASE AGREEMENT
BY AND BETWEEN
LANDMARK FINANCIAL SERVICES, INC.
AND
FACTUAL DATA CORP.
<PAGE> 2
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (the "Agreement") is entered into as of January
6, 1997 by and between Landmark Financial Services, Inc., a Texas corporation
("Purchaser") and Factual Data Corp., a Colorado corporation ("Seller").
WITNESSETH:
WHEREAS Seller owns and operators a nation-wide business headquartered
in Fort Collins, Colorado which provides mortgage credit reports, employee
screening reports titled EMPfacts and business credit reports titled CORPdata;
and
WHEREAS Seller has determined that it is in its best interest to sell
the nonexclusive right to operate its employee screening reports business and
business credit reports business and the exclusive right to operate its mortgage
credit reporting business within the territories of: Arizona, New Mexico,
Houston, Dallas-Ft.Worth, Oklahoma (collectively, "Exclusive Territories"), and
WHEREAS Purchaser desires to purchase from Seller the exclusive and
nonexclusive rights described above; and
WHEREAS each of Seller and Purchaser has approved this Agreement and
the transactions contemplated hereby;
NOW, THEREFORE, in consideration of these premises and the
representations, warranties and agreements herein contained, and intending to be
legally bound, Seller and Purchaser hereby agree as follows:
ARTICLE 1 AGREEMENT TO PURCHASE AND SELL
Section 1.1 Purchase and Sale of Assets. At the closing of the
transactions contemplated by this Agreement (the "Closing"), Seller will sell to
Purchaser, and Purchaser will purchase from Seller, the credit reporting
business in the Exclusive Territories, certain accounts related thereto, and the
exclusive right to continue credit reporting business in those Exclusive
Territories under separate agreement.
Section 1.2 Purchased Assets. The assets to be conveyed to Purchaser by
Seller at the Closing (the "Purchased Assets") are the following:
1.2.1 All customers, customer listings and customer
relationships relating to the Exclusive Territories;
1.2.2 All invoiced and pending accounts receivable,
customer orders and work in process. Such accounts shall not be in an amount
less than $128,000;
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1.2.3 All right, title and interest in and to the
contracts, agreements and documents related to the Purchased Assets, together
with all modifications, supplements and addenda thereto, and all rights to
payments thereunder, if any.
1.2.4 At the Closing, Seller shall provide by computer modem
all data to which Purchaser is entitled pertaining to the Purchased Assets,
which includes software which provides customer and account receivable records
and history.
Section 1.3 Assumed Liabilities. Purchaser shall assume no liabilities
of Seller.
ARTICLE 2 PURCHASE PRICE
Section 2.1 In consideration of Seller's conveyance of' the Purchased
Assets to Purchaser, Purchaser shall pay Seller the sum of $110,000 cash (less
any Interim Payment) at Closing (the "Purchase Price"). Purchaser agrees, under
separate agreement, to pay an initial license fee of $600,000 and an ongoing
licensing fee to Seller for continued business operation within the Exclusive
Territories.
Section 2.2 Purchaser and Seller agree that upon: (i) presentation by
Seller to Purchaser of' a current accounts receivable listing of the Exclusive
Territories (the "A/R Listing"), and (ii) payment of $100,000 cash by Purchaser
to Seller prior to the Closing Date ("Interim Payment"), Purchaser shall be
entitled to all collections, effective January 1, 1997, less the Management Fee
(as defined below) arising from the business(es) of the Purchased Assets prior
to the Closing. Seller understands that upon receipt of' the Interim Payment,
all collections of relating to the Exclusive Territories shall be promptly
turned over to Purchaser. Purchaser understands that such Interim Payment shall
be non-refundable unless Seller elects not to Close; if Seller elects not to
Close, then the Interim Payment shall be refunded promptly to Purchaser, and
Purchaser shall promptly turn over to Seller all collections of accounts
receivable pertaining to the A/R Listing. If, through no fault of' Seller, the
closing does not take place, Seller shall retain the Interim Payment and
Purchaser shall promptly return to Seller any collections of' accounts
receivable pertaining to the A/R Listings.
Section 2.3 Purchaser and Seller agree that while Seller operates and
maintains the business(es) of the Exclusive Territories, Seller shall be
entitled to 65% of gross bona fide billings (the "Management Fee"). Such
Management Fee shall be paid no later than the 20th day following the end of
each month. Purchaser and Seller agree that the Management Fee shall no longer
accrue after Purchaser commences operation and control of the Exclusive
Territories.
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to and covenants and agrees with Purchaser as
follows:
Section 3.1 Organization; Corporate Power; Etc. Seller is a corporation
duly organized, validly existing in good standing under the laws of the State of
Colorado. Seller has
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all requisite corporate power and authority to own, lease and operate its
properties and assets and to carry on its business as presently conducted.
Section 3.2 Licenses and Permits. Seller has all licenses,
certificates, franchises, rights and permits that are necessary for the conduct
of its business, and such licenses, certificates, franchises, right and permits
are in full force and effect, except for any lack or failure to be in full force
and effect that would not, individually or in the aggregate, have a material
adverse effect on Seller. The business of the Seller has been conducted, and
will be conducted until the Closing Date, in all material respects, in
compliance with all applicable licenses, certificates, franchises, rights and
permits.
Section 3.3 Authorization of Agreement; No Conflicts.
3.3.1 The execution and delivery of this Agreement by Seller and the
consummation of the transactions contemplated hereby have been dully authorized
by all necessary corporate action on the part of' Seller. This Agreement has
been duly executed and delivered by Seller and constitutes a valid and binding
obligation of Seller, enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium or
other similar laws affecting the rights of banks generally and by general
equitable principles.
3.3.2 The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby do not and will not conflict with, or
result in any violation of or default or loss of' a material benefit under, any
provision of' the articles or bylaws of Seller or any mortgage, indenture,
lease, agreement or other instrument or any permit, concession, grant,
franchise, license, judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to Seller or its properties, other than any such conflict,
violation, default or loss which will not have a material adverse effect on the
business, assets, operations, or condition of' the Purchased Assets.
Section 3.4 Compliance with Applicable Laws. Seller's activities are
not in violation of' any law, ordinance, or regulation, except for violations
which individually or in the aggregate would not have a material adverse effect
on the business, assets, liabilities, operations, or condition of the Purchased
Assets. Neither Seller nor its agents have knowledge of any past operations or
activities in which the Purchased Assets has been engaged, or those of the
Seller which bear a relationship to the Purchased Assets, which have violated
any state or federal statute, regulation, rule or order or common law holding,
except for violations which have been previously disclosed to Purchaser or which
individually or in the aggregate would not have a material adverse effect on the
business, assets, liabilities, operations, or condition of the Purchased Assets.
Section 3.5 Litigation. There is no suit, action or proceeding pending
or, to the knowledge of Seller, threatened against or affecting Seller or the
Purchased Assets which, if adversely determined, would have a material adverse
effect on the business, assets, liabilities, operations, or condition of the
Purchased Assets; nor is there any judgement, decree, injunction, rule or order
of any Governmental Entity or arbitrator outstanding regarding Seller or the
Purchased Assets having such effect.
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Section 3.6 Title to Assets. Seller owns and has good and marketable
title to the Purchased Assets owned by Seller free and clear of all mortgages,
liens, encumbrances, pledges or charges of any kind or nature. Seller is not in
any default with respect to any contracts, agreements, or leases constituting or
related to any Purchased Assets.
Section 3.7 Brokers and Finders. Seller is not a party to or obligated
under any agreement with any broker or finder relating to the transactions
contemplated hereby, and neither the execution of' this Agreement nor the
consummation of the transactions provided for herein will result in any
liability to any broker or finder.
Article 3.8 Information. To the best of Seller's knowledge, the
information regarding the transaction contemplated by this Agreement which
Seller has heretofore supplied Purchaser and that to be made available by Seller
to Purchaser for its investigation is true and correct in all material respects
and complete as to the subjects involved. To the best of Seller's knowledge, the
books and records of the Exclusive Territories constituting part of the
Purchased Assets are complete and are true and correct in all material respects.
Seller represents: that the revenues as recognized and accounted are true and
correct in all material respects; that there are no undisclosed liabilities; and
that accounts receivable are collectible in consistence with previous collection
experience. Seller represents that there have been no material adverse changes
since the date of' the latest financial statements.
Article 3.9 Employees. There are no employment agreements in effect,
offered, or promised to any employees of the Exclusive Territories, and they are
all employees at will. To the best of Seller's knowledge, no employee of the
Exclusive Territories has any basis for any claims or suit against the Seller.
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller that:
Section 4.1 Organization; Corporate Power; Etc. Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of the State of' Texas. Purchaser has all requisite corporate power and
authority to own, lease and operate its properties and assets and to carry on
its business as presently conducted.
Section 4.2 Licenses and Permits. Purchaser has all material licenses
and permits that are necessary for the conduct of' its businesses, and such
licenses and permits are in full force and effect, except for any failure to be
in full force and effect that would not, individually or in the aggregate, have
a material adverse effect on Purchaser.
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Section 4.3 Authorization of Agreement; No Conflicts.
4.3.1 The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate action on the part of the Purchaser. This agreement
has been duly executed and delivered by Purchaser and constitutes a legal, valid
and binding obligation of Purchaser, enforceable against Purchaser in accordance
with its terms.
4.3.2 The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not conflict with, or
result in any violation of or default or loss of a material benefit under, any
provision of the articles or bylaws of any permit, concession, grant, franchise,
license, judgment, order, decree, statute, law, or ordinance, rule or regulation
applicable to Purchaser, other than any such conflict, violation, default or
loss which (i) will not have a material adverse effect on Purchaser; or (ii)
will be cured or waived prior to the Closing.
Section 4.4 Brokers and Finders. Purchaser is not a party to or
obligated under any agreement with any broker or finder relating to the
transactions contemplated hereby and neither the execution of this Agreement
nor the transactions provided for herein will result in any liability to any
broker or finder. However, Purchase acknowledges his obligation to Argus Capital
Corporation relating to the transactions contemplated hereby.
ARTICLE 5 ADDITIONAL AGREEMENTS
Section 5.1 Access to Information, etc.
5.1.1 For a period of one year following the Closing and
upon reasonable notice to Seller, Seller shall allow Purchaser and its
accountants, counsel and other representatives reasonable access to its
officers, employees, properties, books, contracts, commitments and records
relating to the Purchased Assets from the date hereof through the Closing Date.
Seller agrees to cooperate with Purchaser's investigation of the Purchased
Assets.
5.1.2 Following the Closing, during normal business hours,
Purchaser will afford Seller, its counsel, accountants and other agents, full
access to any books, records or documents acquired by Purchaser pursuant to this
Agreement as Seller may reasonably request. If Purchaser intends to destroy any
such books, records or documents within three years of the Closing Date,
Purchaser will notify Seller of such fact and retain them or deliver them to
Seller as Seller shall determine.
5.1.3 Seller agrees to allow Purchaser's auditors, at
Purchaser's sole expense and in the event it is deemed necessary (at Purchaser's
sole discretion) for a subsequent securities offering of any kind to investigate
the related business affairs of Seller.
5.1.4 Purchaser agrees to allow Seller's auditors, at
Seller's sole expense and in the event it is deemed necessary (at Seller's sole
discretion) for a subsequent securities offering of any kind, to investigate
the related business affairs of Purchaser.
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Section 5.2 Taking of Necessary Action
5.2.1. Each of the parties hereto agrees to use all
reasonable efforts promptly to take or cause to be taken all action and promptly
to do or cause to be done all things necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement. Without limiting the foregoing,
Purchaser and Seller will use their best efforts to obtain all consents of
third parties necessary or, in the reasonable opinion of Purchaser or Seller,
advisable for the consummation of the transactions contemplated by this
Agreement. In case at any time after the Closing Date any further action is
necessary or desirable to carry out the purposes of this Agreement or to vest
the Purchaser with full title to the Purchased Assets, the proper officers or
directors of Purchaser or Seller, as the case may be, shall take all such
necessary action.
Section 5.3 Expenses. Whether or not the transactions contemplated by
this Agreement are consummated, all costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring the same.
Section 5.4 Notification of Certain Events.. The parties shall promptly
advise each other in writing of any change or event which could reasonably be
expected to have a adverse effect on the transactions contemplated by this
Agreement.
Section 5.5 Purchased Assets Assessment. Purchaser shall have the right
to conduct, at its expense, such other investigations of the Purchased Assets
and related matters as it deems necessary ("Purchased Assets Assessment").
Section 5.6 Employees. If applicable, on or before the Closing Date
and contingent on closing the contemplated transaction, Purchaser will offer at
will employment to each of Seller's employees who are employed by Seller and
involved in the operations of the Purchased Assets on the date of this Agreement
at salaries comparable to those paid on such date by Seller to such employees.
Such employees shall be offered the same benefits available to Purchaser's other
employees in comparable positions subject to the terms and conditions of
Purchaser's benefit plans and policies. With the exception of the provisions
relating to Purchase Price in Article 2, the Purchaser is under no obligation to
continue the employment of any employee for any period of time. However,
Purchaser will utilize its best efforts to maintain employees at the time of
Closing on existing terms.
Section 5.7 Personal, Property and Sales Taxes. The Purchaser shall be
responsible to pay all personal property or sales taxes, if any, arising out of
the sale of the Purchased Assets.
Section 5.8 Survival of Representations and Warranties, and
Indemnifications. All representations, warranties and indemnifications of Seller
and Purchaser contained or made pursuant to this Agreement shall survive the
Closing for a period of four years with the exception of representations
concerning the ownership and transferability of assets sold under this
Agreement.
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ARTICLE 6 SELLER'S CONDUCT OF BUSINESS
During the period from the date of execution of' this Agreement through the
Closing Date or the earlier termination of this Agreement pursuant to Article
10, Seller agrees (except to the extent Purchaser shall otherwise consent in
writing or as may be required by law or regulation), to carry on its business
involving the Purchased Assets in the ordinary course and in substantially the
manner in which heretofore conducted.
ARTICLE 7 CONDITIONS PRECEDENT TO CLOSING
Section 7.1 Conditions to the Parties' Obligations. The obligations of
all the parties to this Agreement to consummate the transactions contemplated by
this Agreement shall be subject to the fulfillment of the following conditions:
7.1.1 There shall not be any action taken, or any statute,
rule, regulation or order enacted, entered, enforced or deemed applicable to the
transactions contemplated by this Agreement, by any entity which makes the
consummation of' the purchase and sale illegal.
Section 7.2 Conditions to Purchaser's Obligations. The obligations of
Purchaser to consummate the transactions contemplated by this Agreement shall be
subject to the fulfillment of the following conditions:
7.2.1 The representations and warranties of Seller contained
in Article 3 shall be true in all material respects as of' the Closing Date as
though made at and as of the Closing Date, except to the extent they expressly
refer to an earlier time and except where the failure to be true, individually
or in the aggregate, would not have or would not be reasonably likely to have, a
material adverse effect on Seller, the Purchased Assets, or the Purchaser, or
upon the consummation of the transactions contemplated hereby; Seller shall have
duly performed and complied in all material respects with all agreements,
covenants and conditions required by this Agreement to be performed or complied
with by it prior to or on the Closing Date, except where the failure to so
perform and comply, individually or in the aggregate, would not have or would
not be reasonably likely to have, a material adverse effect on the Purchased
Assets, or the Purchaser, or upon the consummation of the transactions
contemplated hereby.
7.2.2 Any consent required for the consummation of the
transactions contemplated by this Agreement under any agreement, contract, lease
or license to which Seller is a party or by or under which it is bound or
licensed, the withholding of which may reasonably be expected to have a material
adverse effect on Purchaser or the office, shall have been obtained on the terms
and conditions acceptable to Purchaser in its good faith judgment.
7.2.3 If necessary in the sole opinion of' Purchaser and at
Purchaser's sole expense shall have received from legal counsel to Seller an
opinion in form and substance customary for transactions of this nature,
including, but not limited to: 1) an opinion that all required consents relating
to identified contracts, permits and licenses have been obtained; and 2) an
opinion that all conveyance documents are sufficient to transfer title to the
purchased assets to the purchaser.
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7.2.4 If necessary in the sole opinion of Purchaser and at
Purchaser's sole expense, Counsel for Purchaser shall have approved, in the
exercise of counsel's discretion, the validity of all transactions herein
contemplated, as well as the form and substance of all opinions, certificates,
instruments of transfer and other documents to be delivered to Purchaser
hereunder.
7.2.5 There shall not have occurred and be continuing any
change or circumstance relating to the Purchased Assets which individually or in
the aggregate would have or would be reasonably likely to have a material
adverse effect on the business, operations, properties, assets, or condition
(financial or other), of the Purchased Assets.
7.2.6 Seller and Purchaser shall have entered into mutually
agreeable contracts for Seller to provide Purchaser with software services
necessary to conduct the business of the Purchased Assets.
Section 7.3 Conditions to Sellers Obligations. The obligation of
Seller to effect the transactions contemplated by this Agreement shall be
subject to the fulfillment of the following conditions:
7.3.1 The representations and warranties of Purchaser
contained in Article 4 shall be true in all material respects as of the Closing
Date as though made at and as of the Closing Date, except to the extent they
expressly refer to an earlier time and except where the failure to be true,
individually or in the aggregate, would not have or would not be reasonably
likely to have, a material adverse effect on Purchaser or upon the consummation
of the transactions contemplated hereby; Purchaser shall have duly performed and
complied in all material respects with all agreements, covenants and conditions
required by this Agreement to be performed or complied with by it prior to or on
the Closing Date, except where the failure to so perform and comply,
individually or in the aggregate, would not have or would not be reasonably
likely to have, a material adverse effect on Purchaser or upon the consummation
of the transactions contemplated hereby.
7.3.2 Counsel for Seller shall have approved, in the
exercise of counsel's reasonable discretion, the validity of all transactions
herein contemplated, as well as the form and substance of all opinions,
certificates, instruments of transfer and other documents to be delivered to
Seller hereunder.
ARTICLE 8 INDEMNIFICATION
Section 8.1 Indemnification by Seller. For a period of one year from
and after the Closing Date, Seller shall indemnify, defend and hold harmless
Purchaser, Purchaser's parent company, and each of their directors, officers,
employees and agents from and against any and all damages, losses, obligations,
deficiencies, liabilities, claims, encumbrances, penalties, costs, and expenses,
including reasonable attorneys' fees (collectively, a "Loss"), resulting from,
related to, or arising out of: (a) any breach of the representations and
warranties contained in Article 3 of this Agreement; and (b) all Loss other
than any Loss constituting Assumed
<PAGE> 10
Liabilities which Loss is based in whole or part upon facts, events, conditions,
acts, or omissions pertaining to the Purchased Assets or its properties or
operations from which a cause of action arose prior to the Closing Date. This
indemnification shall apply regardless of any investigations and assessments
made or not made by Purchaser prior to the Closing Date as to all liabilities
arising out of the operation of the Purchased Assets which are not Assumed
Liabilities. The Seller retains liability on all liabilities not explicitly
assumed by Purchaser.
Section 8.2 Indemnification by Purchaser. From and after the Closing
Date, Purchaser shall indemnify, defend hold harmless Seller, and its parent
company, and each of their directors, officers, employees and agents from and
against any Loss resulting from, related to, or arising out of, (a) the
imposition of any liability on Seller after the Closing Date which constitutes
Assumed Liabilities; (b) any breach of the representations and warranties
contained in Article 4 of this Agreement; or (c) all Loss which is based in
whole or part upon facts, events, conditions, acts, or omissions pertaining to
the Purchased Assets or operations from which a cause of action arose on or
after the Closing.
Section 8.3 Notice. Promptly after acquiring knowledge of any Loss or
any action, suit, investigation, proceeding, demand, assessment, audit, judgment
or claim which may give rise to a Loss against which Seller or Purchaser (an "
Indemnifying Party"), has indemnified a party to this Agreement (an "Indemnified
Party"), such Indemnified Party shall give the Indemnifying Party written notice
thereof. The indemnifying party shall, at its own expense, promptly defend,
contest or otherwise protect against any such Loss or any such action, suit,
investigation, proceeding, demand, assessment, audit, judgment or claim and
shall receive from the Indemnified Party all necessary and reasonable
cooperation in said defense including, but not limited to, the services of
employees of such Indemnified Party who are familiar with the transactions out
of which any such Loss, action, suit, investigation, proceeding, demand,
assessment, audit, judgment or claim may have arisen. In the event that the
Indemnifying Party shall undertake to compromise or defend any such asserted
liability, it shall promptly notify the Indemnified Party of its intention to do
so. In the event that the Indemnifying Party, after written notice from an
Indemnified Party, fails to take timely action to defend the subject matter of
such notice, the Indemnified Party shall have the right to defend the same by
counsel of its own choosing, but at the cost and expense of the Indemnifying
Party. Unless permitted in writing by Purchaser, Seller is restricted from
initiating any litigation with the suppliers or customers existing at Closing
exclusively within the Exclusive Territories.
Section 8.4 Limitation of Indemnity. Notwithstanding any provisions in
this Agreement to the contrary, the remedies provided by this Article 8 shall be
the parties' sole and exclusive remedies for the recovery of any damages
resulting from or arising out of or related to misrepresentations, breaches of
warranties, and nonfulfillment of obligations under this Agreement, except
those arising from or arising out of or related to fraud; the provisions of this
Section 8.4 shall not limit the ability of any party to seek injunctive or
similar relief pursuant to this Section 8.4 hereof. Furthermore:
8.4.1 Before an Indemnified Party may assert a claim for
indemnity under this Section 8, the Indemnified Party must give or cause to be
given the written notice required by subsection 8.3 of this Section 8.
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8.4.2 The indemnity obligation of any Indemnifying Party
under this Section 8 shall not apply until the aggregate amount of claims
asserted or demands made that would, with notice, give rise to an obligation to
indemnify, reaches ten thousand dollars ($10,000), and then only with respect to
any amounts in excess thereof. The foregoing minimum aggregate amounts of claims
do not include any losses associated with a willful breach by Seller.
8.4.3 The indemnity obligation of any Indemnifying Party
under this Section 8 shall be net of any tax benefits realized by the
Indemnified Party attributable thereto and net of any proceeds actually
received with respect thereto by the Indemnified Party under any policy of
insurance maintained by the Indemnified Party (other than under a program of
self insurance).
8.4.4 After the Closing Date, the combined aggregate
liability of either of Seller or Purchaser relating to the transactions
contemplated under this indemnification agreement shall not exceed the Purchase
Price.
ARTICLE 9 CLOSING
Section 9.1 Closing. The Closing shall be held as soon as practicable,
but in any event no later than January 31, 1997 (the "Closing Date"), and shall
be held at such place as the parties may mutually agree. The following actions
shall occur at the Closing:
Section 9.2 Purchase Price and Offsetting Cash. Purchaser shall deliver
to Seller, in immediately available funds, cash due at the Closing Date defined
in Purchase Price. Seller shall notify Purchaser in writing no less than three
(3) business days prior to the Closing Date of the appropriate wire transfer
instructions.
Section 9.3 Conveyance and Transfer; Assumption. Seller shall deliver
to Purchaser such instruments of conveyance and transfer, in form and substance
satisfactory to Purchaser's counsel, as shall be effective to vest in Purchaser
marketable title to all the Purchased Assets free and clear of all mortgages,
liens, encumbrances, pledges, and charges and objections as provided in Sections
3.6. Seller shall reasonably cooperate with Purchaser to put Purchaser in actual
possession and operating control of the Purchased Assets, including all files
and documents related to the Purchased Assets.
Section 9.4 Certificate. Purchaser shall deliver to Seller, and Seller
shall deliver to Purchaser, a certificate, signed by a duly authorized officer
of the delivering corporation, representing and warranting that the
representations and warranties made by it hereunder were true and correct when
made and have continued true and correct through the Closing, for this purpose
substituting the Closing Date for the date of this Agreement, except where such
representations or warranties expressly refer to an earlier time, and that the
delivering corporation has performed all obligations required to be performed by
it hereunder.
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ARTICLE 10 TERMINATION, AMENDMENTS AND WAIVERS
Section 10.1 Termination. This Agreement may be terminated in writing
at any time prior to the Closing Date:
10.1.1 by mutual consent of Seller and Purchaser;
10.1.2 by either Seller or Purchaser if the Closing shall
not have occurred by the close of business on January 31, 1997.
10.1.3 by either Seller or Purchaser if there shall have
been a material breach of any of the representations or warranties set forth in
this Agreement on the part of the other party, which breach by its nature
cannot be cured prior to the Closing and which breach would in the reasonable
opinion of the non-breaching party, individually or in the aggregate, have, or
be reasonably likely to have, a material adverse effect on the non-breaching
party or upon the consummation of the transactions contemplated hereby;
10.1.4 by either Seller or Purchaser if there shall have
been a material breach of any of the covenants or agreements set forth in this
Agreement on the part of the other party, which breach shall not have been cured
within twenty business days following receipt by the breaching party of written
notice of such breach from the other party hereto;
10.1.5 by either Seller or Purchaser upon the failure to
satisfy any of the conditions specified in Section 7.1 of this Agreement.
10.1.6 by Purchaser upon failure to satisfy any conditions
specified in Section 7.2.
10.1.7 by Seller upon failure to satisfy any conditions
specified in Section 7.3
10.1.8 by Purchaser if there has been a material adverse
effect on the business, operation, properties, assets or condition, financial or
other (of the Purchased Assets).
Section 10.2 Effect of Termination; Survival. No termination of this
Agreement as provided in Section 10.1 for any reason or in any manner shall
release, or be construed as so releasing, any party hereto from its obligations
pursuant to Sections 2.2, 5.3, 11.5 or 11.9 hereto or from any liability or
damage to any other party hereto arising out of, in connection with or otherwise
relating to, directly or indirectly, said party's material breach or failure in
performance of any of its covenants, agreements, duties or obligations arising
hereunder, or any material breaches of any representation or warranty contained
herein arising prior to the date of termination of this Agreement.
<PAGE> 13
Section 10.3 Amendment. This Agreement may be amended by mutual written
agreement of the parties hereto authorized by their respective boards of
directors or their duly authorized officers.
Section 10.4 Waiver. Any term or provision of this Agreement may be
waived in writing at any time by the party which is entitled to the benefits of
such term or provision.
ARTICLE 11 GENERAL PROVISIONS
Section 11.1 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally, mailed by
registered or certified mail (return receipt requested), or sent by confirmed
overnight courier on the date such notice is so delivered, mailed or sent, as
the case may be, to the parties at the following addresses or (or any such other
address for a party as shall be specified by like notice):
If to Seller at:
Factual Data Corp
Mr. J.H. Donnan
3665 JFK Parkway
Building I (80525)
P.O. Box 270458
Ft. Collins, Colorado 80527-0458
If to Purchaser at:
Landmark Financial Services, Inc.
Mr. W.B. Loughborough, President
5001 Spring Valley Road
Suite 258W
Dallas, Texas 75244
Section 11.2 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties, it being understood that
all parties need not sign the same counterpart.
Section 11.3 Entire Agreement/No Third Party Rights/Assignment. This
Agreement (including the documents and instruments referred to herein) (a)
constitutes the entire agreement and supersedes all prior agreements,
representations, warranties and understandings, both written and oral, among the
parties with respect to the subject matter hereof, (b) is not intended to confer
upon any person other than the parties hereto any rights or remedies hereunder;
(c) shall not be assigned by a party, by operation of law or otherwise, without
the consent of the other parties and (d) subject to the foregoing, shall be
binding upon and shall inure to the benefit of the parties hereto and their
permitted successors and assigns.
<PAGE> 14
Section 11.4 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Texas, without regard to
any applicable conflicts of law. The parties agree that any action or
proceeding related to this agreement shall be brought only within a court of
competent jurisdiction located in the County of Dallas, State of Texas, and no
proceedings shall be initiated in any form outside the State of Texas.
Section 11.5 Non-disclosure of Agreement. Purchaser and Seller agree,
except as required by law upon the written advice of counsel, to not issue any
public notice, disclosure or press release with respect to the transactions
contemplated by this Agreement until after Closing or without seeking the
consent of the other party, which consent shall not be unreasonably withheld.
Section 11.6 Headings/Table of Contents. The table of contents and
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
Section 11.7 Enforcement of Agreement. The parties hereto agree that
irreparable damage will occur in the event that any of the provisions of this
Agreement is not performed in accordance with its specific terms or is otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provision hereof in any court of the United States or
any state having jurisdiction, this being in addition to any other remedy to
which they are entitled at law or in equity.
Section 11.8 Severability. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable of any of the terms
or provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
Section 11.9 Confidentiality. The parties hereto agree that prior to
closing they will keep all information (not in the public domain or available by
other means) provided by Seller and all terms and conditions of this Agreement
in confidence and will not disclose such information to any third party, except
to their respective professional advisors and as required to comply with law,
requests or requirements of entities and as may be required in judicial or
regulatory proceedings, without the written consent of the other parties.
Nothing in this Section is intended to limit or restrict Purchaser's rights of
access under Section 5.1.
<PAGE> 15
IN WITNESS WHEREOF, Seller and Purchaser have caused this Agreement to
be signed by their respective officers thereunto duly authorized, all
as of the date first above written.
PURCHASER:
Landmark Financial Services, Inc.
By: /s/ WILLIAM B. LOUGHBOROUGH 1/7/97
-----------------------------------
By: William B. Loughborough
Its: President
SELLER:
Factual Data Corp.
By: /s/ J.H. DONNAN
----------------
By: J.H. Donnan
Its: President
<PAGE> 16
ADDENDUM
The following is an addendum to that Software System Contract ("Contract")
entered into as of January 6, 1997 between Lenders Resource, Inc. ("Provider")
and Landmark Financial Services, Inc. ("User" or "Client"):
1. User agrees to pay an initial, one-time license fee of $600,000 in
connection with this Contract and in connection with the related Purchase
Agreement and the exclusive right for User to provide FACTUAL
EXPRESS/BUNDLED SERVICES in the territories of': Arizona, New Mexico,
Houston, Dallas-Ft. Worth and Oklahoma.
2. Provider agrees that in addition to the training allowed in the Contract,
additional training at User's location shall be provided at User's expense.
3. Provider and User agree that Paragraph IV of the contract shall allow a 60
day period of non-payment by User for services prior to any action by
Provider against User. Provider and User further agree that User shall be
notified pursuant to the notification provisions of Paragraph XI of the
Contract prior to any action taken by Provider against User. Further,
Provider and User agree that upon notification, User shall have the right
to cure payment default prior to any adverse action taken by Provider
against User.
4. Provider and User agree that pursuant to paragraph V of the Contract that
the contract, may be terminated by giving 120 days notice. All other
conditions of this paragraph shall apply. In the event of such termination,
Provider shall agree to a one year non-compete in the exclusive territories
defined in the Contract.
5. Pursuant to Paragraph V(A) of the Contract, Provider understands that User
is currently a user of other mortgage reporting software and shall allow
User a period of 180 days from the effective date of this Contract in order
to comply with this provision (the "Grace Period").
6. Provider and User agree that the Grace Period shall apply to the provision
of paragraph V(B) of the Contract.
7. Provider and User agree that the bundled service described in paragraph
V(B) of the Contract shall apply only to mortgage credit services.
8. Provider and User agree that the Escrow Instructions described in
paragraph VI of the Contract shall be provided to User at User's request.
9. Provider and User agree that the willful misconduct and gross negligence
described in paragraph VII. (B) of the Contract refers to Provider.
10. Provider and User agree that the notice described in paragraph XI of the
Contract shall be by United States mail certified postage prepaid.
<PAGE> 17
11. Provider and User agree that the Exhibit A map described in paragraph
XII(A) of the Contract shall be supplied to User by Provider prior to
execution of the Contract.
12. Provider and User agree pursuant to paragraph XII(C ) of' the Contract that
(i ) that the reports issued using the Factual Express\Bundled Services
Software do not have to be issued on Factual Data Secure paper, (ii) that
the written consent of Provider for User to utilize Factual Data as part of
a corporate name shall not be unreasonably withheld, and (iii) User may,
and Provider agrees, that may utilize the Factual Data name in connection
with the following services: consumer rate information gathering,
publishing and advertising.
13. Provider and User agree pursuant to paragraph XVI of the Contract that such
provisions relating to standards shall apply only to Factual Data services.
14. Provider and User agree pursuant to paragraph XVII of the Contract that
User is not obligated to use Factual Data Secure Forms.
Agreed:
Client or User:
Landmark Financial Services, Inc.
By: /s/ WILLIAM B. LOUGHBOROUGH 1/7/97
-----------------------------------
By: William B. Loughborough
Its: President
Provider:
Lender's Resource, Inc.
By: /s/ J.H. DONNAN 01/08/97
-------------------------
By: J.H. Donnan
Its: President