ASSET PURCHASE AGREEMENT
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This Agreement is entered into on this 16th day of April 1997
by and between DATAFAST, INC., a New York Corporation with a principal place of
business located at 000X Xxxxx Xxxxxx Xxxx, Xxxxxxxxxxx, XX 00000 (hereinafter
referred to as "DFI") and COMPUTER OUTSOURCING SERVICES, INC., a New York
Corporation with a principal place of business located at 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx, XX 00000 (hereinafter referred to as "COSI").
WHEREAS, DFI and COSI are or were parties to that certain
Processing Agreement dated December 4, 1992, (The "Processing Agreement"); and
WHEREAS, pursuant to the Processing Agreement, DFI relocated to
COSI its data processing operations to COSI's offices and facilities located at
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX, and did convert all of its operating and
application software and all data files to operate on COSI's mainframe
computers and further delivered to COSI its customer lists, computer equipment
and furniture to COSI; and
WHEREAS, pursuant to the Processing Agreement, COSI exclusively
performed all data processing services for those DFI customers and accounts
transferred to COSI, billed and received accounts payable and maintained books
and records in connection therewith, and did and still does possess all of the
computer equipment and software, customer lists and furniture transferred or
relocated to COSI pursuant to the Processing Agreement; and
WHEREAS, pursuant to the Processing Agreement, COSI advanced to
DFI the aggregate sum of $200,000.00 and DFI executed two promissory notes to
the benefit of COSI in the aggregate principal amount of two hundred thousand
dollars ($200,000.00) which obligated DFI to repay to COSI said advanced sums,
plus interest as set forth in the Promissory Notes, (the "Promissory Notes");
and
WHEREAS, DFI now wishes to sell to COSI and COSI now wishes to
purchase from DFI all of the assets of DFI which were delivered to COSI
pursuant to the Processing Agreements;
NOW THEREFORE, in consideration of the mutual undertakings,
promises and covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
DFI and COSI do hereby agree as follows:
1. DFI hereby irrevocably transfers to COSI all of its
rights, title and interest in or to (i) all computer processing service
accounts and customers and customer lists which DFI formerly serviced and
which, pursuant to the Processing Agreement were or are currently being
serviced by COSI; (ii) all property and equipment of whatever kind, nature and
description, which was transferred and/or delivered to COSI from DFI pursuant
to the Processing Agreement.
2. COSI shall take title to all such property transferred
hereunder in its current location and condition "AS IS" and COSI further
acknowledges that DFI is making no warranties or representations of any kind
as to the current condition or value of the service accounts and customer lists
transferred hereunder including, but not limited to, income, expenses, accounts
payable, accounts receivable nor any other matter concerning the accounts and
operation of DFI, the same having been serviced and managed exclusively by COSI
since the inception of the Processing Agreement. COSI shall, in a timely
manner, file and tax returns and pay any taxes which may be required or due as
a result of the transfer of assets hereunder.
3. In exchange for the property transferred and sold to
COSI pursuant to this Agreement, COSI shall:
(a) Pay to DFI the sum of One hundred thousand,
eight hundred dollars ($100,800.00) which shall be paid to DFI in thirty-six
equal monthly installments of $2,800.00 each, commencing on March 1, 1997 and
continuing thereafter on the first of each month for the next thirty-five
successive months and as set forth in the Promissory Note annexed and attached
hereto as Exhibit A;
(b) As of the date of this agreement and pursuant
to this agreement, forgive the entire debt, including principal and interest
thereon due from DFI to COSI pursuant to the Promissory Notes executed in
accordance with the Processing Agreement. In connection with the forgiveness
of the debt referred to in this paragraph 3(b) COSI shall deliver to DFI
simultaneously with the execution of this Agreement, the original Promissory
Notes referred to herein and a Satisfaction Instrument, along with the Original
Security Agreement, if any, and any UCC-III termination Statements for each
UCC-I filing made pursuant thereto, if any.
(c) A copy of the corporate resolution of COSI,
authorizing the execution of this Asset Purchase Agreement and the Promissory
Note referred to in paragraph 3(a) above.
4. DFI expressly represents, warrants and covenants that:
(i) it has not transferred, assigned, pledged, encumbered or hypothecated its
right to any of the assets which are being transferred to COSI pursuant to this
Agreement and (ii) that it has the lawful right, power, capacity and authority
to transfer the assets which are being transferred to COSI pursuant to this
Agreement and (iii) that signatory is authorized to execute this Agreement on
its behalf.
5. This Agreement may not be modified, altered, amended,
waived or revoked orally, but only by a writing signed by each of the parties
or their respective representatives. The foregoing represents the entire
Agreement between the parties and supersedes and replaces all prior
understandings, discussions, representations and agreements between them,
including without limitation, the Processing Agreement, on any and all
subjects, whether written or oral. The Parties represent and acknowledge that,
in executing this Agreement they have not relied upon any promises, inducements
representations, understandings or agreements other than those specifically
set forth herein.
6. This agreement shall be binding upon and shall inure
to the benefit of each party and its successors and/or assigns.
7. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York without reference
to its conflict of laws provisions.
Entered into as of the date and year first written above.
DATAFAST, INC. COMPUTER OUTSOURCING SERVICES, INC.
By: Xxxxx X. Xxxxxxxx/President-CEO By: Xxxx Xxxxxxxx/Chairman
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Name/Title Name/Title
Xxxxx xx Xxx Xxxx Xxxxx xx Xxx Xxxx
Xxxxxx of Westchester ss: County of New York
On the 16th day of April, 1997 On the 16th day of April, 1997
before me personally came before me personally came
to me known, who, being by me duly to me known, who, being by me duly
sworn, did depose and say that he sworn, did depose and say that he
resides at 000X Xxxxx Xxxxxx Xxxx, resides at
Eastchester, N.Y. 10709
and that he is the President of and that he is the of
DATAFAST, Inc., the corporation COMPUTER OUTSOURCING SERVICES, INC.,
described in and which executed the the corporation described in and
foregoing instrument; that he knows which executed the foregoing
the seal of said corporation; that instrument; that he knows the seal
the seal affixed to said instrument of said corporation; that the seal
is such corporate seal; that it was affixed to said instrument is such
so affixed by order of the board of seal; that it was so affixed by
directors of said corporation and order of the board of directors of
that he signed his name thereto by said corporation and that he signed
like order. his name thereto by like order.
By: Xxxxxxx X. Xxxxxxxx By: Xxxxxxx Xxxxxxx
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Notary Public Notary Public
Xxxxxxx X. Xxxxxxxx Xxxxxxx Xxxxxxx
Notary Public, State of New York Notary Public, State of New York
No. 4868135 No. 02CA5024046
Qualified in Westchester County Qualified in Westchester County
Term Expires August 18, 1998 Commission Expires Feb. 22, 1998