Exhibit 2.17
AGREEMENT FOR PURCHASE OF LLC MEMBERSHIP INTEREST
This AGREEMENT FOR PURCHASE OF LLC MEMBERSHIP INTEREST (the
"Agreement") is made as of the 28 day of January, 2004, among Xxxxx X. Xxxxx
("Xxxxx"), Xxxx X. Xxxxx ("Xxxxx"), (collectively, the "Sellers") and Xxxx X.
Xxxxxx ("Mercer"), Premiere Credit of North America, LLC, an Indiana Limited
Liability Company having a place of business at 0000 X. Xxxxxxxxx Xxxx.,
Xxxxxxxxxxxx, XX 00000 ("the Company"), and Nelnet, Inc., a Nevada corporation,
having a place of business at 000 Xxxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxx, 00000 ("Purchaser"), concerning Membership interests in the Company.
W I T N E S S E T H :
WHEREAS, Sellers and Mercer are the owners in the aggregate of one
hundred percent (100%) of the membership interests (the "Interests") of the
Company; and
WHEREAS, the Company is in the business of providing collection of
accounts and related services to student loan lenders and others (the "Company
Business"); and
WHEREAS, Sellers wish to sell to Purchaser and Purchaser wishes to
purchase from Sellers fifty percent (50%) of the Interests; and
WHEREAS, Purchaser wishes to invest in and make a capital contribution
to Company for the purchase of certain real estate and other potential
investments; and
WHEREAS, Purchaser desires that Xxxxx and Xxxxx remain as employees of
the Company after the Closing as further set forth in those certain Employment
Agreements between each of Xxxxx and Xxxxx and Company, which Agreements shall
be executed contemporaneously herewith and are attached as Schedules 5.1(b)(i)
and 5.1(b)(ii).
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Exhibit 2.17
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and other agreements and undertakings of the parties hereinafter set
forth, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
ARTICLE ONE
SALE AND PURCHASE OF INTERESTS
1.1 Sale and Purchase of Interests. On the Closing Date, as hereinafter
defined, subject to the terms and conditions of this Agreement the Sellers agree
to and shall sell transfer and deliver the Interests to the Purchaser, and the
Purchaser shall purchase, acquire and accept the Interests from Sellers. Sellers
are selling the following Interests respectively:
(a) Xxxxx: 26.75%
(b) Xxxxx: 23.25%
The percentage of Interests held by each of Sellers and Mercer prior to Closing
(as defined in section 1.2) and the percentage of Interests held by all Members
subsequent to Closing is indicated on Schedule 1.1 hereto. Upon Closing, the
Operating Agreement of Company (as further defined in section 2.5 hereof) shall
be deemed amended to reflect Purchaser as a Member of Company, holding fifty
percent (50%) of the Interests, and all references to "Member" in said Operating
Agreement shall be deemed to include Purchaser. Schedule 1.1 hereto shall
replace Exhibit A to the Operating Agreement. The parties and Mercer further
agree to enter into a revised Operating Agreement for the Company simultaneous
with the Closing, which Agreement shall include but not be limited to the
amendments agreed to herein.
1.2 Closing. Upon satisfaction of the conditions to Purchaser's
obligations as set forth
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Exhibit 2.17
in this Agreement, the sale and purchase of the Interests (the "Closing") under
this Agreement shall commence on the date hereof, simultaneously with the
execution of this Agreement, at the offices of Nelnet, Inc., 0000 Xxxxxxxxx
Xxxxxxxx Xxxx., Xxxxxxxxxxxx, XX 00000. The date and time of the Closing are
herein referred to as the Closing Date.
1.3 Purchase Price. The aggregate purchase price (the "Purchase Price")
payable to Sellers at Closing in consideration of the sale of the Interests
hereunder shall be two million three hundred sixteen thousand dollars
($2,316,000), paid in cash or other good funds, it being agreed that said amount
also represents adequate consideration for the agreements of Xxxxx and Xxxxx not
to compete with Company as set forth in the Employment Agreements. The Purchase
Price shall be paid to Sellers in the following amounts:
(a) Xxxxx: $1,239,060
(b) Xxxxx: $1,076,940
1.4 Purchaser's Capital Contribution. Purchaser shall make a capital
contribution to the Company of two million, nine hundred thirty four thousand
dollars ($2,934,000), of which amount:
(a) one million six hundred thousand dollars ($1,600,000) shall be
paid by Company to the holder of the mortgage on the real property
owned by Company and commonly known as 0000 Xxxxxxxxx Xxxx.,
Xxxxxxxxxxxx, XX 00000, which amount shall be sufficient to pay
the mortgage in full . The Business Loan Agreement aka the
Mortgage on the real property has a 1% prepayment penalty and the
parties recognize that such penalty will be incurred, and
therefore, Xxxxx and Xxxxx and SEL, LLC,
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Exhibit 2.17
jointly and severally agree to satisfy and pay such penalty and
related monies and to hold Nelnet and the Mercers harmless
therefrom.
(b) four hundred twenty five thousand dollars ($425,000) shall be held
and used by the Company to service other existing debt or for such
other business purposes as agreed by the Managing Board (as
defined in Section 9.5 hereof) following the Closing; and
(c) nine hundred nine thousand dollars ($909,000) shall be distributed
to Sellers as a membership distribution simultaneous with Closing,
divided in amounts proportionate to their percentage of selling
Interests.
1.5 Options. The Operating Agreement of Company shall include the
following provisions:
(a) Call Option. From and after seventy-two (72) months following the
Closing, Purchaser shall have a "call" option (the "Call") to
acquire up to one hundred percent (100%) ownership of the Company
at a price equal to ten (10) times the higher of (i) the most
recent three-year (3-year) average after tax net income (the
parties recognize that the Company does not have tax impact, but
for purposes of the calculations in this Section 1.5 "after tax
net income" will be calculated using the corporate tax rate of
forty percent (40%)) of the Company or (ii) after tax net income
of the most recent year prior to the purchase, either amount being
multiplied by the percentage of ownership being acquired, and
excluding any extraordinary and nonrecurring items, plus any
future real estate purchased by Premiere Credit of North America,
LLC, valued at the original purchase price Book Value[define?],
less depreciation, less debt in proportion to the the Membership
Interests at the time of selling (excluding herefrom 0000
Xxxxxxxxx Xxxx. Xxxxxxxxxxxx, Xxxxxxx.
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Exhibit 2.17
(b) Put Option. From and after sixty (60) months following the
Closing, the Company will have a "put" option (the "Put") for
Purchaser to acquire up to one hundred percent (100%) ownership of
Company at a price equal to ten (10) times the most recent
three-year (3-year) average after tax net income (the parties
recognize that the Company does not have tax impact, but for
purposes of the calculations in this Section 1.5 "after tax net
income" will be calculated using the corporate tax rate of forty
percent (40%)) of the Company, plus any future real estate
purchased by Premiere Credit of North America, LLC, valued at the
Book Value, less depreciation, less debt in proportion to the the
Membership Interests at the time of selling (excluding herefrom
0000 Xxxxxxxxx Xxxx. Indianapolis, ).
(c) Process for Exercise of Call and Put. The Member exercising the
Call or Put Option ("Exercising Member") shall give written notice
of same to the other Members and the Company at the addresses set
forth in section 11.2 below. Such notice shall specify the price
of the Option, and within thirty (30) days after the notice is
given, the parties, as appropriate, shall execute such documents
and instruments reasonably required to effectuate the Option at
the purchase price as calculated using the formula in (a) or (b)
above and on the other terms as specified in the notice, and the
closing of such transaction shall take place as soon as
practicable but in any event not more than sixty (60) days
following receipt of the notice. At such closing, the selling
parties shall sell and transfer
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Exhibit 2.17
their entire equity interest to the appropriate purchasing party
free and clear of all liens, claims or encumbrances, other than
the Operating Agreement, as amended by this provision.
1.6 Offer to Purchase. The Operating Agreement of Company shall include
the following provision.:
Offer to Purchase.
(a) From and after thirty-six (36) months following Closing, a member,
(hereinafter referred to as the "Offeror Member") shall have the
right, exercisable by written notice (the "Offer") to any or all
of the other Members (the "Offeree Member(s)"), to offer to buy
the Offeree Members' entire equity interest in the Company at a
purchase price and upon the other terms determined by the Offeror
Members and specified in the Offer. The Offeree Members must elect
by written notice (the "Notice of Election") to the Offeror Member
not less than twenty (20) days after receipt of the Offer, either
(i) to sell the Offeree Members' entire equity interest in the
Company to the Offeror Member at the purchase price and on the
other terms specified in the Offer, or (ii) to offer to purchase
the Offeror Member's entire equity interest in the Company at a
purchase price equal to the price set forth in the Offer. Not
later than ten (10) days after the Notice of Election, the
parties, as appropriate, shall execute such documents and
instruments reasonably required to sell and transfer either the
Offeror Member's or the Offeree Members' (as applicable) entire
equity interest in the Company at the purchase price and on the
other terms as specified in the Offer, and the closing of such
sale shall take place as soon as practicable but in any event
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Exhibit 2.17
not more than one hundred eighty (180) days following receipt of
the Notice of Election. At such closing, the selling party shall
sell and transfer its entire equity interest to the appropriate
purchasing party free and clear of all liens, claims or
encumbrances, other than the Operating Agreement, as amended by
this provision.
(b) For the purposes of this section 1.6, if the Offeror is Nelnet,
Inc. then the Offer must be made to all other then existing
Members and Membership Interests. If the Offeree is Nelnet, Inc.
the Offeror must consist of all of the other then existing Members
and Membership Interests.
1.7 Rights of Refusal. The Operating Agreement of Company shall include
following provisions:
(a) First Right of Refusal. Subsequent to the Closing, Xxxxx and Xxxxx
shall each have a first right of refusal to acquire the ownership
interests of any Member should the Member wish to sell such
interests, including pursuant to Purchaser's exercise of the Call.
In order to exercise this first right of refusal, the Member
desiring to sell, transfer or assign all of any part of the
Member's interest to a third party shall communicate such
intention in writing to the other Members (including Purchaser)
and the Company stating the purchase price proposed for the
transfer. Such notice shall be via registered or certified mail,
return receipt requested to the address for each of the other
Members and to the office of the Company and shall state the
action the Member intends to take and the terms of the
transaction. Within thirty (30) days after receiving this
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Exhibit 2.17
notice, Xxxxx or Xxxxx, as applicable, may purchase at his option
all or any part of the interest described in the notice for the
purchase price stated in the notice, by giving notice of such
within 30 days after receiving the notice, but Xxxxx and Xxxxx, as
applicable, shall have 180 days to arrange financing and
consummate the purchase.
(b) Second Right of Refusal. If the offer contained in the notice
described above is not accepted by Xxxxx or Xxxxx, as applicable,
within thirty (30) days from the date of receipt of the notice,
then Purchaser may exercise a second right of refusal to purchase
the Interest, at a price determined by the formula set forth in
Section 1.5(b) hereof. Such right shall be exercised within thirty
(30) days of the expiration of Xxxxx or Xxxxx'x right of refusal
period.
ARTICLE TWO
REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers, jointly and severally, represent and warrant to Purchaser
(except as to Section 2.1, which representation is made individually and
severally), as follows:
2.1 Ownership of the Interests. Sellers are the beneficial owners and
holders of record of the Interests, free and clear of any lien, mortgage,
security interest, encumbrance, title defect or claim restricting or limiting
Sellers' ability to transfer the Interests to Purchaser under and pursuant to
this Agreement, and there is no subscription, warrant, call, unsatisfied
preemptive right, option, convertible securities, rights of first refusal or
other agreement of any kind to issue, purchase or otherwise receive from Sellers
any of the Interests or any other security of the
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Exhibit 2.17
Company. The percentages of Interests owned by each of the Sellers are set forth
in Schedule 1.1 hereto. Upon execution hereof, Purchaser will be the title and
beneficial owner of fifty percent (50%) of the Interests in the Company, free
and clear from any lien, mortgage, security interest, encumbrance, title defect
or restriction.
2.2 Organization of the Company. The Company is a limited liability
company, duly organized, validly existing and in good standing under the laws of
the State of Indiana, and is legally qualified to transact business and is in
good standing in every jurisdiction in which the nature of the business
conducted by it or the character or location of properties owned or leased by it
makes such qualification necessary, including transaction of the business of
collection of accounts, except in such jurisdiction where failure to be so duly
qualified would not have a material adverse effect upon the Company. A list of
the jurisdictions in which the Company is qualified to transact business is set
forth in Schedule 2.2(a)(1) attached hereto. As of the Closing, the Company and
Sellers have not conducted meetings of the Members on a regular or formal
business, and no minute books have been kept. The Company has provided a
resolution, attached hereto as Schedule 2.2(a)(2), signed by all Members (prior
to Closing) and the Company, approving and ratifying all Company business
decisions made prior to Closing. The Company is not in default under or in
violation of any provision of its articles of organization or operating
agreement. The Company has all licenses, permits and authorizations necessary to
carry on the businesses in which it is engaged and to own and use the properties
owned and used by it. None of the licenses, permits and authorizations of the
Company will be terminated or are terminable due to consummation of the
transaction provided for herein.
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Exhibit 2.17
2.3 Capitalization of the Company. The Company has 100 membership
Interests issued and outstanding, all of which have been duly authorized and
validly issued, are fully paid and non-assessable and were issued by the Company
in compliance with all applicable federal and state securities laws, rules and
regulations. There is no outstanding or authorized option, subscription,
warrant, call, right, commitment or other agreement of any character obligating
the Company to sell or issue any additional membership interests or any other
securities convertible into or exercisable for or evidencing the right to
subscribe for any membership interests. There are no voting trusts, proxies or
other agreements or understandings with respect to voting of the Interests.
Purchaser agrees that subsequent to Closing, the Sellers may enter into a voting
trust or other proxy that will allow the Sellers to vote as a block, to the
extent Member votes are authorized by the Operating Agreement and such votes are
taken.
2.4 Authority. This Agreement has been duly executed and delivered by
Sellers, and Sellers have the right, power, authority and legal capacity to
enter into and perform under this Agreement and to consummate the sale of their
interests pursuant hereto. This Agreement is valid and binding upon Sellers and
enforceable in accordance with its terms. The execution and delivery of this
Agreement by Sellers do not, and the consummation of the transactions
contemplated hereby and the performance by Sellers of the terms of this
Agreement will not (a) violate any federal, state or local law or regulation,
(b) conflict with, result in a breach of, constitute a default under, result in
the acceleration of, create in any person or entity the right to accelerate,
modify or cancel, or require any notice under any contract to which the Company
is a party or by which the Company is bound or which any of its assets are
subject, or (c) result in acceleration of any obligation under, or constitute an
event of default under any order, judgment or decree to which the Company or
Sellers are bound.
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Exhibit 2.17
2.5 Articles of Organization, Certificate of Existence and Operating
Agreement. Prior to the execution of this Agreement, Sellers have delivered to
Purchaser a true and complete copy of the Company's Articles of Organization,
Certificate of Existence and Operating Agreement, and any amendments thereto, as
in effect on the date hereof and the Closing Date; neither the execution and
delivery of this Agreement nor the consummation of the transactions contemplated
hereby will violate any provision of the Articles of Organization or Operating
Agreement of the Company.
2.6 Financial Statements. Schedule 2.6 attached hereto contains an
accurate and complete balance sheet of the Company as of, and profit and loss
statements relating to the Company (collectively, the "Financial Statements")
for: December 31, 2000; December 31, 2001; December 31, 2002; and December 31,
2003. Such information fairly presents the financial condition and results of
operation of the Company as of and for such periods, have been prepared on a
consistent basis throughout the periods covered thereby, are correct and
complete, and are consistent with the books and records of the Company. All of
the Financial Statements prior to December of 2003 are audited statements
prepared in accordance with generally accepted accounting principles on a
consistent basis throughout the periods covered thereby. Interim financial
information for the period ended December 31, 2003, shall be supplemented by
independent auditors as of the Closing Date. The Company does not have any
direct or indirect, primary or secondary, liability of any type, whether
accrued, absolute or contingent, liquidated or unliquidated, matured or
unmatured, or otherwise that will have, or is reasonably likely to have,
individually or in the aggregate, a material adverse effect upon the Company,
except for the
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Exhibit 2.17
liabilities which are accrued or reserved against and reflected
upon the Financial Statements of the Company.
2.7 No Consent. No consent, license or permit of any governmental
authority is required in connection with the execution, delivery, validity or
enforceability of this Agreement or the consummation of the transactions
contemplated hereby, and neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby will violate,
conflict with or result in the breach or termination of any contract, lease or
other instrument to which the Company or Sellers is a party or by which the
Company or Sellers is bound.
2.8 Subsidiaries and Other Affiliates. The Company does not have any
subsidiaries or affiliates.
2.9 Ordinary Course of Business. The Company has not engaged in Company
Business other than in the ordinary and usual course of business, including
payment of compensation to Sellers, entering into contracts, making expenditures
or entering into commitments of the Company. Sellers have not received
distributions of dividends, bonuses, or other remuneration from the Company,
other than their ordinary salaries and employee benefits, amounts necessary to
satisfy tax obligations, and as disclosed in Schedule 2.9 annexed hereto.
2.10 Accounts Receivable. Schedule 2.10 sets forth a list of all of the
Company Receivables as of the Closing Date. Each of the Company Receivables
arose in the ordinary and usual course of business of the Company, but Sellers
do not guarantee or otherwise promise that said Receivables will be paid.
2.11 Equipment and Other Tangible Property. Schedule 2.11 attached
hereto sets forth
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Exhibit 2.17
a list of all items of equipment, furniture, fixtures or other tangible property
owned or leased by the Company with a fair market value in each case in excess
of $5,000.00 (collectively, "Tangible Properties"). Schedule 2.11 lists those
items of Tangible Property which are leased by the Company. Except for the
rights of the lessor(s) thereof, the Tangible Properties are owned by the
Company free and clear of all liens or other security interests. No
representation or warranty is made concerning the physical condition of the
Tangible Properties. The Company has delivered to Purchaser a correct and
complete copy of the lease(s) of Tangible Property (the "Tangible Property
Leases") The Tangible Property Leases are in full force and effect and have not
been amended or modified except as disclosed in Schedule 2.11. Sellers have
received no written notice of default from any lessor with respect to the
Tangible Property Leases. The Company is the sole and unconditional owner of (or
has a validly sold interest in), and has good and marketable title, free and
clear of any security interests, liens, mortgages or encumbrances of any nature
to the properties and assets used by it, located on its premises, or shown in
the most recent financial statements. The properties and assets owned by the
Company as of the Closing Date shall permit the Company to continue and carry on
business and operations in the ordinary course of business.
2.12 Space Leases. The Xxxxxx & Xxxxx, P.A. Lease. The Company has no
space or real property leases other than the office lease between Company
andAbrams & Xxxxx, P.A. ("Tenant") as set forth in Schedule 2.12(a) annexed
hereto (the "Space Lease"). The Space Lease is in full force and effect and has
not been amended or modified, except as may be disclosed in Schedule 2.12(a).
The Company has not received any notice of default from the Tenant with respect
thereto, and the Company is not in default with respect thereto. To the
Company's
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Exhibit 2.17
knowledge, Tenant is not in material default under the Space Lease. The Company
shall obtain and attach hereto as Schedule 2.12(b) an Estoppel Certificate from
Tenant effective as of the Closing Date.
2.13 Intellectual Property. Schedule 2.13 sets forth a complete list of
all patents, pending applications for patents and registration certificates
(including a brief description of the subject matter thereof, the date of
filing, the jurisdiction and the patent application number), all trade names,
trademarks and servicemarks and applications therefor, all copyright
registrations, copyrights not registered, all internet domain registrations of
the Company, all source codes used in the Business and operations of the Company
as presently conducted, and all the software developed by the Company and
offered by the Company for use by its clients as a part of the Company Business
(collectively, the "Intellectual Property"). Sellers own no other intellectual
property, other than such common law rights, if any, as the Company may have in
its Company name by reason of the organization of the Company and the use of
such name in the Company Business, and in its web address. The Company makes use
of certain third party off-shelf operating and application software in its
operation, none of which was specially created for the Company. Sellers make no
representation as to the quality, duration, or validity of any of the
Intellectual Property sold or assigned herein. The Company has not received
notice from any third party that the Intellectual Property infringes the rights
of such third party. The Company is the sole and exclusive owner of the entire
right, title and interest in and to the Intellectual Property, free and clear of
any security interests, liens, charges, conditions, adverse claims, encumbrances
or any other title defect or restriction of any kind, and there are no pending
or, to Sellers' knowledge, threatened litigation or adverse claims affecting or
with respect the
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Exhibit 2.17
Intellectual Property. No person or entity is infringing on any of the rights of
any other person or entity.
2.14 Tax Matters. The Company has filed all federal, state and local
tax returns which are required to be filed and has paid all Taxes shown on such
returns and all assessments received by the Company to the extent that the same
have become due for all fiscal periods to and including the fiscal year ending
December 31, 2003, and all such returns are true, complete and correct in all
material respects. All Taxes relating to the Company due on or before the
Closing Date have been timely and fully paid. The charges, accruals and reserves
for Taxes due or accrued but not yet due, relating to the Company for any Tax
period prior to the Closing Date as reflected on the books of the Company are
adequate to cover such Taxes. No penalties or other charges of any nature are or
will become due with respect to the late filing of any Tax returns required to
be filed on or before the Closing Date. There are no tax sharing agreements to
which the Company is now or has ever been a party. The Company is not a party to
any agreement that would result, separately or in the aggregate, in the payment
of any "excess parachute payments" within the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code"). The Company is not a
party to any joint venture, partnership or other arrangement or contract that
could be treated as a partnership for federal income tax purposes. No tax or fee
of any nature whatsoever is due from the Company or Purchaser under any
applicable state or local law or regulation as a result of the consummation of
the transactions contemplated hereby. Other than as set forth on Schedule 2.14,
Seller has not received notice of any pending claims with respect to Taxes. As
used herein, the term "Taxes" shall include all state, federal and local income
tax liability, deferred income tax liability and other taxes,
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Exhibit 2.17
including, without limitation, income taxes, estimated taxes, excise taxes,
sales taxes, use taxes, gross receipts taxes, franchise taxes, employment and
payroll related taxes, property taxes and import duties, whether or not measured
in whole or in part by net income, and whether or not assessed or disputed, that
are payable or deferrable, by the Company for the fiscal year ending December
31, 2003, or as to which the Company may have any liability for taxable periods
ending on or before such date, or any liability for the period ending on the
Closing Date, and all deficiencies or other additions to tax, interest and
penalties owed by the Company or as to which the Company may have liability in
connection with any of the foregoing.
2.15 Compliance with Laws; Third Party Claims.
(a) The Company has complied in all material respects, and is
complying in all material respects, with all Federal, state and
local laws, ordinances, regulations or other requirements, and the
Company has not received notice that it is in violation of any
Federal, state or local law, ordinance or regulation or any other
requirement.
(b) Neither the Company nor the Sellers are aware of any material
third party claim against any of them, arising out of the
operations or activities of any of them related to the business of
the Company, and the Company is not involved in any litigation
claims or assessments that exceed $10,000 individually or items
involving lesser amounts which exceed $30,000 in the aggregate,
except as identified in Schedule 2.15(b).
2.16 Contracts and Other Agreements.
Schedule 2.16(i) lists, as of the date hereof, all of the contracts (other than
contracts with clients of the Company Business) to which the Company is a party
or to which it is bound, to the extent
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Exhibit 2.17
any of the same individually involve consideration having a value aggregating in
excess of $5,000 per agreement, or impose an obligation upon the Company of more
than $ 25,000 (the "Non-Client Contracts"). The Non-Client Contracts are in full
force and effect and have not been amended or modified, except to the extent
disclosed in Schedule 2.16(i). The Company has not received written notice that
the Company is in default of any of the material terms and conditions of the
Non-Client Contracts. Schedule 2.16(ii) lists, as of the date hereof, all of the
contracts with the Company's clients (the "Client Contracts"). The Client
Contracts are in full force and effect and have not been amended or modified,
except to the extent disclosed in Schedule 2.16(ii). The Company has not
received notice that any of the Non-Client Contracts or Client Contracts are
invalid or unenforceable or that the Company is in default of any of the
material terms thereof. True and complete copies of all documents referred to in
Schedules 2.16(i) and (ii) have been delivered to Purchaser. With respect to
each of the Non-Client Contracts, Client Contracts and any other agreement to
which the Company is a party or by which it is bound, such agreement is legal,
valid, binding, enforceable in accordance with its terms and in full force and
effect and will continue to be so following consummation of the transactions
contemplated hereby, no party is in breach or default and no event has occurred
which with notice or lapse of time would constitute a breach or default, or
permit termination, modification or acceleration under such agreement. None of
any such agreements contain any provision, which will or could result in
termination or modification of any term upon a change in control or ownership of
the Company.
2.17 Employee Benefits. The Company maintains no employee benefit plans
as that term is defined in the Employment Retirement Income Security Act of
1974, as amended ("ERISA") other than a 401(k) plan and certain health benefit
plans as set forth in Schedule 2.17
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Exhibit 2.17
hereof. Schedule 2.17 consists of a true, correct and complete copy of the
employee handbook in effect with respect to the Company's employees as of the
date hereof, which handbook contains true and complete summaries of all material
pension, retirement, profit-sharing, deferred compensation, membership interest
option, employee ownership, severance pay, vacation, bonus or other material
incentive plans, all other material written employee programs, arrangements or
agreements, whether arrived at through collective bargaining or otherwise, all
material medical, vision, dental or other health plans, all life insurance plans
and all other material employee benefit plans or fringe benefit plans,
including, without limitation, all "employee benefit plans" as that term is
defined in Section 3(3) of ERISA, currently adopted, maintained by, sponsored in
whole or in part by, or contributed to by, or on behalf of, the Company for the
benefit of its employees, retirees, dependents, spouses, directors, independent
contractors or other beneficiaries who are eligible to participate therein (the
"Benefit Plans"). Neither the Company nor any ERISA Affiliate of the Company
(which for purposes of this Agreement shall mean any entity required to be
aggregated with the Company under the Code Sections 414(b) or (c)) has
misrepresented any provision of such Benefit Plans to any Persons, such Benefit
Plans have been administered substantially in accordance with their terms, and
all required premium payments and contributions to and payments from such
Benefit Plans have been made in accordance with the terms of the Benefit Plans
and on a timely basis. In addition, for purposes of any provision of this
Agreement that relates to Code Section 412(n), the term ERISA Affiliate shall
mean any entity aggregated with a person under Code Sections 414(b), (c), (m) or
(o) which maintains or has maintained any multi-employer plan within the meaning
of Section 3(37) of ERISA. All Benefit Plans have been administered and are in
compliance in all material respects with the
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Exhibit 2.17
applicable terms of ERISA, the Code and any other applicable law. No Benefit
Plan which is a Defined Benefit Pension Plan (within the meaning of ERISA) has
any "unfunded current liability," as that term is defined in Section
302(d)(8)(A) of ERISA, and the present fair market value of the assets of any
such plan exceeds the plan's "benefit liabilities," as that term is defined in
Section 4001(a)(16) of ERISA, when determined under actuarial factors that would
apply if the plan terminated in accordance with all applicable legal
requirements. No Benefit Plan has an "accumulated funding deficiency" as defined
in Code Section 412. No event has occurred with respect to a Benefit Plan that
could subject the Company to liability under ERISA, other than liabilities for
contributions due under such Benefit Plans in the ordinary course of business
which arose from actions taken in compliance with ERISA. No Benefit Plan has
been funded or administered in a manner that would result in liability for any
Tax or penalty with respect to excise Taxes for overfunding or prohibited
transactions under applicable law.
2.18 Insurance. Schedule 2.18 sets forth a list of all policies or
binders of insurance (other than the health benefit insurances listed in
Schedule 2.17 above) held by the Company.
2.19 Actions and Proceedings. Except as may be listed in Schedule 2.19,
there are no actions, suits, claims, investigations, State or Federal Equal
Employment Opportunity Commission proceedings or other proceedings pending or,
to Sellers' knowledge, threatened against the Company.
2.20 Bank Accounts. Schedule 2.20 lists the Company's bank accounts and
the institution(s) where such accounts are kept.
2.21 Labor Matters.
(a) The Company is in material compliance with, and has
received no notice
19
Exhibit 2.17
from any governmental authority that it is not in material compliance with all
applicable laws, whether federal, state or local, respecting employment and
employment practices, terms and conditions of employment, wages and hours, and
nondiscrimination in employment, or that it is engaged in any unfair labor
practice.
(b) The Company is not a party to any written employment,
compensation, consulting, severance pay or similar agreements with respect to
its employees, all of whom are listed on Schedule 2.21(d) other than the
agreements listed on Schedule 2.21(b). All employees are terminable at the will
of the Company. The Company does not currently have any workers' compensation
claims or liabilities. All employees are required to sign an "Agreement-Covenant
Not to Compete" in the form attached as Schedule 2.21(b). Copies of all such
executed agreements will be delivered to Purchaser at or before Closing.
(c) The Company has no union contracts and there is no pending
petition for a union election.
(d) Attached hereto as Schedule 2.21(d) is a true and complete
list of the names and job titles of all persons who are employees of the
Company, together with annual base salaries, bonuses and commissions of such
employees. There are no arrearages in the payment of wages or salaries to such
employees.
2.22 Absence of Certain Events. Since the date of the most recent
financial statements, there has not been:
(a) an amendment to the Company's articles of organization or
operating agreement, or merger with or into or consolidation with any person or
entity, change or agreement to change any agreements to which the Company is a
party or the character or the business of the Company;
20
Exhibit 2.17
(b) any dividends declared or paid or other distributions of
any kind to the Company's members declared or made, or any direct or indirect
redemption, purchase, retirement or other acquisition of any of the Interests,
except as identified on Schedule 2.9 hereto;
(c) any loan or advance made to any of the Company's officers,
directors, employees, consultants, agents, shareholders or any other loan or
advance made otherwise than in the ordinary course of business;
(d) any change in the financial condition, properties,
business or operations of the Company or any event or circumstance which is, or
with reasonable certainty may result in, singly or in the aggregate, a material
adverse effect on the Company;
(e) any loss affecting any asset of the Company, unless such
loss could not reasonably be expected to result in a material adverse effect
upon the Company;
(f) any strike or other labor trouble or dispute has resulted
in or may result in a material adverse effect upon the Company;
(g) any loss of any permit, license, qualification or
certificate of authority held by the Company;
(h) any indebtedness, liability or obligation incurred by the
Company or any transaction entered into by the Company, other than in the
ordinary course of business, or any guarantee by the Company of any
indebtedness, liability or obligation of any other person;
(i) any obligation, liability, security interest or lien,
paid, discharged or satisfied by or on behalf of the Company other than the
current liabilities reflected in the most recent financial statement;
21
Exhibit 2.17
(j) any sale, transfer or other disposition of any asset of
the Company having a book value in excess of $10,000 in a single instance and
$50,000 in the aggregate, or any cancellation of any debt or claim of the
Company having a book value in excess of $10,000 in a single instance and
$50,000 in the aggregate, except in the ordinary course of business;
(k) any material change in, or any contract to materially
change, the compensation or other direct or indirect remuneration payable to any
officer, employee or agent of the Company or any bonus, incentive or deferred
compensation, profit sharing, retirement, pension, group insurance, death
benefit or other fringe benefit plan, or any employment or consulting agreement,
granted, entered into or materially amended or altered, other than in the
ordinary course of business or as required pursuant to an existing employment
agreement;
(l) any capital expenditure, addition or improvement made or
committed to be made by or on behalf of the Company in excess of $10,000 with
respect to any single expenditure, addition or improvement of the Company;
(m) any termination or failure to renew, or receipt of a
threat (that was not subsequently withdrawn) by a third party to terminate or
fail to renew any material agreement to which the Company is a party;
(n) any material failure to maintain the books and records of
the Company in the usual, regular and ordinary manner, consistent with past
practice, or any material change in the accounting principles or practices of
the Company;
(o) any adverse change in the business, financial condition,
operations, results of operations or future prospects of the Company.
22
Exhibit 2.17
2.23 Transactions With Related Parties. Set forth in Schedule 2.23
hereto is a true and complete list or description of all notes, advances or
accounts (other than commission, salary, bonus reimbursements and other payments
made by the Company in the normal course of business) receivable or payable by
the Company from or to any director, officer, employee or member of the Company
or any of their affiliates, as well as all agreements or arrangements under
which the Company receives goods or services from any such persons. Since the
date of the most recent financial statement, the Company has not incurred any
obligation or liability to, or become a creditor of any member or former member
of the Company or any relative or affiliate of any member or former member of
the Company.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Sellers that:
3.1 Authority. This Agreement has been duly executed and delivered by
Purchaser and Purchaser has the right, power, authority and legal capacity to
enter into and perform under this Agreement and to consummate the transactions
contemplated hereby.
3.2 No Consent. No consent of any other party, governmental authority,
bureau or agency is required in connection with the execution, delivery,
validity or enforceability of this Agreement or the consummation of the
transactions contemplated hereby.
3.3 No Breach. Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will violate, conflict
with or result in the breach or termination of any contract, mortgage, lease,
bond, indenture, agreement, franchise or other instrument or obligation to which
Purchaser is a party or by which Purchaser may be bound.
23
Exhibit 2.17
ARTICLE FOUR
CONDITIONS TO PURCHASER'S OBLIGATIONS
4.1 Conditions to Purchaser's Obligations. The obligation of Purchaser
to perform this Agreement is subject to satisfaction of the following conditions
at or before the Closing Date, it being an explicit condition that all
agreements and documents to be delivered to Purchaser which are not attached as
Schedules or Exhibits (and therefore deemed satisfactory to Purchaser) must be
in form and substance reasonably satisfactory to Purchaser:
4.2 Agreements Performed. Sellers shall have performed all of the
obligations under this Agreement to be performed by them on or before the
Closing Date;
4.3 Representations Accurate. The representations and warranties of
Sellers contained herein will continue to be accurate in all material respects
just as if made as of the Closing Date, without giving effect to any
supplemental disclosure, update or modification of any Schedule hereto;
4.4 No Change. There will have been no material adverse changes in the
financial condition, results of operations, assets, business or prospects of the
Company;
4.5 Legal Action. There will be no pending or threatened legal action
or inquiry which challenges the validity or legality of or seeks or could
reasonably be expected to prevent, delay or impose conditions on the
consummation of the transactions contemplated by this Agreement;
4.6 Transfer of Interests. At execution hereof, Purchaser will have
received written transfer of the Interests, free of all security interests,
liens or encumbrances of any nature, as well
24
Exhibit 2.17
as all other documents to be delivered pursuant to Section 5.1 hereof;
4.7 Certificate of Existence. Sellers shall have delivered to Purchaser
a current certificate of existence issued by the Secretary of State of Indiana
with respect to the Company;
4.8 Access to Records. Purchaser shall have been afforded an
opportunity to review all books and records of the Company;
4.9 Others. Purchaser will have received each other document required
to be delivered to Purchaser hereunder.
ARTICLE FIVE
DELIVERIES AT CLOSING
5.1 Deliveries at Closing. Upon the Closing Date:
(a) if all conditions set forth in Article Four have been fully
satisfied, Purchaser shall pay the Purchase Price in accordance
with Section 1.3 hereof;
(b) the Company and Xxxxx and Xxxxx, respectively, shall execute and
deliver their respective employment agreements in the form annexed
hereto as Exhibits 5.1(b)(i) and 5.1(b)(ii) (the "Employment
Agreements"), and other key personnel of the Company as identified
by Purchaser shall execute and deliver noncompete agreements in
form and substance satisfactory to Purchaser; and
(c) Purchaser and Sellers shall deliver to Sellers such resolutions,
certificates and authorizations, including good standing
certificate(s), as may be reasonably required by Sellers'
attorneys or Purchaser's attorneys to authorize and effectuate
this transaction.
25
Exhibit 2.17
(d) originals or copies of all consents, approvals and authorizations
that are necessary under applicable law or the Contracts to be
obtained by the Sellers or the Company in connection with the
consummation of the transactions contemplated by this Agreement;
(e) the Closing Balance Sheet, certified by the Sellers as being true
and correct in all material respects as of the Closing Date; and
(f) such other documents relating to the Company as the Buyer may
reasonably request.
ARTICLE SIX
BROKER'S FEES
Each of Sellers and Purchaser represents and warrants to the other that no
broker or finder was engaged by, or has acted on behalf of Sellers, the Company
or Purchaser in connection with this Agreement or the transactions contemplated
hereby; and Sellers and Purchaser each agrees to indemnify and hold the other
harmless from and against any claim by any broker or finder, engaged by the
indemnifying party, claiming any fee, commission, compensation or other payment
or remuneration resulting from or arising out of the negotiation or execution of
this Agreement or the consummation of the transactions contemplated hereby.
ARTICLE SEVEN
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION; LIMITATION.
7.1 Representations Contained in Agreement. Each of the representations
and warranties made herein by either party shall survive the Closing, and
continue to be binding regardless of any investigations made at any time by any
party.
26
Exhibit 2.17
7.2 Indemnification. Sellers agree to indemnify in respect of, and hold
Purchaser and Purchaser's directors, officers, shareholders, agents and
affiliates harmless from and against, any and all damages, claims, deficiencies,
losses, and all expenses including interest, penalties, reasonable attorneys'
fees and disbursements (collectively, "Damages") arising from, in connection
with or based upon, resulting from or otherwise in respect of any
misrepresentation, breach of warranty, or breach, default or nonfulfillment or
failure to perform any covenant or agreement on the part of Sellers under this
Agreement and any Damages arising prior to Closing or arising out of the acts or
omissions of Sellers or Company prior to Closing.
ARTICLE EIGHT
POST-CLOSING OBLIGATIONS
8.1 Noncompetition; Acquisition of Additional Collection Agency.
(a) Noncompetition. The Parties hereto agree that the noncompetition
provisions contained in the Employment Agreements are binding upon
Xxxxx and Xxxxx hereunder and shall be controlling over any
provision to the contrary in the original and new Operating
Agreement.
(b) Competing Agency. During the period of Purchaser's ownership of
Interests in the Company, Purchaser shall not start another
collection agency that would compete with Company.
(c) Acquisition of Agency. Should Purchaser, subsequent to the Closing
Date, acquire another collection agency, Xxxxx and Xxxxx shall
each have the option to purchase an ownership interest in such
agency in an amount equal to their respective ownership in Company
as of the date of such acquisition. Xxxxx
27
Exhibit 2.17
and Xxxxx shall provide notice of their intent to acquire such
interest within thirty (30) days of their receipt of notice of the
option, and shall have a period of one hundred eighty (180) days
to arrange financing for their purchase. However, the foregoing
timeframes shall not delay or otherwise affect the timing of
Purchaser's acquisition.
8.2 Consents. To the extent that a change in control of the Company
triggers a consent requirement of or notice requirement to any third party with
respect to any of the Tangible Property Leases, Space Leases, or Contracts,
Sellers shall cooperate with the Company to obtain such consents or give such
notice, as the case may be, prior to Closing.
8.3 Officers and Employees. Without incurring any liability with
respect to the Company, the Company shall use its best efforts to cause all
officers and employees of the Company to remain with the Company after the
Closing Date.
ARTICLE NINE
OTHER MATTERS
9.1 Future Portfolio Acquisitions. Upon request by Xxxxx and Xxxxx, Purchaser
agrees to consider lending money to Company for purposes of debt portfolio
acquisition, company acquisition and other investments. Purchaser shall have no
obligation to lend any amount and shall have sole discretion as to the terms and
amount of any funds it chooses to lend, but agrees to consider such requests in
good faith.
9.2 Distribution of Company Earnings. The Company Operating Agreement shall
state that Xxxxx and Xxxxx shall determine when and if any distribution of
income or other assets of the Company shall occur, and that any such
distribution shall be made to all Members
28
Exhibit 2.17
according to their ownership Interest. Distribution of such amounts necessary
for each Member to satisfy minimum tax obligations shall occur on a quarterly
basis.
9.3 Collection Activities on Nelnet Alternative Loans. At Purchaser's
discretion, Purchaser may permit the Company to attempt collection activities on
alternative education loans owned by Purchaser. If such activities should be
authorized, placement of such loans shall occur at approximately one hundred
fifty (150) days of delinquency. Standards for the Company's performance
("Standards") and fees to the Company for its activities with respect to such
placements shall be negotiated between Company and Purchaser prior to the first
placement. Purchaser reserves the right to cease placements at any time and to
decline further placements should the Company fail to meet the Standards.
9.4 Assistance to Company. Purchaser will utilize reasonable efforts to
establish relationships for Company with guarantee agencies and educational
institutions with which Purchaser has existing relationships. The foregoing
shall include, but not be limited to, attempting to establish the Company as a
vendor to the Tennessee Student Assistance Corporation ("TSAC") for education
loans held by TSAC that have been in default status for more than four (4) years
without establishment of payment terms.
9.5 Company Business. So long as they collectively own (a) at least thirty-five
percent (35%) of the Interests, if the reduction in their Interests is due to
their exercise of the Put or (b) at least twenty percent (20%) of the Interests,
if the reduction in their Interests is due to Purchaser's exercise of the Call,
Xxxxx and Xxxxx shall be responsible for the day to day operations of the
Company Business, including employment decisions (other than with respect to
their own employment), operations decisions, and policy decisions. The Managing
Board of the
29
Exhibit 2.17
Company shall consist of four members and shall meet on at least a quarterly
basis. The Managing Board shall oversee the Company Business in compliance with
the Company's Operating Agreement and the Indiana Business Flexibility Act as
amended. The initial members of the Managing Board are: Xxxxxx Xxxxxx and Xxxxx
Xxxxx on behalf of Purchaser; Xxxxx and Xxxxx. Approval of the Managing Board
will be required for any expenditure in excess of two hundred fifty thousand
dollars ($250,000), and such approval shall require the affirmative vote of
three of the Managing Board members. The Managing Board meetings shall be held
in Indianapolis, Indiana unless otherwise agreed by unanimous vote of the
Managers. Should any member of the Managing Board be removed, resign or
otherwise cease to participate thereon, said member shall be replaced in the
following manner:
9.5.1 If the member represents Purchaser, the Purchaser shall
propose a replacement member, whose appointment shall be
approved by the majority of the Managing Board, such approval
not to be unreasonably withheld. For any period in which
Purchaser has only one member of the Managing Board said
member shall represent both of Purchaser's votes on the
Managing Board.
9.5.2 If Xxxxx or Xxxxx is removed, resigns or otherwise ceases to
participate, the other of Xxxxx or Xxxxx shall propose a
replacement member, whose appointment shall be approved by the
majority of the Managing Board, such approval not to be
unreasonably withheld. For any period in which only Xxxxx or
Xxxxx remains on the Managing Board with Purchaser's
representatives, said member shall represent two votes on the
Managing Board.
30
Exhibit 2.17
ARTICLE TEN
DISTRIBUTIONS, CASH ON HAND, RECEIVABLES
10.1 The Parties have agreed that for the ease and convenience of
this transaction, the Company and the Members that on the date
of closing, the Company will make distributions to current
members, Xxxxx, Xxxxx and Xxxxxx in an amount to leave no less
than $100,000.00 in the operating account of the Company on
the date of Closing, that any and all company receivables on
the date of closing will be placed in the Company Operating
Account, and that it is agreed and acknowledged that the
provisions of the current and new Operating Agreement which
require the Company to distribute at least a Member's tax
liability shall have been complied with.
ARTICLE ELEVEN
MISCELLANEOUS
11.1 Costs and Expenses. Sellers and Purchaser shall each bear their
own expenses incurred in connection with the negotiation, preparation, execution
and closing of this Agreement and the transactions contemplated hereby.
11.2 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if sent certified mail, return receipt
requested, or by United States Postal Service Overnight Mail, or by UPS or
FedEx, to the parties at their respective addresses first written above (or at
such other address for a party as shall be specified by like notice) with
31
Exhibit 2.17
simultaneous copies given in the same manner to the respective attorneys for the
parties as set forth below. Notices shall be deemed given three (3) business
days after the same (including the required copy thereof) are mailed by
certified mail, return receipt requested, and on the next business day if the
same are sent overnight as aforesaid.
If notice is given to any of the Sellers, a copy shall be sent to each
at the following addresses:
Premiere Credit of North America, LLC
0000 X. Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
0000 X. Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, XX 00000
Xxxx X. Xxxxx
0000 X. Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, XX 00000
If notice is given to Purchaser, a copy shall be sent to:
Xxxxxx Xxxxxx, Executive Director
0000 Xxxxxxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, XX 00000
and to:
Xxxxxx X. Xxxxxxxx, General Counsel
Nelnet, Inc.
0000 X. Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
11.3 Assignment and Amendment. This Agreement shall not be assignable
by any party and shall not be altered or otherwise amended except pursuant to a
writing executed by all of the parties hereto.
32
Exhibit 2.17
11.4 Severability. If any provision of this Agreement, or the
application of any such provision to any person or circumstance, shall be held
invalid by a court of competent jurisdiction, the remainder of this Agreement,
or the application of such provision to persons or circumstances other than
those as to which it is held invalid, shall not be affected thereby.
11.5 Publicity. No notices to third parties or other publicity,
including press releases, concerning any of the transactions provided for herein
shall be made by any party hereto unless planned, coordinated and agreed to by
the parties hereto, except to the extent otherwise required by law.
11.6 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
11.7 Governing Law. This Agreement shall be governed by and construed
in accordance with the domestic laws of the State of Indiana without giving
effect to any choice or conflict of law provision or rule (whether of the State
of Indiana or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Indiana. Any dispute with
respect hereto shall be litigated in the state and Federal Courts situated in
the state chosen by the party initiating such litigation.
11.8 Dispute Resolution. Notwithstanding section 11.7, the Members
agree that any dispute arising in connection with the interpretation of this
Agreement or the performance of any Member under this Agreement or otherwise
relating to this Agreement will be treated in accordance with the procedures set
forth in this Section, prior to the resort by any Member to arbitration or
litigation in connection with such dispute. The dispute will be referred for
resolution first to a designated representative of each Member. Such procedure
will be invoked
33
Exhibit 2.17
by a Member presenting to the other(s) a Notice of Request for Resolution of
Dispute (a "Notice") identifying the issues in dispute sought to be addressed
hereunder. A telephone or personal conference of those designees will be held
within ten (10) business days after delivery of the Notice. In the event that
the telephone or personal conference between these individuals does not take
place or does not resolve the dispute, either Member may refer the dispute to
binding arbitration pursuant to the arbitration provisions set forth below.
11.9 Arbitration. All claims or disputes between the Members arising
out of or relating to this Agreement will be decided by arbitration pursuant to
the Commercial Arbitration Rules of the American Arbitration Association
currently in effect and in accordance with Title 9 of the United States Code,
unless the Members mutually agree otherwise in writing. Notice of the demand for
arbitration must be filed in writing with the other Member or Members and must
be made within three business days after the meeting of designees set forth
above has concluded. All statutes of limitation, which would otherwise be
applicable in a judicial action brought by a Member, will apply to any
arbitration or reference proceeding hereunder. The arbitration will be decided
by a single arbitrators selected by the Members. If the Members cannot agree on
a single arbitrator each Member will select an arbitrator and those two
arbitrators will select a third arbitrator. Arbitration will be initiated in the
locale chosen by the party initiating the proceeding. Said arbitration will
occur within thirty (30) consecutive days after the Member demanding arbitration
delivers the written demand on the other Member(s) unless the Members mutually
agree otherwise in writing. The award rendered by the arbitrator(s) will be
final, and judgment may be entered upon it in accordance with applicable law in
any court having jurisdiction thereof. Except by written consent of the Members,
no arbitration arising out of or relating to
34
Exhibit 2.17
this Agreement may include, by consolidation, joinder or in any other manner,
any person or entity not a party to the Agreement under which such arbitration
arises. The arbitration agreement herein among the Members will be specifically
enforceable under applicable law in any court having jurisdiction thereof. No
Member will appeal such award nor seek review, modification, or vacation of such
award in any court or regulatory agency. The arbitrators will award to the
prevailing Member, if any, as determined by the arbitrators, all of its Costs
and Fees. "Costs and Fees" mean all reasonable pre-award expenses of the
arbitration, including the arbitrators' fees, administrative fees, travel
expenses, out-of-pocket expenses, such as copying and telephone, court costs,
witness fees and attorneys' fees.
11.10 Construction. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise
11.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute a single instrument. It shall not be necessary that
any counterpart be signed by all of the parties hereto. Facsimile signatures
hereto shall be deemed original signatures for all purposes.
11.12 Knowledge. For the purposes of this Agreement, the phrase (i) "to
Seller's knowledge" shall mean the actual knowledge, after due inquiry within
the Company, of any of
35
Exhibit 2.17
the Sellers or the Company's directors and executive officers, and (ii) "to
Buyer's knowledge" shall mean the actual knowledge, after due inquiry within the
Buyer, of any of the Buyer's executive officers.
11.13 Entire Agreement. This Agreement and the Exhibits and Schedules
identified herein set forth the entire understanding and agreement between the
parties and supersede and replace any prior understanding, agreement or
statement (written or oral) of intent. No provision of this Agreement shall be
construed to confer any rights or remedies on any person other than Sellers and
Purchaser.
36
Exhibit 2.17
11.14 Xxxxxx'x Agreements. Xxxx X. Xxxxxx hereby does waive any first
right of refusal and any other known or unknown rights contained in the
Company's current Operating Agreement that may be contradicted by this
Agreement, and Xxxx X. Xxxxxx does hereby agree with the manner and form of the
payment of the Purchase Price of Section 1.3 and the distribution of Capital
Contribution of Section 1.4 and the distribution and provisions of Section 10
and Xxxx X. Xxxxxx has no objections to and is in agreement with this entire
Agreement for Purchase of the LLC Membership Interest.
[remainder of page intentionally blank]
37
Exhibit 2.17
IN WITNESS WHEREOF, this Agreement has been executed and delivered as
of the date first written above.
Sellers: Premiere Credit of North America, LLC
By: /s/ Xxxx X. Xxxxx
------------------
Title: /s/ COO and President
---------------------
Xxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxx
------------------
Xxxx X. Xxxxx
/s/ Xxxx X. Xxxxx
------------------
Xxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxx
------------------
Purchaser: Nelnet, Inc.
By: /s/ Xxxxx Xxxxx
---------------
Xxxxx Xxxxx
Executive Director
38
Exhibit 2.17
Schedule of Membership Interest
Prior to Closing
Xxxxx X. Xxxxx 45.6%
Xxxx X. Xxxxx 46.5%
Xxxx X. Xxxxxx 7.9%
Schedule of Membership Interest
After Xxxxx Purchase of 1.9% of Xxxxxx'x Interest
Prior to Closing
Xxxxx X. Xxxxx 45.6%
Xxxx X. Xxxxx 48.4%
Xxxx X. Xxxxxx 6.0%
Schedule of Membership Interest
After Closing And After
Xxxxx X. Xxxxx 18.85%
Xxxx X. Xxxxx 25.15%
Xxxx X. Xxxxxx 6.0%
Nelnet, Inc. 50%
39
