ASSET PURCHASE AND SERVICE AGREEMENT
ASSET PURCHASE AGREEMENT dated as of July 15, 1997 by and between
XXXXXXX XXXXXX INC. (hereinafter "Seller"), a Virginia corporation, with its
principal office at 0000 Xxxxxx Xxxx, Xxxxxxxx Xxxxx, Xxxxxxxx and RESOURCE
BANK, (hereinafter "Purchaser"), a Virginia banking corporation, with its
principal office located at 0000 Xxxxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxx Xxxxx,
Xxxxxxxx.
WHEREAS, Seller owns and is the payee under certain promissory notes
that are more particularly described on Schedule 1 attached hereto (the
"Notes"); and
WHEREAS, Seller desires to sell and Purchaser desires to purchase said
Notes upon the terms, provisions and conditions hereinafter stated:
NOW, THEREFORE, in consideration of the premises, and the mutual
covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Price. The Seller agrees to sell, assign, convey, transfer, and
deliver and the Purchaser agrees to buy the Notes for the purchase price (the
"Purchase Price") of 100 percent (100%) of the outstanding balance, including
interest due under all Notes; subject, however, to the terms and conditions of
this Agreement or any other writing executed between the parties at any time
hereafter.
It is the expressed intent of the parties that this transaction is an
absolute sale of the Notes and is not the creation of a creditor-debtor
relationship between the Purchaser and the Seller. Seller shall have no right to
repurchase the Notes except as provided in paragraph 5 below. The Seller and the
Purchaser each shall xxxx their respective books and records to evidence this
transaction as an absolute sale of the Notes.
The above purchase price shall also include and be payment for all
franchise rights, account cards, records, forms, papers, chattel mortgages,
security agreements, finance statements, certificates of title, claims,
judgments, liens, and other forms of security held by Seller in connection with
the Notes sold hereunder.
2. Delivery.
2.1 Seller's Deliveries at Closing. Seller shall
deliver to Purchaser on or before the date hereof (the "Closing Date") the
following:
(a) each of the Notes duly endorsed to the
order of the Purchaser in the manner set forth on Exhibit A attached hereto;
(b) a fully executed Assigned of Notes in the
form of Exhibit B attached hereto; and
(c) written notifications addressed to each
obligor under any Note informing such obligor of the sale of the Note to the
Purchaser and directing each obligor to make payment on each Note in accordance
with the terms of this Agreement;
2.2 Purchaser's Deliveries at Closing.Purchaser shall
deliver to Seller on or before the Closing Date the Purchase Price.
3. Indemnification. Seller agrees to protect, defend, and indemnify
Purchaser and to hold it harmless from, against and with respect of any
liability, loss, deficiency, expense, including reasonable attorneys' fees,
other costs of litigation and collection, and those arising from the enforcement
of indemnification (of all of which are referred to hereafter collectively as
"Damages"), and agrees to pay or reimburse Purchaser on demand for all Damages
resulting, by reason of, caused by or incident to: (a) any and all claims
against and liabilities of Seller of every kind and nature, absolute, and
contingent arising from or in connection with the actions of Seller prior to the
Closing Date; (b) any untrue representation or breach of any representation or
warranty of Seller contained herein or in any exhibit, certificate or other
writing delivered to Purchaser pursuant to this Agreement and/or (c) any
nonfulfillment of any agreement or covenant of Seller contained herein. This
indemnification shall include, but not be limited to, Damages resulting from any
claim or legal proceeding which is commenced by or on behalf of one or more of
the real persons and/or corporations or other entities shown to be indebted
pursuant to any Note on the records of the Seller (such debtors shall be
referred to herein as "Obligors") for causes of action arising prior to the
Closing Date, and any governmental investigation or administrative proceeding
predicated upon acts or omissions committed prior to the Closing Date for which
the Seller or its predecessor in interest may be responsible. In any such event,
Seller shall be entitled to assume the defense of such action using an attorney
reasonable acceptable to Purchaser.
4. Payment of Certain Taxes. Seller shall be solely responsible for any
and all taxes, fees and other charges which shall become due (a) on account of
the operation and conduct of the business of Seller or (b) on account of the
acquisition, holding or administering of any of the Notes prior to the Closing
Date.
5. Recourse. It is understood and agreed that all Notes are assigned,
transferred and conveyed to Purchaser pursuant hereto with limited recourse as
provided in this paragraph. The Seller hereby guarantees to the Purchaser that
the Obligor of each and every Note shall promptly and fully pay and satisfy all
payments owing under the Note when and as the same become due and payable. In
addition to the foregoing, upon written request of Purchaser, Seller shall
within thirty (30) days of the receipt of such notice repurchase any Note at a
price of equal to the purchase price of such Note minus any amounts paid by the
Obligor on such Note after the Closing Date, in the event that than any of the
following (subject in all instances to any cure rights of the Obligor) shall be
accurate:
(a) the Purchaser is unable, after reasonable effort to do so,
but in no event greater than ten (10) days after the Closing Date, to verify the
Obligor's existence or residence at the place furnished by the Seller,
(b) any Obligor files bankruptcy, or
(c) the Obligor fails to make any payment due under
his Note within 30 days of the due date for such payment.
Except as provided in this paragraph 5, the Seller has no obligation to
repurchase the Notes. In no event does the Seller have the right to repurchase
the Notes, or any of the Notes.
6. Nonassumption of Seller's Liabilities. It is understood and hereby
covenanted by Seller that Purchaser will not assume, and shall not in any manner
become liable for, any debt, obligation, or liability of Seller by reason of
this transaction, the provisions hereof or the operation of law.
7. Survival of Representations and Warranties Remedies Cumulative. All
representations and warranties herein contained shall survive this Agreement.
All remedies of Purchaser herein shall be deemed to be cumulative and not
exclusive, and the exercise or enforcement of any one or more remedies shall not
preclude the exercise or enforcement of any other remedy or remedies.
8. Servicing Agreement.
8.1. Administration and Servicing of Notes. The Seller is
hereby authorized to act as agent for the Purchaser and in such capacity shall
manage, service, administer and make collections on the Notes and perform the
other actions required by the Seller under this Agreement. The Seller agrees
that its servicing of the Notes shall be carried out in accordance with Seller's
customary and usual collection procedures. The Seller's duties shall include,
without limitation, collection and posting of all payments, responding to
inquiries of Obligors on the Notes, investigating delinquencies, reporting any
required tax information to Obligors, monitoring the collateral, if any,
accounting for collections and furnishing monthly and annual statements to the
Purchaser. To the extent generally consistent with the standards, policies and
procedures otherwise required hereby, the Seller shall follow its customary
standards, policies, and procedures and shall have full power and authority,
acting alone, to do any and all things in connection with such managing,
servicing, administration and collection that it may deem necessary or
desirable. Without limiting the generality of the foregoing, the Seller is
hereby authorized and empowered by the Purchaser to execute and deliver, on
behalf of the Purchaser, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the Notes; provided, however, that
notwithstanding the foregoing, the Seller shall not, except pursuant to an order
from a court of competent jurisdiction, release an Obligor from payment of any
unpaid amount under any Note or waive the right to collect the unpaid balance of
any Note from the Obligor. The Seller is hereby authorized to commence, in its
own name or in the name of the Purchaser (provided the Seller has obtained the
Purchaser's consent, which consent shall not be unreasonably withheld), a legal
proceeding to enforce a Note or to commence or participate in any other legal
proceeding (including, without limitation, a bankruptcy proceeding) relating to
or involving a Note or an Obligor. If the Seller commences or participates in
such a legal proceeding in its own name, the Purchaser shall thereupon be deemed
to have automatically assigned such Note to the Seller solely for purposes of
commencing or participating in any such proceeding as a party or claimant, and
the Seller is authorized and empowered by the Purchaser to execute and deliver
in the Seller's name any notices, demands, claims, complaints, responses,
affidavits or other documents or instruments in connection with any such
proceeding. The Purchaser shall furnish the Seller with any powers of attorney
and other documents which the Seller may reasonably request and which the Seller
deems necessary or appropriate and take any other steps which the Seller may
deem necessary or appropriate to enable the Seller to carry out its servicing
and administrative duties under this Agreement.
8.2. Collection of Note Payments: Modifications of Notes.
(a) Consistent with the standards, policies
and procedures required by this Agreement, the Seller shall make reasonable
efforts to collect all payments called for under the terms and provisions of the
Notes as and when the same shall become due, and shall follow such collection
procedures as it follows with respect to all comparable Notes that it services
for itself and otherwise act with respect to the Notes, in such manner as will,
in the reasonable judgment of the Seller, maximize the amount to be received by
the Purchaser with respect thereto.
(b) The Seller may not at any time agree to a
modification or amendment of any Note without having first obtained the
express written consent of the Purchaser which consent may be withheld in its
sole discretion.
(c) The Seller shall remit all payments by or
on behalf of the Obligors received by the Seller to the account maintained by
the Purchaser for deposit of such payments (the "Collection Account") without
deposit into any intervening account and as soon as practicable, but in no event
later than the Business Day after receipt thereof.
(d) If the Seller elects to commence a legal
proceeding to enforce the holders rights under any Note, the act of
commencement shall be deemed to be an automatic assignment from the Purchaser to
the Seller of the rights under such Note on the grounds that it is not a real
party in interest or a Person entitled to enforce the Note, the Purchaser, at
the Purchaser expense, shall take such steps as the Seller deems necessary to
enforce the Note.
8.3. Servicing Fee: Payment of Certain Expenses by Seller.
On April 15, of each year (each "Payment Date"), the Seller shall be entitled to
receive out of the Collection Account a service fee equal to two percent 2% of
all amounts collected on all Notes since the prior year's Payment Date. The
Seller shall be required to pay all expenses incurred by it in connection with
its activities under this Agreement (including taxes imposed on the Seller,
expenses incurred in connection with distributions and reports made by the
Seller to Purchaser and all other fees and expenses of the Purchaser, except
taxes levied or assessed against the Purchaser, and claims against the Purchaser
in respect of indemnification, which taxes and claims in respect of
indemnification against the Purchaser are expressly stated to be for the account
of Seller).
8.4. Retention and Termination of Seller. The Seller
hereby covenants and agrees to act as such under this Agreement until Seller's
receipt of written notification from the Purchaser that Seller's obligations
pursuant to this paragraph 8 have been terminated.
9. Representations and Warranties of Seller. The Seller
represents, warrants and covenants as of the Closing Date as to itself:
(a) Organization and Good Standing. The Seller has been duly
organized and is validly existing and in good standing under the laws of its
jurisdiction of organization, with power, authority and legal right to own its
properties and to conduct its business as such properties are currently owned
and such business is currently conducted, and had at all relevant times, and now
has, power, authority and legal right to enter into and perform its obligations
under this Agreement;
(b) Due Qualification. The Seller is duly qualified to do
business as a foreign corporation in good standing and has obtained all
necessary licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business (including the servicing of the
Notes as required by this Agreement) requires or shall require such
qualification;
(c) Power and Authority. The Seller has the power and
authority to execute and deliver this Agreement and to carry out its terms and
the execution, delivery and performance of this Agreement have been duly
authorized by the Seller by all necessary corporate action;
(d) Binding Obligation. The provisions of this Agreement
shall constitute legal, valid and binding obligations of the Seller enforceable
in accordance with their respective terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies, regardless of whether such
enforceability is considered in a proceeding in equity or at law;
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms of this
Agreement shall not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time) a default
under, the articles of incorporation or bylaws of the Seller, or any indenture,
agreement, mortgage, deed of trust or other instrument to which the Seller is a
party or by which it or its properties are bound, or result in the creation or
imposition of any lien upon any of its properties pursuant to the terms of any
such indenture, agreement, mortgage, deed of trust or other instrument, other
than this Agreement, or, to the best of Seller's knowledge, violate any law,
order, rule or regulation applicable to the Seller of any court or of any
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or any of its properties;
(f) No Proceedings. There are no proceedings or
investigations pending or, to the best of the Seller's knowledge, threatened
against the Seller, before any court, regulatory body, administrative agency or
other tribunal or governmental instrumentality having jurisdiction over the
Seller or its properties (A) asserting the invalidity of this Agreement, (B)
seeking to prevent the sale of the Notes or the consummation of any of the
transactions contemplated by this Agreement, or (C) seeking any determination or
ruling that might materially and adversely affect the performance by the Seller
of its obligations under, or the validity or enforceability of, this Agreement
or (D) seeking to adversely affect the federal income tax or other federal,
state or local tax attributes of the Notes; and
(g) No Consents. The Seller is not required to obtain the
consent of any other party or any consent, license, approval or authorization,
or registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity or
enforceability of this Agreement which has not already been obtained.
(h) Ownership of Notes. Seller owns outright and has full
and complete title to all of the Notes, free and clear of all claims, liens,
pledges and other encumbrances of any kind whatsoever.
(i) No Bankruptcies. There are no bankruptcies, filed or
pending, in connection with the Notes of which Purchaser has been advised in
writing.
(j) Validity of Notes. All of the Notes, together with any
security instruments securing the same, were made for full and valuable
consideration and also all Notes, now constitute valid and enforceable
obligations and indebtedness of the respective real persons and/or corporations
or other entities shown to be indebted in respect thereof on the records of the
Seller. The amounts shown on Schedule 1 to be owing and unpaid on the respective
Notes represent the true and correct gross amounts owing and unpaid thereon at
the close of business on July 14, 1997.
(k) No Known Defenses. There are no known defenses with
respect to the Notes such as set-offs, usury, unrecorded credits, counterclaims,
lack of consideration, fraud, violations of Truth-in-Lending or other Federal or
State laws pertaining to the Notes, forgery, alterations, or undisclosed
agreements with Obligors or with third-parties. All payments credited upon said
Notes were paid by the Obligors.
(l) Accuracy of Book and Records. The ledger cards and
other books, records and documents relating to the Notes fairly, accurately, and
completely set forth the names and last known addresses of all the respective
Obligor, the terms of the Notes, the amounts initially outstanding thereon.
10. Miscellaneous.
10.1 Authority to Execute and Deliver. The person or
persons executing this instrument hereby represent(s) and warrant(s) that he,
she or they are the duly authorized officer(s), representative(s) or agent(s) of
the Seller, and that he, she or they have the power and authority to execute and
deliver this instrument on behalf of Seller.
10.2 Brokers. The parties respectively represent and
warrant that they have not employed or utilized the services of any brokers in
connection with this Agreement or the transactions contemplated hereby. Each
party agrees to indemnify and save the other harmless from and against the
claims of any broker claiming to have acted on behalf of such party.
10.3 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been received on the
earlier of its receipt in fact or five (5) days after its being mailed, regular
mail or Certified Mail, Return Receipt Requested, postage paid, to the parties
at the following addresses (or at such other address as may be specified by
notice given pursuant hereto):
(a) If to Purchaser:
Resource Bank
0000 Xxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, Xxxxxxxx 00000
Attn: President
(b) If to Seller:
Xxxxxxx Xxxxxx Inc.
0000 Xxxxxx Xxxx
Xxxxxxxx Xxxxx, Xxxxxxxx 00000
Attn: President
10.4 Headings. The headings in this Agreement and the
Schedules hereto are intended solely for convenience of reference and shall be
given no effect in the construction or interpretation of this Agreement.
10.5 Waivers. No waiver of any provision hereof, in part
or in whole, shall be effective unless particularly stated in a writing
addressed and delivered to the other party and duly signed on behalf of the
party against whom the waiver is sought to be enforced. Any waiver so granted
shall apply solely to the event occasioning the necessity for a waiver and with
respect only to the provision or provisions hereof applicable thereto, but shall
not apply to any other events or to reoccurrence of the same or similar event
nor to any other provisions hereof.
10.6 Applicable Law. This Agreement shall be controlled,
construed and enforced in accordance with the laws of the Commonwealth of
Virginia, it being agreed that the courts of that state shall have jurisdiction
over the parties hereto and this Agreement in addition to such other courts as
may have such jurisdiction.
10.7 Entire Agreement. This Agreement represents the
entire agreement and understanding of the parties, superseding any and all
representations, understandings or agreements with respect to the transaction
herein contemplated if not set forth herein, and no modification hereof or
additions hereto have been agreed to, or will be binding upon any party or its
successors or assigns, unless specifically set forth in writing in a document
executed by the party against whom the modification of addition is sought to be
enforced.
10.8 Binding Agreement; Assignment. This Agreement shall
be binding upon the parties hereto and their successors and assigns; provided,
however, no assignment hereof shall excuse, release or constitute a waiver of
any duty or obligation the assignor may have to the other party hereunder unless
excused, released or a waiver is granted in writing by the other party upon the
assignee's written assumption of all of the assignor's duties and obligations
hereunder.
10.9 Attorney Fees. In the event of the institution of
legal proceedings based upon breach of any of the terms or conditions of this
Agreement by either party hereto, the prevailing party shall be entitled to
reimbursement for reasonable attorney fees, court costs and other expenses
incurred in connection therewith.
10.10 Offset. Seller further agrees that any future monies
owed to Seller by Purchaser can be used to offset any monies owed by Seller to
Purchaser under this agreement.
IN WITNESS WHEREOF, this Agreement has been executed and delivered on
behalf of the parties hereto by their duly authorized officers or authorized
representatives, all as of the date first above written.
RESOURCE BANK (Purchaser)
By: /s/ RESOURCE BANK
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Title:
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XXXXXXX XXXXXX INC. (Seller)
By: /s/ XXXXXXX XXXXXX
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Title:
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EXHIBIT A
Each Note shall be stamped and executed as follows:
PAY TO THE ORDER OF RESOURCE BANK WITH LIMITED RECOURSE PURSUANT TO PARAGRAGH
FIVE OF THAT CERTAIN ASSET PURCHASE AGREEMENT DATED JULY 15, 1997, BY AND AMONG
RESOURCE BANK AND XXXXXXX XXXXXX INC.
XXXXXXX XXXXXX INC.,
a Virginia corporation
By:
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Its:
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EXHIBIT B
ASSIGNMENT OF NOTES
THIS ASSIGNMENT OF NOTES ("Assignment") is made as of July 15, 1997 by
and between XXXXXXX-XXXXXX, INC., a Virginia corporation and RESOURCE BANK, a
Virginia banking corporation ("Assignee").
Recitals:
A. The Assignor and the Assignee simultaneously have entered into
an Asset Purchase and Sale Agreement dated July 15, 1997 ("Purchase Agreement").
B. The Purchase Agreement provides for the sale and transfer by
the Assignor to the Assignee of the Notes (this term and all other capitalized
terms used, and not otherwise defined, in this Assignment have the definitions
ascribed to them in the Purchase Agreement). The Notes are more particularly
listed and described on Schedule 1 which is attached.
Agreement:
For and in consideration of the promises and agreements contained in
this Assignment and in the Purchase Agreement and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, the
Assignor irrevocably sells, transfers, assigns, grants and conveys to the
Assignee all of the Assignor's right, title and interest in, to and under the
Notes, with limited recourse, pursuant to paragraph five of the Purchase
Agreement.
Dated: July 15, 1997
XXXXXXX XXXXXX INC.
By:
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Its:
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STATE OF
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CITY/COUNTY OF , to-wit:
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The foregoing instrument as acknowledged before me in the City/County
of State of
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this day of , 1997, by
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of XXXXXXX-XXXXXX, INC., on its behalf.
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Notary Public
(SEAL)
My commission expires:
