AGREEMENT
AGREEMENT, dated as of and effective July 1, 1996 by and between
GALLERY RODEO INTERNATIONAL (the "Seller"), and MICROTECH MEDICAL
SYSTEMS, INC., and assigns (the "Purchaser")
WHEREAS: the Seller is the owner and holder of a Promissory Note
(the "Note") dated July 14, 1995 in the amount of Five Hundred
Thousand and No/100 ($500,000.00) Dollars secured by a Deed of
Trust (the "Deed of Trust") of even date encumbering the real
property described in Exhibit A hereto made a part hereof by
reference;
AND WHEREAS: Purchaser desires to acquire and Seller desires to
sell said Note and Deed of Trust in exchange for the payment of
Four Hundred Fifty Thousand and No/100 ($450,000.00) Dollars
NOW THEREFORE, IT IS AGREED THAT:
1. Sale. At the closing, the Seller shall sell its one
hundred percent (100%) interest in the Note and second Deed of
Trust, copies of which are attached hereto as Exhibits B and C
and made a part hereof by reference, and the Purchaser shall buy
said interest free and clear of all liens, claims and
encumbrances.
2. Consideration. Purchaser and Seller agree the
consideration for said Note and Deed of Trust shall be as
follows:
2.1 Four Hundred Fifty Thousand and No/100
($450,000.00) Dollars, of which Two Hundred Thousand and
No/100 ($200,0000.00) Dollars shall be paid to Seller upon
execution of this agreements down payment and the remainder
of which shall be paid to Seller in cash or certified funds
at closing.
3. Closing.
3.1 The following shall be accomplished at closing:
3.1.1 The Seller shall sell and transfer the Note
in the face amount of Five Hundred Thousand
($500,000.00) Dollars and second Deed of Trust as set
forth above which is owned or beneficially controlled
by Seller and the Purchaser of said Note and Deed of
Trust and shall deliver to Seller an executed
assignment of the Note and Deed of Trust in standard
form.
3.1.2 Seller and Purchaser shall execute other
necessary documentation to accomplish the purposes set
forth herein at closing.
3.2 Closing shall be the 3rd day of July, 1996, at ▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, at 11:00 A.M.
4. Representations, Warranties and Covenants of Both
Parties.
4.1 Representations, Warranties and Covenants of the
Seller.
The Seller covenants, warrants, and represents as follows:
4.1.1 The Seller will convey to the Purchaser at
the closing good and marketable title to said Note and
Deed of Trust. The Seller owns the Note and Deed of
Trust free and clear of all liens, encumbrances and
charges. The Seller presently has such title.
(a) The Seller is currently in full
compliance with all Covenants, Conditions and
Agreements set forth in the Deed of Trust and
further, Covenants and Represents that this
Agreement does not violate any such Agreements or
Warranties of Seller with Owners of the within
described property or others.
4.1.2 Copies of the Seller's Note and Deed of
Trust, including all amendments thereto, have been
delivered to the Purchaser, and such copies are true,
complete and correct in every particular.
4.1.3 The Seller has the power to enter into this
agreement and to carry out its obligations hereunder.
No court or other proceedings are necessary to
authorize the consummation of this agreement and the
transactions contemplated hereby. This agreement has
been duly executed and delivered by the Seller, and
constitutes a valid and binding obligation of the
Seller. The execution and performance of this
agreement by the Seller does not violate, or result in
a breach of, or constitute a default under any
judgment, order or decree to which he may be subject.
Neither the execution and delivery of this agreement,
nor the consummation of the transaction contemplated
hereby, nor compliance with the terms and provisions
hereof, will result in the creation or imposition of
any lien, charge or encumbrance upon any of the
Seller's assets pursuant to the terms of, or conflict
in any way with the provision of, or constitute a
default under, or require the consent of any other
party to, any indenture, mortgage, deed of trust,
agreement, lease or other instrument to which the
Seller is a party or by which he may be bound, or to
which he may be subject.
4.1.4 The Seller has not become in any way
obligated for any broker's, finder's, agent's or
similar fee with respect to the transactions
contemplated by this agreement other than to its
accountants and attorneys.
4.1.5 No representation or warranty of the Seller
made in this Agreement, nor in any document,
certificate, or schedule required to be furnished
pursuant to this agreement, contains or will contain
any untrue statement of a material fact, and copies of
any documents furnished to the Purchaser will be true
and correct copies of such documents.
4.1.6 The Seller does not have any knowledge of
any claim, litigation, threatened litigation or any
other action which has been instituted or threatened
affecting its ability to perform its obligations under
this agreement.
4.1.7 All of the foregoing representations and
warranties will be true on and as of the closing date.
4.2 REPRESENTATIONS and WARRANTIES of the Purchaser.
The Purchaser represents and warrants as follows:
4.2.1 It is a corporation duly organized and
validly existing and in good standing under laws of the
State of its incorporation.
4.2.2 It has the corporate power to enter into
this agreement and to carry out its obligations
hereunder. The execution and delivery of this
agreement and the consummation of the transactions
contemplated have been duly authorized by its board of
director; no other corporate proceedings are necessary
to authorize its officers to effectuate this agreement
and the transactions contemplated thereby. This
agreement has been duly executed and delivered by it,
and constitutes a valid obligation binding on it. The
execution and performance of this agreement by it does
not violate, or result in a breach of, or constitute a
default under, any judgement, order or decree to which
it may be subject, nor does such making or performance
constitute a violation of or conflict with any
provision of its charter or by-laws.
4.2.3 It has not employed any broker, finder or
agent, nor has it otherwise become in any way obligated
for any broker's, finder's, agent's or similar fee with
respect to the transactions contemplated by this
agreement.
4.2.4 The execution and carrying out of this
agreement and compliance with the provisions hereof by
it will not violate, with or without giving notice
and/or the passage of time, any provisions of law
applicable to it.
4.2.5 The Purchaser does not have any knowledge
of any claim, litigation, threatened litigation or any
other action which has been instituted or threatened
affecting its ability to perform its obligations under
this agreement.
4.2.6 All of the foregoing representations and
warranties will be true on and as of the closing date.
5. INDEMNIFICATION.
5.1 Nothing herein to the contrary withstanding, the
Seller's obligations under this agreement for breach of
promise, misrepresentation, breach of warranty or
nonfulfillment of any obligation or agreement, negligence,
promissory estoppel, detrimental reliance or any other
action which arises out of the transactions herein
contemplated shall be only as follows:
5.1.1 any and all damage, loss, deficiency, costs
or expenses resulting from any other misrepresentation,
breach of warranty or non-fulfillment of any obligation
or agreement on the Seller's part under this Agreement,
including without limitation any and all actions,
suits, proceedings, judgements and reasonable legal and
other expenses incident to the foregoing.
5.1.2 Said notice shall be to the Seller of any
claim or litigation the existence of which gives rise
to the operation of the foregoing indemnity, and Seller
shall have the power to investigate and defend such
claim at his expense with power to settle such claim,
unless the amount claimed and the reasonably estimated
expenses of defense exceed the amount set forth in
5.1.1 above.
5.1.3 If the Seller fails to defend, the
Purchaser may defend such claim with power to settle
and the Seller shall pay the costs and expenses thereof
and the amount of any settlement or judgment up to the
amount set forth Section 4.1 above; provided however,
that in any case, no settlement shall bind the Seller
to pay any amount which is not first approved in
writing by the Seller.
5.1.4 If the amount claimed and the reasonably
estimated expenses of defense exceed the amount set
forth in Section 5.1.1 above then either (1) the Seller
may defend (and assume the entire risk of the
settlement or judgement and costs of defending the same
(whether or not they exceed the amount set forth in
Section 5.1.1 above) or (2) the Seller may notify the
Purchaser (within 10 days of receiving written notice
of the claim from the Purchaser) that the Purchaser is
to defend such claim with power to settle and the
Seller shall pay the costs and expenses thereof and the
amount of any settlement or judgment (but the total
liability of the Seller shall not be in excess of the
amount se forth in Section 5.1.1 above).
5.2 Whether or not the transactions herein contemplated
shall be consummated, the Purchaser will pay the fees,
expenses and disbursements of the Purchaser and its agents,
representatives, accountants and counsel incurred in
connection with the subject matter of this agreement and any
amendments thereto, and the Seller will pay such fees,
expenses and disbursements of the Seller and its agents,
representatives, accountants and counsel (if not otherwise
accrued).
6. Termination. This agreement may be terminated by the
Purchaser under any of the following circumstances by notice in
writing if during the period from the date hereof to the closing
date any of the following shall occur:
6.1 The Purchaser shall learn of any fact or condition
with respect to the Seller's Note and Deed of Trust which is
substantially at variance with one or more of the
representations or warranties as set forth above or with
other written information provided to the Purchaser by the
Seller, and after written notice thereof the Seller shall be
unable to furnish reasonable assurance satisfactory to the
Purchaser.
6.2 The Seller shall commit a substantial breach of
any one or more of the obligations or prohibitions set forth
in Section 1 of this agreement and shall be unable to
furnish reasonable assurance satisfactory to the Purchaser.
6.3 On the occurrence of any of the events specified
in Sections 4.1.1 to 4.1.6 above, the parties may agree upon
an amount by which the consideration shall be reduced on
account of such event, in which case the Purchaser shall
not terminate this Agreement and the consideration shall be
so reduced.
7. After the Closing. Subsequent to the closing:
7.1 Each party to this agreement shall at the request
of any other furnish, execute and deliver such documents,
instruments, opinions of counsel, certificates, notices or
other further assurances as counsel of the requesting party
shall reasonably deem necessary or desirable for effecting
complete consummation of this agreement.
8. Miscellaneous.
8.1 Each and every one of the representations,
warranties, covenants and agreements made herein by any
party (including any statements made in the Disclosure
Schedules and in any certificates, schedules, exhibits,
instruments or documents furnished pursuant to or
concurrently with this Agreement), shall survive the closing
and the consummation of the transactions contemplated by
this Agreement, notwithstanding any investigation heretofore
or hereafter made by the parties hereto.
8.2 All notices, approvals or other communications to
be sent or given to the Seller shall be deemed validly and
properly given or made if in writing and delivered by hand
or registered or certified mail, return receipt requested,
and addressed to [name and address], with a copy to [name
and address].
8.3 All notices, approvals or other communications to
be sent or given to the Purchaser shall be deemed validly
and properly given or made if in writing and delivered by
hand or registered or certified mail, return receipt
requested, and addressed to [name and address], with a copy
to [name and address].
8.4 Any of the parties hereto may give notice to the
others at any time by the methods specified above of a
change in the address at which, or the person to whom,
notices addressed to it are to be delivered in the future.
8.5 This agreement, together with the Note and Deed of
Trust and other documents delivered pursuant hereto,
constitutes the entire agreement among the parties hereto
and supersedes all prior correspondence, conversations and
negotiations. This agreement shall be binding upon and inure
to the benefit of the successors and assigns of the parties.
The title of the Sections of this agreement have been
assigned thereto for convenience only and shall not be
construed as limiting, defining or affecting the substantive
terms of the agreement.
8.6 The parties agree, upon the request of any other
party, to execute any agreements, documents or instruments
consistent with this agreement which are necessary to
consummate the transactions contemplated in this agreement.
8.7 This agreement may be executed in any number of
counterparts, each of which shall be taken to be an
original.
8.8 No modification of this agreement shall be valid
unless such modification is in writing and signed by all of
the parties to this agreement.
8.9 No waiver of any provision of this agreement shall
be valid unless in writing and signed by the person or party
against whom charged.
8.10 The invalidity or unenforceability of any
particular provision of this agreement shall not affect the
other provisions of this agreement, and this agreement shall
be construed as if such invalid or unenforceable provision
was omitted. All parties hereto having participated
actively in the negotiation and drafting of this agreement,
and each party having been represented by counsel, the terms
of this agreement shall not be construed against, nor more
favorably to, any party, regardless of their responsibility
for its preparation.
8.11 This agreement shall be binding upon and inure to
the benefit of the parties and their respective heirs, legal
representatives, executors, administrators successors and
assigns.
8.12 Whenever in this agreement words, including
pronouns, are used in the masculine, they shall be read and
construed in the feminine or neuter wherever they would so
apply, and wherever in this agreement words, including
pronouns, are used in the singular, they shall be read and
construed in the plural, wherever they would so apply.
8.13 This agreement shall be subject to and governed
by the laws of the State of Colorado, including its choice
of laws, irrespective of the residence of the parties.
Seller:
GALLERY RODEO INTERNATIONAL
BY:__________________________________
Its:__________________________________
Purchaser:
MICROTECH MEDICAL SYSTEMS, INC.
BY:__________________________________
Its:__________________________________
NOTE: Original Promissory Note and Deed of Trust are attached here.