Exhibit 99.1
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MERCHANT ASSET PURCHASE AGREEMENT
THIS MERCHANT ASSET PURCHASE AGREEMENT (this "Agreement") is made and
entered into as of this 26th day of November, 2002, to be effective as of the
Effective Date (as defined below) by and among CAMDEN NATIONAL BANK, a national
banking association ("Camden"), UNITEDKINGFIELD BANK, a Maine financial
institution ("United"; Camden and United are sometimes each individually
referred to herein as a "Bank" and collectively as the "Banks"), CAMDEN NATIONAL
CORPORATION, a Maine bank holding company and the sole shareholder of each Bank
("Parent"), and NOVA INFORMATION SYSTEMS, INC., a Georgia corporation ("NOVA").
BACKGROUND AND PURPOSE:
A. The Banks are a party to certain Merchant Agreements with various
Merchants, who consist principally of merchants and other providers of goods and
services, according to which agreements each Bank has agreed to provide certain
Credit Card- and Debit Card-related services in connection with such Bank's
Merchant Business.
B. The Banks wish to sell and transfer to NOVA all of their rights under
the Merchant Agreements, and the Banks wish to sell and transfer to NOVA certain
other assets utilized in connection with the Merchant Business, and NOVA is
willing to accept such rights and assets and to assume certain obligations in
connection with the Merchant Business. The parties hereto are willing and able,
additionally, to undertake and perform certain other obligations pursuant to and
in connection with this Agreement, subject to the terms and conditions hereof.
THE AGREEMENT
NOW, THEREFORE, in consideration of the premises, the mutual agreements
contained in this Agreement and other good and valuable consideration, the
receipt and sufficiency of which hereby are acknowledged, the Banks, Parent and
NOVA hereby agree, on the terms and conditions herein set forth, as follows:
The capitalized terms used herein shall have the meaning ascribed to such
terms in Section 12.1 hereof unless otherwise defined in this Agreement.
ARTICLE I
ASSETS SOLD; ASSUMPTION OF LIABILITIES
1.1 Sale and Purchase. On the terms and subject to the conditions set forth
in this Agreement, and effective as of November 1, 2002 (the "Effective Date"),
the Banks hereby sell, transfer and assign to NOVA, and NOVA hereby purchases
and accepts from the Banks, all right, title and interest of each Bank in all of
such Bank's assets and interests, both tangible and intangible, accrued or
contingent, used, useful or arising in the conduct of the Banks' Merchant
Business, directly or indirectly, in existence on the date hereof and on and
after the Effective
Date (other than the Excluded Assets), including the following properties and
assets (collectively, the "Assets Sold"):
(a) all rights and interests of each Bank in and to the Merchants
(under the Merchant Agreements or otherwise relating to the Merchant
Business) and the Agent Bank Agreements arising on or after the Effective
Date, and all pertinent books, records and documents relating to such
Merchant Agreements and Agent Bank Agreements (as further specified in
Section 1.5 hereof);
(b) the Equipment (and any rentals and leases related thereto) and
related revenues accruing on or after the Effective Date;
(c) the Inventory;
(d) all rights and interests of each Bank with respect to any reserve
accounts established and maintained with either Bank by Merchants or Agent
Banks in connection with the Merchant Business;
(e) all rights and interests under any guaranties executed in
connection with the Merchant Agreements or the Agent Bank Agreements;
(f) all rights and interests of either Bank with respect to any other
third party contract listed related to the Merchant Business and listed on
Schedule 1.1(b) (the "Other Assumed Contracts");
(g) all claims and causes of action of each Bank or of Parent, whether
known or unknown, relating to the Merchant Business; and
(h) the goodwill, intangible assets and value of the Merchant Business
as a going concern, to the extent any such value exists.
1.2 Transfer and Assumption of Assets Sold and Assumed Liabilities.
Effective as of the Effective Date, NOVA shall by written instrument in the form
of Exhibit 1.2 attached hereto (the "Assignment and Assumption Agreement")
acquire title to the Assets Sold and assume and agree to pay and discharge when
due the Assumed Liabilities. In addition to the Assignment and Assumption
Agreement, the sale, conveyance, transfer, assignment and delivery of the Assets
Sold by the Banks to NOVA shall be effected by such deeds, bills of sale,
endorsements, assignments, transfers and other instruments of transfer and
conveyance in such form, including releases of security interests and other
encumbrances (collectively, "Transfer Documents"), as NOVA may reasonably
request, including such Transfer Documents as NOVA may reasonably request at and
after the Transition Date.
1.3 Liabilities. It is understood and agreed that, except to the extent any
of the following constitute Assumed Liabilities, NOVA shall not assume or become
liable for the payment of any debts, liabilities, losses, Credit Losses,
charge-backs, accounts payable, bank indebtedness, mortgages, or other
obligations of either Bank or any Merchant or any Agent Bank, whether the same
are known or unknown, now existing or hereafter arising, of whatever nature or
character, whether absolute or contingent, liquidated or disputed.
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1.4 Consent and Assignment.
(a) Each Bank, in cooperation with NOVA, from and after the date
hereof and during the Transition Period, shall use commercially reasonable
efforts to obtain, in such manner and to such extent as NOVA may reasonably
specify, (i) the agreement of the Merchants to the continuation of business
with NOVA under the Merchant Agreements and the agreements of the Agent
Banks to the continuation of business with NOVA under the Agent Bank
Agreements, all as contemplated by this Agreement, (ii) the consent of the
Merchants to NOVA's conversion of such Merchants to such clearing bank and
merchant accounting system as NOVA may specify, and (iii) the consent of
the Merchants to NOVA's conversion of such Merchants to NOVA's network, all
on such terms as are satisfactory to NOVA.
(b) Without limiting the generality of the foregoing, promptly
following the Closing and at NOVA's expense, the Banks shall cause to be
delivered to each of the Merchants a notice, in a form specified by NOVA
and approved by the Banks, of the assignment by such Bank, effective as of
the Effective Date, of all rights in and to said Merchant Agreements to
NOVA. In NOVA's discretion, such notice may inform each Merchant of NOVA's
intention to convert the Merchant to NOVA's network, as well as to a
clearing bank and merchant accounting system designated by NOVA.
1.5 Books and Records.
(a) As soon after the Closing Date as is practicable, and in no event
later than the conclusion of the Transition Period, the Banks shall cause
to be delivered to NOVA the originals (to the extent possessed by the
Banks, and if the Banks do not possess originals, copies) of all Merchant
Agreements, Agent Bank Agreements and ISO Agreements, and copies of all
other books, records and documents of the Banks relating to the Assets
Sold; provided, however, that in no event shall such books, records and
documents include corporate books or records involving operations other
than the Merchant Business, and further provided that the Banks may retain
the originals or copies of such documents other than the Merchant
Agreements as may be reasonably necessary to the Banks' business. In
addition, the Banks shall, at their expense, provide or cause to be
provided to NOVA all information related to the Merchant Business that is
in intangible (i.e., computer-related) form, including information
necessary or desirable for the transfer of clearing bank responsibilities
contemplated by Section 3.5(b) (for example, a Merchant Master File Dump in
ASCII format). In each case, however, the books and records relating to the
Assets Sold for the period prior to the Closing Date, wherever located,
that are held by a party hereto or under the control of a party hereto (the
"Inspected Party") shall be open for inspection by the other party, and
such other party's authorized agents and representatives and regulators
may, at such other party's own expense, make such copies of any excerpts
from such books, records and documents as it shall reasonably deem
necessary; provided, however, that any such inspection: (i) shall be
conducted during normal business hours from time to time reasonably
established by the Inspected Party; (ii) shall, if the Inspected Party so
requests, be conducted in the presence of an officer or designated
representative of the Inspected Party; and (iii) shall be conducted in
accordance with reasonable security programs and
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procedures from time to time established by the Inspected Party, including
such confidentiality agreements as the Inspected Party may reasonably
request.
(b) All books and records relating to the Assets Sold shall be
maintained by NOVA, or the Banks, as the case may be, for a period of three
(3) years after the Closing Date, unless the parties shall, applicable law
permitting, agree upon a shorter period; provided, however, that in the
event that, as of the end of such period, any taxable year of NOVA or any
Bank is still under examination or open for examination by any taxing
authority and that party has given notice of that fact to the other party,
such books and records shall be maintained (or, alternatively, delivered by
the Inspected Party to the other party) until the date, determined
reasonably and in good faith, specified for maintenance of such records in
such notice. Prior to the destruction of any books and records relating to
the Assets Sold, the party in possession of such books and records shall
offer them to the other party hereto. Pursuant to the above, the Banks
specifically agree to make available to NOVA, and promptly deliver to NOVA
at NOVA's request, any historical records of Merchant sales and monthly
statements that are in either Bank's possession or under either Bank's
control.
ARTICLE II
CONSIDERATION FOR ASSETS SOLD; CLOSING
2.1 Purchase Price. As consideration for the Assets Sold, NOVA shall pay an
aggregate purchase price of One Million Two Hundred Fifty-One Thousand Seventy
Dollars and Twenty-Five Cents ($1,251,070.25) (of which amount $1,070.25
represents interest paid to the Bank for the period between the Effective Date
and the Closing Date), payable at the Closing by wire transfer of immediately
available funds to an account designated in writing by the Banks or by cashier's
check payable to the order of the Banks' designee.
2.2 Reimbursement of Certain NEBA Fees. In addition to the amounts payable
under Section 2.1, NOVA agrees to reimburse the Banks for certain liquidated
damages and/or penalties collectively incurred by the Banks pursuant to their
termination of (i) that certain Member Agreement dated July 7, 1998, between New
England Bankcard Association Inc. ("NEBA") and Camden National Bank, (ii) that
certain Service Agreement dated June 1, 1998 between NEBA and First Data
Resources Inc. ("FDR"), and/or (iii) that certain Service Agreement between NEBA
and First Data Merchant Service Corporation ("FDMS") (the agreements referred to
in (i), (ii) and (iii) are collectively referred to herein as the "NEBA
Agreement"), all as set forth below.
(a) NOVA will reimburse the Banks, in the aggregate, for fifty percent
(50%) of the liquidated damages and/or penalties imposed by FDR, FDMS
and/or NEBA, and actually paid by the Banks, for early termination of the
NEBA Agreement; provided that NOVA's liability therefor shall not in any
event exceed $60,000 in the aggregate, regardless of the size or timing of
the liquidated damages and/or penalties imposed by FDR, FDMS and/or NEBA or
the amounts actually paid to FDR, FDMS and/or NEBA by either Bank or by
Parent.
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(b) Reimbursement hereunder shall be made within fourteen (14) days
following NOVA's receipt from the Banks of written evidence, reasonably
satisfactory to NOVA, detailing the amount of the reimbursement due
pursuant to this Section 2.2, and which shall be certified by an authorized
financial officer of the Banks.
2.3 Closing. Subject to the satisfaction or waiver of the conditions set
forth herein, the consummation of the purchase and sale of the Assets Sold (the
"Closing") shall take place on November 26, 2002 at 10:00 a.m. (Atlanta, Georgia
time) or on such other date at such other time as the parties shall agree in
writing (the "Closing Date"), to be effective as of the Effective Date, and
shall take place through the execution and exchange, via facsimile transmission,
of this Agreement and the other documents and agreements herein contemplated.
The parties acknowledge and agree that upon mutual exchange and receipt of
signature pages via facsimile, and upon receipt by the Banks (or their designee)
of the purchase price herein contemplated, this Agreement and the other
documents and instruments delivered in connection herewith shall be deemed
effective, and the transactions hereby contemplated shall be deemed consummated,
notwithstanding any party's failure or refusal to deliver original (i.e.
non-facsimile) signature pages via Federal Express or U.S. Mail.
ARTICLE III
TRANSITION PERIOD
3.1 Orderly Transition. Each Bank covenants and agrees to use all
reasonable efforts, as reasonably instructed by NOVA, to effect a prompt and
orderly transition of the Merchant Business during the Transition Period in
respect of the Assets Sold and the Assumed Liabilities, including fulfilling its
obligations under Section 1.4 hereof. In order to further such purpose, each
Bank agrees that during the Transition Period it shall execute such documents as
are reasonably deemed necessary or convenient by NOVA, including documents as
may be appropriate to cause the BIN and ICA numbers used by either Bank in
connection with the Merchant Business to be transferred to such "Principal
Member" of the Credit Card Associations as may be designated by NOVA, to
evidence the agreements referred to in, and transactions contemplated by, this
Agreement, consistent with the rules and regulations of the Credit Card
Associations and NOVA's practices and procedures.
3.2 Services During the Transition Period.
(a) During the Transition Period, each Bank shall perform on behalf of
and for the account of NOVA at the same location(s) presently used to
conduct the Merchant Business all of the services performed by the Banks in
connection with the Merchant Business prior to the Closing Date. Each Bank
shall perform such services substantially in the same manner and with no
less than the same degree of care as performed in connection with the
Merchant Business prior to the Closing Date, and shall otherwise perform
such services in accordance with such performance standards, including
underwriting guidelines, as are reasonably specified by NOVA (the
"Performance Standards"). Certain Performance Standards are set forth on
Schedule 3.2(a). In performing such services, each Bank shall follow the
reasonable instructions of NOVA.
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(b) Without limiting the generality of the foregoing, during the
Transition Period, each Bank shall continue to provide credit to Merchants
on the same business day deposits are made by Merchants for Draft deposits
(provided such deposits are made prior to 2:00 p.m. closing; Draft deposits
made after 2:00 p.m. closing shall be considered to be made on the
following business day) and on the day of receipt of ACH notice for Credit
Card and Debit Card transactions processed electronically. Neither Bank
shall be entitled to reimbursement for cost of funds for providing such
credit.
(c) During the Transition Period, and in performing services
hereunder, each Bank shall comply in all respects with the rules and
regulations of the Credit Card Associations and the EFT Networks, and shall
not take, or fail to take, any actions with respect to the Merchant
Business which would constitute a violation of such rules and regulations.
(d) NOVA shall reimburse the Banks for direct, out-of-pocket expenses
reasonably and actually incurred by the Banks during the Transition Period
in accordance with the Banks' ordinary course, past practices and related
to the conversion and transitional activities described in this Article III
and the continued conduct of the Merchant Business during the Transition
Period (collectively, "Transition Expenses"). The Banks' recent historical
internal staff costs incurred in connection with the Merchant Business are
set forth on Schedule 3.2(d). Notwithstanding the foregoing, the obligation
of NOVA described in the immediately preceding sentence shall not apply to
any fees, liquidated damages or penalties associated with the termination
of the NEBA Agreement, the reimbursement of which shall be governed and
limited by Section 2.2 hereof. All reimbursements hereunder shall be made
within fourteen (14) days following NOVA's receipt from the Banks of
written evidence, reasonably satisfactory to NOVA, detailing the amount of
the reimbursement due pursuant to this Section 3.2(d).
3.3 Revenue During the Transition Period. In performing services during the
Transition Period on behalf of and for the account of NOVA, each Bank shall,
beginning on the Effective Date and continuing throughout the Transition Period,
on behalf of and for the account of NOVA, collect revenue generated by the
Merchant Business, less interchange fees (collectively, "Revenue"). In
connection with the Transition Period, the Banks shall pay to NOVA monthly (by
the 20th day of each month) Revenue for (i) all original sales transactions
generated pursuant to the Assets Sold and occurring on or after the Effective
Date, and (ii) all the other revenue generated by the Assets Sold and occurring
on or after the Effective Date. The parties acknowledge and agree that the
Banks, in paying Revenue to NOVA as provided hereunder, may "net" such payments
against Transition Expenses incurred, provided that (x) such expenses have not
yet been reimbursed or submitted to NOVA for reimbursement, and (y) the Banks
reasonably and in good faith believe that such expenses are reimbursable in
accordance with Section 3.2(d). At the time of each such payment, the Banks
shall also furnish to NOVA a certificate of an authorized financial officer
certifying the amount due to NOVA (including any netting of Transition Expenses)
and showing the calculation thereof in such reasonable detail as NOVA may
request. The parties currently contemplate that the Banks' computation of
Transition Expenses and Revenue will be in the form attached hereto as Schedule
3.3.
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3.4 Employees. During the Transition Period, the Banks shall use all
reasonable efforts to provide that the employees utilized in the Merchant
Business on and prior to the date hereof by the Banks will continue in the
employ of the Banks, performing the duties relating to the Merchant Business
theretofore performed by them, as reasonably instructed by NOVA during the
Transition Period. Further, the Banks shall use all reasonable efforts to
provide adequate and appropriate skilled staffing in connection with the
operation of the Merchant Business during the Transition Period.
3.5 Clearing Bank Arrangement.
(a) In order to permit an orderly transition of the processing of
Credit Card and Debit Card transactions, during the Transition Period, each
Bank shall continue to act as a clearing bank for NOVA with respect to
Credit Card and Debit Card transactions processed under the Merchant
Agreements and the Agent Bank Agreements, all in accordance with the rules
and regulations of the Credit Card Associations and the EFT Networks, for a
period of time ending not later than the Transition Date.
(b) At the request of NOVA and upon reasonable notice to the Banks,
the Banks shall execute appropriate documents to evidence the transfer of
the clearing bank responsibilities under the Merchant Agreements and the
Agent Bank Agreements to the person designated by NOVA to effect such
transfer. In addition, the Banks shall render such other necessary
assistance as NOVA may reasonably request.
3.6 Extension of Transition Period. The parties mutually acknowledge and
agree that it is their mutual interest to complete the conversion and transition
activities contemplated by this Article III promptly and as soon as reasonably
practicable. However, if reasonably determined by NOVA, if requested by NOVA in
writing at least fifteen (15) days prior to the Transition Date, and
notwithstanding any contrary provision contained herein, the Banks shall
continue to provide such of the services described in this Article III as are
requested by NOVA beyond the Transition Date on the same terms and conditions
set forth herein. The Banks' obligation to provide such services shall continue
until terminated by fifteen (15) days prior written notice from NOVA, but in no
event shall the Transition Period be extended beyond the date that is six (6)
months after the Closing Date (May 26, 2003) unless agreed upon by all parties
to this Agreement.
ARTICLE IV
CERTAIN COVENANTS AND AGREEMENTS OF THE BANKS
4.1 Confidentiality of Information. On and after the date hereof, each Bank
and Parent and its officers, employees, agents and representatives shall treat
all information, books and records, originals or copies of books or records
which are retained or obtained by it pursuant to Section 1.5, and all
information learned or obtained about NOVA's business or relating to the
Merchant Business, as confidential and will not disclose such information to
third parties except as required by law, as needed in connection with a lawsuit,
claim, litigation or other proceeding or in connection with tax or regulatory
matters and except to the extent that such information is already in the public
domain, or subsequently enters the public domain, other than as a result of
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the breach of such Bank's obligations under this Section 4.1. Each Bank and its
officers, employees, agents and representatives shall not use the information
described in this Section 4.1 in any manner that might reasonably be anticipated
to adversely affect the Merchant Business or NOVA's relations with Merchants,
Agent Banks, or with other persons or entities. The covenants contained in this
Section 4.1 shall survive for a period of four (4) years after the date hereof.
4.2 Notice of Breach or Potential Breach. Each Bank shall promptly notify
NOVA of any change, circumstance or event which may prevent either Bank from
complying with any of its material obligations hereunder.
4.3 Further Assurances. On and after the Closing Date, the Banks shall (i)
give such further assurances to NOVA and execute, acknowledge and deliver all
such acknowledgments and other instruments and take such further action as NOVA
may reasonably request to effectuate the transactions contemplated by this
Agreement, including the transfer of the Assets Sold and assumption of the
Assumed Liabilities, and (ii) use all reasonable efforts to assist NOVA in the
orderly transition referred to in Article III.
4.4 Collections. The Banks shall use all reasonable efforts after the
Transition Date to assist NOVA, at NOVA's request, in processing amounts in
respect of any charge-back or other Credit Loss received or identified in
connection with the Merchant Business and relating to or arising out of any
original sales transaction occurring on or after the Effective Date. NOVA shall
be responsible for all costs and expenses relating to such collection efforts,
including costs and expenses of collection letters, litigation, arbitration
proceedings and similar actions. Without limiting the foregoing, the Banks
agree, if requested by NOVA, to continue processing such charge-backs through
the Banks' BIN and ICA for up to 180 days after the Transition Date.
4.5 Post-Transition Processing. The Banks covenant and agree that:
(a) The Banks shall, for the period beginning upon the expiration of
the Transition Period, and continuing until the effective date of the
expiration or termination of the Marketing Agreement (the "Post-Transition
Period"), and unless otherwise agreed upon in writing by NOVA and the
Banks, accept Drafts only from (i) those Merchants whose Merchant
Agreements following the Transition Period permit Draft deposits, and (ii)
those merchants whose merchant agreements permit Draft deposits and that
are referred by a Bank to NOVA pursuant to the Marketing Agreement. Such
Drafts shall be handled in accordance with NOVA's instructions, including
the shipping of each day's batches of Drafts at the end of the day, at the
Banks' expense, via overnight courier delivery to the draft capture vendor
designated by NOVA; and
(b) The Banks, throughout the Post-Transition Period, shall use NOVA
and a principal member designated by NOVA as the exclusive processor of
cash advance transactions made by the Banks.
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ARTICLE V
CERTAIN COVENANTS AND AGREEMENTS OF NOVA
5.1 Confidentiality of Information. On and after the date hereof, NOVA and
its officers, employees, agents and representatives shall treat all information
learned, or obtained prior to the date of this Agreement or during the
Transition Period about the Banks' businesses, other than the Merchant Business,
as confidential and will not disclose such information to third parties except
as required by law, as needed in connection with a lawsuit, claim, litigation or
other proceeding or in connection with tax or regulatory matters and except to
the extent that such information is already in the public domain, or
subsequently enters the public domain, other than as a result of the breach of
NOVA's obligations under this Section 5.1. NOVA and its officers, employees,
agents, and representatives shall not use the information described in this
Section 5.1 in any manner that might reasonably be anticipated to materially
adversely affect the Banks' financial condition, business or agreements or
arrangements with any other person or entity. Notwithstanding the foregoing, the
Banks and Parent acknowledge and agree that the restrictions contained in this
Section 5.1 shall not apply to any disclosures of such confidential information
by NOVA in connection with, or as may result from (a) the provision by NOVA of
Merchant Services under this Agreement or the other Operative Documents, or
otherwise in connection with NOVA's performance of its obligations hereunder or
thereunder, (b) such disclosure as may be required by applicable law or
regulation or Payment Network Regulations, (c) such disclosure as is contained
in or required to prepare any financial statements (including the notes
thereto), (d) appropriate or necessary disclosure to banking authorities or
regulators, including as may result from NOVA's status as an affiliate of U.S.
Bancorp or another bank, or (e) disclosure to U.S. Bancorp's Corporate and
Compliance Units. The covenants contained in this Section 5.1 shall survive for
a period of four (4) years after the date hereof.
5.2 Notice of Breach or Potential Breach. NOVA shall promptly notify the
Banks of any change, circumstance or event which may prevent NOVA from complying
with any of its material obligations hereunder.
5.3 Further Assurances. On and after the Closing Date, NOVA shall (i) give
such further assurances to the Banks and execute, acknowledge and deliver all
such acknowledgments and other instruments and take such further action as the
Banks may reasonably request to effectuate the transactions contemplated by this
Agreement, including the transfer of the Assets Sold and assumption of the
Assumed Liabilities and (ii) use all reasonable efforts to assist the Bank in
the orderly and timely transition referred to in Article III.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE BANKS AND PARENT
The Banks and Parent hereby jointly and severally make the following
representations and warranties to NOVA as of the date hereof and as of the
Effective Date:
6.1 Organization; Ownership. Camden is a national banking association
organized under the laws of the United States of America. United is a state
chartered bank organized under
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the laws of the State of Maine. Each bank is authorized to conduct its business
as presently conducted (including the Merchant Business) under those laws and
all other applicable laws. Parent is a bank holding company organized under the
laws of the State of Maine and is authorized to conduct its business as
presently conducted under those laws and other applicable laws. Parent owns one
hundred percent (100%) of the issued and outstanding shares of capital stock of
each Bank. No subsidiary or affiliate of Parent, other than the Banks, is
engaged in the Merchant Business, nor does any such subsidiary or affiliate have
merchants that maintain depositary relationships with it.
6.2 Authority. The Banks and Parent have the right, power, capacity and
authority to enter into and deliver the Operative Documents, to perform their
respective obligations under the Operative Documents, and to effect the
transactions contemplated by the Operative Documents, and no person or entity
other than the Banks has any interest in the Merchant Business or the Merchant
Agreements or the Agent Bank Agreements. The execution, delivery and performance
of the Operative Documents have been approved by all requisite corporate action
on the part of the Banks and Parent, and when executed and delivered pursuant
hereto, the Operative Documents will constitute valid and binding obligations of
the Banks and Parent enforceable in accordance with their terms.
6.3 Government Notices. Neither Bank has received notice from any federal,
state or other governmental agency or regulatory body indicating that such
agency or regulatory body would oppose or not grant or issue its consent or
approval, if required, with respect to the transactions contemplated by the
Operative Documents.
6.4 No Violations.
(a) The execution and delivery by the Banks of the Operative
Documents, and their performance thereunder, will not (i) violate, conflict
with, result in a breach of or constitute (with or without notice or lapse
of time or both) a default under any agreement, indenture, mortgage or
lease to which either Bank is a party or by which either Bank or its
properties, or the Merchant Business, are bound; (ii) constitute a
violation by any Bank of any law or government regulation applicable to
either Bank or the Merchant Business; (iii) violate any provision of the
Charter or Bylaws (or similar governing documents) of either Bank; or (iv)
violate any order, judgment, injunction or decree of any court, arbitrator
or governmental body against or binding upon either Bank or the Merchant
Business.
(b) With respect to the Merchant Business, neither Bank is, has been
or will be (by virtue of any past or present action, omission to act,
contract to which either Bank is a party or any occurrence or state of
facts whatsoever) in violation of any applicable local, state or federal
law, ordinance, regulation, order, injunction or decree, or any other
requirement of any governmental body, agency or authority or court binding
on it, or relating to its properties or businesses (including any antitrust
laws and regulations).
6.5 Assets Sold. The Banks collectively are the sole owners of all rights,
title and interest in and to the Assets Sold, free and clear of all title
defects or objections, assignments, liens, encumbrances of any nature
whatsoever, restrictions, security interests, rights of third
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parties, or other liabilities, and has good and valid title to the Assets Sold.
The Equipment being sold hereunder is in good operating condition, ordinary wear
and tear excepted, and has been reasonably maintained and repaired. The
Equipment is of the quantity and type represented on Schedule 6.5(a), which
schedule is true, accurate, correct and complete in all respects. The Equipment
as of October 31, 2002 is identified by manufacturer type and serial number (if
applicable) on Schedule 6.5(a) attached hereto, which Schedule indicates any
Equipment that is leased to and/or from third parties (and the identity of said
parties) and which Schedule is complete and accurate. The Inventory consists of
items of a quality and quantity usable and saleable in the ordinary course of
the Merchant Business, and is set forth on Schedule 6.5(b), which is true,
accurate, correct and complete in all respects. Since December 31, 2001, no
items of Equipment or Inventory have been sold or disposed of except through
sales or transactions in the ordinary course of business, consistent with past
practices. The Assets Sold include all rights, properties and other assets
necessary to permit NOVA to conduct the Merchant Business in substantially the
same manner as the Banks' Merchant Business has heretofore been conducted,
without any need for replacement, refurbishment or extraordinary repair.
6.6 Financial Information Concerning the Merchant Business.
(a) The financial and other information concerning the Merchant
Business attached hereto as Schedule 6.6(a) (collectively, the "Financial
Information") is true, accurate, complete and correct in all respects and
fairly presents the financial condition of the Merchant Business in respect
of the Assets Sold as of and for the periods indicated on such information.
Further, the Financial Information does not contain any untrue statement,
nor omit any material fact necessary in order to make the statements made
and information presented in the Financial Information, not misleading.
This representation and warranty may not be limited or satisfied by
inconsistent information provided after the date hereof. Since December 31,
2001, there has been no adverse change in the Merchant Business.
(b) The information relative to Merchants' annualized (i) Credit Card
sales volume and (ii) Debit Card sales volume set forth on Schedule 6.6(b)
is true, accurate, correct and complete in all material respects as of the
date hereof and for the periods indicated, and such information does not
contain any untrue statement nor omit any material fact necessary in order
to make the statements made and information presented therein, not
misleading. This representation and warranty may not be limited or
satisfied by inconsistent information provided after the date hereof.
6.7 Agreements Relating to the Merchant Business.
(a) Schedule 6.7(a)(i) sets forth a complete list of all Merchants.
Schedule 6.7(a)(ii) sets forth a complete list of all Agent Banks. Neither
Bank is in default (or would be in default upon notice, lapse of time or
both) under any provision of the Merchant Agreements or the Agent Bank
Agreements. Neither Bank has any reason to suspect, nor has it received any
notice of, fraud by, or bankruptcy or contemplated bankruptcy of, any
Merchant, Agent Bank or any other party or guarantor to any of the Merchant
Agreements or the Agent Bank Agreements, and neither Bank has received any
notice of default or adverse comment from any regulatory authority in
respect of any
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Merchant or any Agent Bank. Except as set forth on Schedule 6.7(a)(iii),
neither Bank has either given or received notice of election to terminate
any of the Merchant Agreements or the Agent Bank Agreements. Except as set
forth on Schedule 6.7(a)(iii), all Merchants currently process Credit Card
transactions. Except as set forth on Schedule 6.7(a)(iv), each Merchant is
a party to a Merchant Agreement with either Bank.
(b) Except as set forth on Schedule 6.7(b), the Banks have in their
possession, and shall deliver to NOVA in accordance with Section 1.5
hereof, an original executed copy of each Merchant Agreement and each Agent
Bank Agreement. All agreements between either Bank and the Merchants are in
the form of one of the Standard Merchant Contracts, attached hereto as
Exhibit 6.7(b)(i), and are freely assignable by the Bank that is a party
thereto without the consent of the applicable Merchant or any other party.
All agreements between either Bank and each Agent Bank are in the form of
one of the Standard Agent Bank Agreements, attached hereto as Exhibit
6.7(b)(ii), and are freely assignable to NOVA by the Bank that is a party
thereto without the consent of the applicable Agent Bank or any other
party.
(c) The Banks have obtained guaranties from principals or third
parties of all the Merchants listed on Schedule 6.7(c), and the Banks have
in their possession, and shall deliver to NOVA in accordance with Section
1.5 hereof, an original executed copy (or, where no original is available,
a copy) of all such guaranties. All such guaranties are in the form of the
Guaranty attached hereto as Exhibit 6.7(c) (the "Standard Guaranty"), and
are freely assignable to NOVA by the Bank that is a party thereto without
the consent of the applicable Merchant or any other party.
(d) Schedule 6.7(d) sets forth a complete list of all ISOs. Except
with respect to the Agent Bank Agreements and the ISO Agreements, and any
other agreements listed on Schedule 6.7(d), neither Bank has any
agreements, written or oral, with any agent bank, other association,
institution, independent sales organization, or any other third party which
provides for any one or more of the following: (i) the deposit of Credit
Card or Debit Card transaction records; (ii) the settlement of Credit Card
or Debit Card transactions; (iii) the processing of Credit Card or Debit
Card transactions; or (iv) the referral of merchants to a Bank. The Banks
have provided NOVA with true, correct and complete copies of all ISO
Agreements and each other agreement listed on Schedule 6.7(d), and all of
such agreements are freely assignable by the Bank that is a party thereto
without the prior consent of the applicable ISO or any other party. Each
ISO Agreement is in the form of one of the Standard ISO Agreements attached
hereto as Exhibit 6.7(d).
(e) Except for disputes that have arisen in the ordinary course of
business and that (i) are not material or otherwise significant in nature
or amount, and (ii) have not been referred to legal counsel, whether
internal or external, neither Bank is engaged in any material dispute with
any Merchant, Agent Bank or ISO or otherwise relating to the Merchant
Business. Neither Bank has any reason to believe, nor has it received any
notice, written or oral, that the consummation of the transactions
contemplated hereunder will have any adverse effect on the business
relationship of either Bank with any Merchant, Agent Bank or ISO.
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(f) The Banks are members in good standing of the Credit Card
Associations. The Banks and the Merchant Business are in full compliance in
all respects with all applicable rules and regulations and certification
requirements of the Credit Card Associations. The Banks have provided NOVA
true and correct copies of all contracts and agreements between any Bank
and any of the foregoing entities.
(g) Schedule 6.7(g) sets forth a complete and accurate list of all
rights and interests of the Banks with respect to any reserve or hold
accounts established and maintained by Merchants and maintained with either
Bank in connection with the Merchant Agreements (collectively, the "Reserve
Accounts"), and the Merchant Business, and indicates the amount contained
in each such Reserve Account as of the date thereof and further indicates
the terms and conditions relative to each of such Reserve Accounts. The
Reserve Accounts are freely assignable by the Banks without the consent of
the applicable Merchant or any other party thereto.
(h) Schedule 6.7(h) sets forth the credit and charge cards, other than
the Credit Card Associations, for which the Banks have contracted to
provide authorization and data capture services, and Schedule 6.7(h) also
identifies the Merchants to whom such non-Credit Card Association services
are provided. All such agreements are attached hereto as Exhibit 6.7(h).
6.8 Merchants' Credit. With respect to the Merchants listed on Schedule
6.8, which are the one hundred (100) Merchants with the highest dollar value of
Credit Card transactions processed during the twelve (12) month period ending
October 31, 2002, neither Bank knows of (a) any Merchant that has a credit
facility with either Bank whose credit facility will not or cannot be continued,
renewed or extended, or (b) any Merchant who plans to apply for new or
additional credit with either Bank, and whose application will be denied or
rejected, in whole or in part. All of the Merchants listed on Schedule 6.8 are
parties to a Merchant Agreement with either Bank, copies of which have been
delivered to NOVA.
6.9 EFT Networks. The Banks are members in good standing of the electronic
funds transfer networks identified on Schedule 6.9 attached hereto (the "EFT
Networks"). The Banks and the Merchant Business are in full compliance in all
respects with all applicable rules and regulations of the EFT Networks.
6.10 Consents and Approvals.
(a) Except as set forth on Schedule 6.10, no action of, or filing
with, any governmental or public body is required by either Bank to
authorize, or is otherwise required in connection with, the execution and
delivery by either Bank of this Agreement or the other Operative Documents
or, if required, the requisite filing has been accomplished and all
necessary approvals obtained.
(b) Except as set forth on Schedule 6.10, no filing, consent or
approval is required by virtue of the execution hereof or any other
Operative Document by either Bank or the consummation of any of the
transactions contemplated herein by either Bank to avoid the violation or
breach of, or the default under, or the creation of a lien on any of
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the Assets Sold pursuant to the terms of, any law, regulation, order,
decree or award of any court or governmental agency or any lease,
agreement, contract, mortgage, note, license, or any other instrument to
which either Bank is a party or to which either Bank or any of the Assets
Sold is subject.
6.11 Leases. Schedule 6.11 contains a complete and accurate list of all (i)
leases (including any capital leases) and lease-purchase arrangements pursuant
to which either Bank leases real or personal property related to the Merchant
Business from others, and (ii) lease, rental and lease-purchase arrangements
pursuant to which either Bank leases property to any Merchant, Agent Bank, or
other party in connection with the Merchant Business. Schedule 6.11 specifies
which of such leases, if any, are capital leases. The Banks have made available
to NOVA a true, correct and complete copy of each of the items listed on
Schedule 6.11.
6.12 Intellectual Property.
(a) With respect to the Merchant Business, the Banks have made
available to NOVA true, correct and complete copies of each trademark and
service mark registration or application therefor.
(b) Neither Bank has heretofore infringed upon, nor is either Bank now
infringing upon, and the continuation of the Merchant Business as presently
conducted will not infringe upon, any patent, service mark, trade name,
trademark, copyright, trade secret, or other intellectual property,
confidential information or proprietary information belonging to any other
person and neither Bank has agreed to indemnify any person for or against
any infringement.
(c) No person is infringing upon either Bank's patents, service marks,
trademarks, copyrights, trade secrets, or other intellectual property that
is or are related to the Merchant Business.
6.13 Litigation and Claims. Schedule 6.13 (i) sets forth all material
litigation, claims, suits, actions, investigations, indictments or informations,
proceedings or arbitrations, grievances or other procedures (including grand
jury investigations, actions or proceedings, and product liability and workers'
compensation suits, actions or proceedings, and investigations conducted by any
Credit Card Association) that are pending, or to the knowledge of either Bank or
of Parent, threatened, in or before any court, commission, arbitration tribunal,
or judicial, governmental or administrative department, body, agency,
administrator or official, grand jury, Card Association, or any other entity or
forum for the resolution of grievances, against either Bank and relating in any
way to the Merchant Business (collectively "Claims"), and (ii) indicates which
of such Claims are being defended by an insurance carrier, and which of such
Claims being so defended are being defended under a reservation of rights. The
Banks have made available to NOVA true, correct and complete copies of all
pleadings, briefs and other documents filed in each pending litigation, claim,
suit, action, investigation, indictment or information, proceeding, arbitration,
grievance or other procedure listed in Schedule 6.13, and the judgments, orders,
writs, injunctions, decrees, indictments and information, grand jury subpoenas
and civil investigative demands, plea agreements, stipulations and awards listed
in Schedule 6.13.
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6.14 Merchant Business Employees. Schedule 6.14 sets forth the names and
current compensation (broken down by category, e.g. salary, bonus, commission),
together with the date and amount of the last increase in compensation for each
such person, and the title and functional positions of all employees of each
Bank who work either full or part-time in connection with the Merchant Business
("Merchant Business Employees"). Except as set forth on Schedule 6.14, none of
the Merchant Business Employees is a party to any employment agreement,
arrangement or understanding with either Bank. The federal employer
identification number of each Bank is set forth on Schedule 6.14.
6.15 Labor; Collective Bargaining. Except as set forth on Schedule 6.15,
there are no labor contracts, collective bargaining agreements, letters of
understanding or other arrangements, formal or informal, with any union or labor
organization covering any of the Merchant Business Employees and none of said
employees are represented by any union or labor organization.
6.16 Required Licenses and Permits. No licenses, permits or other
authorizations of governmental authorities are necessary for the conduct of the
Merchant Business by either Bank.
6.17 Agreements, Contracts and Commitments. Except as set forth and
specifically identified in Sections (or the corresponding Schedules) 6.7, 6.11,
6.14, 6.15 and 6.19:
(a) Neither Bank has any agreement, contract, commitment or
relationship, whether written or oral, related to the Merchant Business, by
which NOVA could be bound;
(b) Neither Bank has any outstanding contract related to the Merchant
Business, written or oral, with any officer, employee, agent, consultant,
advisor, salesman, manufacturer's representative, distributor, dealer,
subcontractor, or broker that is not cancelable by the Bank that is a party
thereto, on notice of not longer than thirty (30) days and without
liability, penalty or premium of any kind, except liabilities which arise
as a matter of law upon termination of employment, or any agreement or
arrangement related to the Merchant Business providing for the payment of
any bonus or commission based on sales or earnings;
(c) Neither Bank is subject to any contract or agreement related to
the Merchant Business containing covenants limiting the freedom of either
Bank to compete in any line of business in any geographic area;
(d) With respect to the Merchant Business, there is no contract,
agreement or other arrangement entitling any person or other entity to any
profits, revenues or cash flows of either Bank or requiring any payments or
other distributions based on such profits, revenues or cash flows.
6.18 Agreements in Full Force and Effect. Except as expressly set forth on
Schedule 6.18, all contracts and agreements referred to, or required to be
referred to, herein or in any Schedule delivered hereunder are valid and
binding, and are in full force and effect and are enforceable in accordance with
their terms. Neither Bank has received notice of any pending or threatened
bankruptcy, insolvency or similar proceeding with respect to any party to such
15
agreements, and no event has occurred which (whether with or without notice,
lapse of time or the happening or occurrence of any other event) would
constitute a default thereunder by either Bank, or to the knowledge of either
Bank, any other party thereto.
6.19 Vendors and Suppliers. Schedule 6.19 sets forth a complete and
accurate list of each supplier to either Bank of goods and services directly
related to the Merchant Business that charged, billed or invoiced either Bank in
excess of $5,000 during the twelve (12) month period ending October 31, 2002.
The Banks have provided to NOVA true and correct copies of all agreements and
contracts between either Bank and any of the persons and entities listed on
Schedule 6.19.
6.20 Absence of Certain Changes and Events. Except as set forth on Schedule
6.20, since December 31, 2001, each Bank has conducted the Merchant Business
only in the ordinary course, and has not:
(a) suffered any damage or destruction adversely affecting the
Merchant Business;
(b) suffered any adverse change in the working capital, assets,
liabilities, financial condition, or business prospects relating to the
Merchant Business, or relationships with any suppliers listed on Schedule
6.19;
(c) except for customary increases based on term of service or regular
promotion of non-officer employees, increased (or announced any increase
in) the compensation payable or to become payable to any Merchant Business
Employee, or increased (or announced any increase in) any bonus, insurance,
pension or other employee benefit plan, payment or arrangement for Merchant
Business Employees, or entered into or amended any employment, consulting,
severance or similar agreement with any Merchant Business Employee;
(d) incurred, assumed or guaranteed any liability or obligation
(absolute, accrued, contingent or otherwise) with respect to the Merchant
Business, other than a non-material amount in the ordinary course of
business consistent with past practice;
(e) paid, discharged, satisfied or renewed any claim, liability or
obligation with respect to the Merchant Business, other than payment of a
non-material amount in the ordinary course of business and consistent with
past practice;
(f) permitted any of the Assets Sold to be subjected to any mortgage,
lien, security interest, restriction, charge or other encumbrance of any
kind;
(g) waived any material claims or rights with respect to the Merchant
Business;
(h) sold, transferred or otherwise disposed of any of the assets used
in the Merchant Business, except non-material assets in the ordinary course
of business consistent with past practice;
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(i) made any single capital expenditure or investment with respect to
the Merchant Business, in excess of $5,000;
(j) made any change in any method, practice or principle of financial
or tax accounting that in any manner affected the Merchant Business or any
financial information relating to or derived from the Merchant Business;
(k) managed working capital components relating to the Merchant
Business, including cash, receivables, other current assets, trade payables
and other current liabilities in a fashion inconsistent with past practice,
including failing to sell inventory and other property in an orderly and
prudent manner or failing to make all budgeted and other normal capital
expenditures, repairs, improvements and dispositions;
(l) paid, loaned, advanced, sold, transferred or leased any Asset Sold
to any employee, except for normal compensation involving salary and
benefits;
(m) entered into any commitment or transaction, other than a
non-material commitment or transaction entered into in the ordinary course
of business consistent with past practice, affecting the Merchant Business;
or
(n) agreed in writing, or otherwise, to take any action described in
this Section.
6.21 Finder's Fees. Neither Bank nor Parent has made any commitment or done
any act that would create any liability to any person other than themselves for
any brokerage, finder's or similar fee or commission in connection with this
Agreement or the transactions contemplated hereby.
6.22 Disclosure. No representations, warranties, assurances or statements
by either Bank or by Parent in this Agreement, and no statement contained in any
document (including the Financial Information and the Schedules), certificates
or other writings furnished by any Bank or Parent (or caused to be furnished by
either Bank or by Parent) to NOVA or any of its representatives pursuant to the
provisions hereof, contains any untrue statement of material fact, or omits or
will omit to state any fact necessary, in light of the circumstances under which
such statement was made, in order to make the statements herein or therein not
misleading.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF NOVA
NOVA makes the following representations and warranties to the Banks and
Parent as of the date hereof and as of the Effective Date:
7.1 Organization. NOVA is a corporation duly organized and validly existing
under the laws of the State of Georgia and is authorized to conduct its business
under those laws.
7.2 Authority. NOVA has the right, power, capacity and authority to enter
into and deliver the Operative Documents, to perform its obligations under the
Operative Documents, and
17
to effect the transactions contemplated by the Operative Documents. The
execution, delivery and performance of the Operative Documents have been
approved by all requisite corporate action on the part of NOVA, and, when
executed and delivered pursuant hereto, the Operative Documents will constitute
valid and binding obligations of NOVA enforceable in accordance with their
terms.
7.3 Governmental Notices. NOVA has not received notice from any federal,
state or other governmental agency or regulatory body indicating that such
agency or regulatory body would oppose or not grant or issue its consent or
approval, if required, with respect to the transactions contemplated by the
Operative Documents.
7.4 No Violations. The execution and delivery by NOVA of the Operative
Documents and its performance thereunder will not: (i) violate, conflict with,
result in a breach of or constitute (with or without notice or lapse of time or
both) a default under, any material agreement, indenture, mortgage or lease to
which NOVA is a party or by which it or its properties are bound; (ii)
constitute a violation by NOVA of any material law or governmental regulation
applicable to NOVA; (iii) violate any provision of the Articles of Incorporation
or Bylaws of NOVA; or (iv) violate any order, judgment, injunction or decree of
any court, arbitrator or governmental body against or binding upon NOVA.
7.5 Consents and Approvals.
(a) No action of, or filing with, any governmental or public body is
required by NOVA to authorize, or is otherwise required in connection with,
the execution and delivery by NOVA of this Agreement or the other Operative
Documents or, if required, the requisite filing has been accomplished and
all necessary approvals obtained.
(b) No filing, consent or approval is required by virtue of the
execution hereof or any other Operative Document by NOVA or the
consummation of any of the transactions contemplated herein by NOVA to
avoid the violation or breach of any law, regulation, order, decree or
award of any court or governmental agency, or any lease, agreement,
contract, mortgage, note, license, or any other instrument to which NOVA is
a party or is subject, or, if required, the requisite filing has been
accomplished and all necessary approvals obtained.
7.6 Finder's Fees. NOVA has not made any commitment or done any act that
would create any liability to any person other than itself for any brokerage,
finder's or similar fee or commission in connection with this Agreement or the
transactions contemplated hereby.
ARTICLE VIII
COVENANTS OF THE PARTIES
The parties hereto hereby covenant and agree as follows:
8.1 Credit Card Association Filings. NOVA and the Banks shall cooperate
with each other to file with the Credit Card Associations and the EFT Networks
(at NOVA's expense) any document or information that each such Credit Card
Association or EFT Network deems to
18
be required or desirable to be filed in order for the acquisition contemplated
by this Agreement to be completed.
8.2 Employee Benefit Plans. NOVA shall not adopt, assume or otherwise
become responsible for, either primarily or as a successor employer, any assets
or liabilities of any employee benefit plans, arrangements, commitments or
policies currently provided by either Bank or by any member of the Banks'
controlled group of corporations; and if and to the extent that NOVA is deemed
by law or otherwise to be liable as a successor employer for such purposes, the
Banks shall jointly and severally indemnify NOVA for the full and complete
costs, fees and other liabilities which result. In particular, NOVA shall not
assume liability for any group health continuation coverage or coverage rights
under Internal Revenue Code Section 4980B and ERISA Section 606 which exist as
of the Closing Date or the Effective Date or which may arise as a result of
either Bank's termination of any group health plan or plans, and if and to the
extent that NOVA is deemed by law or otherwise to be liable as a successor
employer for such group health continuation coverage purposes, the Banks shall
jointly and severally indemnify NOVA for the full and complete costs, fees and
other liabilities which result.
ARTICLE IX
CONDITIONS TO OBLIGATIONS OF THE BANKS AND PARENT
Each of the obligations of the Banks and Parent to be performed hereunder
shall be subject to the satisfaction (or waiver by the Banks and Parent) at or
before the Closing of each of the following conditions:
9.1 Required Governmental Approvals. All governmental authorizations,
consents and approvals necessary for the valid consummation of the transactions
contemplated hereby shall have been obtained and shall be in full force and
effect. All applicable governmental pre-acquisition filing, information
furnishing and waiting period requirements shall have been met or such
compliance shall have been waived by the governmental authority having authority
to grant such waivers.
9.2 The Marketing Agreement. NOVA shall have executed and delivered to the
Banks the Marketing Agreement attached hereto as Exhibit 10.5.
9.3 The Assignment and Assumption Agreement. NOVA shall have executed and
delivered to the Banks the Assignment and Assumption Agreement attached hereto
as Exhibit 1.2.
9.4 Credit Card Associations. All filings required pursuant to Section 8.1
shall have been made, and all approvals required pursuant to Section 8.1 shall
have been received, and neither any Bank nor NOVA shall have received any
objection of any kind from a Credit Card Association either in response to the
filings required under Section 8.1 or otherwise.
9.5 Documents Satisfactory in Form and Substance. All agreements,
certificates, opinions and other documents delivered by NOVA to the Banks
hereunder shall be in form and substance satisfactory to counsel of the Banks,
in the exercise of such counsel's reasonable judgment.
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ARTICLE X
CONDITIONS TO OBLIGATIONS OF NOVA
The obligations of NOVA to be performed hereunder shall be subject to the
satisfaction (or waiver by NOVA) at or before the Closing of each of the
following conditions:
10.1 Required Governmental Approvals. All governmental authorizations,
consents and approvals necessary for the valid consummation of the transactions
contemplated hereby shall have been obtained and shall be in full force and
effect. All applicable governmental pre-acquisition filing, information
furnishing and waiting period requirements shall have been met or such
compliance shall have been waived by the governmental authority having authority
to grant such waivers.
10.2 Other Necessary Consents. The Banks shall have obtained all consents
and approvals (and estoppel certificates) listed on Schedule 6.10. With respect
to each such consent or approval, NOVA shall have received written evidence,
satisfactory to it, that such consent or approval has been duly and lawfully
filed, given, obtained or taken and is effective, valid and subsisting.
10.3 Corporate Resolutions. The Banks shall have delivered to NOVA
certified resolutions of each Bank and Parent authorizing this Agreement and all
other agreements and transactions contemplated hereby.
10.4 Non-Competition Agreement. The Banks and Parent shall have executed
and delivered to NOVA the Non-Competition Agreement in the form of Exhibit 10.4
attached hereto (the "Non-Competition Agreement").
10.5 Marketing Agreement. The Banks and Parent shall have executed the
Marketing Agreement in the form of Exhibit 10.5 attached hereto (the "Marketing
Agreement").
10.6 Assignment and Assumption Agreement. The Banks shall have executed and
delivered to NOVA the Assignment and Assumption Agreement attached hereto as
Exhibit 1.2.
10.7 Credit Card Associations. All filings required pursuant to Section 8.1
shall have been made, and all approvals required pursuant to Section 8.1 shall
have been received, and neither any Bank nor NOVA shall have received any
objection of any kind from a Credit Card Association either in response to the
filings required under Section 8.1 or otherwise.
10.8 Certified Good Standing Certificates. The Banks and Parent shall
deliver to NOVA a certified copy of a Good Standing Certificate, or Certificate
of similar import, from the Secretary of State or similar authority of the state
of incorporation or organization of each Bank and Parent.
10.9 Opinion of Counsel. The Banks shall deliver to NOVA an opinion of
Pierce Atwood, counsel to the Banks and Parent, in form of Exhibit 10.9 attached
hereto.
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10.10 Documents Satisfactory in Form and Substance. All agreements,
certificates, opinions and other documents delivered by the Banks and Parent to
NOVA hereunder shall be in form and substance satisfactory to counsel of NOVA,
in the exercise of such counsel's reasonable judgment.
ARTICLE XI
INDEMNIFICATION
11.1 Indemnification by the Banks and Parent. The Banks and Parent shall
jointly and severally indemnify and hold harmless NOVA, its affiliates, their
respective successors and assigns, and their respective directors, officers,
employees, consultants and agents (each a "NOVA Protected Party") from any
liability, loss, diminution in value, cost, claim, consequential damages, suit,
action or expense, including reasonable attorneys' and accountants' fees and
expenses (collectively, "NOVA Loss"), incurred by a NOVA Protected Party that
results from or arises out of (i) any breach or inaccuracy of any representation
or warranty of any Bank or Parent set forth in the Operative Documents, whether
such breach or inaccuracy exists or is made as of the Closing Date or the
Effective Date; (ii) the breach by any Bank or Parent of any of their covenants
or agreements contained in the Operative Documents; (iii) any liability or
obligation, contingent or otherwise, of any Bank or Parent, or otherwise arising
from or relating to the Banks' Merchant Business, exclusive of the Assumed
Liabilities; and (iv) violations of law or governmental rules or regulations or
wrongdoing or negligence by any Bank or Parent in performing obligations in
connection with this Agreement.
11.2 Indemnification by NOVA. NOVA shall indemnify and hold harmless the
Banks and Parent, their affiliates and their respective directors, officers,
employees, consultants and agents (each a "Bank Protected Party") from any
liability, loss, diminution in value, cost, claim, consequential damages, suit,
action or expense, including reasonable attorneys' and accountants' fees and
expenses (collectively, "Bank Loss"), incurred by a Bank Protected Party that
results from or arises out of (i) any breach or inaccuracy of any representation
or warranty of NOVA set forth in the Operative Documents, whether such breach or
inaccuracy exists or is made as of the Closing Date or the Effective Date; (ii)
the breach by NOVA of any of its covenants or agreements contained in the
Operative Documents; (iii) any Assumed Liability; or (iv) violations of law or
governmental rules or regulations or wrongdoing or negligence by NOVA in
performing obligations in connection with this Agreement.
11.3 Loss or Asserted Liability. Promptly after (a) becoming aware of
circumstances that have resulted in a NOVA Loss or a Bank Loss or potential NOVA
Loss or Bank Loss, whichever is applicable ("Loss" or "Losses"), for which any
party hereto (the "Indemnitee") intends to seek indemnification under Section
11.1 or Section 11.2, or (b) receipt by the Indemnitee of written notice of any
demand, claim or circumstances which, with or without the lapse of time, the
giving of notice or both, would give rise to a claim or the commencement (or
threatened commencement) of any action, proceeding or investigation (an
"Asserted Liability") that may result in a Loss, the Indemnitee shall give
written notice thereof (the "Claims Notice") to the other party obligated to
provide indemnification pursuant to Section 11.1 or 11.2 (the "Indemnifying
Party"). The Claims Notice shall describe the Loss or the Asserted Liability in
reasonable detail and shall indicate the amount (estimated, if necessary) of the
Loss that has been
21
or may be suffered by the Indemnitee. The Claims Notice may be amended on one or
more occasions with respect to the amount of the Asserted Liability or the Loss
at any time prior to final resolution of the obligation relating to the Asserted
Liability or the Loss. Failure of the Indemnitee to give promptly the notice
required by this Section 11.3 shall not relieve the Indemnifying Party of its
obligations to indemnify under this Article XI.
11.4 Opportunity to Contest. The Indemnifying Party may elect to compromise
or contest, at its own expense and by its own counsel, any Asserted Liability.
If the Indemnifying Party elects to compromise or contest such Asserted
Liability, it shall within thirty (30) days (or sooner, if the nature of the
Asserted Liability so requires) of the date of the Indemnifying Party's receipt
of the Claims Notice notify the Indemnitee or Indemnitees of its intent to do so
by giving written notice thereof to the Indemnitee (the "Contest Notice"), and
the Indemnitee shall cooperate, at the expense of the Indemnifying Party, in the
compromise or contest of such Asserted Liability. If the Indemnifying Party
elects not to compromise or contest the Asserted Liability, fails to notify the
Indemnitee of its election as herein provided or contests its obligation to
indemnify under this Agreement, the Indemnitee (upon further notice to the
Indemnifying Party) shall have the right to pay, compromise or contest such
Asserted Liability on behalf of and for the account and risk of the Indemnifying
Party, subject to the right of the Indemnifying Party to assume the compromise
or contest of such Asserted Liability at any time before final settlement or
determination thereof. Anything in this Article XI to the contrary
notwithstanding, (i) the Indemnitee shall have the right, at its own cost and
expense and for its own account, to compromise or contest any Asserted
Liability, and (ii) the Indemnifying Party shall not, without the Indemnitees'
written consent, settle or compromise any Asserted Liability or consent to entry
of any judgment which does not include an unconditional release of the
Indemnitee from all liability in respect of such Asserted Liability. In any
event, the Indemnitee and the Indemnifying Party may participate, at their own
expense, in the contest of such Asserted Liability. If the Indemnifying Party
chooses to contest any Asserted Liability, the Indemnitee shall make available
to the Indemnifying Party any books, records or other documents within its
control that are necessary or appropriate for, shall make its officers and
employees available, on a basis reasonably consistent with their other duties,
in connection with, and shall otherwise cooperate with, such defense.
11.5 Indemnity Claims.
(a) The representations and warranties contained herein, in any other
Operative Document, or in any certificate or other document delivered
pursuant hereto or in connection herewith shall not be extinguished by the
Closing but shall survive the Closing, subject to the limitations set forth
in Section 11.5(b) hereof with respect to the time periods within which
claims for indemnity must be asserted, and the covenants and agreements of
the Banks and NOVA contained herein shall survive without limitation as to
time except as may be otherwise specified herein. No investigation or other
examination of any Bank or the Merchant Business by NOVA, or its designees
or representatives, shall affect the term of survival of any representation
or warranty contained herein, in any other Operative Document, or in any
certificate or other document delivered pursuant hereto or in connection
herewith, or the term of the right of the NOVA Protected Parties or the
Bank Protected Parties to seek indemnification as set forth in Section
11.5(b).
22
(b) All claims for indemnification hereunder shall be asserted no
later than three (3) years after the Closing Date, except as follows:
(i) claims with respect to Losses arising out of or related in
any way to the matters described in Sections 11.1(ii), (iii) and (iv),
and 11.2(ii), (iii) and (iv) may be made without limitation, except as
limited by law; and
(ii) claims with respect to Losses arising out of or related in
any way to claims made by third parties (including federal, state or
local authorities or private parties) against any of the NOVA
Protected Parties or the Bank Protected Parties with respect to any of
the matters described in Section 11.1 hereof may be asserted until,
and shall be asserted no later than, thirty (30) days after the
expiration of the applicable statute of limitations with respect
thereto.
(c) Nothing herein shall be deemed to prevent any party hereto from
making a claim for a Loss hereunder for potential or contingent claims or
demands provided the notice of Loss sets forth the specific basis for any
such potential or contingent claim or demand to the extent then feasible
and the Indemnitee has reasonable grounds to believe that such a claim or
demand may become actual.
ARTICLE XII
DEFINITIONS AND RULES OF INTERPRETATION
12.1 Definitions. For purposes of this Agreement, the capitalized terms
have the following respective meanings:
"Agreement" means this Agreement, including all schedules and exhibits
hereto, and, if amended, modified or supplemented, as the same may be so
amended, modified or supplemented from time to time.
"Agent Bank" means a financial institution sponsored by either Bank and for
which services related to the Merchant Business are provided to such financial
institution and/or its merchants by or on behalf of either Bank.
"Agent Bank Agreement" means an agreement between either Bank and an Agent
Bank pursuant to which the Agent Bank and such Bank provide services related to
the Merchant Business.
"Assumed Liabilities" means the following liabilities or obligations: (a)
the obligations of either Bank arising on or after the Effective Date to perform
under the Merchant Agreements assigned to NOVA pursuant to this Agreement; (b)
the obligations of either Bank to pay assessments, interchange fees, transaction
fees, fines, penalties or other fees or charges to the Credit Card Associations
or EFT Networks, provided such obligations relate to transactions which occur
both (i) under the Merchant Agreements; and (ii) on or after the Effective Date;
(c) charge-backs in respect of any Credit Card transaction processed by NOVA
pursuant to a Merchant Agreement if such Credit Card transaction is received by
electronic transmission or
23
otherwise under and in compliance with the rules and regulations of Credit Card
Associations on and after the Effective Date and other Credit Losses on and
after the Effective Date, but only to the extent that such charge-back or other
Credit Loss relates to or arises out of an original sales transaction occurring
on or after the Effective Date; (d) any liability arising on or after the
Effective Time under any Other Assumed Contract (other than any liability
arising out of or relating to a breach of either Bank that occurred prior to the
Effective Time); and (e) any other claims, liabilities or litigation in respect
of the Merchant Agreements, the Agent Bank Agreements, the Equipment, and the
business conducted in connection with the foregoing, provided that any such
claims, liabilities or litigation relates to or arises out of events,
transactions or actions or omissions of NOVA on or after the Effective Date. The
Assumed Liabilities assumed by NOVA hereunder shall be limited to the
liabilities and obligations specified in the immediately preceding sentence and,
without limitation of the foregoing, shall not in any event include (x)
penalties or fees that may be incurred by either Bank in connection with the
termination of any Bank's agreement(s) with any third party service providers
(except as specifically provided in, and limited by, Section 2.2 hereof), (y)
losses as the result of a charge-back or Credit Loss in respect of any Merchant
Agreement that result from transactions, or events, or acts or omissions of
either Bank or a merchant which occurred prior to the Effective Date. The
Assumed Liabilities assumed by NOVA hereunder with respect to the Merchant
Agreements, Agent Bank Agreements and ISO Agreements shall be limited further to
those contained within the Standard Merchant Contracts, the Standard Agent Bank
Agreements and the Standard ISO Agreements, respectively.
"Credit Card" means (i) a VISA card or other card bearing the symbol(s) of
VISA U.S.A., Inc. or VISA International, Inc., or (ii) a MasterCard card or
other card bearing the symbol(s) of MasterCard International Incorporated.
"Credit Card Associations" means VISA U.S.A., Inc., VISA International,
Inc., MasterCard International Incorporated and any successor organizations or
associations.
"Credit Loss" means any loss resulting from the failure by a Merchant to
pay amounts owed by it under a Merchant Agreement.
"Debit Card" means a card with a magnetic stripe bearing the symbol(s) of
one or more EFT Networks which enables the holder to pay for goods or services
by authorizing an electronic debit to the cardholder's designated deposit
account.
"Drafts" means documentary evidence of Credit Card sales deposited by
Merchants with either Bank.
"EFT Networks" means the electronic funds transfer networks identified on
Schedule 6.9 attached hereto.
"Equipment" means the point-of-sale terminals, printers and other
equipment, supplies, or point-of-sale assets utilized by Merchants, or held for
lease, sale or swap to Merchants, and owned or leased by the Banks, and computer
equipment and software, office equipment and furniture, and all other equipment
used in the Merchant Business as set forth on Schedule 6.5(a) attached hereto.
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"Excluded Assets" means the assets specified on Schedule 1.1(a) attached
hereto and shall also include, whether or not listed on Schedule 1.1(a) all
rights and obligations of either Bank or of Parent under any contract with any
third party to which either Bank or Parent is a party that is not specifically
identified on Schedule 1.1(b).
"Inventory" means the imprinters, sales draft forms, application forms,
decals and all other merchant supplies owned by the Banks and used in the
Merchant Business, as set forth on Schedule 6.5(b), attached hereto.
"ISO" means an independent sales organization or other person or entity
which is a party to an agreement or understanding with a Bank as of the Closing
Date whereby the independent sales organization or other person or entity
provides marketing and other services to merchants in connection with the
Merchant Business.
"ISO Agreement" means an agreement between either Bank and an ISO pursuant
to which the ISO is providing marketing and other services in connection with
the Merchant Business.
"Marketing Agreement" means the Marketing and Sales Alliance Agreement
among Parent, the Banks and NOVA substantially in the form of Exhibit 10.5
attached hereto, and if amended, modified or supplemented, as the same may be so
amended, modified or supplemented from time to time.
"Merchant" means any person or entity (other than NOVA or either Bank) (a)
who has entered into a Merchant Agreement prior to the Effective Date, or (b)
that is identified on Schedule 6.7(a)(iv).
"Merchant Agreement" means an agreement between either Bank and a Merchant
pursuant to which the Merchant undertakes to honor Credit Cards and/or Debit
Cards and a Bank agree to accept Credit Card and/or Debit Card transaction
records; provided, however, that in no event shall "Merchant Agreement" include
any merchant agreement included on Schedule 1.1 as an "Excluded Asset."
"Merchant Business" means the providing of Credit Card, Debit Card and
other card-based transaction processing services and settlement services
(including the related products and services of automated teller machines and
check guarantee services and the sale or lease of products and services related
thereto) to Merchants, Agent Banks, ISOs and other similar customers, but shall
specifically exclude any such activity relating to the Excluded Assets.
"Merchant Business Employees" means the employees of the Banks listed on
Schedule 6.14 attached hereto.
"Operative Documents" means this Agreement, the Marketing Agreement, the
Assignment and Assumption Agreement, the Non-Competition Agreement, and all such
other documents, agreements, certificates or instruments executed and delivered
in connection herewith.
25
"Standard Agent Bank Agreements" means the forms of Agent Bank Agreements
attached hereto as Exhibit 6.7(b)(ii).
"Standard ISO Agreements" means the forms of ISO Agreements attached hereto
as Exhibit 6.7(d).
"Standard Merchant Contracts" means the forms of Merchant Agreements
attached hereto as Exhibit 6.7(b)(i).
"Transition Date" means the date that is three (3) months after the Closing
Date (February 26, 2003), or any date thereafter if said Transition Date is
extended pursuant to Section 3.6.
"Transition Period" means the period from the Effective Date through and
including the Transition Date.
12.2 Other Definitions; Rules of Interpretation.
(a) All terms defined herein shall have the defined meanings when used
in any Operative Document, certificate or other document made or delivered
pursuant hereto unless otherwise defined therein. Singular terms shall
include the plural, and vice versa, unless the context otherwise requires.
(b) Exhibits and Schedules referenced in this Agreement are deemed to
be incorporated herein by reference. The term "including" shall mean
"including without limitation."
ARTICLE XIII
MISCELLANEOUS
13.1 Expenses. Except as otherwise specifically provided in this Agreement,
each party shall pay its own costs and expenses in connection with this
Agreement and the transactions contemplated hereby, including all attorneys'
fees, accounting fees and other expenses.
13.2 Notices and Payments. All notices, demands and other communications
hereunder shall be in writing and shall be delivered (i) in person, (ii) by
United States mail, certified or registered, with return receipt requested, or
(iii) by national overnight courier (e.g., FedEx) as follows:
If to the Banks or to Parent: Camden National Corporation
2 Elm Street
Camden, Maine 04843
Attention: Jeffrey D. Smith
26
with a copy to: Camden National Corporation
2 Elm Street
Camden, Maine 04843
Attention: Gregory A. Dufour
and a copy to: Pierce Atwood
(which shall not One Monument Square
constitute notice) Portland, Maine 04101
Attention: Ryan S. Stinneford, Esq.
If to NOVA: NOVA Information Systems, Inc.
One Concourse Parkway, Suite 300
Atlanta, Georgia 30328
Attention: Cherie M. Fuzzell, Esq.
Executive Vice President and
General Counsel
with a copy to: NOVA Information Systems, Inc.
(which shall not One Concourse Parkway, Suite 300
constitute notice) Atlanta, Georgia 30328
Attention: Edward M. O'Hare
Vice President
with a copy to: McKenna Long & Aldridge LLP
(which shall not SunTrust Plaza, Suite 5300
constitute notice) 303 Peachtree Street, N.E.
Atlanta, Georgia 30308
Attention: Richard R. Willis, Esq.
The persons or addresses to which mailings or deliveries shall be made may be
changed from time to time by notice given pursuant to the provisions of this
Section 13.2. Any notice, demand or other communication given pursuant to the
provisions of this Section 13.2 shall be deemed to have been given on the date
actually delivered.
13.3 Third-Party Beneficiaries. No party to this Agreement intends this
Agreement to benefit or create any right or cause of action in or on behalf of
any person other than the Banks, Parent and NOVA.
13.4 Independent Contractors. Nothing contained in this Agreement or any
other Operative Document shall be construed as creating or constituting a
partnership, joint venture or agency among the parties to this Agreement.
Rather, the parties shall be deemed independent contractors with respect to each
other for all purposes.
13.5 Successors and Assigns. All terms and provisions of this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and permitted assigns. This Agreement and the
rights, privileges, duties and obligations of the parties hereto may not be
assigned or delegated by any party without the prior written consent of
27
the other party; provided, however, that such consent shall not be required (a)
for the assignment by any party of its rights and privileges hereunder to a
person or entity controlling, controlled by or under common control with such
party (it being understood that no such assignment shall relieve the assigning
party of its duties or obligations hereunder), or (b) for the assignment and
delegation by any party of its rights, privileges, duties and obligations
hereunder to any person into or with which the assigning party shall merge or
consolidate or to which the assigning party shall sell all or substantially all
of its assets, provided that upon the request of the non-assigning party the
assignee shall formally agree in writing to assume all the rights and
obligations of the assigning party created hereby.
13.6 Amendments and Waivers. This Agreement, any of the instruments
referred to herein and any of the provisions hereof or thereof shall not be
amended, modified or waived in any fashion except by an instrument in writing
signed by the parties hereto. The waiver by a party of any breach of this
Agreement by another party shall not operate or be construed as the waiver of
the same or another breach on a subsequent occasion, nor shall any delay in
exercising any right, power or privilege hereunder constitute a waiver thereof.
13.7 Severability of Provisions. If any provision of this Agreement, or the
application of any such provision to any person or circumstance, is invalid or
unenforceable, the remainder of this Agreement, or the application of such
provision to persons or circumstances other than those as to which it is invalid
or unenforceable, shall not be affected by such invalidity or unenforceability.
13.8 Counterparts; Delivery. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one instrument.
The parties acknowledge that delivery of executed counterparts of this Agreement
may be effected by a facsimile transmission or other comparable means, with an
original document to be delivered promptly thereafter via overnight courier.
13.9 Dispute Resolution. Any controversy, dispute or claim arising out of,
or in connection with, this Agreement must be settled by final and binding
arbitration to be held in Atlanta, Georgia in accordance with the then current
Commercial Arbitration Rules of the American Arbitration Association ("AAA") as
may be amended from time to time (the "AAA Rules"). Judgment upon an award
rendered by the arbitrators may be entered in any court: (i) having jurisdiction
thereof, (ii) having jurisdiction over the party against whom enforcement
thereof is sought, or (iii) having jurisdiction over any such party's assets.
The dispute shall be heard, and the award shall be rendered, by a panel of three
(3) arbitrators, who shall be selected in accordance with the AAA Rules.
13.10 Governing Law. This Agreement is made and entered into under the laws
of the State of Georgia, and the laws of that State (without giving effect to
the principles of conflicts of laws thereof) shall govern the validity and
interpretation hereof and the performance by the parties hereto of their
respective duties and obligations hereunder.
13.11 Section Headings. The headings of Sections contained in this
Agreement are for convenience of reference only and do not form a part of this
Agreement.
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13.12 Entire Agreement. The making, execution and delivery of this
Agreement by the parties hereto have been induced by no representations,
statements, warranties or agreements other than those herein expressed. This
Agreement and the other written instruments specifically referred to herein
embody the entire understanding of the parties and supersede in their entirety
all prior communication, correspondence, and instruments among the parties with
respect to the subject matter hereof, including the Letter of Intent, dated July
29, 2002, between NOVA and Parent, and there are no further or other agreements
or understandings, written or oral, in effect between the parties relating to
the subject matter hereof.
13.13 Publicity. The timing and content of any and all public statements,
announcements or other publicity concerning the transactions contemplated herein
shall be mutually agreed upon by Parent and NOVA, which agreement shall not be
unreasonably withheld.
13.14 U.S. Dollars. All payments made by a party to another party pursuant
to this Agreement or any other Operative Document shall be made in United States
dollars.
13.15 Survival. The representations, warranties, covenants and agreements
made by the parties in this Agreement shall survive the Closing. Each party,
acknowledging that the other is entitled to rely on its representations,
warranties, covenants and agreements in this Agreement in order to preserve the
benefit of the bargain otherwise represented by this Agreement, agrees that
neither the survival of such representations, warranties, covenants and
agreements, nor their enforceability nor any remedies for breaches of them will
be affected by any knowledge of a party regardless of when or how such party
acquired such knowledge, specifically including disclosures of facts and/or
circumstances after the date of this Agreement.
(Signatures begin on following page)
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Merchant Asset Purchase Agreement as of the date first written above.
"Camden": "NOVA":
CAMDEN NATIONAL BANK NOVA INFORMATION SYSTEMS, INC.
By: By:
------------------------------- -------------------------------
Name: Name:
----------------------------- -----------------------------
Title: Title:
---------------------------- ----------------------------
"United":
UNITEDKINGFIELD BANK
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
"Parent":
CAMDEN NATIONAL CORPORATION
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
INDEX OF SCHEDULES AND EXHIBITS
Schedules Description
- --------- -----------
1.1(a) Excluded Assets
1.1(b) Other Assumed Contracts
3.2(a) Performance Standards
3.2(d) Recent Internal Staff Costs
3.3 Form of Transition Period Accounting
6.5(a) Equipment
6.5(b) Inventory
6.6(a) Financial Information
6.6(b) Annualized Credit Card Sales Volume and Debit Card Sales Volume
6.7(a)(i) Merchant Agreements
6.7(a)(ii) Agent Bank Agreements
6.7(a)(iii) Notice of Election to Terminate Merchant Agreements and
Exceptions to Credit Card Processing Activity
6.7(a)(iv) Merchants Not Party to Merchant Agreement
6.7(b) Exceptions to Possession of Original Executed Copy of Merchant
Agreements and Agent Bank Agreements
6.7(c) Merchant Guaranties
6.7(d) ISO Agreements
6.7(g) Reserve Accounts
6.7(h) American Express, Discover, Diner's Club, JCB
6.8 Top 100 Merchants
6.9 EFT Networks
6.10 Consents and Approvals
6.11 Leases
6.13 Litigation
6.14 Merchant Business Employees; FEIN
6.15 Labor; Collective Bargaining
6.18 Exceptions to Agreements in Full Force and Effect
6.19 Vendors and Suppliers
6.20 Exceptions to Absence of Certain Changes and Events
Exhibits Description
- -------- -----------
1.2 Assignment and Assumption Agreement
6.7(b)(i) Standard Merchant Contract
6.7(b)(ii) Standard Agent Bank Agreement
6.7(c) Standard Merchant Guaranty
6.7(d) Standard ISO Agreement
6.7(h) American Express, Discover, Diner's Club and JCB Agreements
10.4 Non-Competition Agreement
10.5 Marketing Agreement
10.9 Opinion of Pierce Atwood