This is an Asset Purchase Agreement and is used to buy the assets of going on concern business.
PURCHASE AGREEMENT (the “Agreement”), dated as of [•], by and among [Purchaser] a sociedad anónima de capital variable organized and existing under the laws of (the “Purchaser”) and [Seller], a [•] organized and existing under the laws of (the “Seller” and the Purchaser, jointly herein referred to as the “Parties” and individually as a “Party”), with the appearance of [Guarantor], a [company] organized and existing under the laws of [the State of , United States of America] (the “Guarantor”), for the purposes set forth herein.
W I T N E S S E T H
I.WHEREAS, Seller is engaged in the business relating to  (such business being herein referred to as the “Business”).
II.WHEREAS, Seller is willing to sell to Purchaser, and Purchaser is willing to purchase certain assets of Seller related to the Business.
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the Parties agree as follows:
DEFINITIONS AND INTERPRETATION
Unless the context otherwise requires, the terms defined in this Section 1 shall have the meanings herein specified for all purposes of this Agreement.
“Affiliate” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with such Person. For the purposes of this definition, a Person shall be deemed to control another Person if it possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such other Person, whether through ownership of voting securities, by contract or otherwise.
“Agreement” shall mean this Purchase Agreement, including all Appendixes, Schedules and Annexes hereto, as the same may be amended or modified from time to time in accordance with its terms.
“Assignment Agreements” shall mean the assignment agreements of the Operating Agreements, executed on this date, by and between the Purchaser and the Seller, with the consents of any counter party.
“Assumed Liabilities” shall have the meaning assigned to such term in Section 2.04 of this Agreement.
“Assumption Notice” shall have the meaning assigned to such term in Section 7.04(ii) hereof.
“Books and Records” shall mean all books and records of Seller including all computerized records and other computerized storage media related to, or in connection with, the Prepaid Card Business.
“Claim” shall mean any demand, demand letter, claim, counterclaim, cause of action, notice of noncompliance, notice of violation or notice of right, indemnification or other remedy or any proceeding.
“Clients” shall have the meaning assigned to such term in Section 2.02(i) hereof.
“Claim Notice” shall have the meaning assigned to such term in Section 7.04(i) hereof.
“Closing Documents” shall collectively mean this [Agreement, the Non-Compete Agreement, the Assignment Agreements and the Counterparty Consents].
“Consideration” shall have the meaning assigned to such term in Section 3.01 hereof.
“Counterparty Consent” shall mean the written consent to be obtained by Seller from any counterparty in order to effect, if applicable, the assignment of the Assumed Liabilities.
“Direct Claim” shall have the meaning assigned to such term in Section 7.04(i) hereof.
“Dollars” or “US$” shall mean the legal currency of the United States of America.
“Employees” shall have the meaning assigned to it in Section 3.03A of this Agreement.
“Excluded Assets” shall have the meaning assigned to such term in Section 2.03 of this Agreement.
“Excluded Liabilities” shall have the meaning assigned to such term in Section 2.05 of this Agreement.
“Governmental Authority” shall mean any federal, state, local or foreign government, governmental regulator or administrative authority (or subdivision thereof) and any agency or commission or any court, tribunal or judicial or arbitral body that has jurisdiction over a Party’s business or its assets.
“Guarantor” shall mean [•], a [•] incorporated in and under the laws of [•], and its corresponding permitted successors and assignees.
“Indemnified Party” shall have the meaning assigned to such term in Section 9704 hereof.
“Indemnifying Party” shall have the meaning assigned to such term in Section 7.04 hereof.
“Information” shall have the meaning assigned to such term in Section 6.04 hereof.
[“Labor Agreements” shall mean the employment agreements to be entered on the date hereof by and between Purchaser or its designated Affiliate and each of the Employees.]
“Lien” shall mean any mortgage, security interest, pledge, hypothecation, assignment, deposit arrangement, encumbrance, easement, lease, third-party interest, transfer into guaranty trust, lien (statutory or otherwise), charge, preference, priority or security agreement, any option, warrant, attachment or right of first refusal and any preemptive, conversion, put, call, claim or right or restriction on transfer.
“Losses” shall have the meaning assigned to such term in Section 3.0711 hereof.
“Mexico” shall mean the United Mexican States.
“Non-Compete Agreement” shall mean the Non-Compete Agreement executed on this date, by and between the Purchaser and the Seller, in accordance to which the Seller agrees to not conduct any Prepaid Card Business in a certain territory, during a noncompetition period.
“Office Lease” shall mean the Lease Agreement executed on July 1st, 2009 by and between
“Operating Agreements” shall mean (i) the Services Agreement executed
“Operating Transition Plan” shall have the meaning assigned to such term in Section 8.01 hereof.
“Parties” shall have the meaning assigned to such term in the Preamble hereof.
“Party” shall have the meaning assigned to such term in the Preamble hereof.
“Person” shall mean any individual, partnership, limited liability company, joint venture, firm, corporation, association, business, trust, unincorporated organization or other enterprise or form of organization or any government or political subdivision or agency thereof.
“Portfolio” shall have the meaning assigned to such term in Section 2.02(i) hereof.
“Prepaid Card Business” shall have the meaning assigned to such term in Witnesseth I. hereof.
“Purchaser” shall mean Purchaser, and its corresponding permitted successors and assignees.
“Seller” shall mean [seller
“Taxes” shall mean any and all present or future tax, levy, impost, duty, deduction, charge or withholding whatsoever together with interest, penalties or charges derived therein and any deduction thereof, including all payment obligations, payroll, withholding, excise, added value, social security, sales, use, real an personal property, asset tax, use and occupancy, business and occupation, real state, capital stock, and franchise or other tax.
“Transferred Assets” shall have the meaning assigned to such term in Section 2.02 of this Agreement.
“Third Party Claim” shall have the meaning assigned to such term in Section 7.04(i) hereof.
Words importing the singular number shall include the plural number and vice versa and words importing the masculine gender shall include all genders. The headings in this Agreement are inserted for convenience of reference only and shall not limit or affect the interpretation of the provisions hereof. References to Sections, Schedules and Annexes are to be construed as references to the Sections of, and Schedules and Annexes to this Agreement, unless otherwise indicated, and terms such as “hereof”, “herein”, “hereunder” and other similar compounds of the word “here” shall mean and refer to this entire Agreement rather than any particular part of the same, unless the context clearly requires otherwise.
2.01Assets to be Sold. In reliance upon the representations and warranties of Seller contained herein, Purchaser hereby purchases, and Seller hereby conveys, assigns, transfers and delivers, substantially all of the assets needed for the development and performance of the Business (except for the Excluded Assets), including but not limited to the Transferred Assets, free and clear of all Liens.
2.02Transferred Assets. The term “Transferred Assets” shall mean all of the assets of Seller identified in this Section 2.02 and in the following Schedules:
(i) all list, information, data and cash deposited in the Seller’s accounts related to Seller’s clients (“Clients”) listed on Schedule “2.02(i)” attached hereto (the “Portfolio”); and
(ii) [all Books and Records relating to the Transferred Assets, a general description of which is set forth in Schedule “2.02(iii)” attached hereto].
2.03Excluded Assets. The term “Excluded Assets” shall mean the following assets of Seller, and shall not be construed to include any assets of Seller not specifically listed below:
(i) all cash, certificates of deposit, marketable securities, negotiable instruments and savings and checking accounts maintained by Seller with financial institutions, other than those related with the Transferred Assets;
(ii) all prepaid expenses, including, but not limited to, utility deposits and similar monies held by third parties of Seller; and
(iii) all tangible and intangible assets of Seller, including but not limited to, all automobiles, vehicles, mobile assets and real state, not identified specifically as a Transferred Asset.
2.04Liabilities Assumed. Seller hereby assigns to Purchaser, and Purchaser hereby assumes from Seller only the following liabilities (the “Assumed Liabilities”):
(i) the Operating Agreements together with all liabilities and obligations derived from, or related to the Operating Agreements; and
(ii) all payment obligations and liabilities derived from, or related to, any of the Transferred Assets specifically described hereto in Schedule “2.04(ii)”.
Notwithstanding anything in this Agreement, Purchaser shall not assume and shall have no liability or obligation with respect to any liability or obligation, direct or indirect, absolute or contingent, of Seller or in respect of the Business arising for whatever reason on or prior to the date hereof unless expressly provided for herein.
2.05Liabilities Not Assumed. Except as and to the extent otherwise expressly provided in this Agreement, Purchaser has not agreed to pay, shall not be required to assume and shall have no liability or obligation with respect to, any liability or obligation, direct or indirect, absolute or contingent, of Seller (all such liabilities herein referred to as the “Excluded Liabilities”). Excluded Liabilities shall include, without limitation, the liabilities referenced in Sections 3.02, 3.03A., 3.03B., 3.03C., 3.03D., 3.03E. and 6.03 hereof. Seller and Guarantor shall jointly and severally (a) pay and discharge, and (b) indemnify Purchaser and hold it harmless from and against, any liability or obligation not expressly assumed hereunder.
2.06Deliveries by Seller. On the date hereof, Seller shall deliver to Purchaser the following documents duly executed by all parties thereto, other than Purchaser:
(i) the corresponding invoices bearing all fiscal requisites in accordance with law and covering the corresponding allocation of the Consideration pursuant to Section 3.01 hereto;
(ii) the Assignment Agreements duly executed by the corresponding titleholders or owners of the rights derived from the Assumed Liabilities;
(iii) the Non-Compete Agreement
(iv) any Counterparty Consent obtained by Seller on the date hereof evidencing the authorizations granted by third parties by means of which each of such third parties authorize assignment to Purchaser of the rights and obligations under the respective Operating Agreements;
(v) [all Books and Records of Sellers relating to the Transferred Assets and Assumed Liabilities, including, without limitation, all Books and Records relating to the Portfolio, [and the Employees]];
(vi) a certified copy by an appropriate officer of Seller to be true and correct and in full force and effect, of its corresponding corporate resolutions approving the execution and delivery by Seller of this Agreement and all other Closing Documents and approving the compliance and due performance of its obligations hereby and thereby; and
(vii) all other previously undelivered documents, instruments and writings required to be delivered by Seller to Purchaser pursuant to this Agreement, by any Closing Document or otherwise required in order to consummate the transactions provided herein.
2.07Deliveries by Purchaser. On the date hereof, Purchaser shall deliver to Seller the following:
(i) the wire transfer of funds in the total amount of the Consideration;
(ii) a certified copy by an appropriate officer of Purchaser to be true and correct and in full force and effect, of its corresponding corporate resolutions approving the execution and delivery by Purchaser of this Agreement and all other Closing Documents and approving the compliance and due performance of its obligations hereby and thereby; and
(iii) all other previously undelivered documents, instruments and writings required to be delivered by Purchaser to Seller pursuant to this Agreement, by any Closing Document or otherwise required in order to consummate the transactions provided herein.
2.08The Parties agree to sign, execute and deliver any agreement, corporate resolution, guaranty, certification, consent, modification, notice or instrument that may be required by in relation to the assignment and transfer of the Transferred Assets and the Assumed Liabilities.
The Parties agree that transfer and assignment of the Transferred Assets and Assumed Liabilities to Purchaser shall be effective on the date of the execution of this Agreement.
CONSIDERATION AND TERMS
3.01Consideration. In reliance on the representations, warranties and agreements of Seller contained herein, and in consideration of the sale, conveyance, assignment, transfer and delivery of the Transferred Assets, Purchaser hereby pays to Seller by wire transfer of immediately available funds in Mexican Pesos to the account previously designated in writing by Seller the amount of US$[•] (the “Consideration”).
3.02Sales and Transfer Taxes. Each Party hereto shall pay the Taxes assessed against or charged to such Party under applicable Mexican law with respect to the transactions contemplated in this Agreement.
[A.Simultaneously herewith (i) Seller shall (y) terminate or cause the termination of each Employee listed in Schedule “3.03” hereto (the “Employees”) from its employment with Seller, and (z) pay to each Employee any amounts due under their respective current employment or labor agreements with Seller and in accordance with Federal Labor Law and (ii)Purchaser shall execute with each Employee the respective Labor Agreement.]
B.Seller agrees that, with respect to all Claims by Employees arising from events occurring prior to the date hereof under employee benefit plans or programs of Seller (including, but not limited to, life insurance, medical and disability programs), or rights or benefits arising out of individual employment agreements between the Seller and its employees and officers, or from the Federal Labor Law, Seller at its own expense shall honor such Claims, whether made before or after the date hereof, in accordance with the terms and conditions of such plans or programs without regard to the employment by Purchaser or its designated Affiliate of any of the Employees after the date hereof.
C.All amounts of all wages, bonuses, commissions and other compensation (including, without limitation all vacation and sick payments) due to or to be due to the Employees in respect of all periods ending on the date hereof shall be paid by Seller.
D.Seller shall be responsible for direct and indirect costs, expenses and liabilities of any sort whatsoever arising from or relating to any Claims by or on behalf of any present or former employee of Seller or any Affiliate of Seller (including but not limited to the Employees) in respect of severance payment and similar obligations relating to the termination of such employee’s employment with Seller or any Affiliate of Seller on or prior to the date hereof.
E.Purchaser shall not assume or be responsible for any liability or obligation whatsoever with respect to any collective bargaining agreement (including any Employee), or with respect to any benefit, social security, fringe benefits or welfare plans or funds maintained by or contributed to by Seller due and payable prior to the date hereof in all cases relating to any Employee.
3.04Correspondence. After the date hereof, Purchaser may receive and open all mail addressed to Seller with respect to the Transferred Assets, and deal with the contents thereof in its discretion to the extent that such mail and the contents thereof relate, in Purchaser’s sole discretion to the Transferred Assets or any of the Assumed Liabilities. Purchaser agrees to deliver or cause to be delivered to Seller all other mail in due course during a period of 1 (one) year following the date hereof. All such mail shall be sent toPurchaser at the address set forth in Section 9.05 hereof.
3.05General Expenses. In any case in which the consideration, payments and liabilities derived from the Assumed Liabilities or the Transferred Assets are regular periodic charges, such like leases, commissions, fees, participations, insurance payments and electricity payments, Purchaser shall pay only all such regular periodic charges due and payable in respect of the periods after the date hereof.
3.06Taxes. In any case in which Taxes and special assessments derive from the Assumed Liabilities or the Transferred Assets, Purchaser shall pay only all such Taxes due and payable in respect of the periods after the date hereof.
3.07Responsibility. Seller shall indemnify, defend and hold harmless Purchaser and its respective successors, assigns and Affiliates, and their respective representatives, from and against any and all liabilities, judgments, Claims, liabilities, settlements, losses, damages, reasonable fees (including attorneys’ and other experts’ fees and disbursements), Liens, taxes, penalties, obligations and expenses (collectively, the “Losses”) incurred or suffered by Purchaser or any such Person arising from, by reason of or in connection with any Excluded Liability, or in connection with any payment, charge, fees, commissions, wages, social security participation, union participation, fringe benefits, welfare benefits or any other consideration payable in kind or in cash paid by Purchaser but attributable to Seller in accordance with Sections 2.03, 2.05, 3.02, 3.03, 3.05 and 3.06 hereof.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser the following:
4.01Organization. Seller is a and has the corporate power and authority to carry on its business as it is now being conducted. Seller has delivered to Purchaser certified copies of the powers of attorney granted to its representative executing this Agreement and the other Closing Documents on its behalf.
4.02Authority. Seller has all requisite corporate power and authority, to enter into, execute and deliver this Agreement, the other relevant Closing Documents and any instruments and documents contemplated herein or therein, and to consummate the transactions contemplated hereby and thereby.
This Agreement and the Closing Documents have been duly authorized, executed and delivered by Seller, and no other corporate act or proceeding on the part of Seller is necessary to authorize this Agreement or any of the Closing Documents or the transactions contemplated hereby or thereby. This Agreement is, and each of the Closing Documents are valid and binding obligations of Seller, enforceable against Seller in accordance with their respective terms.
4.03No Violation; Consents. Neither the execution and delivery by Seller of this Agreement or any of the Closing Documents, nor the performance and the consummation by Seller of the transactions contemplated hereby or thereby, will violate any provision of the law, the articles of incorporation or by-laws of Seller, or violate in any material respect, or be in conflict with, or constitute a default under, or result in the modification or termination of, or accelerate the performance required by, or change the rights or obligations of any party under, or cause the acceleration of the maturity of any liability or obligation pursuant to, or result in the creation or imposition of any security interest, Lien, charge or other encumbrance upon any of the Transferred Assets or the Assumed Liabilities, under any note, bond, mortgage, indenture, deed of trust, license, lease, contract, commitment, understanding, arrangement, agreement or restriction of any kind or character to which Seller is a party or by which any Seller may be bound or affected or to which any of the Transferred Assets or Assumed Liabilities may be subject, or violate any statute or law or any judgment, decree, order, writ, injunction, ordinance, regulation or rule of any court of Governmental Authority.
4.04Client List. Seller has previously delivered to Purchaser the Client list and all other Portfolio data and information. Such documents, instruments, files, books and records are true and correct in all material respects and do not omit any relevant information regarding the the Portfolio and the Clients which is relevant to the Business; and Seller does not omit to deliver to Purchaser any relevant information regarding the Clients and the Portfolio which, if delivered to Purchaser, may refrain Purchaser to enter into this Agreement and/or any other Closing Document.
4.05No Undisclosed or Contingent Liabilities. There are no liabilities or obligations of Seller (with respect to the Transferred Assets or the Assumed Liabilities), whether accrued absolute, contingent or otherwise, which are material to Seller, except those disclosed previously to Purchaser and described in Schedule “4.05” hereto.
4.06Title to Property, Liens. Seller has good and marketable title to the Transferred Assets. All property and assets constituting the Transferred Assets are free and clear of all Liens.
4.07Contracts and Commitments. Seller is not a party to or bound by any agreements, contracts or commitments which are material to the Transferred Assets and/or the Assumed Liabilities.
Seller has no (i) indebtedness for borrowed money or the deferred purchase price with respect to the Transferred Assets or the Assumed Liabilities, including guarantees of, or agreements to acquire, any such indebtedness of others, or (ii) any contract, commitment or arrangement for the borrowing of money or for a line of credit in and with respect to the Transferred Assets.
Neither Seller, nor any of their officers, directors, partners, stockholders, Affiliates or associates is a party to or bound by any agreement or arrangement for the sale of any of the Transferred Assets or assignment of the Assumed Liabilities or for the grant of any preferential rights to purchase any of the Transferred Assets or the assignment of the Assumed Liabilities.
Sellers have provided Purchaser with true and complete copies of each Operating Agreement and all services agreements entered into with Clients.
Seller is not in default under any of the Operating Agreements and there is no event which, with notice and/or lapse of time, would constitute a default by any party to any Operating Agreement. Seller is the tenant in good standing under the Office Lease agreement. Seller has not received notice that the Office Lease is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any Governmental Authority with or without payment of compensation therefore, nor has any such condemnation, expropriation or taking been proposed. The Operating Agreements are valid, binding and enforceable in accordance with their respective terms and are in full force and effect and, following procurement of the Counterparty Consent by Seller, upon its assignment to Purchaser, the Operating Agreements will be valid, binding and enforceable by Purchaser in accordance with their terms.
4.08Litigation. There are no suits, arbitrations, claims, actions, proceedings, investigations or inquires in progress, pending, or threatened against or affecting the Transferred Assets, the Assumed Liabilities or the transactions contemplated hereby in any court or before any arbitration panel of any kind or before or by any Governmental Authority or any other dispute resolution authority; nor is there any valid basis for any such arbitration, claim, action, suit, proceeding, inquiry or investigation.
4.09Employees. Schedule “3.03” attached hereto lists all Employees, together with their job titles, dates of employment, amounts of compensation paid within one month of the signing of this Agreement, the amount of Taxes generated in connection with the payroll of the Employees, and all contracts with, and compensation practices regarding, the Employees, including, but not limited to all salary, bonus, incentive compensation, commissions, profit sharing, pension, vacation, group insurance or employee welfare and fringe benefit plans of any nature whatsoever.
The Employees are not represented by any labor union nor are there any collective bargaining agreements otherwise in effect with respect to the Employees.
4.10Affiliates. For purposes of the foregoing representations and warranties, references to the Company shall be deemed to include reference to its Affiliates as may be appropriate.
4.11Full Disclosure. No representation or warranty of Seller made in this Agreement, including the Annexes and Schedules hereto which were prepared by Seller, nor any written statement furnished to Purchaser pursuant hereto or in connection with the transactions contemplated hereby, contains any untrue statement of a material fact which adversely affects the Transferred Assets, the Assumed Liabilities or the Portfolio or omits to state a material fact necessary to make the statements of facts contained herein or therein not misleading.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller the following:
5.01Organization and Good Standing. Purchaser is and has the corporate power and authority to carry on its business as it is now being conducted.
5.02Authority. Purchaser has all requisite corporate power and authority to execute and deliver this Agreement, the other Closing Documents and to consummate the transactions contemplated hereby and thereby. This Agreement and the Closing Documents have been duly authorized, executed and delivered by Purchaser and constitute valid and binding obligations of Purchaser, enforceable against it in accordance with their respective terms. The consummation of the transactions contemplated by this Agreement and the Closing Documents will not violate, breach or constitute a default under, any provisions of the law or the by-laws of Purchaser. The execution and delivery of this Agreement and the other Closing Documents and the consummation and performance of the transactions contemplated hereby and thereby by Purchaser have been approved by Purchaser.
5.03No Violation; Consents. Neither the execution and delivery by Purchaser of this Agreement and the Closing Documents, as the case may be, nor the consummation by Purchaser of the transactions contemplated hereby and thereby will violate any provision of the law or by-laws of Purchaser or violate any statute or law or any judgment, decree, order, writ, injunction, ordinance, regulation or rule of any court or Governmental Authority.
No notices reports or other filings are required to be made by Purchaser and no consents, registrations, approvals, permits, licenses, orders or authorizations are required to be obtained by Purchaser or from any Governmental Authority, court or other Person in connection with the execution and delivery of this Agreement and the other Closing Documents by Purchaser.
6.03Taxes. Seller shall be responsible for and shall promptly cause to be paid when due all federal, state and local Taxes related to the Transferred Assets generated by Seller for all time periods up to and including the date here of.
6.04Confidentiality. During the next 5 (five) years following the date hereof, Seller shall hold and shall cause its consultants and advisors to hold in strict confidence, unless compelled to disclose by judicial or administrative process or by other requirements of law, all documents and information concerning the Portfolio or other information furnished to them by Purchaser or its representatives in connection with the transactions contemplated by this Agreement and the other Closing Documents (collectively, the “Information”).
Furthermore, Seller shall be obligated to adopt all reasonable measures in order for the Information to be kept confidential; therefore, they shall cause their respective representatives, advisors, counselors, officers and employees who in any manner have access to the Information, to keep confidential the Information.
The obligations set forth herein shall not apply:
(i) to such Information that becomes public, and only related to such Information, unless such Information has become public in violation of this Agreement; or
(ii) in the event that Seller or any of its representatives, advisors, counselors, officers and employees is or are obligated to disclose any part of the Information pursuant to any law, regulation, order, decree or resolution of a competent Governmental Authority or judicial authority.
7.01 Termination of Representations and Warranties. The liabilities derived from the representations and warranties of the Parties set forth in this Agreement shall survive until 90 (ninety) days following the expiration of the applicable statute of limitations and shall be of no further force or effect thereafter, unless a Claim Notice has been provided prior to such date. Any Claim for indemnification under this Section7 with respect to any representation or warranty must be notified prior to the termination of the relevant survival period; provided, that the foregoing limitations shall not apply to any Claim for indemnification for Losses arising from, by reason of, or in connection with any fraud, intentional misrepresentation or intentional breach of any representation.
7.02Seller and GuarantorAgreement to Indemnify. The Seller and the Guarantor jointly and severally agree to indemnify, defend and hold harmless Purchaser, its successors, assigns, Affiliates, representatives, advisors, consultants, officers, and/or employees from and against all Losses, asserted against, resulting to, imposed upon, incurred or suffered by Purchaser, directly or indirectly, by reason of or resulting from (a) the conducting of the Prepaid Business Card and/or ownership of the Transferred Assets and obligations under the Assumed Liabilities on or before the date hereof, including any fiscal (tax) or labor liability, in addition to any claim for general liability or Taxes for which Purchaser may become liable under this Agreement or as a result of the transactions contemplated hereby; (b) any Excluded Liabilities, (c) any misrepresentation or breach of any representation or warranty of Seller contained in or made pursuant to this Agreement or any other Closing Document or (d) breach of any covenant of Seller contained in this Agreement or any other Closing Document.
Seller and Guarantor shall jointly and severally retain liability, and shall jointly and severally indemnify Purchaser, for the payment of any Tax liabilities with respect to the Transferred Assets and Assumed Liabilities during all periods ending as of (and including) or prior to the date hereof and for the payment of any Tax liabilities with respect to the transactions contemplated by this Agreement.
7.03Purchaser Agreement to Indemnify. Purchaser shall indemnify, defend and hold harmless Seller from and against all Losses, asserted against, resulting to, imposed upon, incurred or suffered by Seller, directly or indirectly, by reason of or resulting from any misrepresentation or breach of any representation or warranty of Purchaser contained in or made pursuant to this Agreement or any other Closing Document.
7.04Procedures for Indemnification. The Party or its respective successors, assigns and Affiliates making a Claim for indemnification under this Agreement is referred to as the “Indemnified Party” and the Party against whom such Claims are asserted under this Agreement is referred to as the “Indemnifying Party”. All Claims by and Indemnified Party shall be asserted and resolved as follows:
(i) In the event that (A) any Claim for which an Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against or sought to be collected from such Indemnified Party by a third party (a “Third Party Claim”) or (B) any Indemnified Party hereunder should have a Claim against any Indemnifying Party hereunder which does not involve a Claim being asserted against or sought to be collected from it by a third party (a “Direct Claim”), the Indemnified Party shall promptly notify in writing the Indemnifying Party of such Claim, specifying the nature of and the specific basis for such Claim and the amount or the estimated amount thereof to the extent then feasible to determine (which estimate shall not be conclusive of the final amount of such Claim (a “Claim Notice”)); provided, however, that any failure to give such notice shall not constitute a waiver of any rights of the Indemnified Party except to the extent the rights of the Indemnifying Party are actually prejudiced as result of such delay or lack of detail.
(ii) In the event of a Third Party Claim, the Indemnifying Party shall have the right, exercisable by written notice (an “Assumption Notice”) to the Indemnified Party within 15 (fifteen) calendar days of receipt of the Claim Notice, to assume the defense of such Third Party Claim, using counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided that the Indemnifying Party shall not have the right to assume a Third Party Claim if the Indemnified Party shall have been advised by counsel that, under applicable standards of professional responsibility, a conflict will arise in the event both the Indemnified Party and the Indemnifying Party are represented by the same counsel with respect to the Third Party Claim, in which case such Indemnified Party shall have the right to control the defense of such Third Party Claim and all Losses in connection therewith shall be reimbursed by the Indemnifying Party from time to time upon demand of the Indemnified Party. In addition, if the Indemnifying Party fails to give the Indemnified Party the Assumption Notice complying with the provisions stated above within the stated time period, the Indemnified Party shall have the right to assume control of the defense of the Third Party Claim and all Losses in connection therewith shall be reimbursed by the Indemnifying Party from time to time upon the demand of the Indemnified Party. If an Indemnifying Party assumes the defense of a Third Party Claim, no settlement shall be made without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld; provided, that the Indemnifying Party may settle or compromise any action or consent to the entry of any judgment which includes as a term thereof the delivery by the claimant or plaintiff to the Indemnified Party of a duly executed written and unconditional release of the Indemnified Party from all liability in respect of such action. So long as the Indemnifying Party is in good faith defending such Third Party Claim, the Indemnified Party shall not compromise or settle such Third Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If the Indemnifying Party does not assume the defense of such Third Party Claim in accordance with the terms hereof, the Indemnified Party may defend against such Third Party Claim in such manner as it may deem appropriate, including settling such Third Party Claim on such terms as the Indemnified Party may deem appropriate, and the Indemnifying Party will promptly indemnify the Indemnified Party in accordance with the provisions of this Section 7.04; provided however that, the Indemnified Party must give prior written notice of its intention to settle and the Indemnifying Party must not have notified the Indemnified Party, within 15 (fifteen) calendar day of such notice, raising reasonable objections that, notwithstanding the Losses, such settlement would materially affect the Indemnifying Party’s interest. In the event the Indemnifying Party does not indemnify the Indemnified Party of the arisen of the Third Party Claim, the Indemnified Party shall be entitled to resolve this matter pursuant to Section9.12 hereof.
(iii) If the Indemnifying Party contests any Direct Claim, the Indemnifying Party shall provide written notice of its objection to the Indemnified Party within 30 (thirty) calendar days of receipt of the Claim Notice. Upon receipt of such notice, the parties will meet and confer in good faith and in a timely manner to attempt to resolve the matter. Unless the Indemnifying Party notifies the Indemnified Party within 30 (thirty) calendar days of receipt of a Claim Notice that it objects to such Claim, the amount of such Claim shall be conclusively deemed a liability of the Indemnifying Party. In the event the Indemnifying Party objects the Claim Notice and does not resolve the Direct Claim with the Indemnified Party within the 30 (thirty) calendar days period provided hereinabove, the Direct Claim shall be resolved pursuant to Section 9.12 hereof.
7.05Other Remedies. The indemnification provided by Section 7.04 hereof shall not be deemed exclusive of any other rights to which a Person seeking indemnification may be entitled under any governmental, judicial or arbitral resolution, proceeding, award, judgment, decree, agreement or otherwise.
7.06 Guarantor. Guarantor hereby agrees and consents to act as guarantor (obligado solidario) with Seller, for the benefit of Purchaser and its Affiliates, in accordance with articles 1987 and 1988 of the Federal Civil Code and its corollary articles of the Civil Code of the Federal District and the other Civil Codes of the other States of Mexico, with respect to all of the obligations and liabilities of Seller that arise from this Agreement.
POST-CLOSING ACTIONS AND COMMITMENTS
8.01Management of the Portfolio and the Services.Seller and Purchaser shall cooperate with each other, and shall cause their Affiliates and their officers, employees, agents, auditors and representatives to cooperate with each other, for a period of [•] days after the date hereof to ensure the orderly transition of the Portfolio from Seller to Purchaser and to minimize any disruption to the Portfolio operation. After the date hereof, upon reasonable written notice, Seller and Purchaser shall furnish or cause to be furnished to each other and their Affiliates and their respective employees, counsel, auditors and representatives access, during normal business hours, to such information and assistance relating to the Portfolio (to the extent within the control of such Party) as is reasonably necessary for financial reporting and accounting matters. Each Party shall reimburse the other for reasonable out-of-pocket costs and expenses incurred in assisting the other pursuant to this Section 8.01.
Attached hereto as Annex “A” is an operating transition plan (the “Operating Transition Plan”) pursuant to which Seller, or its appointed Affiliate, shall provide Purchaser and its Affiliates with certain administrative services, advice and support for the orderly and efficient transition of the Portfolio.
8.02Client Agreements. Seller agrees to promptly furnish to Purchaser or its representatives, from time to time as reasonably requested by Purchaser, full and adequate information and data as reasonably requested by Purchaser and to cooperate with Purchaser in the negotiation with Clients of the execution of the services agreements related with the Prepaid Card Business.
9.01Severability. If any term, provision, covenant or restriction of this Agreement is held to be invalid, void or unenforceable, such provision shall be amended by the Parties hereto only to the extent necessary to be enforceable consistent with the Parties’ intent, and the remainder of the terms, provision, covenants and restrictions of this Agreement shall remain in full force and effect, unless such action would substantially impair the benefits to any Party of the remaining provisions of this Agreement.
9.02Further Assurances. Each Party hereto shall, from time to time after the date hereof, at the request of any other Party hereto and without further consideration, execute and deliver such other instruments of conveyance, assignments, transfer and assumption, and take such other actions, as such other party may reasonably request to more effectively consummate the transactions contemplated by this Agreement.
9.03Entire Agreement; Amendments. This Agreement and the Closing Documents referred to herein contain the entire understanding of the Parties with respect to the matters covered hereby and thereby. This Agreement may be amended only by an agreement in writing executed after the date hereof by the Parties.
9.04Announcements. Unless otherwise set forth in this Agreement, all press releases and other public disclosures concerning the transactions contemplated hereby and under the Closing Documents shall be subject to prior review and approval by Purchaser and Seller. The Parties agree that this transaction may be subject of an agreed press release.
9.05Notices. Any notices or communications required or permitted hereunder shall be in writing and shall be delivered by hand, international courier, or facsimile (confirmed by international courier) addressed as follows:
If to Seller:
If to Purchaser:
Any Party may, on 15 (fifteen) calendar days’ notice given in accordance with this Section 9.05 to the other Parties, designate another address or Person for receipt of notices hereunder. Notices and communications given hereunder shall be deemed to have been received (i) on receipt in the case of delivery by hand, and (ii) upon the delivery by the courier service to the recipient’s address in the case of notice sent by courier service or a notice sent by facsimile and confirmed by international courier, provided, however, that a notice changing the address of a Party shall be effective only upon actual receipt.
9.06Waivers. No waiver by any Party of any default with respect to any provision, condition or requirement hereof shall be deemed to be a continuing waiver in the future thereof or a waiver of any other provision, condition or requirement hereof; nor shall any delay or omission of any Party to exercise any right hereunder in any manner the exercise of any such right accruing to it thereafter.
9.07Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.
9.08Successors and Assignees. This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by any Party, provided that, Purchaser may assign its rights hereunder without limitation, in whole or in part.
9.09No Third Party Beneficiaries. This Agreement is intended for the benefit of the Parties hereto, and their respective successors and permitted assignees and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.
9.10Counterparts. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each Party and delivered to the other Parties, it being understood that all Parties need not sign the same counterpart.
[9.11.Controlling Language. The Parties acknowledge that this Agreement has been translated into the Spanish language for purposes of review and execution. The cost, fees and expenses for such translation shall be borne by Seller. The Parties acknowledge that the English language version of this Agreement shall control in all instances.]
9.12Governing Lawand Jurisdiction. This Agreement shall be governed by and construed in accordance with the federal laws of . All actions and proceedings arising out of, or relating to this Agreement shall be heard and determined in a local or federal court sitting in , and the parties hereto hereby irrevocably submit to the exclusive jurisdiction of such courts in any such action or proceeding and irrevocably waive the defense of an inconvenient forum to the maintenance of any such action or proceeding.
9.13Expenses.All costs and expenses, included but not limited to, reasonable legal and auditors fees and travel expenses in connection with the preparation, negotiation and execution of this Agreement and the other Closing Documents shall be borne by the corresponding Party incurring in such expenses.
9.14Annexes and Schedules. The Annexes and Schedules attached hereto are incorporated in this Agreement by reference and made a part of this Agreement as if such Annexes, Schedules were written full wherever so referenced.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the date hereof.